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JUS NATURALE] All this is remarkable, manifesting a spirit very different from that which animated the See also:common See also:law of testaments . True, it was a principle with the jurists of the classical See also:period that the voluntatis ratio was to be given effect to in the See also:interpretation of testamentary writings; but that was on the See also:condition that the requirements of law as to See also:form and substance had been scrupulously observed . But in the military testament See also:positive rules were made to yield to the voluntas in all respects: the will was almost absolutely unfettered . See also:Roman law in this See also:matter gave See also:place to natural law . One would have expected the See also:influence of so See also:great a See also:change to have manifested itself by degrees in the See also:ordinary law of testaments; yet it is barely visible . In a few points the legislation of See also:Constantine, See also:Theodosius II. and Justinian relaxed the strictness of the old rules; but there was never any approach to the recognition of the See also:complete supremacy of the voluntas . In the Corpus See also:Juris the contrast between the testamentum paganum and the testamentum militare was almost as marked as in the days of See also:Trajan . The latter was still a privileged See also:deed, whose use was confined to a soldier actually on service, and if he received an See also:honourable See also:discharge, for twelve months after his retirement . The peculium castrense had a wider influence; for it was the first of a See also:series of amendments that vastly diminished the importance AeaiUum of the atria potestas on its patrimonial See also:side . It had t astre n its origin in a constitution of See also:Augustus granting to fcliifamilias on service the right to dispose by testament of what they had acquired in the active exercise of their profession (quod in castris adquisierant).i But it soon went much further . Confined at first to filiifamilias on actual service, the See also:privilege was extended by See also:Hadrian to those who had obtained honourable discharge . The same See also:emperor allowed them not merely to test on their peculium castrense, 'but to manumit inter vivos slaves that formed See also:part of it; and by a little step further the classical jurists recognized their right to dispose of it onerously or gratuitously inter vwos . In the 3rd See also:century the range of it was extended so as to include not only the soldier's pay and See also:prize, but all that had come to him, directly or indirectly, in connexion with his profession—his outfit, gifts made to him during his service, legacies from comrades and so on . All this was in a high degree subversive of the doctrines of the common law . It may almost be called revolutionary; for it involved in the first place the recognition of the right of a See also:person See also:alien juris to make a testament as if he were sui juris, and in the second place the recognition of a See also:separate See also:estate in a filiusfamilias which he might See also:deal with independently of his paterfamilias, which could not be touched by the latter's creditors, and which he was not even See also:bound to collate (or bring into hotch-pot) on claiming a See also:share of his See also:father's See also:succession . The See also:radical right of the See also:parent, however, was rather suspended than extinguished ; for, if the soldier son died intestate, the right of the paterfamilias revived : he took his son's belongings, not as his See also:heir appropriating an See also:inheritance, but as his paterfamilias reclaiming a peculium .2 The See also:Family.-The legislative efforts of Augustus to encourage See also:marriage, to which persons of position showed a remarkable distaste, Family have already been mentioned . The relation of See also:husband Relations. and wife still in law required no more for its creation than deliberate interchange of nuptial consent, although in certain cases some See also:act indicative of change of See also:life, such as the See also:bride's See also:home-coming to her husband's See also:house, was regarded as the criterion of completed marriage.' But it was rarely accompanied with menus . So repugnant was such subjection to patrician ladies that they declined to submit to confarreate nuptials; and so great consequently became the difficulty of finding persons qualified by confarreate See also:birth to fill the higher priesthoods that See also:early in the See also:Empire it had to be decreed that confarreation should in future be productive of menus only quoad sacra, and should not make the wife a member of her husband's family . Manus by a See also:year's uninterrupted cohabitation was See also:long out of date in the See also:time of See also:Gaius; and, although that by coemption was still in use in his time, it was almost unknown by the end of the period . Husband and wife therefore had their separate estates, the common See also:establishment being maintained by the husband, with the assistance of the See also:revenue of the wife's See also:dowry (dos)—an institution which received much See also:attention at the hands of the jurists, and was to some extent regulated by See also:statute . See also:Divorce (either of common consent or by re/See also:radium by either See also:spouse) was unfortunately very common; it was lawful even without any assignable cause; when blame attached to either spouse, he or she suffered deprivation to some extent of the nuptial provisions, but there were no other penal consequences . Not only in the See also:case of a filiusfamilias who had adopted a military career, but in all directions, there was manifested a strong tendency to place restrictions on the exercise of the patria potestas . This was due in a great degree to the hold that the principles of natural law were gaining within the Roman See also:system, perhaps due Inst. ii . 12 pr .
4 This was altered by Justinian's 118th Novel, under which a paterfamilias taking any part of a deceased son's estate did so as his heir; see infra, p
.
573
.
Some writers take the view that such act was always essential
.
See See also:Girard, See also:Manuel, 4th ed. p. i5i.565
to the fact that the emperors, having succeeded to the censorial regimen morum, allowed these principles freely to influence their edicts and rescripts
.
Exposure of an See also:infant was still apparently allowed; but a parent was no longer permitted, even in the See also:character of See also:household See also:judge, to put his son to See also:death or cruelly See also:ill-treat him; in fact his See also:prerogative was limited to moderate chastisement, the law requiring, in the case of a See also:grave offence that merited severer See also:punishment, that he should bring his See also:child before the competent See also:magistrate
.
His right of See also:sale, in like manner, was permitted only when he was in great poverty and unable to maintain them, while their impignoration by him was prohibited under See also:pain of banishment
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Except in the solitary case of a son who was a soldier, a paterfamilias was still recognized as in law the owner of all the earnings and other acquisitions of his See also:children in potestate; but the old See also:rule still remained that for their See also:civil debts he was not liable beyond the amount of the fund he had advanced them to deal with as de facto their own (peculium profecticium), except when he had derived See also:advantage from their See also:contract or had expressly or by implication authorized them to enter into it as his agents
.
To the party with whom he had contracted a filiusfamilias was himself liable as fully as if he had been a paterfamilias, with one exception, namely, when his See also:debt was for borrowed See also:money; in that case, with some very reasonable qualifications, it was declared by the well-known Macedonian senatusconsult (of the time of See also:Vespasian) that the lender should not be entitled to recover See also:payment, even after his borrower had become sui juris by his father's death
.
Between a father and his emancipated son there was, and always had been, perfect freedom of contract; but so was there now between a father and his soldier son in any matter See also:relating to the peculium castrense, even though the son was in potestate
.
What is still more remarkable is that the new sentiment which was operating on the jus civile admitted the possibility of natural See also:obligation between paterfamilias and filiusfamilias even in reference to the peculium profecticium, which, though incapable of See also:direct enforcement by See also:action, was yet to some extent recognized and given effect to indirectly
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In the matter of guardianship, while the tutory of pupils was carefully maintained and the law in regard to it materially amended during the period under See also:review (particularly by a senatusconsult generally referred to as the Oratio divi Severi, prohibiting See also:alienation of the See also: But it was Marcus Aurelius that first made curatory a general permanent See also:office, to endure in the ordinary case until the ward attained See also:majority . The See also:powers, duties and responsibilities of such curators became a matter for careful and* elaborate See also:definition and regulation by the jurists, whose exposition indeed of the law of guardianship generally, whether by tutors or curators, has found wide See also:acceptance in See also:modern systems of See also:jurisprudence . The Law of Succession and particularly Testamentary See also:Trusts.—There were far more positive changes in the law of succession than in either that of property or that of obligation . The rise Law of and progress of the military testament has already been Suraesexplained . The testament of the common law was still See also:lion. ostensibly that per aes et libram; but the practice of granting bonorum possessio secundum tabulas to the persons named as heirs in any testamentary See also:instrument that See also:bore outside the requisite number of See also:seals led, from the time of See also:Antoninus See also:Pius, to the frequent neglect of the time-honoured formalities of the familiae mancipatio and nuncupatio testamenti . It was his rescript, formerly mentioned, declaring that an heir-at-law should no longer be entitled to dispute the last wishes of a testator on the technical ground of non-compliance with the purely formal requirements of the law, that practically established what Justinian calls the praetorian testament . One of the commonest provisions in the testaments of the period was the fcdeicommissum,—a See also:request by the testator to his heir to enter on the inheritance and thereafter denude wholly or partially in favour of a third party . It was introduced in the time of Augustus by (it is said by See also:Theophilus) a testator who had married a peregrin wife, and desired thus indirectly to give to his peregrin children the succession which, as not being citizens, they could neither take ab intestate nor as his direct testamentary heirs.e He probably soon found imitators, and their number must have rapidly multiplied once the emperor, shocked at the perfidy of a trustee 4 Dig. See also:xxvii . 9 fr. i, § 2 . c Also sometimes called lex Laetoria . See, e.g. reference to a recently discovered See also:papyrus in Z. d . Say . Stift. xxii . 170 . 4 Fideicommissa, as informal See also:requests to heirs or legatees to See also:hand over what they received to third parties, were known earlier than Augustus, but had no legal force . who had failed to comply with the request of his testator, indicated his approval of the new institution by remitting the matter to the consuls of the See also:day, with instructions to do in the circumstances what they thought just . So quickly did it establish itself in public favour, and so numerous did the questions become as to the construction and fulfilment of testamentary trusts, that under See also:Claudius it was found necessary to See also:institute a See also:court specially charged with their See also:adjudication—that of the See also:praetor fideicommissarius . The employment of a See also:trust as a means of benefiting those who were under disqualifications as heirs or legatees, as, for example, persons who had no testamenti factio, women incapacitated by the Voconian law, unmarried and married. but childless persons in-capacitated by the See also:Julian and Papia-Poppaean law, and so on, was in time prohibited by statute; but that did not affect its general popularity . For, whether what was contemplated was a See also:transfer of the universal hereditas or an See also:aliquot part of it to the See also:beneficiary (fideicommissum hereditatis), or only of some particular thing (frdeicommissum rei singularis), a testamentary trust had various advantages over either a direct institution or a direct See also:bequest (legatum) . Still the See also:imposition upon the heir of a trust in favour of a beneficiary, whether it required him to denude of the whole or only a part of the inheritance, did not in theory deprive him of his character of heir or relieve him of the responsibilities of the position; and at common law therefore he was entitled to decline the succession, often to the great See also:prejudice of the beneficiary . In See also:order to avoid such a mischance, and at the same time to regulate their relations inter se and towards debtors and creditors of the testator, it became the practice for the parties to enter into stipulatory arrangements about the matter; but these were to some extent rendered superfluous by two senatusconsults, the Trebellian in the time of See also:Nero and the Pegasian in that of Vespasian, which not only secured the beneficiary against the trustee's (i.e. the heir's) repudiae tion of the inheritance, but also protected the latter from all See also:risk of loss where he was trustee and nothing more, and enabled the former to treat directly with debtors and creditors of the testator and himself ingather the corporeal items of the inheritance . It was one of the advantages of a trust-bequest, whether universal or singular, that it might be conferred in a See also:codicil, even though unconfirmed by any relative testament . The codicil (codicilli), also an invention of the time of Augustus, was a deed of a very See also:simple nature . Though in the later Empire it required to be formally attested by at least five witnesses, it was at first quite informal . It was inappropriate either for disherison of sui or institution of an heir; but if confirmed by testament, either See also:prior or posterior to its date, it might contain direct bequests, manumissions, nominations of tutors, and the like, and whether confirmed or unconfirmed might, as stated, be utilized as a vehicle for trust-gifts . Latterly it was held operative, even in the See also:absence of a testament, the trusts contained in it being regarded as burdens on the heir-at-law . The most important changes in the law of intestate succession during the period were those accomplished by the See also:Tertullian and Orphitian senatusconsults, fruits of that respect for the precepts of natural law which in so many directions was modifying the doctrines of the jus civile . The first was passed in the reign of Hadrian, the second in the year 178, under Marcus Aurelius . Down to the time of the Tertullian senatusconsult a See also:mother and her child by a marriage that was unaccompanied with menus stood related to each other only as cognates, being in law members of different families; consequently their See also:chance of succession to each other was remote, being postponed to that of their respective See also:agnates . The purpose of the senatusconsult was to prefer a mother to all agnates of her deceased child except father and See also:brother and See also:sister; father and brother excluded her; but with a sister of the deceased, and in the absence of father or brother, she shared equally . While there can be little doubt that it was considerations of natural law that dictated this See also:amendment, yet its authors were too timid to justify it on the abstract principle of common humanity, and so they confined its application to women who had the jus liberorum, i.e. to women of See also:free birth who were mothers of three children and freedwomen who were mothers of four, thus making it ostensibly a See also:reward of fertility . The Orphitian senatusconsult was the counterpart of the Tertullian . It gave children, whether legitimate or illegitimate, a right of succession to their mother in preference to all her agnates; and subsequent constitutions extended the principle, admitting lawful children to the inheritance not only of their maternal See also:grand-parents but also to that of their paternal grandmother . iii . Judicial See also:Procedure . The Formular System'—The ordinary procedure during the greater part of the first three centuries of the Empire was still Formular two-staged; it commenced before the praetor (in jure) Formal and was concluded before a judge or See also:judges (in judicio) . But the legis actions had with a few exceptions given place to praetorian formulae . Under the sacramental system parties, See See also:Keller (as on p . 547, n.), §§ 23–43; Bethmann-Hollweg (as in same See also:note), vol. ii . §§ 81–87; See also:Bekker (as in same note), vol. i. chaps . 4–7, vol. ii. chaps . 15, 19, 20; See also:Baron, Gesch. d. rOm . Rechts (See also:Berlin, 1884), vol. i . §§ 202–215.and particularly the See also:plaintiff, had themselves to formulate in statutory or traditional words of See also:style the matter in controversy between them; and as they formulated, so did it go for trial to centumviral court or judex, with the not infrequent result that it was then all too See also:late discovered that the real point in the case had been missed . Under the formular system parties were free, to represent their plaint and See also:defence to the praetor in any words they pleased, the plaintiff asking for a See also:formula and usually indicating the style on the See also:album that he thought would suit his purpose, and the See also:defendant demanding when necessary an ,exception, i.e. a plea in defence, either praetorian or statutory, that, without traversing the facts or law of the plaintiff's case, avoided his demand on grounds of See also:equity or public policy or the like . It was for the praetor to consider and determine whether the action or exception should or should not be granted, and, if granted, whether it should be according to the style exhibited on the album or according to a modification of it . The result he embodied in a written and signed See also:appointment of a judge, whom he instructed what he had to try, and empowered to pronounce a finding either condemning or acquitting the defendant . This See also:writing was the formula . Although it was not until the early Empire that this system of civil procedure attained its full development, yet it had begun between one and two centuries before the fall of the See also:Republic . Gaius ascribes its introduction and definitive establishment to the lex Aebutia and two judiciary See also:laws of the time of Augustus, formerly mentioned (supra, pp . 98, 124) . The Aebutian law, of which unfortunately we know very little, is generally supposed to have empowered the praetors (i) to devise a simpler form of procedure for causes already cognizable per legis actionem, (2) to devise forms of action to meet cases not cognizable under the older system, and (3) themselves to formulate the issue and reduce it to writing . It was by no means so radical a change as is sometimes supposed . There were formulae employed by the peregrin praetor before it and also perhaps something analogous thereto by the See also:urban praetor . There were also formulae of a See also:kind employed both in the procedure per judicis postulationem and in that per condictionem . The difference between the latter and the formulae of the Aebutian system was that they were in part See also:mere echoes of the statutory words of style uttered by the plaintiff, and that they were not written but spoken in the See also:hearing of witnesses . A large proportion of the See also:personal actions of the formular system were evolved out of the legis actio per condictionem . The sequence of operations may have been something like this . Taking !ts the simplest form of it, the action for terta See also:petunia under caflonYo the Silian law, the first step was to drop the formal See also:con- Persoaal dictio from which it derived its character of legis actio, thus AcHoas. avoiding a delay of See also:thirty days; the plaintiff stated his de- mand in informal words, and, if the defendant denied indebtedness, the praetor straightway formulated a written appointment of and instruction to a judge, embodying in it the issue in terms substantially the same as those he would have employed under the earlier procedure:—" Titius be judge . Should it appear that N . N. ought to pay (dare oportere) 50,000 sesterces to A . A., in that sum condemn N.N. to A . A.; 2 should it so not appear, acquit him;" This was no longer the legis actio per condictionem, because 'what had made it legis actio was gone, but the condictio certae pecuniae of the formular system . The condictio triticaria of the same system ran on the same lines: "Titius be judge . Should it appear that N . N. ought to give A . A. the slave Stichus, then, whatever be the value of the slave, in that condemn N . N. to A . A.," and soon . In each of these examples the formula included only two of the four See also:principal clauses that might find place in it'—an " intention" and a " condemnation." The matter of claim in both cases was certain,—so much money in one, a slave in the other; but, while in the first the condemnation also was certain, in the second it was uncertain . What if the claim also was uncertain,—say a share of the profits of a See also:joint See also:adventure assured by stipulation ? It was perhaps competent for the plaintiff to specify a definite sum, and claim that as due to him; but it was very hazardous, for unless he was able to prove the debt to the last sesterce he lost his case . To obviate the risk of such failure the praetors devised the actio ex stipulatu, whose formula commenced with a "demonstration " or indication of the cause of action, and whose " intention " referred to it and was conceived indefinitely: " Titius be judge . Whereas A . A. stipulated with N . N. for a share of the profits of a joint adventure, whatever in respect thereof N . N. ought to give to or do for (dare facere oportet) A . A., in the money amount ' In the typical Roman styles of actions the plaintiff was usually called Aulus Agerius and the defendant Numerius Negidius . Gaius enumerates them as demonstratio, intentio, ad'udicatio and condemnatio, and describes their several functions in iv . §§ 39–43 . The intentio and condemnatio were much the most important, the others being employed only in certain kinds of actions . Besides these a formula might be preceded by a praescriptio (Gai. iv . §§ 130-137), and have incorporated in it See also:fictions (§§ 2-38), exceptions (§§ 115-125), and replications, duplications . &c . (§§ I26-129) . thereof condemn N . N.," and so on.' Once this point was attained further progress was comparatively easy, the way being open for the construction of formulae upon illiquid claims arising from trans-actions in which the practice of stipulation gradually dropped out of use, till at last the bonae fidei judicia were reached, marked by the presence in the " intention " of the words ex fide See also:bona—" whatever in respect thereof N . N. ought in See also:good faith to give to or do for A . A." In the case of real actions the transition from the legis actiones to the formulae followed a different course . The Aebutian law, ka appal- while sanctioning the competency of formulae, did not nation interfere with the procedure per sacramentum when to real reference was to be to the centumviral court on a ques- to rcas. tion of quiritarian right . In the time of See also:Cicero that court action was apparently still in full activity (supra), but by that of Gaius, owing, it is supposed, to the Julian laws having made formulae in most cases compulsory, it was rarely resorted to except for trial of questions of inheritance . In his time questions of property were raised either per sponsionem or per formulam petitoriam . The procedure by sponsion may be regarded as a sort of See also:bridge between the sacramental See also:process and the petitory vindicatio . In it the question of real right was determined only in-directly . The plaintiff required the defendant to give him his stipulatory promise to pay a nominal sum of twenty-five sesterces in the event of the thing in dispute being found to belong to the former; and at the same time the defendant gave sureties for its transfer to the plaintiff, with all fruits and profits, in the same event . The formula that was adjusted and remitted to a judge raised ex facie only the simple question whether the twenty-five sesterces were due or not: the action was in form a personal, not a real one, and was therefore appropriately remitted to a single judex instead of to the centumviral tribunal . But See also:judgment on it could be reached only through means of a finding (sententsa) on the question of real right; if it was for the plaintiff, he did not claim the amount of the sponsion, but the thing which had been found to be his; and, if the defendant delayed to deliver it, with its fruits and See also:pro-fits, the plaintiff had recourse against the latter's sureties . The petitory formula was undoubtedly of later introduction and much more straightforward . Like the condictio certae pecuniae, it contained only " intention " and " condemnation.' It ran thus: " Titius be judge . Should it appear that the slave Stichus, about whom this action has been raised, belongs to A . A. in quiritary right, then, unless the slave be. restored, whatever be his value, in that you will condemn N . N. to A . A.; should it not so appear, you will acquit him." The formulae given above, whether applicable to real or personal actions, are so many illustrations of the class known as formulae juris See also:civilis or in jus conceptae . The characteristic of O°j diod such a formula was that it contained in the " intention " in factual • such phrases as the following—ejus esse ex jure Quiritium, conceptae. praestare oportere,' dare oportere, dare facere oportere, or damnum decidere oportere.3 Such words were. em- Eloyed where the right to be vindicated or the obligation to be enforced had its See also:sanction directly in the jus civile whether in the shape of statute, consuetude or interpretation . Where, on the other hand, the right or obligation had its sanction solely from the praetor's See also:edict, See also:special formulae had to be framed . The actions employed in such cases were actiones juris honoraria, and these either actions utiles or actiones in faetum . The first were adaptations of actions of the jus civile to cases that did not properly fall within them; the second were actions entirely of praetorian devising, for the protection of rights or redress of wrongs unknown to the jus civile.' 1 This actio ex stipulatu used to be regarded as nothing more than a variety of the condictio incerti . It is doubtful, however, whether in the condictiones incerti (e.g. the condictio furtiva) there was any demonstratio . See Girard, Manuel, p . 614n . 2'and 3 and authorities there cited . = Employed in the divisory actions, i.e. for dividing common property, partitioning an inheritance, or settling boundaries; the demand was that the judge should adjudicate (or assign) to each of the parties such a share as he though just . See Lenel, Edict . Perpet . 2nd ed. pp . 202, 205 . 'Employed in certain actions upon delict, where the old penalties of death, See also:slavery or talion .had in practice, or by the praetor's authority, been transmuted into money payments, and the defendant consequently called upon to pay penal See also:damages . According to Lenel, Ed . Peep . 2nd ed. p.- 287, the form dare facere praestare oportere was probably used in actions pro socio . ' These latter have an See also:analogy to the See also:English " action on the case." In a few instances there was both civil and praetorian remedy for the same wrong; for Gaius observes . (iv . 47) that in commodate and See also:deposit failure of the borrower or depositary to return the thing See also:lent to or deposited with him gave rise to actions that might be formulated either in jus or in factum . In the same See also:section he gives the styles of actiones depositi in jus and in factum conceptae; their comparison is instructive: The formula in factum must almost certainly have been the earlier and shows, it .is thought, Utilis actin may be translated as analogous or adapted action, i.e. analogous to a direct action . Where a direct action was in-applicable to particular cases or persons, according to Actions the terms of a lex, edict, &c., the praetor frequently utiles . adapted the statute, &c., to such cases and persons by granting an actio utilis . He did so where he thought them to be within the spirit though not the See also:letter of the law . He effected his See also:object commonly by a modification of the See also:regular formula either objectively, as by adding, or omitting, or altering words, or subjectively by transposing names of parties . But sometimes also the See also:adaptation was made by the introduction of a legal fiction into the regular formula, and in this case the action was called utilis fictitia or simply fictitia . The actiones utiles might, therefore, be of two kinds, ordinary and fictitious . Those of common occurrence early became stereotyped in the Edict and even got special names . As illustrations of an ordinary actio utilis, in which the formula was objectively modified, reference may be made to the numerous actions for wrongful damage to property under the lex Ordinary . Aquilia . Thus this statute in its first See also:chapter used the See also:term occidere, which means killing by a See also:physical act of violence (corpore corpori), but to meet cases of killing without violence (e.g. by See also:poison) the praetors simply substituted the words mortis causam praestare for occidere in the formula . As illustrations of an ordinary actio utilis with subjective transposition of names, we may mention the actio Rutiliana applicable to a purchaser of the bankrupt estate of a living debtor, the action by an assignee of a debt against the debtor. and the action of a See also:procurator suing for his principal . In these the names of the bankrupt, cedent and principal respectively appeared in the intentio, while the plaintiff's name was inserted in the condemnatio . Resort to a fiction is sometimes said to be a See also:confession of weakness, and adversely criticized accordingly . But every amendment on the law is an See also:admission of defect in what is being amended ; Actions and it was in sympathy with the spirit of Roman juris- NcMae. prudence, when it found an action too narrow in its de- finition, to include some new case that ought to fall within it, rather by feigning that the new case was the same as the old, to bring it within the See also:scope of the existing and See also:familiar action, than to cause disturbance by either altering the definition of the latter or introducing an entirely new remedy . A bonorum possessor held a position unknown to the jus civile; he was not an heir, and therefore not entitled offhand to employ the actions competent to an heir, either for recovering the property of the defunct or proceeding against his debtors . The praetor could have had no difficulty in devising new actions to meet his case; but he preferred the simpler expedient of adapting to it an heir's actions, by introducing into the formula a fiction of civil heirship; so he did with the bonorum emptor or purchaser of a deceased bankrupt's estate at the sale of it in See also:mass by his creditors . A peregrin could not See also:sue or be sued for the penalties imposed for See also:theft or culpable damage to property, for the XII . Tables and the Aquilian law applied only to citizens; but he could both sue and be sued under See also:cover of a fiction of citizenship . A See also:man who had acquired a res mancipi on a good See also:title, but without taking a See also:conveyance by mancipation or surrender in court, if he was dispossessed before he had completed his usucapion, could not sue a rei vindicatio for its recovery, for he was not in a position to affirm that he was quiritarian owner; neither, for the same See also:reason, could a man who in good faith and on a sufficient title had acquired a thing from one who was not in a position to alienate it . But in both cases the praetor granted him what was in effect a rei vindicatio proceeding on a fiction of completed usucapion—the Publician action referred to on p . 556 . These are examples of actiones fictitiae—actions of the jus civile adapted by this very simple expedient to cases to which otherwise they would have been inapplicable, and forming one of the most important varieties of the actiones utiles . Quite different was the course of procedure in the actiones in factum, whose number and varieties were practically unlimited, although for the most part granted in pursuance of the praetor's promise in the edict that under such and such circumstances he would make .a remit to a judex (judicium dabo),' and formulated in accordance with the relative See also:skeleton styles also published on the album . A great number of them came to be known by special names, as, for example, the actio de dolo, actio negotiorurtt gestorum, actio hypothecaria, actio de petunia constituta, actio vi bonorum raptorum, actio de superficie, &c.—the generic name actio in factum being usually confined to the innominate ones . Their formulae, unlike those in jus conceptae, submitted no question of legal right for the that deposit and commodate were enforced (perhaps first by the pererin praetor) by means of edicts before being admitted into the jus civile . s Examples: " Si quis negotia alterius .. gesserit, judicium eo nomine dabo " (Dig. iii . 5, 3, pr.) ; " Quae dolo malo facta esse dicentur, si de his See also:rebus alia actio non erit et justa causa esse videbitur, judicium dabo " (Dig. iv . 3, i, § 1); " Nautae caupones stabularii quod cujusque salvum fore receperint, nisi restituent, in eos judicium dabo " (Dig. iv . 9, i, pr.) ; " Quod quis commodasse dicetur, de eo judicium dabo " (Dig. xiii . 6. i, pr.) . See also:consideration of the judge, but only a question of fact, See also:proof of which was to be followed by a condemnation . That of the actio de dolo, for example, ran thus: " Titius be judge . Should it appear that, through the See also:fraud of N . N., A . A. was induced to convey and cede See also:possession to him of his See also:farm (describing it), then, unless on your order N . N. restores it, you will condemn him in damages to A . A.; if it shall not so appear, you will acquit him." Actions in factum might be utiles as well as direct; e.g. actio quasi-Serviana or hypothecaria was utilis, being based on analogy to the actio Serviana . Our limits do not admit of any explanation of the purpose, form, or effect of the prescriptions, exceptions, replications, &c., that were engrafted on a formula when required; or of the ways in which the " condemnation " was occasionally " taxed " by the praetor, so as to prevent the See also:award of extravagant damages; or of the consequences of defects in the formula; or of the procedure in jure before it was adjusted, or in judicio afterwards; or of See also:appeal for review of the judgment by a higher tribunal; or of See also:execution (which was against the estate of the judgment-debtor, and took the form of incarceration only when his goods could not be attached) . Our See also:main object has been to show how elastic was this procedure, and how the praetorian formulae, in See also:conjunction with the relative announcements in the edict, supplied the vehicle for the introduction into the law of an immense amount of new doctrine . The system was fully See also:developed before Julian's consolidation of the Edict ; and the statutory recognition which the latter then obtained, though it stopped the praetor's See also:power of amending the law, did nothing to impair the efficiency of the existing procedure . Procedure extra Ordinem.i—The two-staged procedure, first in jure and then in judicio, constituted the ordo judiciorum priva- Pro- torum . Early in the Empire, however, it became the cedure practice in certain cases to abstain from adjusting a extra formula and making a remit to a judex, and to leave the ordinem. cause in the hands of the magistrate from beginning to end . In these cases, speaking generally, the magistrate acted as an administrative See also:official . Such cases did not necessarily come before the ordinary judicial praetors; on the contrary, they were committed as a rule to special officials (e.g. consuls) who were appointed to decide them by the emperors . This kind of procedure was adopted sometimes because the claim that was being made rested rather on moral than on legal right, and sometimes in order to avoid unnecessary disclosure of family misunderstandings . Thus, the earliest questions that were raised about testamentary trusts were. sent for consideration and disposal to the consuls, apparently because, in the existing See also:state of jurisprudence, it was thought incompetent for a beneficiary to maintain in reference to the heir (who had only been requested to comply with the testator's wishes) that he was bound in law to pay him (dare oportere) his bequest . Had the difficulty arisen at an earlier period, and in the heyday of the constructive See also:energy of the praetors, they would probably have solved it with an actio in factum . As it was, it See also:fell to the emperors to deal with it, and they adopted the method of extraordinaria cognitio, the See also:jurisdiction which they in the first instance conferred on the consuls being before long confided to a magistrate specially designated for it,—the praetor fidei commissarius . Questions between tutors and their See also:pupil wards in like manner began to be dealt with extra ordinem, the See also:cognition being entrusted by Marcus Aurelius to a praetor tutelaris; while fiscal questions in which a private party was interested went to a praetor fisci, whose creation was due to See also:Nerva . Claims for See also:aliment between parent and child or See also:patron and freedman rested on natural See also:duty rather than on legal right; they could not therefore well be made the subject-matter of a judicium, and consequently went for disposal to the consuls or the city See also:prefect, and in the provinces to the See also:governor . Questions of status, especially of freedom or slavery, at least from the time of Marcus Aurelius, were also disposed of extra ordinem; and so were claims by physicians, See also:advocates and public teachers for their honoraria, and by officials for their salaries, the See also:Romans refusing to admit that these could be recovered by an ordinary action of location . In all those extraordinary cognitions the procedure began with a complaint addressed to the magistrate, instead of an in jus vocatio of the party complained against; it was for the magistrate to require the attendance of the latter (evocatio) if he thought the complaint relevant . The decision was a judicatum or decretum according to circumstances . Jural Remedies flowing directly from the Magistrate's Imperium?--Direct Great as were the results for the law of the multiplication and simplification of judicia through the formular system, maids- it may be questioned whether it did not benefit quite as terlsr much from the direct intervention of the praetors and other inter- magistrates in certain cases in virtue of the impe'rium reatMo. with which they were invested . This manifested itself principally in the form of (I) interdicts; (2) praetorian stipulations; See Keller-Wach, Civilprocess, § 81; Bethmann-Hollweg; Rom . Civilprocess, vol. ii . § 122; Bekker, Aktionen, vol. ii. See also:chap . 23; Baron, Gesch. d. rom . Rechts, vol. i . § 220 . = Keller-Wach, ROm . Civilprocess, §§ 74—80; Bethmann-Hollweg, Rom . Civilprocess, vol. ii . §§ 98, 119—121; Bekker, Akt. vol. ii.(3) missio in possessionem; and (4) in integrum restatutso . All these had been in common use during the Republic . 1 . The interdicts, have already been referred to as in use under the regime of the jus civile; but their number and scope were vastly increased under that of the jus praetorium . The See also:char- acteristic of the developed procedure by See also:interdict was this—that in it the praetor reversed the ordinary course did' of things, and, instead of waiting for an inquiry into the facts alleged by a complainer, provisionally assumed them to be true and pronounced an order upon the See also:respondent, which he was bound either to obey or show to be unjustified . The order pronounced might be either restitutory, exhibitory (in both cases usually spoken of in the texts as a decretum), or prohibitory:—restitutory, when, for example, the respondent was ordained to restore something he was alleged to have taken possession of by violent means, to remove impediments he had placed in the channel of a See also:river, and the like; exhibitory, when he was ordained to produce something he was unwarrantably detaining, e.g. the See also:body of a See also:freeman he was holding as his slave, or a will in which the complainer alleged that he had an See also:interest; prohibitory, as, for example, that he should not disturb the status quo of possession as between the complainer and himself, that he should not interfere with a See also:highway, a watercourse, the See also:access to a See also:sepulchre, and so forth . If the respondent obeyed the order pronounced in a restitutory or exhibitory See also:decree, there was an end of the matter . But frequently, and perhaps more often than not, the interdict was only the commencement of a litigation, facilitated by sponsions and restipulations, in which' the 'questions had to be tried (1) whether the interdict or See also:injunction was justified, (2) whether there had been See also:breach of it, and, (3) if so, what damages were due in consequence . The procedure therefore was Often any-thing but See also:summary . In the possessory interdicts uti possidetis and utrubi in particular it was extremely involved, due to some extent to the fact that they were See also:double interdicts (interdicta duplicia), i.e. addressed indifferently to both parties . Gaius says, but, as' most modern writers think, erroneously; that they had been devised as See also:ancillary to a litigation about ownership, and for the purpose of deciding which of the parties, as possessor, was to have the advantage of See also:standing on the defensive in the rei vindicatio.4 That they were so used in his time, as in that of Justinian, cannot be doubted . But it is amazing that they should have been, for they were much more cumbrous than the 'vindicateo to which they led up: Take the interdict uti possidetis, which applied 'to immovables, as utrubi did to movables . Both parties being See also:present, the praetor addressed them to this effect: " I forbid that one of you two who does not possess the house in question to use force in order to prevent the other who is in possession, provided he is so neither by clandestine or violent exclusion of the first, nor in virtue of a See also: |