The restriction of the owner's liability to the
amount of his slave's peculium disappeared, and the privity of contract
was recognised against the appointer, although the skipper or manager
who actually made the contract was a free person acting as mediary.
amount of his slave's peculium disappeared, and the privity of contract
was recognised against the appointer, although the skipper or manager
who actually made the contract was a free person acting as mediary.
Cambridge Medieval History - v2 - Rise of the Saracens and Foundation of the Western Empire
A man might have a usufruct in
lands or houses or slaves or herds and even in consumables. Security
had to be given to the owner for reasonable treatment and restoration
in specie or equivalent at the expiry of the usufruct, which was lost not
only by death but also by loss of civic status: it could not be trans-
ferred to another person. Minor rights of similar character are bare
use and habitation.
The second class of servitudes corresponds to English "easements. '"
They were limited rights, appurtenant to certain praedia whether farms
in the country or houses in towns. They secured to the occupier a
limited control over neighbouring houses or lands, which was necessary
or at least suitable for the proper use of the dominant farm or house to
which they were servient. Rights of way, of leading water, of pasturing
cattle, are instances of country servitudes: rights of light and prospect
and carrying off water are instances of urban servitudes. They were
created usually by grant and were lost by non-user for a period of two
years, which was raised by Justinian to ten or twenty years.
Emphyteusis, i. e. , plantation. The practice grew up in imperial
times of tracts of country, in many cases waste land, being held by
tenants at a fixed rent (usually called canon, vectigal, pensio) on the
terms that so long as the rent was duly paid the tenant should not be
disturbed and could transmit the land to his heirs or sell or pledge it.
The owners were usually the State or the Emperor (who had a private
domain) or country towns in Italy or in the provinces. The lawyers
doubted whether to treat this contract as sale or lease. Zeno, about
480, decreed that it should be regarded as distinct from both, and rest
upon the written agreement between lord and tenant. By Justinian's
edicts the tenant had to pay without demand the public taxes and
produce the receipts and pay the canon to the lord, who for three (or in
## p. 90 (#122) #############################################
90 Obligations
the case of church land, two) years' default could eject him. If rent
and receipts were offered and not accepted, the tenant could seal them
up and deposit them with the public authority and so be safe against
eviction. If eventually the lord did not take them, the tenant could
keep them, and pay no more rent till the landlord demanded it, and
then be liable only for future rents. As regards improvements, in the
absence of express stipulations, the tenant could not sell them to outsiders,
until he had offered them to the lord at the price he could get from
another, and two months had passed without the lord's accepting. Nor
could he alienate the farm to any but suitable persons, i. e. , such as were
allowed generally to hold on this tenure. The lord had to give admission
to the transferee and certify it by letter in his own hand or by declaration
before the governor or other public authority, a fee of two per cent, of
the price being demandable for such consent.
Edicts of the Emperors were not uncommon, which granted secure
possession on some such terms to anyone who cultivated waste lands
and was thus in a position to pay the tax upon them. If the lands had
been deserted by the owner, he could claim them back only on paying
the cultivator his expenses: after two years his right was gone.
Obligations. Besides rights which are good against all the world,
such as ownership and other rights to particular things, rights good
only against particular persons form a most important and perhaps the
most notable part of Roman Law. Such are called obligations and
arise either from contract or from delict (in English usually called
"tort"). The detailed classification of these given in the Institutes
is in many respects artificial and is not found in the other books of
Justinian.
Contracts are voluntary agreements between two or more persons.
The Romans required for an agreement which should be enforceable by
law some clear basis or ground of obligation. There must be either a
transfer of some thing from one of the parties to the other, or a strict
form of words accompanying the agreement, or there must be agreed
services of one party, usually of both. As the Romans said, the contract
must be formed out re aut verbis aut consensu. Otherwise it was a bare
agreement (nudum pactum), and, though available for defence against a
claim, it was not enforceable by suit, except so far as it set forth the
details of one of the regular contracts and was concluded in close
connexion therewith, or it reaffirmed, by a definite engagement to pay,
an already existing debt of promiser's or another (pecunia constituta).
It may be convenient to treat first of the most general form. The
contract made verbis was called "stipulation" and was made by oral
procedure between the parties present at the same place. The matter
and details of the agreement being stated, the party intending to acquire
## p. 91 (#123) #############################################
Verbal obligations. Mutuum 91
a right said, according to the original practice, Spondesne ? " Do you
promise? " to which the other replied, Spondeo, "I promise. 11 But in
later time any other suitable words might be used, e. g. , Dafmne ? " Will
you give? " Dabo, "I will give. " The essential was that the answer
should not add to or vary the scope and conditions contained in the
questions: the agreement had to be precise. A record in writing was
very usual, but not necessary, provided the stipulation could be proved
by witnesses. The drawback in stipulation, viz. , that it required the
stipulator and promiser to meet, was to some extent removed by the use
of slaves or children, for they could stipulate (though not promise) on
behalf of their master or father, and the fact that they were under his
power made the contract at once his contract. A free person sui juris
could only stipulate for himself, and thus could not act as a mere channel
pipe for another. Stipulation however had this great convenience that it
was applicable to any kind of agreement, and at once elevated a mere
pactum into a strict, valid contract. The pactum was usually put in writing
and the fact of its having been confirmed by a stipulation was added to
the record. If a promise was stated, the law presumed it to be in reply
to an appropriate question: where consent was recorded, no special
form of words was necessary (472). A law of Justinian (531) enacted
that such record should not be disputable, whether the stipulation was
effected through a slave or by both parties themselves: if it stated that
the slave had done it, he should be deemed to have belonged to the party
and to have been present: if it stated the latter, the parties should be
deemed to have been present in person, unless it was proved by the very
clearest evidence (Justinian delights in superlatives) that one of the
parties was not in the town on the day named.
A very important contract, resting on a transfer of ownership, was
iictdum, i. e. , loan of money or of corn or any other matters (often called
"fungibles ") in which quantity and not identity is regarded, one sum of
money being as good as any other equal sum. The lender was entitled
to recover the same quantity at the agreed time, but had no implied
right to interest unless the debtor made delay. A loan was therefore
usually accompanied by a stipulation for interest. Justinian however in
536 enacted that a mere agreement was enough to secure interest to
bankers. If no day for payment of a loan was named, the debtor might
await creditor's application. Part payment could not be refused.
Justinian (531) gave to a debtor on loan as in other cases a right to set
off against a creditor's claim any debt clearly due from him.
The rate of interest was limited by law. In Cicero's time and
afterwards it was not to exceed 12 per cent, per annum. Justinian
forbad illustres to ask more than 4 per cent, per annum. Traders were
limited to 8 per cent. ; other persons to 6 per cent. But interest
on bottomry might go up to 12 or 12£ per cent. (= \) during the
CH. III.
## p. 92 (#124) #############################################
92 Interest. Pledge
voyage. Any excess paid was to be reckoned against the principal debt.
Compound interest was forbidden altogether by Justinian, and in
connexion with this the conversion of unpaid interest into principal was
forbidden. And even simple interest ceased so soon as the amount paid
equalled the amount of the principal (so Justinian 535). In loans of
corn, wine, oil, etc. , to farmers, Constantine allowed 50 per cent,
interest; Justinian only Jth (12£ per cent. ), and for money lent to
farmers only ^j (= 4J). He also forbad the land to be pledged to the
lender. In action on a judgment four months were allowed for
payment; after that simple interest at 12 per cent, was allowed.
Any son under his father's power was by a senate's decree of the
Early Empire (Sc. Macedonianum) disabled from borrowing money.
Repayment of any money so borrowed could not be enforced against
either his father or his surety or against himself (if he became
independent), unless he had recognised the debt by part payment. But
the decree did not apply, where the creditor had no ground for knowing
the debtor to be under power, or where a daughter required a dowry, or
where a student was away from home and borrowed to cover usual or
necessary expenses. The fact that the borrower was grown up and
even perhaps in high public office did not prevent the decree's applying.
Other contracts made re, involved a transference not of property but
of possession. Such are commodatcjm, gratuitous loan of something
which is to be returned in specie, and depositum, transfer of something
for safekeeping and return on demand or according to agreement. A
third contract under this head was pignus, which calls for fuller notice.
Security for debt, etc. In order to secure a person's performance of
an obligation, two means are commonly in use: (1) giving the promisee
hold over some property of the promiser's; (2) getting a confirmatory
promise from another person:' in other words, pledge and surety.
The Romans had three forms of pledge: fiducia, pignus, hypotheca.
Fiducia was an old form by which the creditor was made owner (for the
time) of the property: by pignus he is made possessor; by hypotheca he
is given simply a power of sale in case of default. Fiducia went out of
use about the fourth century; it was analogous to and probably the
origin of, our mortgage, the property being duly conveyed to the
promiser, who could, subject to account, take the profits and on default
of payment as agreed, could sell and thus reimburse himself. A
power of sale was usually made by agreement to accompany pignus and
hypotheca. In pignus it formed an additional mode of compulsion on
the debtor besides the temporary deprivation of the use of his property:
in hypotheca it constituted the essence of the security. Pignus was a
very old form and always continued in use: hypotheca was no doubt
borrowed from the Greeks, and we first hear of it in Cicero's time. It had
the great convenience for the debtor that he could remain in possession
of the object pledged, and as no physical transfer was required, it could
## p. 93 (#125) #############################################
Sureties 93
be applied to all kinds of property, movable and immovable, near or
distant, specific or general, corporal or incorporeal (such as investments).
And the creditor was not responsible, as he was in the case of pignus, for
the care and safekeeping of the object. In other respects the law which
applied to the one applied to the other. A written contract was not
necessary, if the contract could be proved otherwise.
Tacit pledges were recognised in some cases. Thus the law treated
as pledged to the lessor for the rent, without any distinct agreement,
whatever was brought into a house by the lessee with the intention of its
staying there. A lodger's things were deemed to be pledged only for his
own rent. In farms the fruits were held to be pledged, but not other
things except by agreement. One who supplied money for reconstructing
a house in Rome had the house thereby pledged to him; and for taxes
or any debt to the Crown (fiscus) a person's whole property was so
treated: guardians'1 and curators1 property is in the same position as
security to their wards; husband's as security to the wife for her dowry
(531); and what an heir gets from testator is security to the legatees
and trust-heirs; what a fiduciary legatee gets is security to the legatee
by trust.
Any clause in a pledge-agreement which provided for forfeiture of the
pledged property in default of due payment of the loan (Lex commissoria)
was forbidden by Constantine. But the right of sale for non-payment of
debt was, in the absence of contrary agreement, deemed inherent in
pledge. It had however to be exercised with due formality after public
notice and the lapse of two years from the time when formal application
had been made to the debtor or from the judgment of the Court. Then
if no sale was effected, the creditor could after further time and fresh
notice petition the Emperor for permission to retain the thing as
his own. If the value of the pledge did not equal the amount of the
debt, the creditor could proceed against the debtor for the balance; if
its value was more, the debtor was entitled to the surplus. Where the
creditor was allowed to retain the thing as his own, Justinian allowed a
still further period of two years in which the debtor could claim it back
on payment of the debt and all creditor's expenses (530).
Sureties (Jidejussores) were frequently given and were applicable to
any contract, formal or informal, and even to enforce a merely natural
obligation, as a debt due from a slave to his master. Sureties were
bound by stipulation. If there were more than one, each was liable for
the whole for which the debtor was liable, but Hadrian decided that a
surety making application for the concession should be sued only for his
share, provided another surety was solvent. The creditor had the option
of suing the debtor or one of the sureties, and, if not satisfied, then the
other; but this was modified by Justinian (535), who enacted that the
debtor should be first sued if he were there, and that if he were not,
time should be given to the sureties to fetch him; if he could not be
## p. 94 (#126) #############################################
94 Women's guaranty. Purchase and sale
produced, then the sureties might be sued, and after that, recourse should
be had to the debtor's property. If sureties paid, they had a claim on
the debtor for reimbursement and for the transfer to them of any pledge
he had given, but could not retain the pledge if debtor offered them
the amount of debt and interest. A surety's obligation passed to his heirs.
If a woman gave a guaranty for another person, even for her husband
or son or father, so as to make her liable for them, the obligation was
invalid. But she was not protected, if the obligation was really for herself,
or if she had deceived the creditor or received compensation for her
guaranty, or had after two years' interval given a bond or pledge or
surety for it. This rule, which dates from the Early Empire (senatus
consultum VeUeianum), was based on the theory that a woman might
easily be persuaded to give a promise, when she would not make a
present sacrifice. Accordingly she was not prohibited from making
gifts. Justinian confirmed and amended the law in 530 by requiring
for any valid guaranty by a woman a public document with three
witnesses, and in 556 enacted that no woman be put in prison for debt.
The class of contracts which arise consensu, i. e. , by the agreement of
the parties, without special formalities or transfer of a thing from one to
the other, is constituted by Purchase and sale, Hire and lease, Partner-
ship, Mandate.
Purchase and sale (one thing under two names) is complete when
the parties have agreed on the object and the price, or at least agreed to
the mode of fixing the price. The agreement may be oral or in writing:
if the latter, it must be written or subscribed by the parties; and till
that is done, neither party is bound. Whether the contract is oral or
written, the intended buyer, if he does not buy, (in the absence of any
special agreement on the point) forfeits any earnest money he may have
given, and the vendor, if he refuses to complete, has to repay the earnest
twofold. (So Justinian 528. ) The vendor is bound by the completed
contract to warrant to the purchaser quiet and lawful possession but is
not bound to make him owner. He must however, unless otherwise
agreed, deliver the thing to the purchaser, where it is, and thereby
transfer all his own right. From the date of completion of the contract,
though delivery has not taken place, the risk and gain pass to the
purchaser, but he is not owner until he has paid the price and got
delivery, and then only if the vendor was owner, or possession for the
due time has perfected the purchaser's title. The vendor is liable to the
purchaser on his covenants (e. g. , in case of buyer's eviction, for double
the value), and also for any serious defects which he has not declared and
of which the purchaser was reasonably ignorant.
In case of sale of an immovable Diocletian admitted rescission when
the price was much under the value (285). It was probably Justinian who
## p. 95 (#127) #############################################
Lease and hire. Partnership 95
gave generally a claim for rescission whenever the price was less than half
the real value. This ground of rescission was later called laesio enormis,
and many attempts were made to extend its application.
The contract of lease and hire is similar in many respects to that of
purchase and sale. But the lessee, if evicted, has only his claim against
the lessor on his covenant to guaranty quiet possession, and has no hold
over the land, if sold by his lessor to another. In letting a farm the
lessor was bound to put it in good repair and supply necessary stabling
and plant: and, if landslip or earthquake or an army of locusts or other
irresistible force does damage, the lessor has to remit proportionably
the current rent. The like rules held of letting houses, except that plant
was not provided. The. lessee had a good claim on the lessor for any
necessary or useful additions or improvements, and usually could recover
his expenditure or remove them. He was bound to maintain the leased
property whether farm or house, and to treat it in a proper manner,
cultivating the farm in the usual way. He could underlet within the
limits of his term; and the law of the fifth century allowed either lessor or
lessee to throw up the contract within the first year, without any penalty,
unless such had been agreed on. The usual term of lease was five years,
at least in Italy and Africa; in Egypt one or three years.
Contracts for building a house, carriage of goods, training of a
slave, etc. , come under this head, where the locator supplied the site or
other material. The conductor, who performed the service, was liable
for negligence.
Partnership is another contract founded on simple agreement, but
also characterised, like the two last mentioned, by reciprocal services.
It was in fact an agreement between two or more persons to carry on
some business together for common account. The contributions of the
members and their shares in the result were settled by agreement, and
they were accountable to each other for gains and losses. Like other
contracts it concerned only the partners: outsiders need know nothing
of it; in any business with them only the acting partner or partners
were responsible. A partner's heir did not become a partner, except
by a new contract with common consent. A partnership came to an
end by the death of a partner, or his retirement after due notice, or
when the business or time agreed came to an end.
There was no free development of association into larger companies,
without the express approval of the State. A company continues to
exist irrespectively of the change or decease of the members, regulates
its own membership and proceedings, has a common chest and a common
representative, holds, acquires and alienates its property as an individual.
In Rome such corporate character and rights were only gradually
granted and recognised, each particular privilege being conceded to this
or that institution or class of institutions as occasion required.
Towns and other civil communities had common property and a
## p. 96 (#128) #############################################
96 Companies. Mandate
common chest, could manumit their slaves and take legacies and inheri-
tances. They usually acted through a manager; their resolutions
required a majority of the quorum, which was two-thirds of the whole
number of councillors (decurkmes). They are said corpus habere, " to be
a body corporate. "
Other associations for burials or for religious or charitable purposes,
often combined with social festivities, were allowed to exist with statutes
of their own making, if not contrary to the general law. But without
express permission they could not have full corporate rights. Guilds
or unions of the members of a trade, as bakers, are found with various
privileges. Such authorised societies or clubs were often called collegia
or sodalitates. They were modelled more or less on civic corporations:
Marcus Aurelius first granted them permission to manumit their slaves.
The large companies for farming the taxes (publicani) or working
gold or silver mines had the rights of a corporation, but probably not so
far as to exclude individual liability for the debts, if the common chest
did not suffice.
Mandate differs from the three other contracts, which are based on
simple agreement. There are no reciprocal services and no remuneration
or common profits. It is gratuitous agency: not the agency of a paid
man of business; that would come under the head of hiring. Nor is it
like the agency of a slave; that is the use of a chattel by its owner. It
is the agency of a friend whose good faith, as well as his credit, is at
stake in the matter. The mandatee is liable to the mandator for due
performance of the commission he has undertaken, and the mandator is
liable to him only for the reimbursement of his expenses in the conduct
of the matter.
Similar agency but unauthorised, without any contract, was not
uncommon at Rome, when a friend took it upon himself to manage some
business for another in the latter's absence and thereby saved him from
some loss or even gained him some advantage. The swift process of the
law courts in early days seems to have produced and justified friendly
interference by third parties, which required and received legal recogni-
tion. The person whose affairs had thus been handled had a claim upon
the interferer for anything thereby gained, and for compensation for any
loss occasioned by such perhaps really ill-advised action or for negligence
in the conduct of the business, and was liable to reimburse him for
expenses, and relieve him of other burdens he might have incurred on the
absentee's behalf. Such actions were said to be negotiorum gestorum,
"for business done. 11
But in Rome the usual agent was a slave; for anything acquired bv
him was thereby ipso facto acquired for his master, and for any debt
incurred by him his master was liable up to the amount of his slave's
peculium; and if the business in question was really for the master's
account or done on his order the master was liable in full. And though
## p. 97 (#129) #############################################
Agency. Equitable interpretation 97
in general when the master was sued on account of his slave (de peculio)
he had a right to deduct from the peculium the amount of any debt due
to himself, he had no such right when he was cognisant of the slave's
action and had not forbidden it; he could then only claim rateably
with other creditors. A son or daughter under power was for these
purposes in the same position as a slave.
It was rarely that the Romans allowed a third party who was a
freeman and independent to be privy to a contract. The freeman
acquired and became liable for himself, and the principals to the
contract in case of such an agent had to obtain transfers from him of
the rights acquired: they could not themselves sue or be sued on the
agent's contract. But two cases were regarded by Roman Law as
exceptional. When a person provided a ship and appointed a skipper
in charge of it, he was held liable in full for the skipper's contracts in
connexion with it, if the person contracting chose to sue him instead of
the skipper. And the like liability was enforced, if a man had taken a shop
and appointed a manager over it. In both cases the rule held, whether
the person appointing or appointed was man or woman, slave or free,
of age or under age.
The restriction of the owner's liability to the
amount of his slave's peculium disappeared, and the privity of contract
was recognised against the appointer, although the skipper or manager
who actually made the contract was a free person acting as mediary.
But this recognition was one-sided: the principal did not acquire the
right of suing on his skipper's or manager's contract, if the latter were
free; he must, usually at least, obtain a transfer of the right of suit from
him, the transfer being enforced by suing the skipper or manager as
an employee or mandatee.
At one time there was a marked difference between the consensual
contract along with most of those arising re on the one hand, and on the
other hand stipulation and cash-loan (mutuum). In actions to enforce
the former the judge had a large discretion, and the standard by which
he had to guide his decisions or findings was what was fairly to be
expected from business men dealing with one another in good faith. In
actions to enforce the latter the terms of the bargain were to be observed
strictly: the contract was regulated by the words used: the loan was to
be repaid punctually in full. Gradually these latter contracts came to
be treated similarly to the former so far as their nature permitted, and
by Justinian's time the prevalence of equity was assured: the intention
of the parties was the universal rule for interpretation of all contracts,
and reasonable allowance was made for accidental difficulties in their
execution, when there was no evidence of fraud.
Two modes were adopted in classical times for dealing with the
engagements or position of parties where the terms and characteristics of
C ilKD. B. VOL. II. Oil. III. 7
## p. 98 (#130) #############################################
98 Quasi-contracts. Transfer
a proper contract in due form were not found. One was to treat the
matter on the analogy of some contract the incidents of which it
appeared to resemble. Thus money paid on the supposition of a debt,
which however proved not to have existed, was recoverable, as if it had
been a loan. Money or anything transferred to another in view of some
event which did not take place was recoverable, as if paid on a con-
ditional contract, the condition of which had not been fulfilled.
Another mode was for the complainant, instead of pleading a
contract, to set forth the facts of the case and invite judgment on the
defendant according to the judge's view of what the equity of the case
required. Thus barter was not within the legal conception of purchase
and sale, for that must always imply a price in money, but it had all
other characteristics of a valid contract and was enforced accordingly
on a statement of the facts. If a work had to be executed for payment
but the amount of payment was left to be settled afterwards, this was not
ordinary hire, which is for a definite remuneration, but might well be
enforced on reasonable terms.
Transfer of Obligations. Before leaving contracts, which are the
largest and most important branch of obligations, it is as well to point
out that the transfer of an obligation, whether an active obligation, Le.
the right to demand, or a passive obligation, i. e. the duty to pay or
perform, is attended with difficulties not found in the transfer of a
physical object, whether land or chattels. An obligation being a
relation of two parties with one another only, it seems contrary to its
nature for A, who has a claim on B, to insist on payment from C instead;
or for D to claim for himself B\ payment due to A. With the consent
of all parties, the substitution is possible and reasonable, but the
arrangement for transfer must be such as to secure D in the payment by
B, and to release B from the payment to A. Two methods were in use.
At ^'s bidding D stipulates from B for the debt due to A: B is thereby
freed from the debt due to A and becomes bound to D. This was called
by the Romans a novation, i. e. a renewal of the old debt in another form.
Similarly A would stipulate from C for the debt owed by B to A. This
being expressly in lieu of the former debt frees B and binds C. These
transfers being made by stipulation require the parties to meet. The
other method was for A to appoint D to collect the debt from B and keep
the proceeds, the suit being carried on in A's name, and the form of the
judgment naming D as the person entitled to receive instead of A.
Similarly in the other case C would make A his representative to get
in Bfs debt. In practice no doubt matters would rarely come to an
actual suit. The method by representation was till 1873 familiar enough
in England, a debt being a chose in action and recoverable by transferee
only by a suit in the name of the transferor.
Gradually from about the third century it became allowable for the
agent in such cases to bring an analogous action in his own name.
## p. 99 (#131) #############################################
Delicts. . Lex Aquilia 99
Delicts. The other important class of obligations besides contracts
are delicts or torts. They arise from acts which without legal justification
injure another's person or family or property or reputation. Such acts,
if regarded as likely to be injurious not only to the individual but to
the community, become subjects for criminal law'; if not so regarded,
are subject for private prosecution and compensation. In many cases
the injured person had a choice of proceeding against the offender
criminally or for private compensation. The tendency in imperial times
was to treat criminally the graver cases, especially when accompanied
with violence or sacrilege.
The principal classes of delicts were: theft, wrongful damage, and
insult (injuriarum). Theft is taking or handling with a gainful intention
any movable belonging to another without the owner's consent actual
or honestly presumed. Usually the theft is secret: if done with
violence it is treated with greater severity as robbery (rapina). Any
use of another's thing other than he has authorised comes under this
tort, and not only the thief but anyone giving aid or counsel for a theft,
is liable for the same. Not only the owner, but anyone responsible for
safekeeping can sue as well as the owner. The penalty was ordinarily
twofold the value of the thing stolen, but, if the thief was caught on
the spot, fourfold the value. If the offence was committed by a slave
the master could avoid the penalty by surrendering the slave to the
plaintiff. In early days such a surrender of a son or daughter in their
father's power was possible, but probably rare. Robbery was subjected
to a penalty of fourfold the value. Cattle-driving was usually punished
criminally. Theft from a man by a son or slave under his power was a
matter of domestic discipline, not of legal process. Theft by a wife was
treated as theft, but the name of the suit was softened into an action
for making away with things (rerum amotarum).
Wrongful damage rested even till Justinian's time on a statute (Lex
Aquilia) of early republican date which received characteristic treatment
from lawyers' interpretations extending and narrowing its scope. It
embraced damage done whether intentionally or accidentally to an}
slave or animal belonging to another, or indeed to anything, crops, wine
nets, dress, etc. , belonging to another, provided it was done by direct
physical touch, not in self-defence nor under irresistible force. If the
damage was caused by defendant but not by corporal touch, the Romans
resorted to the device of allowing an analogous action by setting forth
the facts of the case, or by express statement of the analogy. The
penalty was in case of death assessed at the highest value which the
slave or animal had within a year preceding the death; in case of
damage only, the value to the plaintiff' within the preceding thirty days.
But condemnations under this head of wrongful damage did not involve
the infamy which belonged to theft; that was purposed, this was often
the result of mere misfortune. Surrender of a slave who had caused the
CH. in. 7—2
## p. 100 (#132) ############################################
100 Actio iryuriarum. Procedure
damage was allowed to free the defendant as in the case of theft. Damage
done to a freeman's own body was hardly within the words of the statute;
and compensation could be obtained only by an analogous action.
The third class was confined to cases of malicious insult but had a very
wide range. It included blows or any violence to plaintiff or his family,
abusive language, libellous or scandalous words, indecent soliciting,
interference with his public or private rights. Not only the actual
perpetrator of the insult, but anyone who procured its doing, was liable.
The character of the insult was differently estimated according to the
rank of the person insulted and the circumstances of the action. The
damages on conviction were, under a law of Sulla which in principle
remained till Justinian, assessable by plaintiff subject to the check of
the judge. Many of these acts, especially when of an aggravated
character, were punished criminally, even by banishment or death.
A fourth class of torts (sometimes called quasi ex delicto) makes
defendant liable not for his own act but for injury caused by anything
being thrown or falling from a room occupied by him near a right of
way, or for theft or injury perpetrated in a shop or tavern or stable under
his control. The penalty is put at double the estimated damage, except
that, if a freeman is hurt, no estimate of damage to a free body was held
possible, and the penalty was therefore the amount of medical expenses
and loss of work: if he was killed, it was put at fifty guineas (aurei).
Procedure. In classical times the parties after summons approached
the praetor and asked for the appointment of a judex to hear and decide
the suit. Instructions proposed by plaintiff and sometimes modified by
the praetor at the request of the defendant were agreed to by the
parties, who then joined issue, and the formula containing these instruc-
tions was sent to the judex named. The judex heard and decided the
case, and, if he found against the defendant, condemned him in a certain
sum as damages. But in some few matters the praetor, instead of
appointing a. judex in the ordinary course, kept the whole matter in
his own hands. This extraordinary procedure became in Diocletian's
time the ordinary procedure, and the praefect or the governor of a
province or the judex appointed by them heard the case from the first
without any special instructions. In the fourth century the case was
initiated by a formal notice (litis denuntiatio) to the defendant; but
in Justinian's time by plaintiff's presenting to the Court a petition
(UbeUus) containing his claims on the defendant, who was then summoned
by the judge to answer it. If he did not appear, the judex after further
summons examined and decided the matter in his absence.
Either party before joinder of issue had the right of refusing the
judex proposed by the governor, etc. Three days were then allowed
them to choose an arbitrator, and in case of disagreement the governor or
other authority appointed. Jews' suits whether relating to their own
## p. 101 (#133) ############################################
Procedure. Proof 101
superstition or not could be heard by the ordinary tribunals, but by
consent they might have the case heard by an arbitrator who was a Jew.
Soldiers and officials were not exempt from being sued before the civil
tribunals on ordinary matters. Constantine in a constitution of 833 (if
genuine) gave either party the right even against the will of the other
to have the case transferred to the bishop at any stage before final
judgment. But Arcadius in 398 repealed this and required the consent
of both parties, so that the bishop was only an arbitrator and his
judgment was executed by the ordinary lay officers.
The judical were to act on the general law, said Justinian (541), and
during their task were not to expect or accept any. special instruction for
deciding the case. If any application were made to the Emperor, he
would decide the matter himself and not refer it to any other judex. A
judex was authorised, if in doubt about the interpretation of a law, to
apply to the Emperor.
No suits excepting those touching the Crown (ji&cus), or public trials
were to be extended beyond three years from the commencement of the
hearing. When only six months remained of this period, the judex was
to summon either party, if absent, three times at intervals of ten days,
and then to examine and decide the matter, the costs being thrown on
the absentee (531).
The courts were open all the year, with the exception of harvest
and wine-gathering (sometimes defined as 24 June to 1 August, and
23 August to 15 October), also seven days before and after Easter,
also Sundays, Kalends of January, birthdays of Rome and Constantinople
birthday and accession of Emperor, Christmas, Epiphany and time of
commemoration of the "Apostolical passion" (Pentecost). Neither law
proceedings nor theatrical shows were allowed on Sundays; but Con-
stantine exempted farmers from observance of Sundays. No criminal
trials were held in Lent.
Private suits and questions of freedom were to be tried at defendant's
place of residence, or of his residence at the date of the contract. So
Diocletian (293) following the old rule, actor ret Jorum sequatur. Suits
in rem or for a jideicommwsum or respecting possession should be
brought where the thing or inheritance is.
Justin (526) forbad any interference with a burial on the ground of
a debt due from deceased; and invalidated all payments, pledges and
sureties obtained in these circumstances. Justinian (542) forbad anyone
within nine days of a person's death to sue or otherwise molest any
of his relatives. Any promise or security obtained during this period
was invalid.
Proof. The person who puts forth a claim or plea has to prove it.
The possessor has not to prove his right to possess, but to await proof to
the contrary. Thus one who is possessed of freedom can await proof by
a claimant of his being his slave. But one who has forcibly carried off
## p. 102 (#134) ############################################
102 Evidence on oath
or imprisoned another, whom he claims to be his slave, cannot on the
ground of this forcible possession throw the burden of proof on his
opponent. To prove a purchase it is not enough to produce a document
describing the fact, but there must be shewn by witnesses the fact of
purchase, the price paid, and possession of the object formally given.
To prove relationship, the fact of birth and the parents'' marriage, or
adoption by them must be shewn: letters between the parties or appli-
cation for an arbiter to divide the family inheritance are not sufficient
Persons who have admitted a debt in writing cannot prove payment
without a written receipt, unless they produce five unimpeachable
witnesses to the payment in their presence. But as a general rule
they are not bound by a statement in the document of debt of their
having originally received the money, wholly or partly, if they can
prove within 30 days after the production of the document that the
stated money had not been paid them.
All witnesses must be sworn. One suspected of giving false evidence
can be put to the question at once, and, if convicted, can be subjected
by the judge hearing the case to the penalty to which the defendant
was liable against whom he had given the false evidence. A single
witness without other evidence proves nothing, and Constantine enacted
(334) that he should not be heard in any suit. All persons (enacted
Justinian 527) with like exceptions as in criminal causes are compellable
to give evidence. Slaves were sometimes examined under torture.
No judge was to commence the hearing until he had the Scriptures
placed before the tribunal, and they were to remain there until judgment.
All advocates had to take an oath, touching the Gospels, that they would
do what they could for their clients in truth and justice, and resign
their case if they found it dishonest (530). Both plaintiff and defendant
had to take an oath to their belief in the goodness of their cause (531).
Justinian among other rules respecting documents enacted these:
All persons are compellable to produce documents who are com-
pellable to give evidence. The production is to be in the court, at
the expense of the person requiring it. Anyone declining to produce
on the ground that he will be injured thereby, must, if this is contested
by the other party, make oath of his belief and also that it is not any
bribe or fear or favour of someone else that deters him.
All documents were to be headed with year of Emperor, consul,
indiction, month and day.
Contracts of sale, exchange and gift (if not such as must be
officially recorded), of earnest and compromise and any others arranged
to be in writing, were not valid, unless written out fair and subscribed
by the parties; if written by a notary, he must complete and sign them
and be present himself at their execution by the parties (528 and
536). In 538 it was directed that contracts of loan or deposit or
other should, even when written, have at least three witnesses to their
## p. 103 (#135) ############################################
Oaths in lieu of proof . Criminal law 103
completion, and when produced for proof be confirmed by oath of the
producer.
In lieu of proof by witnesses or documents, oaths were sometimes
resorted to. The judge might propose to one of the parties to support
his allegation by an oath, and, if the oath was taken, the judge would
naturally decide that point in his favour. But either party might
challenge the other, either before trial or in the course of it, to swear
to some particular matter, and if the party so challenged swore in the
terms of the challenge, the matter would be held to be decided as much
as by a judgment, and in any further dispute between the parties or
their sureties or persons joined with them the oath if relevant could be
pleaded or acted on as decisive. And the same result ensues, if the
party to whom the oath is tendered declares his readiness to swear and
the other then waives the demand. The party called on to swear may
instead of taking the oath retort the demand, and the other party is
then in the same position as if the oath had been originally tendered to
him. In earlier times probably such tender of oath could be declined
in most cases without prejudice, but Justinian apparently makes no
restriction, and a defendant for instance to an action for money lent,
if plaintiff tendered him an oath whether it was due or not, had no
choice except either to take the oath or admit the debt, unless indeed
he retorted the tender. Plaintiff, if he accepted the retort, would have
first to swear to his own good faith and then could establish his claim
by the oath. In all cases the oath, if it is to carry the consequence
stated, must not be volunteered, but taken in reply to the challenge and
must conform precisely to the terms.
The requirement of an oath was also resorted to in some cases by
the judge in order to compel obedience, wrongly refused, to an inter-
locutory decision. The plaintiff was allowed to fix the damages himself,
by an oath of the amount due. This was called in litem jurare, "to
swear to the disputed claim. '"
Criminal Law. The criminal law was put in force either on the
magistrate's own initiative or by private persons. Women and soldiers
were not admitted as accusers, unless the crime was against themselves,
or their near relatives. Anyone desiring to bring an accusation had to
specify the date and place of the crime and to give a surety for due
prosecution. Laws of Constantine, and Arcadius, retained by Justinian,
directed that any servant (familiaris) or slave bringing an accusation
against his master should be at once put to death before any inquiry
into the case or production of witnesses. And the like was enacted
(423) in the case of a freedman accusing his patron. Excepted from
this rule were cases of adultery, high treason and fraud in the tax-return
(census). An accuser not proving his case was (373) made subject to
the penalty belonging to the crime charged. A like rule of talion was
prescribed in some other cases.
## p. 104 (#136) ############################################
104 Imprisonment. Admissible witnesses
A law of 320 prescribed that in all cases, whether a private person or
an official was prosecuting, the trial should take place immediately. If
accuser were not present or the accused's accomplices were required, they
should be sent for at once, and meantime any chains that were put on
the accused should be long ones, not close-fitting handcuffs; nor should
he be confined in the inmost and darkest prison but enjoy light, and at
night, when the guard is doubled, be allowed in the vestibules and more
healthy parts of the prison. The judge should take care that the
accusers do not bribe the gaolers to keep the accused back from a
hearing and starve them: if they do, the officers should be capitally
punished. The sexes were to be kept apart (340). Justinian in 529
forbad anyone being imprisoned without an order from the higher
magistrates, and directed the bishops to examine once a week into the
cause of imprisonment, and to ascertain whether the prisoners were slave
or free and whether imprisoned for debt or crime. Debtors were to be
let out on bail: if they had no bail they were to have a hearing and be
let out on oath, their property being forfeited if they fled. Freemen
charged with lesser crimes to be let out on bail, but if the charge were
capital and no bail was allowed, imprisonment was not to extend beyond
one year. Slaves to be tried within 20 days. The bishops, as ordered
by Honorius, had to report any remissness in the magistrates. Private
prisons were forbidden altogether by Justinian (529).
The accused was examined by the judge. If a slave was accused,
torture was sometimes applied to elicit a confession. In republican times
a freeman was not liable to this. Under the Empire the rule was
broken, but persons of high rank were exempt, except where the charge
was treason (majestas) or magical arts.
The judge could compel anyone to give evidence except bishops and
high officers and old and sick persons or soldiers or attendants on
magistrates at a distance. A private accuser had similar powers, but
for a limited number. Defendant could call witnesses, but had no
power of compulsion.
Parents and children were not admissible as witnesses against one
another, nor were other near relatives; nor freedmen against their
patron. Slaves were not admissible to give evidence against their
master, except in cases of treason, adultery or fraud on the revenue.
As a rule slaves were used as witnesses only in default of others. They
were examined, and if their statements were not satisfactory, torture was
applied.
If after trial the accused was acquitted, the old practice (retained by
Justinian) was for the judge to examine into the conduct of the accuser,
and, if he found no reasonable ground for the accusation, to hold him
guilty of calumny. For collusion with the accused he might be held
guilty of prevarication. Nor was an accuser allowed to withdraw from
an accusation once undertaken, especially if the accused had been long
## p. 105 (#137) ############################################
Crimes 105
in prison or had been subjected to blows or chains. But if the accused
consented or had not been harshly treated, withdrawal (abolitio) was
generally permitted, except on charges of treason or other grave crimes.
An accuser, once desisting, could not take the charge up again.
A general indulgence, by which all persons accused (with certain
exceptions) were released, was decreed by Constantine in 322 on account
of the birth of a son to Crispus. In later years the like indulgence was
granted at Easter, and apparently in 885 it was made a standing rule.
Persons charged with poisoning, murder, adultery, evil magic, sacrilege
or treason, and sometimes other offenders, were excepted.
Most of the legislation on crime goes back to the Republic or to
Augustus. The law of treason {majestas) is based on a law of the latter.
Treason consists in doing anything against the Roman people and
includes all assistance to the enemy, attacks on Roman magistrates,
intentional injury to the Emperor's statues, collecting for seditious
purposes armed men in the city, refusal to leave a province on the
appointment of a successor, making false entries in public documents,
etc. Abuse or other insult to the Emperor required careful inquiry as
to the motive and sanity of the accused; punishment was to await a
report to the Emperor. If an accuser failed to establish his charge, he
was liable to be examined by torture himself, notwithstanding any privilege
from military service, birth or dignity. The punishment for treason
was death and forfeiture of property. Conspiracy to compass the death
of the Emperor's councillors subjected even the sons of the criminal
to incapacity for succession to any inheritance or legacy, and to be
reduced to such want that "death would be a comfort and life a
punishment "(397).
By a law of Sulla, maintained and developed by the Emperors,
murder, magical arts, nocturnal incantations or rites to exert unholy
influence over persons, desertion to the enemy, stirring up seditions or
tumult, bribing witnesses or judges to act falsely were punished with
death in the case of all but the privileged class. So also consulting
soothsayers (haruspices) or mathematicians respecting the health of the
Emperor, introduction of new sects or unknown religions to excite men's
minds, forgery or suppression of wills, forgery of seals, coining, melting
or mutilating coinage were sometimes punished capitally. Coining was
regarded as treason (326).
lands or houses or slaves or herds and even in consumables. Security
had to be given to the owner for reasonable treatment and restoration
in specie or equivalent at the expiry of the usufruct, which was lost not
only by death but also by loss of civic status: it could not be trans-
ferred to another person. Minor rights of similar character are bare
use and habitation.
The second class of servitudes corresponds to English "easements. '"
They were limited rights, appurtenant to certain praedia whether farms
in the country or houses in towns. They secured to the occupier a
limited control over neighbouring houses or lands, which was necessary
or at least suitable for the proper use of the dominant farm or house to
which they were servient. Rights of way, of leading water, of pasturing
cattle, are instances of country servitudes: rights of light and prospect
and carrying off water are instances of urban servitudes. They were
created usually by grant and were lost by non-user for a period of two
years, which was raised by Justinian to ten or twenty years.
Emphyteusis, i. e. , plantation. The practice grew up in imperial
times of tracts of country, in many cases waste land, being held by
tenants at a fixed rent (usually called canon, vectigal, pensio) on the
terms that so long as the rent was duly paid the tenant should not be
disturbed and could transmit the land to his heirs or sell or pledge it.
The owners were usually the State or the Emperor (who had a private
domain) or country towns in Italy or in the provinces. The lawyers
doubted whether to treat this contract as sale or lease. Zeno, about
480, decreed that it should be regarded as distinct from both, and rest
upon the written agreement between lord and tenant. By Justinian's
edicts the tenant had to pay without demand the public taxes and
produce the receipts and pay the canon to the lord, who for three (or in
## p. 90 (#122) #############################################
90 Obligations
the case of church land, two) years' default could eject him. If rent
and receipts were offered and not accepted, the tenant could seal them
up and deposit them with the public authority and so be safe against
eviction. If eventually the lord did not take them, the tenant could
keep them, and pay no more rent till the landlord demanded it, and
then be liable only for future rents. As regards improvements, in the
absence of express stipulations, the tenant could not sell them to outsiders,
until he had offered them to the lord at the price he could get from
another, and two months had passed without the lord's accepting. Nor
could he alienate the farm to any but suitable persons, i. e. , such as were
allowed generally to hold on this tenure. The lord had to give admission
to the transferee and certify it by letter in his own hand or by declaration
before the governor or other public authority, a fee of two per cent, of
the price being demandable for such consent.
Edicts of the Emperors were not uncommon, which granted secure
possession on some such terms to anyone who cultivated waste lands
and was thus in a position to pay the tax upon them. If the lands had
been deserted by the owner, he could claim them back only on paying
the cultivator his expenses: after two years his right was gone.
Obligations. Besides rights which are good against all the world,
such as ownership and other rights to particular things, rights good
only against particular persons form a most important and perhaps the
most notable part of Roman Law. Such are called obligations and
arise either from contract or from delict (in English usually called
"tort"). The detailed classification of these given in the Institutes
is in many respects artificial and is not found in the other books of
Justinian.
Contracts are voluntary agreements between two or more persons.
The Romans required for an agreement which should be enforceable by
law some clear basis or ground of obligation. There must be either a
transfer of some thing from one of the parties to the other, or a strict
form of words accompanying the agreement, or there must be agreed
services of one party, usually of both. As the Romans said, the contract
must be formed out re aut verbis aut consensu. Otherwise it was a bare
agreement (nudum pactum), and, though available for defence against a
claim, it was not enforceable by suit, except so far as it set forth the
details of one of the regular contracts and was concluded in close
connexion therewith, or it reaffirmed, by a definite engagement to pay,
an already existing debt of promiser's or another (pecunia constituta).
It may be convenient to treat first of the most general form. The
contract made verbis was called "stipulation" and was made by oral
procedure between the parties present at the same place. The matter
and details of the agreement being stated, the party intending to acquire
## p. 91 (#123) #############################################
Verbal obligations. Mutuum 91
a right said, according to the original practice, Spondesne ? " Do you
promise? " to which the other replied, Spondeo, "I promise. 11 But in
later time any other suitable words might be used, e. g. , Dafmne ? " Will
you give? " Dabo, "I will give. " The essential was that the answer
should not add to or vary the scope and conditions contained in the
questions: the agreement had to be precise. A record in writing was
very usual, but not necessary, provided the stipulation could be proved
by witnesses. The drawback in stipulation, viz. , that it required the
stipulator and promiser to meet, was to some extent removed by the use
of slaves or children, for they could stipulate (though not promise) on
behalf of their master or father, and the fact that they were under his
power made the contract at once his contract. A free person sui juris
could only stipulate for himself, and thus could not act as a mere channel
pipe for another. Stipulation however had this great convenience that it
was applicable to any kind of agreement, and at once elevated a mere
pactum into a strict, valid contract. The pactum was usually put in writing
and the fact of its having been confirmed by a stipulation was added to
the record. If a promise was stated, the law presumed it to be in reply
to an appropriate question: where consent was recorded, no special
form of words was necessary (472). A law of Justinian (531) enacted
that such record should not be disputable, whether the stipulation was
effected through a slave or by both parties themselves: if it stated that
the slave had done it, he should be deemed to have belonged to the party
and to have been present: if it stated the latter, the parties should be
deemed to have been present in person, unless it was proved by the very
clearest evidence (Justinian delights in superlatives) that one of the
parties was not in the town on the day named.
A very important contract, resting on a transfer of ownership, was
iictdum, i. e. , loan of money or of corn or any other matters (often called
"fungibles ") in which quantity and not identity is regarded, one sum of
money being as good as any other equal sum. The lender was entitled
to recover the same quantity at the agreed time, but had no implied
right to interest unless the debtor made delay. A loan was therefore
usually accompanied by a stipulation for interest. Justinian however in
536 enacted that a mere agreement was enough to secure interest to
bankers. If no day for payment of a loan was named, the debtor might
await creditor's application. Part payment could not be refused.
Justinian (531) gave to a debtor on loan as in other cases a right to set
off against a creditor's claim any debt clearly due from him.
The rate of interest was limited by law. In Cicero's time and
afterwards it was not to exceed 12 per cent, per annum. Justinian
forbad illustres to ask more than 4 per cent, per annum. Traders were
limited to 8 per cent. ; other persons to 6 per cent. But interest
on bottomry might go up to 12 or 12£ per cent. (= \) during the
CH. III.
## p. 92 (#124) #############################################
92 Interest. Pledge
voyage. Any excess paid was to be reckoned against the principal debt.
Compound interest was forbidden altogether by Justinian, and in
connexion with this the conversion of unpaid interest into principal was
forbidden. And even simple interest ceased so soon as the amount paid
equalled the amount of the principal (so Justinian 535). In loans of
corn, wine, oil, etc. , to farmers, Constantine allowed 50 per cent,
interest; Justinian only Jth (12£ per cent. ), and for money lent to
farmers only ^j (= 4J). He also forbad the land to be pledged to the
lender. In action on a judgment four months were allowed for
payment; after that simple interest at 12 per cent, was allowed.
Any son under his father's power was by a senate's decree of the
Early Empire (Sc. Macedonianum) disabled from borrowing money.
Repayment of any money so borrowed could not be enforced against
either his father or his surety or against himself (if he became
independent), unless he had recognised the debt by part payment. But
the decree did not apply, where the creditor had no ground for knowing
the debtor to be under power, or where a daughter required a dowry, or
where a student was away from home and borrowed to cover usual or
necessary expenses. The fact that the borrower was grown up and
even perhaps in high public office did not prevent the decree's applying.
Other contracts made re, involved a transference not of property but
of possession. Such are commodatcjm, gratuitous loan of something
which is to be returned in specie, and depositum, transfer of something
for safekeeping and return on demand or according to agreement. A
third contract under this head was pignus, which calls for fuller notice.
Security for debt, etc. In order to secure a person's performance of
an obligation, two means are commonly in use: (1) giving the promisee
hold over some property of the promiser's; (2) getting a confirmatory
promise from another person:' in other words, pledge and surety.
The Romans had three forms of pledge: fiducia, pignus, hypotheca.
Fiducia was an old form by which the creditor was made owner (for the
time) of the property: by pignus he is made possessor; by hypotheca he
is given simply a power of sale in case of default. Fiducia went out of
use about the fourth century; it was analogous to and probably the
origin of, our mortgage, the property being duly conveyed to the
promiser, who could, subject to account, take the profits and on default
of payment as agreed, could sell and thus reimburse himself. A
power of sale was usually made by agreement to accompany pignus and
hypotheca. In pignus it formed an additional mode of compulsion on
the debtor besides the temporary deprivation of the use of his property:
in hypotheca it constituted the essence of the security. Pignus was a
very old form and always continued in use: hypotheca was no doubt
borrowed from the Greeks, and we first hear of it in Cicero's time. It had
the great convenience for the debtor that he could remain in possession
of the object pledged, and as no physical transfer was required, it could
## p. 93 (#125) #############################################
Sureties 93
be applied to all kinds of property, movable and immovable, near or
distant, specific or general, corporal or incorporeal (such as investments).
And the creditor was not responsible, as he was in the case of pignus, for
the care and safekeeping of the object. In other respects the law which
applied to the one applied to the other. A written contract was not
necessary, if the contract could be proved otherwise.
Tacit pledges were recognised in some cases. Thus the law treated
as pledged to the lessor for the rent, without any distinct agreement,
whatever was brought into a house by the lessee with the intention of its
staying there. A lodger's things were deemed to be pledged only for his
own rent. In farms the fruits were held to be pledged, but not other
things except by agreement. One who supplied money for reconstructing
a house in Rome had the house thereby pledged to him; and for taxes
or any debt to the Crown (fiscus) a person's whole property was so
treated: guardians'1 and curators1 property is in the same position as
security to their wards; husband's as security to the wife for her dowry
(531); and what an heir gets from testator is security to the legatees
and trust-heirs; what a fiduciary legatee gets is security to the legatee
by trust.
Any clause in a pledge-agreement which provided for forfeiture of the
pledged property in default of due payment of the loan (Lex commissoria)
was forbidden by Constantine. But the right of sale for non-payment of
debt was, in the absence of contrary agreement, deemed inherent in
pledge. It had however to be exercised with due formality after public
notice and the lapse of two years from the time when formal application
had been made to the debtor or from the judgment of the Court. Then
if no sale was effected, the creditor could after further time and fresh
notice petition the Emperor for permission to retain the thing as
his own. If the value of the pledge did not equal the amount of the
debt, the creditor could proceed against the debtor for the balance; if
its value was more, the debtor was entitled to the surplus. Where the
creditor was allowed to retain the thing as his own, Justinian allowed a
still further period of two years in which the debtor could claim it back
on payment of the debt and all creditor's expenses (530).
Sureties (Jidejussores) were frequently given and were applicable to
any contract, formal or informal, and even to enforce a merely natural
obligation, as a debt due from a slave to his master. Sureties were
bound by stipulation. If there were more than one, each was liable for
the whole for which the debtor was liable, but Hadrian decided that a
surety making application for the concession should be sued only for his
share, provided another surety was solvent. The creditor had the option
of suing the debtor or one of the sureties, and, if not satisfied, then the
other; but this was modified by Justinian (535), who enacted that the
debtor should be first sued if he were there, and that if he were not,
time should be given to the sureties to fetch him; if he could not be
## p. 94 (#126) #############################################
94 Women's guaranty. Purchase and sale
produced, then the sureties might be sued, and after that, recourse should
be had to the debtor's property. If sureties paid, they had a claim on
the debtor for reimbursement and for the transfer to them of any pledge
he had given, but could not retain the pledge if debtor offered them
the amount of debt and interest. A surety's obligation passed to his heirs.
If a woman gave a guaranty for another person, even for her husband
or son or father, so as to make her liable for them, the obligation was
invalid. But she was not protected, if the obligation was really for herself,
or if she had deceived the creditor or received compensation for her
guaranty, or had after two years' interval given a bond or pledge or
surety for it. This rule, which dates from the Early Empire (senatus
consultum VeUeianum), was based on the theory that a woman might
easily be persuaded to give a promise, when she would not make a
present sacrifice. Accordingly she was not prohibited from making
gifts. Justinian confirmed and amended the law in 530 by requiring
for any valid guaranty by a woman a public document with three
witnesses, and in 556 enacted that no woman be put in prison for debt.
The class of contracts which arise consensu, i. e. , by the agreement of
the parties, without special formalities or transfer of a thing from one to
the other, is constituted by Purchase and sale, Hire and lease, Partner-
ship, Mandate.
Purchase and sale (one thing under two names) is complete when
the parties have agreed on the object and the price, or at least agreed to
the mode of fixing the price. The agreement may be oral or in writing:
if the latter, it must be written or subscribed by the parties; and till
that is done, neither party is bound. Whether the contract is oral or
written, the intended buyer, if he does not buy, (in the absence of any
special agreement on the point) forfeits any earnest money he may have
given, and the vendor, if he refuses to complete, has to repay the earnest
twofold. (So Justinian 528. ) The vendor is bound by the completed
contract to warrant to the purchaser quiet and lawful possession but is
not bound to make him owner. He must however, unless otherwise
agreed, deliver the thing to the purchaser, where it is, and thereby
transfer all his own right. From the date of completion of the contract,
though delivery has not taken place, the risk and gain pass to the
purchaser, but he is not owner until he has paid the price and got
delivery, and then only if the vendor was owner, or possession for the
due time has perfected the purchaser's title. The vendor is liable to the
purchaser on his covenants (e. g. , in case of buyer's eviction, for double
the value), and also for any serious defects which he has not declared and
of which the purchaser was reasonably ignorant.
In case of sale of an immovable Diocletian admitted rescission when
the price was much under the value (285). It was probably Justinian who
## p. 95 (#127) #############################################
Lease and hire. Partnership 95
gave generally a claim for rescission whenever the price was less than half
the real value. This ground of rescission was later called laesio enormis,
and many attempts were made to extend its application.
The contract of lease and hire is similar in many respects to that of
purchase and sale. But the lessee, if evicted, has only his claim against
the lessor on his covenant to guaranty quiet possession, and has no hold
over the land, if sold by his lessor to another. In letting a farm the
lessor was bound to put it in good repair and supply necessary stabling
and plant: and, if landslip or earthquake or an army of locusts or other
irresistible force does damage, the lessor has to remit proportionably
the current rent. The like rules held of letting houses, except that plant
was not provided. The. lessee had a good claim on the lessor for any
necessary or useful additions or improvements, and usually could recover
his expenditure or remove them. He was bound to maintain the leased
property whether farm or house, and to treat it in a proper manner,
cultivating the farm in the usual way. He could underlet within the
limits of his term; and the law of the fifth century allowed either lessor or
lessee to throw up the contract within the first year, without any penalty,
unless such had been agreed on. The usual term of lease was five years,
at least in Italy and Africa; in Egypt one or three years.
Contracts for building a house, carriage of goods, training of a
slave, etc. , come under this head, where the locator supplied the site or
other material. The conductor, who performed the service, was liable
for negligence.
Partnership is another contract founded on simple agreement, but
also characterised, like the two last mentioned, by reciprocal services.
It was in fact an agreement between two or more persons to carry on
some business together for common account. The contributions of the
members and their shares in the result were settled by agreement, and
they were accountable to each other for gains and losses. Like other
contracts it concerned only the partners: outsiders need know nothing
of it; in any business with them only the acting partner or partners
were responsible. A partner's heir did not become a partner, except
by a new contract with common consent. A partnership came to an
end by the death of a partner, or his retirement after due notice, or
when the business or time agreed came to an end.
There was no free development of association into larger companies,
without the express approval of the State. A company continues to
exist irrespectively of the change or decease of the members, regulates
its own membership and proceedings, has a common chest and a common
representative, holds, acquires and alienates its property as an individual.
In Rome such corporate character and rights were only gradually
granted and recognised, each particular privilege being conceded to this
or that institution or class of institutions as occasion required.
Towns and other civil communities had common property and a
## p. 96 (#128) #############################################
96 Companies. Mandate
common chest, could manumit their slaves and take legacies and inheri-
tances. They usually acted through a manager; their resolutions
required a majority of the quorum, which was two-thirds of the whole
number of councillors (decurkmes). They are said corpus habere, " to be
a body corporate. "
Other associations for burials or for religious or charitable purposes,
often combined with social festivities, were allowed to exist with statutes
of their own making, if not contrary to the general law. But without
express permission they could not have full corporate rights. Guilds
or unions of the members of a trade, as bakers, are found with various
privileges. Such authorised societies or clubs were often called collegia
or sodalitates. They were modelled more or less on civic corporations:
Marcus Aurelius first granted them permission to manumit their slaves.
The large companies for farming the taxes (publicani) or working
gold or silver mines had the rights of a corporation, but probably not so
far as to exclude individual liability for the debts, if the common chest
did not suffice.
Mandate differs from the three other contracts, which are based on
simple agreement. There are no reciprocal services and no remuneration
or common profits. It is gratuitous agency: not the agency of a paid
man of business; that would come under the head of hiring. Nor is it
like the agency of a slave; that is the use of a chattel by its owner. It
is the agency of a friend whose good faith, as well as his credit, is at
stake in the matter. The mandatee is liable to the mandator for due
performance of the commission he has undertaken, and the mandator is
liable to him only for the reimbursement of his expenses in the conduct
of the matter.
Similar agency but unauthorised, without any contract, was not
uncommon at Rome, when a friend took it upon himself to manage some
business for another in the latter's absence and thereby saved him from
some loss or even gained him some advantage. The swift process of the
law courts in early days seems to have produced and justified friendly
interference by third parties, which required and received legal recogni-
tion. The person whose affairs had thus been handled had a claim upon
the interferer for anything thereby gained, and for compensation for any
loss occasioned by such perhaps really ill-advised action or for negligence
in the conduct of the business, and was liable to reimburse him for
expenses, and relieve him of other burdens he might have incurred on the
absentee's behalf. Such actions were said to be negotiorum gestorum,
"for business done. 11
But in Rome the usual agent was a slave; for anything acquired bv
him was thereby ipso facto acquired for his master, and for any debt
incurred by him his master was liable up to the amount of his slave's
peculium; and if the business in question was really for the master's
account or done on his order the master was liable in full. And though
## p. 97 (#129) #############################################
Agency. Equitable interpretation 97
in general when the master was sued on account of his slave (de peculio)
he had a right to deduct from the peculium the amount of any debt due
to himself, he had no such right when he was cognisant of the slave's
action and had not forbidden it; he could then only claim rateably
with other creditors. A son or daughter under power was for these
purposes in the same position as a slave.
It was rarely that the Romans allowed a third party who was a
freeman and independent to be privy to a contract. The freeman
acquired and became liable for himself, and the principals to the
contract in case of such an agent had to obtain transfers from him of
the rights acquired: they could not themselves sue or be sued on the
agent's contract. But two cases were regarded by Roman Law as
exceptional. When a person provided a ship and appointed a skipper
in charge of it, he was held liable in full for the skipper's contracts in
connexion with it, if the person contracting chose to sue him instead of
the skipper. And the like liability was enforced, if a man had taken a shop
and appointed a manager over it. In both cases the rule held, whether
the person appointing or appointed was man or woman, slave or free,
of age or under age.
The restriction of the owner's liability to the
amount of his slave's peculium disappeared, and the privity of contract
was recognised against the appointer, although the skipper or manager
who actually made the contract was a free person acting as mediary.
But this recognition was one-sided: the principal did not acquire the
right of suing on his skipper's or manager's contract, if the latter were
free; he must, usually at least, obtain a transfer of the right of suit from
him, the transfer being enforced by suing the skipper or manager as
an employee or mandatee.
At one time there was a marked difference between the consensual
contract along with most of those arising re on the one hand, and on the
other hand stipulation and cash-loan (mutuum). In actions to enforce
the former the judge had a large discretion, and the standard by which
he had to guide his decisions or findings was what was fairly to be
expected from business men dealing with one another in good faith. In
actions to enforce the latter the terms of the bargain were to be observed
strictly: the contract was regulated by the words used: the loan was to
be repaid punctually in full. Gradually these latter contracts came to
be treated similarly to the former so far as their nature permitted, and
by Justinian's time the prevalence of equity was assured: the intention
of the parties was the universal rule for interpretation of all contracts,
and reasonable allowance was made for accidental difficulties in their
execution, when there was no evidence of fraud.
Two modes were adopted in classical times for dealing with the
engagements or position of parties where the terms and characteristics of
C ilKD. B. VOL. II. Oil. III. 7
## p. 98 (#130) #############################################
98 Quasi-contracts. Transfer
a proper contract in due form were not found. One was to treat the
matter on the analogy of some contract the incidents of which it
appeared to resemble. Thus money paid on the supposition of a debt,
which however proved not to have existed, was recoverable, as if it had
been a loan. Money or anything transferred to another in view of some
event which did not take place was recoverable, as if paid on a con-
ditional contract, the condition of which had not been fulfilled.
Another mode was for the complainant, instead of pleading a
contract, to set forth the facts of the case and invite judgment on the
defendant according to the judge's view of what the equity of the case
required. Thus barter was not within the legal conception of purchase
and sale, for that must always imply a price in money, but it had all
other characteristics of a valid contract and was enforced accordingly
on a statement of the facts. If a work had to be executed for payment
but the amount of payment was left to be settled afterwards, this was not
ordinary hire, which is for a definite remuneration, but might well be
enforced on reasonable terms.
Transfer of Obligations. Before leaving contracts, which are the
largest and most important branch of obligations, it is as well to point
out that the transfer of an obligation, whether an active obligation, Le.
the right to demand, or a passive obligation, i. e. the duty to pay or
perform, is attended with difficulties not found in the transfer of a
physical object, whether land or chattels. An obligation being a
relation of two parties with one another only, it seems contrary to its
nature for A, who has a claim on B, to insist on payment from C instead;
or for D to claim for himself B\ payment due to A. With the consent
of all parties, the substitution is possible and reasonable, but the
arrangement for transfer must be such as to secure D in the payment by
B, and to release B from the payment to A. Two methods were in use.
At ^'s bidding D stipulates from B for the debt due to A: B is thereby
freed from the debt due to A and becomes bound to D. This was called
by the Romans a novation, i. e. a renewal of the old debt in another form.
Similarly A would stipulate from C for the debt owed by B to A. This
being expressly in lieu of the former debt frees B and binds C. These
transfers being made by stipulation require the parties to meet. The
other method was for A to appoint D to collect the debt from B and keep
the proceeds, the suit being carried on in A's name, and the form of the
judgment naming D as the person entitled to receive instead of A.
Similarly in the other case C would make A his representative to get
in Bfs debt. In practice no doubt matters would rarely come to an
actual suit. The method by representation was till 1873 familiar enough
in England, a debt being a chose in action and recoverable by transferee
only by a suit in the name of the transferor.
Gradually from about the third century it became allowable for the
agent in such cases to bring an analogous action in his own name.
## p. 99 (#131) #############################################
Delicts. . Lex Aquilia 99
Delicts. The other important class of obligations besides contracts
are delicts or torts. They arise from acts which without legal justification
injure another's person or family or property or reputation. Such acts,
if regarded as likely to be injurious not only to the individual but to
the community, become subjects for criminal law'; if not so regarded,
are subject for private prosecution and compensation. In many cases
the injured person had a choice of proceeding against the offender
criminally or for private compensation. The tendency in imperial times
was to treat criminally the graver cases, especially when accompanied
with violence or sacrilege.
The principal classes of delicts were: theft, wrongful damage, and
insult (injuriarum). Theft is taking or handling with a gainful intention
any movable belonging to another without the owner's consent actual
or honestly presumed. Usually the theft is secret: if done with
violence it is treated with greater severity as robbery (rapina). Any
use of another's thing other than he has authorised comes under this
tort, and not only the thief but anyone giving aid or counsel for a theft,
is liable for the same. Not only the owner, but anyone responsible for
safekeeping can sue as well as the owner. The penalty was ordinarily
twofold the value of the thing stolen, but, if the thief was caught on
the spot, fourfold the value. If the offence was committed by a slave
the master could avoid the penalty by surrendering the slave to the
plaintiff. In early days such a surrender of a son or daughter in their
father's power was possible, but probably rare. Robbery was subjected
to a penalty of fourfold the value. Cattle-driving was usually punished
criminally. Theft from a man by a son or slave under his power was a
matter of domestic discipline, not of legal process. Theft by a wife was
treated as theft, but the name of the suit was softened into an action
for making away with things (rerum amotarum).
Wrongful damage rested even till Justinian's time on a statute (Lex
Aquilia) of early republican date which received characteristic treatment
from lawyers' interpretations extending and narrowing its scope. It
embraced damage done whether intentionally or accidentally to an}
slave or animal belonging to another, or indeed to anything, crops, wine
nets, dress, etc. , belonging to another, provided it was done by direct
physical touch, not in self-defence nor under irresistible force. If the
damage was caused by defendant but not by corporal touch, the Romans
resorted to the device of allowing an analogous action by setting forth
the facts of the case, or by express statement of the analogy. The
penalty was in case of death assessed at the highest value which the
slave or animal had within a year preceding the death; in case of
damage only, the value to the plaintiff' within the preceding thirty days.
But condemnations under this head of wrongful damage did not involve
the infamy which belonged to theft; that was purposed, this was often
the result of mere misfortune. Surrender of a slave who had caused the
CH. in. 7—2
## p. 100 (#132) ############################################
100 Actio iryuriarum. Procedure
damage was allowed to free the defendant as in the case of theft. Damage
done to a freeman's own body was hardly within the words of the statute;
and compensation could be obtained only by an analogous action.
The third class was confined to cases of malicious insult but had a very
wide range. It included blows or any violence to plaintiff or his family,
abusive language, libellous or scandalous words, indecent soliciting,
interference with his public or private rights. Not only the actual
perpetrator of the insult, but anyone who procured its doing, was liable.
The character of the insult was differently estimated according to the
rank of the person insulted and the circumstances of the action. The
damages on conviction were, under a law of Sulla which in principle
remained till Justinian, assessable by plaintiff subject to the check of
the judge. Many of these acts, especially when of an aggravated
character, were punished criminally, even by banishment or death.
A fourth class of torts (sometimes called quasi ex delicto) makes
defendant liable not for his own act but for injury caused by anything
being thrown or falling from a room occupied by him near a right of
way, or for theft or injury perpetrated in a shop or tavern or stable under
his control. The penalty is put at double the estimated damage, except
that, if a freeman is hurt, no estimate of damage to a free body was held
possible, and the penalty was therefore the amount of medical expenses
and loss of work: if he was killed, it was put at fifty guineas (aurei).
Procedure. In classical times the parties after summons approached
the praetor and asked for the appointment of a judex to hear and decide
the suit. Instructions proposed by plaintiff and sometimes modified by
the praetor at the request of the defendant were agreed to by the
parties, who then joined issue, and the formula containing these instruc-
tions was sent to the judex named. The judex heard and decided the
case, and, if he found against the defendant, condemned him in a certain
sum as damages. But in some few matters the praetor, instead of
appointing a. judex in the ordinary course, kept the whole matter in
his own hands. This extraordinary procedure became in Diocletian's
time the ordinary procedure, and the praefect or the governor of a
province or the judex appointed by them heard the case from the first
without any special instructions. In the fourth century the case was
initiated by a formal notice (litis denuntiatio) to the defendant; but
in Justinian's time by plaintiff's presenting to the Court a petition
(UbeUus) containing his claims on the defendant, who was then summoned
by the judge to answer it. If he did not appear, the judex after further
summons examined and decided the matter in his absence.
Either party before joinder of issue had the right of refusing the
judex proposed by the governor, etc. Three days were then allowed
them to choose an arbitrator, and in case of disagreement the governor or
other authority appointed. Jews' suits whether relating to their own
## p. 101 (#133) ############################################
Procedure. Proof 101
superstition or not could be heard by the ordinary tribunals, but by
consent they might have the case heard by an arbitrator who was a Jew.
Soldiers and officials were not exempt from being sued before the civil
tribunals on ordinary matters. Constantine in a constitution of 833 (if
genuine) gave either party the right even against the will of the other
to have the case transferred to the bishop at any stage before final
judgment. But Arcadius in 398 repealed this and required the consent
of both parties, so that the bishop was only an arbitrator and his
judgment was executed by the ordinary lay officers.
The judical were to act on the general law, said Justinian (541), and
during their task were not to expect or accept any. special instruction for
deciding the case. If any application were made to the Emperor, he
would decide the matter himself and not refer it to any other judex. A
judex was authorised, if in doubt about the interpretation of a law, to
apply to the Emperor.
No suits excepting those touching the Crown (ji&cus), or public trials
were to be extended beyond three years from the commencement of the
hearing. When only six months remained of this period, the judex was
to summon either party, if absent, three times at intervals of ten days,
and then to examine and decide the matter, the costs being thrown on
the absentee (531).
The courts were open all the year, with the exception of harvest
and wine-gathering (sometimes defined as 24 June to 1 August, and
23 August to 15 October), also seven days before and after Easter,
also Sundays, Kalends of January, birthdays of Rome and Constantinople
birthday and accession of Emperor, Christmas, Epiphany and time of
commemoration of the "Apostolical passion" (Pentecost). Neither law
proceedings nor theatrical shows were allowed on Sundays; but Con-
stantine exempted farmers from observance of Sundays. No criminal
trials were held in Lent.
Private suits and questions of freedom were to be tried at defendant's
place of residence, or of his residence at the date of the contract. So
Diocletian (293) following the old rule, actor ret Jorum sequatur. Suits
in rem or for a jideicommwsum or respecting possession should be
brought where the thing or inheritance is.
Justin (526) forbad any interference with a burial on the ground of
a debt due from deceased; and invalidated all payments, pledges and
sureties obtained in these circumstances. Justinian (542) forbad anyone
within nine days of a person's death to sue or otherwise molest any
of his relatives. Any promise or security obtained during this period
was invalid.
Proof. The person who puts forth a claim or plea has to prove it.
The possessor has not to prove his right to possess, but to await proof to
the contrary. Thus one who is possessed of freedom can await proof by
a claimant of his being his slave. But one who has forcibly carried off
## p. 102 (#134) ############################################
102 Evidence on oath
or imprisoned another, whom he claims to be his slave, cannot on the
ground of this forcible possession throw the burden of proof on his
opponent. To prove a purchase it is not enough to produce a document
describing the fact, but there must be shewn by witnesses the fact of
purchase, the price paid, and possession of the object formally given.
To prove relationship, the fact of birth and the parents'' marriage, or
adoption by them must be shewn: letters between the parties or appli-
cation for an arbiter to divide the family inheritance are not sufficient
Persons who have admitted a debt in writing cannot prove payment
without a written receipt, unless they produce five unimpeachable
witnesses to the payment in their presence. But as a general rule
they are not bound by a statement in the document of debt of their
having originally received the money, wholly or partly, if they can
prove within 30 days after the production of the document that the
stated money had not been paid them.
All witnesses must be sworn. One suspected of giving false evidence
can be put to the question at once, and, if convicted, can be subjected
by the judge hearing the case to the penalty to which the defendant
was liable against whom he had given the false evidence. A single
witness without other evidence proves nothing, and Constantine enacted
(334) that he should not be heard in any suit. All persons (enacted
Justinian 527) with like exceptions as in criminal causes are compellable
to give evidence. Slaves were sometimes examined under torture.
No judge was to commence the hearing until he had the Scriptures
placed before the tribunal, and they were to remain there until judgment.
All advocates had to take an oath, touching the Gospels, that they would
do what they could for their clients in truth and justice, and resign
their case if they found it dishonest (530). Both plaintiff and defendant
had to take an oath to their belief in the goodness of their cause (531).
Justinian among other rules respecting documents enacted these:
All persons are compellable to produce documents who are com-
pellable to give evidence. The production is to be in the court, at
the expense of the person requiring it. Anyone declining to produce
on the ground that he will be injured thereby, must, if this is contested
by the other party, make oath of his belief and also that it is not any
bribe or fear or favour of someone else that deters him.
All documents were to be headed with year of Emperor, consul,
indiction, month and day.
Contracts of sale, exchange and gift (if not such as must be
officially recorded), of earnest and compromise and any others arranged
to be in writing, were not valid, unless written out fair and subscribed
by the parties; if written by a notary, he must complete and sign them
and be present himself at their execution by the parties (528 and
536). In 538 it was directed that contracts of loan or deposit or
other should, even when written, have at least three witnesses to their
## p. 103 (#135) ############################################
Oaths in lieu of proof . Criminal law 103
completion, and when produced for proof be confirmed by oath of the
producer.
In lieu of proof by witnesses or documents, oaths were sometimes
resorted to. The judge might propose to one of the parties to support
his allegation by an oath, and, if the oath was taken, the judge would
naturally decide that point in his favour. But either party might
challenge the other, either before trial or in the course of it, to swear
to some particular matter, and if the party so challenged swore in the
terms of the challenge, the matter would be held to be decided as much
as by a judgment, and in any further dispute between the parties or
their sureties or persons joined with them the oath if relevant could be
pleaded or acted on as decisive. And the same result ensues, if the
party to whom the oath is tendered declares his readiness to swear and
the other then waives the demand. The party called on to swear may
instead of taking the oath retort the demand, and the other party is
then in the same position as if the oath had been originally tendered to
him. In earlier times probably such tender of oath could be declined
in most cases without prejudice, but Justinian apparently makes no
restriction, and a defendant for instance to an action for money lent,
if plaintiff tendered him an oath whether it was due or not, had no
choice except either to take the oath or admit the debt, unless indeed
he retorted the tender. Plaintiff, if he accepted the retort, would have
first to swear to his own good faith and then could establish his claim
by the oath. In all cases the oath, if it is to carry the consequence
stated, must not be volunteered, but taken in reply to the challenge and
must conform precisely to the terms.
The requirement of an oath was also resorted to in some cases by
the judge in order to compel obedience, wrongly refused, to an inter-
locutory decision. The plaintiff was allowed to fix the damages himself,
by an oath of the amount due. This was called in litem jurare, "to
swear to the disputed claim. '"
Criminal Law. The criminal law was put in force either on the
magistrate's own initiative or by private persons. Women and soldiers
were not admitted as accusers, unless the crime was against themselves,
or their near relatives. Anyone desiring to bring an accusation had to
specify the date and place of the crime and to give a surety for due
prosecution. Laws of Constantine, and Arcadius, retained by Justinian,
directed that any servant (familiaris) or slave bringing an accusation
against his master should be at once put to death before any inquiry
into the case or production of witnesses. And the like was enacted
(423) in the case of a freedman accusing his patron. Excepted from
this rule were cases of adultery, high treason and fraud in the tax-return
(census). An accuser not proving his case was (373) made subject to
the penalty belonging to the crime charged. A like rule of talion was
prescribed in some other cases.
## p. 104 (#136) ############################################
104 Imprisonment. Admissible witnesses
A law of 320 prescribed that in all cases, whether a private person or
an official was prosecuting, the trial should take place immediately. If
accuser were not present or the accused's accomplices were required, they
should be sent for at once, and meantime any chains that were put on
the accused should be long ones, not close-fitting handcuffs; nor should
he be confined in the inmost and darkest prison but enjoy light, and at
night, when the guard is doubled, be allowed in the vestibules and more
healthy parts of the prison. The judge should take care that the
accusers do not bribe the gaolers to keep the accused back from a
hearing and starve them: if they do, the officers should be capitally
punished. The sexes were to be kept apart (340). Justinian in 529
forbad anyone being imprisoned without an order from the higher
magistrates, and directed the bishops to examine once a week into the
cause of imprisonment, and to ascertain whether the prisoners were slave
or free and whether imprisoned for debt or crime. Debtors were to be
let out on bail: if they had no bail they were to have a hearing and be
let out on oath, their property being forfeited if they fled. Freemen
charged with lesser crimes to be let out on bail, but if the charge were
capital and no bail was allowed, imprisonment was not to extend beyond
one year. Slaves to be tried within 20 days. The bishops, as ordered
by Honorius, had to report any remissness in the magistrates. Private
prisons were forbidden altogether by Justinian (529).
The accused was examined by the judge. If a slave was accused,
torture was sometimes applied to elicit a confession. In republican times
a freeman was not liable to this. Under the Empire the rule was
broken, but persons of high rank were exempt, except where the charge
was treason (majestas) or magical arts.
The judge could compel anyone to give evidence except bishops and
high officers and old and sick persons or soldiers or attendants on
magistrates at a distance. A private accuser had similar powers, but
for a limited number. Defendant could call witnesses, but had no
power of compulsion.
Parents and children were not admissible as witnesses against one
another, nor were other near relatives; nor freedmen against their
patron. Slaves were not admissible to give evidence against their
master, except in cases of treason, adultery or fraud on the revenue.
As a rule slaves were used as witnesses only in default of others. They
were examined, and if their statements were not satisfactory, torture was
applied.
If after trial the accused was acquitted, the old practice (retained by
Justinian) was for the judge to examine into the conduct of the accuser,
and, if he found no reasonable ground for the accusation, to hold him
guilty of calumny. For collusion with the accused he might be held
guilty of prevarication. Nor was an accuser allowed to withdraw from
an accusation once undertaken, especially if the accused had been long
## p. 105 (#137) ############################################
Crimes 105
in prison or had been subjected to blows or chains. But if the accused
consented or had not been harshly treated, withdrawal (abolitio) was
generally permitted, except on charges of treason or other grave crimes.
An accuser, once desisting, could not take the charge up again.
A general indulgence, by which all persons accused (with certain
exceptions) were released, was decreed by Constantine in 322 on account
of the birth of a son to Crispus. In later years the like indulgence was
granted at Easter, and apparently in 885 it was made a standing rule.
Persons charged with poisoning, murder, adultery, evil magic, sacrilege
or treason, and sometimes other offenders, were excepted.
Most of the legislation on crime goes back to the Republic or to
Augustus. The law of treason {majestas) is based on a law of the latter.
Treason consists in doing anything against the Roman people and
includes all assistance to the enemy, attacks on Roman magistrates,
intentional injury to the Emperor's statues, collecting for seditious
purposes armed men in the city, refusal to leave a province on the
appointment of a successor, making false entries in public documents,
etc. Abuse or other insult to the Emperor required careful inquiry as
to the motive and sanity of the accused; punishment was to await a
report to the Emperor. If an accuser failed to establish his charge, he
was liable to be examined by torture himself, notwithstanding any privilege
from military service, birth or dignity. The punishment for treason
was death and forfeiture of property. Conspiracy to compass the death
of the Emperor's councillors subjected even the sons of the criminal
to incapacity for succession to any inheritance or legacy, and to be
reduced to such want that "death would be a comfort and life a
punishment "(397).
By a law of Sulla, maintained and developed by the Emperors,
murder, magical arts, nocturnal incantations or rites to exert unholy
influence over persons, desertion to the enemy, stirring up seditions or
tumult, bribing witnesses or judges to act falsely were punished with
death in the case of all but the privileged class. So also consulting
soothsayers (haruspices) or mathematicians respecting the health of the
Emperor, introduction of new sects or unknown religions to excite men's
minds, forgery or suppression of wills, forgery of seals, coining, melting
or mutilating coinage were sometimes punished capitally. Coining was
regarded as treason (326).
