or through no heir being forthcoming to enter on the inheritance. The last case covered the par

L. 1, D. (xxviii. 3). ticular instance in which the heir refused to enter, when the Will was said to be abandoned (destitutum). (5) Cancelled (recissum), as on a judicial sentence in a suit founded on want of attention to the claims of nearest relations (querela inofficiosa).

It will be seen that, in the two first of these cases, the Will is invalid from the beginning. These cases were sometimes included under the head of "abortive" (inutilia). In the other cases, the Will is only invalidated either through subsequent events, or through subsequent events which, being first ambiguous, afterwards assume a decisive complexion.

CHAPTER VI.

ACTIONS AND REMEDIAL PROCESSES.

THERE is no part of the law of a country which is more closely associated with its historical fortunes from a social point of view than that of procedure. The fact that it lives more than any other part of the law in the eyes of the people, and fixes upon itself all the emotions of interest, sympathy, antipathy, and curiosity, at once renders it obstinately repulsive to change, and renders the changes which inevitably take place slow and gradual. It rarely happens that there is any great breach of continuity, and the invariable experience is that the latest refinements of jurisdiction preserve, at the least, some few lineaments of the most antique condition of the society.

Nothing can be more different than the circumstances of early Rome as a strictly self-contained community and city, in which the primitive law grew up, from the situation of the empire, with its two great metropolitan capitals, its scattered provinces, and its innumerable quasi-independent municipalities, under Constantine the Great, and the position, again, of the still more widely developed and reunited empire under Justinian. The differences are, indeed, represented to the full on the most superficial survey of the methods of judicial procedure in the time of the early republic and in the time of the later empire.

Nevertheless, it is difficult to fix any particular moments at which momentous changes were brought about. The date, indeed, of the Æbutian law (B.C. 172)-which is said to have abolished the antique civil processes (legis actiones)

and introduced the Formulary system of pleading, with its attendant distribution of jurisdiction between the magistrate and the jurors-might be taken as indicating a notable epoch of change. Similarly, the final legislative abolition of the Formulary system by Diocletian and Constantine (A.D. 294-342) seems to mark an epoch of corresponding importance and distinctness. The extensive legislation, again, of Justinian, for the reform of judicial proceedings, might also seem to imply radical change rather than organic renovation.

But it will be found, on a closer inspection, that in each case the old contained the actually germinating seeds of the new. The old drapery of custom, routine, and often useless fiction, was dropping off long before the final legislative disrobement. In the process alluded to by Gaius as "demand for the appointment of a judge" (judicis postulatio), and only not preserved at full length owing to the corrupt state of the Verona manuscript, there was contained the obvious anticipation and promise of the whole Formulary system, of the subsequent proceedings which attended the grant of the Prætor's interdict, and even the provision for excepted cases made by Justinian, who otherwise rigidly confined to one supervising judge the whole conduct of judicial process (extraordinaria cognitio).

In the same way there were some judicial institutions which reappear in every age, though with changed names, and sometimes with modified details in the modes of their practical application. Such were the pains always taken to bring the defendant before the court in person, and not only to furnish him with all requisite information as to the ground of the suit, but also to afford him the fullest opportunity of settling it in a reasonable time. without further litigation. So, likewise, the practice of judicial bail in all its forms, whether by giving personal security, material pledge, solemn oath, or even, as in the earliest times, the deposit of a wager, exhibits merely fluctuating forms of one and the same ineradicable notion. Justinian only carried the institution to the last point of

development when he exempted persons occupying certain honourable stations from the necessity of giving guarantees for attendance in court (vadimonia), other than the pledging of their personal honour.

It is not to the present purpose to follow out this course of inquiry with the interesting minuteness which it would admit of. Sufficient has been said to explain why it is impossible to isolate any one era of legal procedure, or to attempt to give even a compendious description of the judicial institutions of Justinian, without recurring to the antiquated curiosities of the XII. Tables, as well as to the active period of the Prætor's interdict as witnessed by Cicero.

It will be convenient to consider the several topics here indicated in the following order:

§ 1.-Growth of Roman Procedure up to the Age of Fustinian.

(1) The antique civil processes (legis actiones).

(2) The Formulary system of pleading.

(3) The summary jurisdiction of the Prætor.

(a) Interdicts.

(b) Judicial security (cautiones).

(c) Grant of provisional possession (missiones).

(d) Reinstatement (restitutio in integrum).

(e) Administrative functions of a judicial kind reserved to the Prætor or his representative.

(1) THE ANTIQUE CIVIL PROCESSES (legis actiones).

An account of the antique civil processes is contained in the fourth commentary of Gaius' Institutes, though, unfortunately, some of the most relevant passages are illegible in the only surviving manuscripts. The

per judicis postulationem.
per condictionem.

per manus injectionem.

per pignoris capionem.

(a) The process called sacramento involved the deposit by both parties with the pontifex of a penal sum in proportion to the value of the matter in dispute; except where the matter in dispute was personal freedom, when the penal sum waged was limited to fifty asses. The wager (sacramentum) was forfeited, in the case of the losing party, to the State.. The object of the deposit was to secure the bona fides of the parties and to maintain their persistence in the suit. The forfeited sum was employed to meet the expenses of the public sacrifices, and this was the origin of the name. Instead of an actual deposit, it became, later on, the custom for both parties merely to give security (prædes = præ-vades) for the penal sum to the Prætor. The whole proceedings, as detailed by Gaius, were in the highest degree symbolical, formal, and precise. Provision was made, as in the later process on the possessory interdict, for determining the provisional claim to possession.

(b) As to the process per judicis postulationem, of which the account is wholly lost through the state of Gaius' manuscript, it can only be conjectured that it was the remedy applicable in such cases as those of marking boundaries, determining family claims, preventing injuries through the facts of neighbourhood, and deciding cases where spurious possession had been obtained of a thing claimed. This process was presupposed in the legislation of the XII. Tables, and was an anticipation of the ordinary reference by the magistrate to the judge, under the Formulary system, as well as of the important class of agreements for referring matters to arbitration, which subsisted to the latest period of the law.

(c) Not much more information is contained of the