qualified by law from acting for themselves, in other words, that $32. form of representation (we will call it 'tutelary representation') which is necessitated by the law itself, was recognized at an early period of Roman law. Thus a guardian (tutor) is fully qualified to act on behalf of his ward, and when he does so, his acts operate only as against the ward and not as against himself. But the other form of representation, where one person, of his own free will, employs another, merely because he is physically prevented from acting himself (we will call it 'procuratorial representation,' or 'agency' simply) was never, on principle, recognized by Roman law. A procurator, i. e. a person freely chosen to represent another, cannot conclude a juristic act (e.g. a sale) for the person he represents, but must conclude it for himself. The only case where representation of this kind was allowed was for the purpose of acquiring possession, and, through it, such other rights (e. g. ownership) as are acquired through the medium of possession. This very limited use of agency constitutes a most important point of difference between Roman and modern law, for in modern systems of law both tutelary and procuratorial representation are, on principle, admissible in all transactions of private law. The juristic act is, in such cases, concluded by the agent, acting on behalf of another; in other words, as far as its conclusion is concerned (i. e. as far as the act of the will is concerned by means of which the juristic act comes into existence), it is the act of the agent. But as far as its effects are concernedand in modern law this is the universal rule-the act operates not to the advantage or disadvantage of the agent, but of the principal, the 'dominus negotii.' In a word, the act is, in point of legal effect, the act of the dominus. The principles of representation have no application, unless the circumstances are such1 as to enable the party, with whom the agreement is made, to know that the other is only acting in a representative capacity. It is therefore only where the representative, be he a guardian or procurator, acts as such, in other words, where he either expressly avows himself the agent of a third party, who is the person 1 So far, of course, as they operate at always to the limitations indicated all; in Roman law, therefore, subject above. L § 32. really concerned in the transaction (the dominus negotii), or else where the circumstances themselves show clearly enough that he must be acting in such a capacity, it is only then that the rights and liabilities under the transaction accrue, not to the agent, but to the dominus negotii. The transaction must, in other words, be concluded in the name of the dominus negotii. The principles of representation have, therefore, no application except in those cases where the principal is disclosed, i. e. those cases where the other party knows, or might reasonably know, that the person he is dealing with is merely a representative. On the other hand, if a person (be he guardian or another), though really acting on behalf of a principal, does nothing to show that he is doing so, but purports to be acting suo nomine, leaving his principal undisclosed-such a person is legally no agent at all, and neither in Roman nor in modern law would the principles of representation, in such a case, come into play. If an agent leaves his principal undisclosed, the effects of the act he concludes operate to the advantage or otherwise of himself, and not of the dominus negotii. A second juristic act is necessary for the purpose of assigning the effect of the first (e. g. the acquisition of ownership) to the dominus negotii. Secret representation is, therefore, no true representation at all. Again the so-called 'involuntary representation,' i. e. that representation which the acquisitions of the slave or filiusfamilias pass by the necessary operation of the law to the dominus and paterfamilias respectively, is, strictly speaking, no representation at all (sup. pp. 109, 121). In all such cases the juristic act concluded by the son or slave operates, on principle, to the advantage, and never to the prejudice of the superior. Thus, on principle, he incurs no liability on a loan contracted by the son or slave, but still he becomes owner of the money thus received. In other words, there is only a partial operation of the principles of representation. It is only on certain other specific conditions that, in such cases, the superior becomes subject to the liabilities, as he is entitled to the benefits of the transaction (§ 75). And it is moreover to be observed that acquisitions of a son or slave pass by the operation of the law to the father or dominus, quite regardless of the fact whether the former were acting in their own name or that of their superior, or again whether they were § 32. authorized to act or not. The rules on representation can have no application to a relationship of this kind. II. THE PROTECTION OF RIGHTS. (LAW OF PROCEDURE.) $33. Introduction. No man need submit to being forcibly and without authority § 33. deprived of what belongs to him. In repelling any such attack on his property, he is merely protecting his right by his own force. This kind of force, or, as it may be called, self-defence is permissible: vim vi repellere licet. The person assailed may be said, in a sense, to be exercising the right he is defending. But it is a different matter, if the violation of the right is past and complete. It is then not a question of preventing, but of redressing the violation of right which has already taken place. In this case private force, or self-help, is not allowable. To attempt to obtain redress by means of your own strength, would be, not as in the first case, to exercise, but to transgress, the private right which has been infringed, because private law only confers rights of dominion over material (or unfree) objects, and never confers any direct power over the free will of an independent person. To coerce any will which offers resistance to the law, in other words, to execute the law, is, in Roman as well as in modern law, reserved for the state. Once a right has been definitely infringed, there is only one way of securing an execution of the law, and that is by invoking the power of the state, in other words, by an action at law. § 33. $ 34. Obligatory rights have this peculiarity that, prior to the fulfilment of the obligation, the creditor can never be said to be exercising his right, and that his right is never directly available against a material object, but always only against the person of his debtor. It follows from this that, if a creditor seeks to obtain satisfaction by force, his act can never be one of legitimate self-defence, but must necessarily be one of self-help. Every person, therefore, who claims an obligatory right and desires to obtain satisfaction of his right by compulsory means must, on principle, seek his remedy by an action at law. Self-help, which we may now define as the unauthorized taking of the law into one's own hands, was rendered penal as such in Roman law by a decree of Marcus Aurelius (the 'decretum divi Marci'). The punishment consisted in the delinquent forfeiting the right which he sought forcibly and without authority to enforce ; and if he never possessed that right, he was compelled to restore double the value of the property he had forcibly appropriated. There are however some exceptions to the law forbidding selfhelp, more especially that important case where, as a matter of fact, the judicial protection is inadequate, for instance, as against a debtor who attempts to abscond in order to escape an action. In such cases, even in Roman law, self-help was deemed lawful, § 34. Roman Civil Procedure1. The fundamental characteristic of Roman civil procedure in the classical period is the division of all judicial proceedings into two 1 Keller's Der römische Civilprocess und die Aktionen (6th edition, admirably revised by Wach, 1883) continues to hold its place as the standard work on Roman civil procedure. Of modern books which have materially contributed to our knowledge of this subject, we may mention more especi ally the following: Bekker, Die Actionen des römischen Privatrechts, 2 vols. (1871, 1873); Karlowa, Der römische Civilprocess zur Zeit der Legisactionen (1872); Baron, Abhandlungen aus dem röm. Civilprocess, 3 vols. (1881, 1882, 1887); Aug. Schultze, Privatrecht und Process in ihrer Wechselbeziehung (1883) p.228 ff.; O. E. Hartmann, Der Ordo judiciorum und die Judicia extraordinaria der Römer, erster Teil: Über die röm. Gerichtsverfassung, supplemented and edited by A. Ubbelohde (1886). In quite recent times the question as to the origin of the formulary procedure has been successfully investigated by M. Wlassak, Römische Processgesetze, I Abteil, 1888; P. Jörs, Röm. RW. (1888), p. 174 ff.; Eisele, Abhandl. zum röm. Civilprocess, 1889. On the same subject, v. Wlassak, Die Litescontestation im Formularprocess (Festschrift für Windscheid), 1889. sharply distinguished sections, the proceedings 'in jure,' and the § 34. proceedings in judicio.' The proceedings 'in jure' are the proceedings before the magistrate, that is to say, before a judicial officer, the organ and representative of the sovereign power of the state. And since the introduction of the praetorship the 'magistrate' means, as a rule, the praetor. The object of the proceedings in jure is, firstly, to ascertain, whether the plaintiff's claim is admissible at all, i. e. whether there is any form of civil procedure by which it is enforceable; secondly, to determine the nature of such claim, and, at the same time, to fix the conditions subject to which it can be asserted. In the absence of a 'confessio in jure' (sup. p. 30), the proceedings in jure culminate in, and terminate with, the so-called 'litis contestatio,' i. e. the formulating of the legal issue, the object of which is to supply a foundation for the 'judicium' and thus to obtain a final decision of the issue. The name litis contestatio is due to the original practice of coupling with this stage of the proceedings a solemn appeal addressed by each party to his witnesses. 2 Festas (De Verborum Signific.) says: Contestari litem dicuntur duo aut plures adversarii, quod ordinato judicio utraque pars dicere solet: testes estote. Both parties must appeal to witnesses (contestari). By this appeal they solemnly bind themselves to abide by the judicium on the issue thus formulated. Hence the notion that the carrying out of the litis contestatio creates a kind of obligation, 'judicio contrahitur' (Cic. de Leg. iii. 3; lites contractas judicanto: 1. 3 § II D. 15, I sicut in stipulatione contrahitur cum filio, ita judicio contrahi). The litis contestatio, which commences with the appeal to the witnesses, constitutes the real litigare' or 'agere,' upon the basis of which the judgment proceeds (Cic. pro Roscio, 18. 53: Quid interest inter eum, qui per se litigat et qui cognitor est datus? Qui per se litem contestatur, sibi soli petit; alteri nemo potest, nisi... cognitor. Cp. § 35, note I. - Festus' words 'ordinato judicio' have hitherto been taken to mean that the appeal to the testes did not take place till after the appointment (ordinare) of the judicium and, consequently, The after the formulating of the issue, thus |