Page images

determined by illustrations; the necessity of Intent to constitute the offence is dwelt upon; and finally there is an examination of the question, what interest will suffice to enable a person to bring the penal action.

Robbery (Title 2) implies Theft; the injured person consequently may proceed by either actio furti or bonorum vi raptorum, though the latter, being praetorian, was, so far as it was penal, barred by prescription in an annus utilis. The distinction between the two offences is that Robbery is always accompanied by violence; there is also a difference in the nature of the remedy, by which, should the offence be treated as rapina, both penalty and compensation are simultaneously recovered, whereas the actio furti is penal only, compensation being obtained by condictio furtiva. A stringent enactment of Valentinian is here noticed, which was designed to check violent seizure of property, moveable or immoveable, under the pretence that the seizor believed it to be his own; a plea which excluded the presumption of dolus malus, and consequently exempted him from the penalties of both Theft and Robbery. It is also observed that to enable one to sue on the latter one's interest in the property may be even more slender than is required to support an actio furti.

The third Title treats of the lex Aquilia, an early statute which practically contains the whole of the law of Injury to property, damnum iniuria datum. The peculiarity of this Delict is that mere negligence is sufficient to render one liable to its penalties: 'non minus quam ex dolo ex culpa quisque hac lege tenetur.' What amounts to negligence in this connection is clearly shown by a series of illustrations. The lex Aquilia contained three chapters, the second of which was obsolete under Justinian. The first dealt with the killing of slaves and certain domesticated animals, and imposed a penalty of the highest value such slave or animal had borne at any time within the year immediately preceding. The third related to almost every other kind of damage to property: its penalty was such property's highest value within the last thirty days before the wrong was done. Certain extensions of the statute by the 'interpretatio' of the older jurists, and by the action of the praetor, to cases not strictly within its letter are noticed, and the wide meaning of'damnum' to be gathered from its terms is illustrated by examples.

The fourth Delict (Iniuria, Title 4) is aimed at the honour, good name, and reputation of a free person: it comprises such acts as assault and battery, libel, slander, and in fact all treatment of or demeanour towards a man by which his character is likely to be injured. It is pointed out that a wrong of this sort may be inflicted upon one in the person of one's wife, children, or slaves; for though the slave himself has no rights whatever, and therefore no good name to injure, yet the object of an attack upon him may be to dishonour his master. The penalty for this offence, originally in some cases retaliatory, had been altered by the praetor to a pecuniary mulct, which the injured person was allowed within certain limits to fix himself; the considerations upon which its amount depended were in the main his rank and the circumstances under which the injury had been inflicted, which would sometimes bring it within the category of iniuria atrox. Among minor points touched upon in the text are the bearing of the lex Cornelia upon this subject, the alternative criminal remedy, the liability of accessories and instigators, and the extinction of the actio iniuriae by dissimulatio or condonation.


The fifth Title illustrates the class of obligations which arise quasi ex delicto, and which seem mainly to be cases of vicarious responsibility, such as that of a householder for damage caused by things 'effusa et deiecta' from his residence, and of an inn or stable keeper for the delicts of his employe's. The reason why a judge was held liable quasi ex delicto for loss occasioned to suitors by his incapacity or injustice would seem only to be that such an offence could not be brought within the definition of any of the four old established Delicts.

At Title 6 we enter upon the discussion of the last department of Private Law—the ius quod ad actiones pertinet. The division of law into law of Persons and law of Things is perhaps as old as Cicero (Invent, i. 24), and apparently was the basis of a classification in the Perpetual Edict (Dig. i. 5. 2); but Gaius, so far as we know, was the first jurist who added the third division of actiones. It may be doubted whether his own conception of this branch of his system was as clear as a more modern writer might have made it. The term actio, as is shown in the note on Tit. 6. pr., has a variety of meanings in the writings of the Roman lawyers, and two of them seem to be more or less blended in Gaius' fourth Book, which wholly relates to this topic. In one sense, actio is a right of action; and a treatise upon rights of action would correspond with what writers on analytical Jurisprudence term the Law of Sanctioning or Rèmedial rights. In another sense actio means the Procedure in an action; taken thus, the ius quod ad actiones pertinet would correspond to what the same writers call Adjective Law, and which it is perhaps more proper to regard as a part of the Public rather than of the Private code. The fourth Book of Gaius would seem to be an ill arranged attempt to deal with actio in both of these aspects. It cannot be contended that it deals solely with Remedial rights: Gaius' own explanation of the term actio in his opening paragraphs shows that he is thinking of an 1 action' rather than of a 'right of action," based, as it is, upon peculiarities of Procedure and Pleading. In point of fact a very considerable proportion of the Book deals with Procedure pure and simple: in other words, 'Procedure is treated partly indeed in its formal character, but still more in its material character: . . . . that is to say, not so far as it is merely the method of realizing pre-existing rights, but rather so far as its stages are titles which, like Dispositions and Torts, themselves originate new rights and new obligations V

The compilers of the Institutes, however, seem to have had a very inadequate conception of Gaius' scheme, and indeed to have troubled themselves very little in this part of the work to follow out consistently the principle of arrangement for which they were indebted to him. Strictly speaking, of course, all the Titles between the fifth and the end of the Book should have related to actions in some sense or other: but they seem to have considered it better to give the heading 'de actionibus' to a single Title (6), in which all conceivable rights of action are classified upon various principles of division, and to append to this a number of subsidiary Titles dealing mostly with topics discussed by Gaius in a far closer and more logical connection with his main subject. The effect of this is to give an air of deadness to the whole treatment, and to disable the compilers from justifying the place assigned in the fourth Book to some matters for which Gaius himself might possibly have offered some reasonable defence. For instance, if it is right to describe in Book III the extent to which a paterfamilias profits by the contracts of a son in his power, or a master by those of his slave (Tit. z8), that too must be the proper place to explain what corresponding liability he incurs by them: but this is discussed in Book IV, Tit. 7, while Titles 8 and 9, though placed where they are after Gaius, would have occupied a far more logical position between Titles 5 and 6, in connection with Delict and Quasi-delict. No doubt this failure to carry out the original plan of arrangement is in a large measure to be explained by the great change which had occurred in the nature of Procedure proper between the composition of the two works. The mode in which an action was conducted in Justinian's time was so formless, so free from the tram1 Poste, Gaius, pp. 40, 484.

mels of law, and so much was left to the discretion of the judge himself, that little could be said upon the matter: the litigant was no longer liable to be wrecked by the omission of some slight form; the administration of justice had become more 'paternal,' and state officials saw that he duly went through many stages in the process (or went through them for him) for which the earlier law had left him solely responsible in person. Knowledge of Procedure was therefore of less importance than in the old days, and what there was to know could be learnt less satisfactorily from books than by attending the courts, to which Justinian himself refers the student (e.g. Tit. 11. 6). Hence it is impossible to give a really connected view of the matters discussed in the last thirteen Titles of the Book which lies before us. So far as there ever was a connection between them, it is to be ascertained by systematically reading the fourth Book of Gaius, not that of his imitator.

In the sixth Title Actions are divided upon three main principles.

i. According to their content they are divided (a) into real and personal. A real action is one in which the plaintiff affirms a right in rem, whether dominium (§ 1) or a ius in re aliena (§ 2); in a personal action his contention is that the defendant is under some specific legal obligation to him. 'Prejudicial' actions, in which the issue usually is a question of status, may be regarded as a species of the former class: in rem esse videntur, § 13; and some actions 'mixtam causam obtinere videntur' (§ 20), i.e. are at once both real and personal; these are the iudicia divisoria, such as suits for the partition of an inheritance or other joint property, and for the regulation of boundaries. Cross divisions from this same point of view of content are (b) that which turns upon the plaintiff's more immediate object, according as it is to obtain mere reparation (actiones rei persecutoriae, § 17), as in real actions and those arising ex contractu; to merely recover a penalty (poenae persecutoriae, § 18), as in the actio furti; or to get compensation and penalty in one (actiones mixtae, § 19), as in the actions on robbery and under the lex Aquilia, (c) according to the amount of damages recovered, which may be simple (e. g. actions on contract, § 22), double (e.g. the actio furti nec manifesti, § 23), triple (§ 24) or quadruple (e.g. the actio furti manifesti, § 25); (d) that which depends upon the possibility of the plaintiff s being unable to recover the whole of what is his strict legal due (§ 36), owing to the defendant's liability being mere partial or conditional on his means: examples of these are given in §§ 36-40.

ii. Actions are called legitimae or civiles if accorded by the civil law, honorariae or praetoriae if their source is the Edict of the magistrate, § 3. Real praetorian actions are exemplified by the actiones Publiciana, Serviana, and hypothecaria, §§ 4-7; among those which are personal are the actiones de pecunia constitu1a (§ 9), de peculio (§ 10), and others which are penal (§ 12).

iii. Finally, there is a division the origin of which is to be sought in the formulary period, and which turns upon the nature of the procedure. Actiones arbitrariae (§31) are those by which the plaintiff obtains delivery or production of specific property and specific performance of contract. Actions in personam are either stricti iuris or bonae fidei (§ 28), a distinction more fully explained elsewhere1; the latter class is illustrated by examples, and the extension of one of its leading features—set off—to the former is noticed in § 30.

Lastly, thrust into this classification of actions, in deference to Gaius, are one or two topics which would have been better discussed in some other place. The thirty-second section, which corresponds with Gaius iv. 52, should properly form part of Title 17 ('de officio iudicis '); and the explanation of the effects of plus and minus petitio, and of erroneous as distinct from over claim (§§ 33-35, corresponding with Gaius iv. 53-60), which really is a matter of Procedure, might be placed in several of the following Titles as appropriately as here.

In the seventh Title are explained the so called 'actiones adiectitiae qualitatis,' by which the Praetor had tempered the inequitable doctrine of the civil law that a master or paterfamilias, though entitled to all benefit under the contracts of his slaves or children in power, could in no case be sued upon them. By the actiones quod iussu, exercitoria, and institoria фе superior became liable in solidum whenever it could be shown that he had directed or authorized the contract. Where a slave or filiusfamilias embarked a peculium in trade with his master's or father's knowledge, and became insolvent, the master or father was permitted to distribute the assets among the creditors, though any one of them who was dissatisfied with such distribution was enabled by the actio tributoria to bring it under judicial review: if the pater or dominus was himself a creditor, he was entitled to no larger dividend than the rest. Where, on the other hand, the slave or son made the contract without the superior's knowledge, the latter was liable in person by the actio de in rem verso so far as the transaction had resulted in a benefit to himself; otherwise he could be compelled only to surrender the peculium, and had the privilege of

1 Excursus X inf.

« PreviousContinue »