non-age, were restricted. Such cases were (1) when a 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. 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 provinciæ, 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.

(xxv. 12).

Gaius ii. § 278. L. 5, D. (xxv. 3).

(b) All pleas, as between 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).

The proceedings before the Prætor were naturally of a less formal character than those before the Prætor and judges combined; they are, however, of extreme interest, as they not only historically form, but also distinctly mark, the stepping-stone to the period of what are known as the extra-ordinaria cognitiones under the later emperors, when the Formulary system had become a thing of the past.

The proceedings before the Prætor were ushered in by a written statement addressed to him, of the nature of the complainant's case, and applying for either a specific or some appropriate remedy. This statement (libelli) was informally worded, but brief and precise. A specimen of it is contained in the Vatican Fragments. Vat. Frag. 166. If the complaint was presented in full court, after summons of or notice to both parties (pro tribunali), five copies of the statement were to be furnished. If the complaint were addressed to the Prætor when not at a formal session and it took the form rather of an ex parte application (de plano), four copies only were required.

The first purpose of the complaint was to secure the attendance of the party or parties interested in disputing the claim, or, at the least, to vest them with such a notice of the proceedings as to enable the suit to go on in spite of nonappearance. The Prætor was requested to take steps by what was called an evocatio, to secure the necessary attenPaul. Sen. 5, dance of the opposed party or parties. This A. 6, 7. was achieved by magisterial notices, which took three forms, according as the party summoned lived in the neighbourhood, or lived at a distance, or his whereabouts was not known. If he lived in the neighbourhood, the ordinary magisterial notice (denunciatio ex aucVat. Frag. 167. toritate) sufficed. If he lived at a distance, an order or warrant (litera) was addressed to the municipal magistrate belonging to the place of his residence, who was required to procure his attendance. In the case of the L. 53, D. (xlii. 1).

parties' whereabouts being unknown, a mere public notice (edictum propositum) inscribed on the blank notice board of the Prætor sufficed.

The party who had been summoned was liable to be compulsorily made to attend, or to suffer the proceedings to go on in his absence, or to suffer judgment as though by default (contumacia), unless excused by ill health, or other valid cause. If he failed to attend after three summonses or, in some cases, after one peremptory summons followed by a public calling of his name three times repeated (citatio), he suffered the consequences of

absence.

The proceedings went on before the Prætor much in the same way as a formal trial before an ordinary judge. The same sort of evidence was produced in the same way, and the judgment and execution followed exactly the same customary methods, if the affair were of a litigious nature; if it were merely administrative, the Prætor adjusted the matter in his discretion, and afforded the appropriate remedy in accordance with recognized principles. The judgment was read out by the Prætor in the presence of the parties from a written document, and could only be altered or corrected by the magistrate who had prepared it, in trifling particulars, and on the same day.

§ 2.-Procedure as existing in Justinian's time, or as reorganized by him.

The growing extensions of the Prætor's independent jurisdiction, and the encroachment of it upon the functions of the ordinary courts, were due not only to the accession of new classes of business, nor only to the greater complication of social relationship. They were among the many signs of the monarchical proclivities of the later republic and the exemption from healthy political suspicion which the executive institutions of Rome more and more enjoyed as the republic became feebler and more corrupt. This is evidenced by the facility with which the carlier emperors stepped into the Prætor's place, and even acquired reputation in the actual and personal administration of justice.