(4) REINSTATEMENT (Restitutio in integrum). There was, as the Roman lawyers themselves well recognized,—no more important department of the Prætor's summary jurisdiction, or rather right, of executive intervention than that by which he was prepared in certain cases to reinstate in his rights and legal position one who, through his own acts or the acts of others, had inadvertently lost them.

The Prætor's Edict defined certain special cases in which he was prepared to accord this relief,-such were youth and inexperience, unavoidable absence from home, or the absence of an antagonist in a law suit, or the fraud or violence of others resulting in the performance, contrary to a true intent, of prejudicial acts. But besides these special cases, there was a general clause in the edict. in which the Prætor reserved to himself the right of reinstating on any ground whatever that commended itself to his sense of justice, provided that no law, written or unwritten, forbade it.

The customary period within which application for reinstatement might be made had been the period of the Prætor's office, that is, one year; but the year was counted from the time of the altered legal position, or, rather, from the moment at which the person who suffered from it first acquired the capacity of bringing forward his application. Constantine altered the period to five years in Rome or four years in Italy; and Justinian enacted that, in the special cases of an impaired legal position through the inexperience of youth, or through absence, or through the causes enumerated in the comprehensive section of the edict, the application must be made within four years, counting from the time when the person whose rights were impaired L. 7, C. (ii. was first competent and free to sue for redress. 53). In the case of a loss of rights through fraud, a reinstatement must be applied for in all cases within two L. 8, C. (ii. years of the commission of the fraudulent offence, 21). In the case of loss of rights through violence, or threat of violence, there was no limit to the time for applying for

reinstatement; but if property wrongfully obtained were not restored within a year from the time of the wrong-doing, and application for reinstatement were made within the same year, fourfold damages could be obtained, all payments made by the applicant being paid back to him.

The reinstatement was effected with the greatest possible efficiency and fulness which the case admitted of, the acquired rights of innocent third persons being respected. All intermediate gains, profits, accessions, fruits, and the like, with the proper interest on capital, had to be made. good to the person who would have been entitled to them if the change of legal relationship complained of had not occurred. In calculating these intermediate profits it mattered somewhat whether the person who had already come into possession of them, or might have come into possession of them if he had used due diligence, had been himself acting fraudulently or bona fide. In the latter case, he was only liable to make good actual receipts, and the person who claimed to be righted was bound to make good all expenses advanced on behalf of the property.

There was one peculiar case in which the Prætor rescinded an act of transfer which did not seem to fall under the general head of fraud. It was where a person alienated property in such a way as to entail on a litigant the consequence of having a more powerful antagonist in the suit or a less favourable tribunal. In this case not only was the act of transfer annulled, but the person who perpetrated it was liable in an action to make good to his adversary the amount of interest that he had in maintaining the state of things as it originally was. This did not prevent a person without fraudulent intention taking steps to pass over his rights of action to another, on the ground of his own ill health or pre-occupations. But even in this case, though the act of transfer would be good, yet the Prætor might see cause to intervene with his interdict, and might oblige the party who wished to rid himself of the suit to employ a representative agent.

There were a few cases in which the Prætor's functions in granting reinstatement, especially on the ground of

non-age, were restricted. minor on becoming of full age ratified an act previously inaugurated or actually done; (2) in the case of delictsalthough even here a magistrate was entitled in exceptional cases to accord a certain measure of relief. According to a law of the Emperors Severus and Antoninus, L. 1, C. (ii.

Such cases were (1) when a

while it was admitted that the weakness of the 35). mind did not excuse moral depravity, yet where a civil injury seemed not to proceed from deliberate intention, there was ground for reinstatement in favour of a minor, and this, too, even where the offence had specially attached to it penal damages; (3) where two minors were concerned, and the position of the one of them who was in possession was upheld, unless at the time of the action he had become the most enriched by what had taken place; (4) where by the special intervention of the emperor, in L. 1, C. (ii. reply to the proper application, a minor was 45). allowed to contract exactly on the same conditions as one of full age. The form of the grant was said to be that of allowing "indulgence or pardon to the fact of being under age,"-venia ætatis. Where this grant was made, the minor was still obliged to obtain a special authorization. to alienate or hypothecate his immoveable property.

(5) ADMINISTRATIVE FUNCTIONS OF A JUDICIAL KIND RESERVED TO THE PRÆTOR OR HIS REPRESENTATIVE.

The growth of business of a purely administrative kind, which in the course of social and industrial development attached itself to the Prætor's judicial functions, tended to enlarge his personal responsibility at the expense of the judges, whose services were only required in those simple litigious processes involving a few definite issues of law or of fact. The Prætor, indeed, gradually gave way, in the progress of the imperial system of government, to the Prefect of the city of Rome and, subsequently, of Constantinople, and to the subordinate district magistrates of the provinces, appearing under the general title of rectores provincia, which comprise consulares, correctores, and

præsides. But the principle of centralizing administrative business of a judicial sort round the person of the magistrate was the same under whatever name the magistrate for the time appeared. And there is no doubt that, anticipating the parallel phenomena of the course of the development of the Court of Chancery in England, the felt difficulty of drawing a line between the administrative and the litigious sides of some of the most important classes of judicial business gave rise to the final absorption of all legal processes into the hands of the magistrate, and to the suppression of the functions of subordinate judges.

It will be well to review a few of the chief cases in which the direct administration in certain judicial and quasijudicial matters are progressively centred in the Prætor's hands (Prætoria cognitio). It will be seen that the obvious grounds for this somewhat anomalous rivalry with the strict principles of the Formulary system were either the fact of some moral considerations, not susceptible of strict legal definition, being at stake; or the fact of a private right being involved inextricably with public rights, or with matters of general political concern; or the existence of a peculiar element of compensation in the rival claims of opposed litigants; or the existence of rights, at present only in an embryonic form, which had only partially passed under the domain of strict law.

To the class of matters especially reserved to the Prætor's sole and undivided adjudication were :—

(a) Matters involving claims to trusts under wills (fideicommissa). It was the Emperor Claudius who first appointed two special Prætors to deal with this branch of business, though we are told that Titus afterwards withdrew one of them.

L. 2, § 32, D. (1, 2). Ulp. Gaius ii. § 278.

(xxv. 12).

L. 5, D. (xxv.

3).

(b) All pleas, as between parents and children, and patrons and freedmen, relating

to alimentary support.

(c) All questions of personal relationship between master and slave, or father and children, which, in favour of humanity, conflicted with the principles of the older law, and which were in fact anticipatory of a time when true

legal rights should be recognized as existing in persons in the power of others, and the slave become incontrovertibly a true legal person. A slave had a right to bring his master to justice on an action for suppressing a Will in favour of his own freedom (actio testamenti suppressi); and it was by a special rescript of the emperors Marcus and Commodus that the slave was first allowed personally to move in the matter. So special a proceeding was naturally unfitted to become a matter of common litigation.

(d) Questions of pure status, whether relating to freedom, citizenship, or family rights, were by a series of enactments reserved for special magisterial investigation. The Prætor recognized this topic of administration in his edict, and while he was ready to accord an ordinary right of action for the assertion of personal claims or rights to property incidentally involved (de liberali causa), there is no doubt that, contemporaneously, his own independent right of undivided administration was silently growing.

(e) One of the most prominent topics of the Prætor's independent jurisdiction, and the one through which most information is obtained as to its character, methods, and extent, is that relating to guardianship, especially to the removal of guardians who had proved unworthy or unsuitable, the direction of guardians as to the education and place of habitation of their wards, and the alienation of trust estate, and more especially the consideration of claims of exemption from discharging the office of guardian. The proceedings in this last case are given in con- Vat. Frag. 155siderable detail in the Vatican Fragments. 168.

(f) It was seen above, under the head of the Consensual Contracts, which give rise to obligations, that there were certain professional classes of persons who could only claim their fees or honoraria by an extraordinary intervention on the part of the proper magistrate. This class of persons included all public officials, such as judicial assessors, and also all persons who managed the affairs of others as a matter of humanity and charity, or from a sense of their friendlessness and isolation in a strange country D. (1. 14). (proxeneta).