The injuries contemplated by the law included slanders, libels, and generally all assaults on reputation, as well as direct or indirect assaults affecting public decency or morals. The injury might be inflicted, not only on a person himself, but also on persons in his power, and especially on his wife and children, who, as well as the man with whom they were connected, might sue independently, but could not sue in respect of an injury inflicted upon him. An injury must be of a severer kind when inflicted on a slave than when inflicted on a wife or children, in order to bring the offenders within the law. It must openly concern the honour of his master; but a master could not sue for a mere assault on his slave's character, or for casual blows. Where a slave owned in common was injured, the damages were estimated, not by the respective shares of the master, but by their personal quality or social standing, which was supposed to be mainly affected. Where one had the usufruct in the slave and another was the owner, it was the owner who had the right of action. A person could not sue for an injury done to his free servant, unless done especially in order to insult the employer himself.

Under the XII. Tables the penal damages inflicted for this class of injuries were, for the loss of a whole limb, retaliatory amputation, but for the mere fracture of a bone, a pecuniary fine, showing, as Justinian says, "the great poverty of the ancients." In later times, the persons who could suc for the injuries assigned the damages themselves, and the judge assessed them either at this or at a less sum. In Justinian's time, the whole question of damages was reserved to the magistrate who presided over the investigation, who was required to take into account the social standing and previous reputation of the person who was supposed to be mainly affected. The virulence of an injury was estimated not only by the pain, loss, or suffering it caused, but by the place, as, for instance, if it took place in the theatre, in the market-place, or in the immediate presence of the magistrate; or by the person affected, as if he were himself a magistrate or a senator, a parent or

a patron; or by the mere locality of a wound, as where a person's eye was the object of assault.

If an injury were once condoned, it could not be subsequently sued upon; and not only the direct assailant, but every person viciously co-operating, however indirectly, was equally liable.

IV. FACTS ANALOGOUS TO CONVENTION AND TO Acts OF WRONG DOING (Variæ causarum figuræ, quasi-contractus, quasi-delicta).

The acts which have already been enumerated as giving rise to obligations on the ground of agreements made, or injurious offences committed, were not found in practice. sufficient to meet the exigencies which judicial experience disclosed. There were still cases in which a close analogy was observable to some of the circumstances existing in the case of actual agreements or offences; but inasmuch as some of the most critical elements were wanting, all that could be done to bring these cases within the reach of the law of obligations was to raise fictitious presumptions, which went a great way beyond the doctrine of mere implied contracts, or imputed malice, or fraud.

Thus it might be a case in which, owing to the absence of the parties, or the fact of their having no relation to each other, the existence of a contract was impossible, and the implication of one an absurdity. Nevertheless, at a certain stage, practical justice was promoted by placing the parties in the same position towards each other in respect of rights and duties as they would have occupied had they actually contracted with each other.

One signal instance of this kind was where one person managed the affairs of another in his absence, but without either special or general mandate, or even subsequent ratification. In this case the supposition of a real contract is excluded by the hypothesis. But in such a case, actions (negotiorum gestorum) were held to lie on both sides in respect of the business managed, money received or ex

pended, and obligations created. Indeed, the most scrupulous diligence in rendering accounts and managing the affairs undertaken was required. This practice was held conducive to the general advantage, inasmuch as otherwise a person's business might be irremediably damaged through his absence from home, if he had accidentally failed to make sufficient provision for a substitute.

In the same way, if two or more persons came into joint possession of some common property, as by legacy or gift, without there being a contract of partnership, in the appropriate action (communi dividundo, familiæ erciscunde) each was held liable to the rest to account for products and fruits generally, and entitled to be repaid all necessary expenses he had incurred. The principle was the same in the case of co-heirs and as between heirs and legatees.

It was an extension of the principle to include in it the obligations of guardians and their wards, and the extension was the less called for as reciprocal obligations were precisely enough determined by the ordinary law. The case of a claim for a return of money paid by mistake was included in the same head of quasi-contract; but in such cases the common doctrine of an implied contract, as in the parallel English case of money had and received for the plaintiff's use, would have served all purposes equally well.

The facts included, under the name of "quasi-delicts," among those which created an obligation without implying actual fraud, malice, negligence, or indeed actual personal responsibility of any kind in the defendant, present a list which is curiously arbitrary in its form, and contains ingredients of the most opposite species. It was, in fact, an effort to extend to offences the doctrine of implied agency familiar in the case of contracts; and the composition of the list of quasi-delicts is an obvious expression of the daily experience of life in ancient Rome. In fact, this part of the law seems to have been used as a supplement to purely police arrangements.

Thus, the occupier of a house or room was liable for

the consequences of things being thrown, or liquids poured, out into the street from the windows of his dwelling-room or house. It was presumed that the culpable person, representing the householder, was liable for things being placed or suspended near a public way which might, if they fell, injure passers-by. In this case, a penalty was incurred of ten aurei (about £9). For the previously mentioned offence the penalty was double the actual damages. Where in either of these cases a man was killed, a penalty of fifty aurei (say, something under £50) was due; if he lived, but had suffered personal injuries, the judge assessed the damages, taking into account the medical expenses, and all payments required for his complete cure, as well as the value of the work which he was unable to do through his misfortune.

Where a son in his father's power lived apart from his father, the father was not liable, but only the son.

It was on the same principle that the charterer (exercitor) of a ship, or the landlord of a public tavern, was liable for the offences and shortcomings of those whom he employed. His heir was, however, not liable, though the heir of a person injured had a right of action (in factum).

By an anomalous extension of the principle, a judge who gave a partial decision, even though only moved thereto by disguised zeal or mere inattentiveness, was held to make the case his own (litem suam facere), and to be liable to the person who suffered to the extent which might seem proper and reasonable to the judge before whom an action against the erring judge should be tried.

S

THE FAMILY.

CHAPTER IV.

OF THE POWER OF THE MASTER OF THE HOUSEHOLD GENERALLY (Patria potestas).

THE most characteristic institution of Roman law was the structure of that group of persons which was called, in the broadest sense, the family. It comprehended all the human beings-wife, children or descendants, free labourers, and slaves, who were held to be from the earliest times under the control of one head, the paterfamilias. The absoluteness or unrestricted character of this control varied greatly at different times; and by the time of Justinian little more than a shadow of it was left in the case of the wife, and the power exercisable over children and slaves was reduced to definite and very narrow limits.

It will be convenient to consider the general subject of this control exerted by the head of the household under the three heads of (1) slaves, (2) children and descendants, and (3) wife. The word power (potestas), in the largest sense, was used to comprise all these three descriptions of control. In a narrower sense, the word power was restricted to the control over children. As exercised over the wife, it was called manus, so long as that institution lasted. In L. 215, D. (1. the case of slaves it was called dominium, and we are told in the Digest that "in the person of magistrates" it was called imperium. Those persons who were not subject to another's control were said to be in their own right (sui juris); those who were so subject were said to be in somebody else's right (alieni juris).

16).