[Sidenote: Occupancy.]

Occupancy, one of the original modes of acquiring property, was applied to goods and persons taken in war; to things lost by negligence, or chance, or thrown away by necessity; to pearls, sh.e.l.ls, and precious stones found on the sea-sh.o.r.e; to wild animals, to fish, to hidden treasure.

Acquisition, by accession, pertained to the natural and industrial fruits of the land, the rents of houses, interest on money, the increase of animals, lands gained from the sea, and movables.

[Sidenote: Transfer of property.]

[Sidenote: Testaments and legacies.]

[Sidenote: Laws of succession.]

[Sidenote: The laws in inheritance.]

Two things were required for the transfer of property, for it is the essence of property that the owner of a thing should have the right to transfer it,--first, the consent of the former owner to transfer the thing upon some just ground; and secondly, the actual delivery of the thing to the person who is to acquire it. Movables were presumed to be the property of the possessors, until positive evidence was produced to the contrary. A prescriptive t.i.tle to movables was acquired by possession for one year, and to immovables by possession for two years.

Undisturbed possession for thirty years const.i.tuted in general a valid t.i.tle. When a Roman died, his heirs succeeded to all his property, by hereditary right. If he left no will, his estate devolved upon his relations in a certain order prescribed by law. The power of making a testament only belonged to citizens above p.u.b.erty. Children under the paternal power could not make a will. Males above fourteen, and females above twelve, when not under power, could make wills without the authority of their guardian; but pupils, lunatics, prisoners of war, criminals, and various other persons, were incapable of making a testament. The testator could divide his property among his heirs in such proportions as he saw fit; but if there was no distribution, all the heirs partic.i.p.ated equally. A man could disinherit either of his children by declaring his intentions in his will, but only for grave reasons, such as grievously injuring his person or character or feelings, or attempting his life. No will was effectual unless one or more persons were appointed heirs to represent the deceased. Wills were required to be signed by the testator, or some person for him, in the presence of seven witnesses who were Roman citizens. If a will was made by a parent for distributing his property solely among his children, no witnesses were required, and the ordinary formalities were dispensed with among soldiers in actual service, and during the prevalence of pestilence. The testament was opened in the presence of the witnesses, or a majority of them; and after they had acknowledged their seals, a copy was made, and the original was deposited in the public archives.

According to the Twelve Tables, the powers of a testator in disposing of his property were unlimited, but in process of time laws were enacted to restrain immoderate or unnatural bequests. By the Falcidian law, in the time of Augustus, no one could leave in legacies more than three fourths of his estate, so that the heirs could inherit at least one fourth.

Again a law was pa.s.sed, by which the descendants were ent.i.tled to one third of the succession, and to one half if there were more than four.

In France if a man die leaving one lawful child, he can only dispose of half of his estate by will; if he leaves two children, the third; if he leaves three or more, the fourth. [Footnote: _Code Civil_, Art.

913.] In England a man can cut off both his wife and children.

[Footnote: Williams, _Exec._, p. 3.] The Romans recognized bequests in trust, besides testaments, by which property descended directly to the heir. The person charged with a trust was bound to restore the subject at the time appointed by the testator. The trustee could not alienate an estate without the consent of all the parties interested, except for the payment of debts. All persons capable of making a will could leave legacies, real or personal, but these were not due if the testator died insolvent. When a man died intestate, the succession devolved on the descendants of the deceased; but, these failing, the nearest ascendants were called; if there were brothers and sisters, they were ent.i.tled to succeed together along with the ascendants in the same cla.s.s. Children succeeded to property, if their father died intestate, in equal portions, without distinction of s.e.x, and if there was only one child he took the whole estate. A descendant of either s.e.x, or any degree, was preferred to all ascendants and collaterals. The descendants of a son or daughter, who had predeceased, took the same share of the succession that their parent would have done had he been alive. In England, if all the children are dead, and only grandchildren exist, they all take, not by families, but _per capita_, equal shares in their own right as next of kin, and Mackenzie thinks this arrangement is more equitable than the Roman. [Footnote: Mackenzie, p. 288] If there were no descendants, the Roman father and mother, and other ascendants, excluded all collaterals from the succession except brothers and sisters of the whole blood, and the children of deceased brothers and sisters.

When ascendants stood alone, the father and mother succeeded in equal portions, and if only one survived, he or she succeeded to the whole, so that grandparents were excluded. If there were brothers and sisters of the whole blood, the estate was divided among them _in capita_, according to the number of persons, including the father and mother. The children of a deceased brother were not admitted to the succession along with ascendants and surviving brothers and sisters. [Footnote: _Ibid._ 290] If a person died leaving neither ascendants nor descendants, his brothers and sisters succeeded to his estate in equal shares. And if the intestate left also nephews and nieces by a deceased brother or sister, these succeeded, along with their uncles and aunts, to the share their parent would have taken. On the failure of brothers and sisters by the whole blood, the brother and sisters by the half blood succeeded, and if any of these brothers and sisters have died leaving children, the right of representation was extended to them also, just as in the case of children of brothers-german. When husband or wife died, without leaving relations, the survivor was called to the succession. A widow who was poor and unprovided for had a right to share in the succession of her deceased husband. When he left more than three descendants, she was ent.i.tled to partic.i.p.ate with them equally. If there were only three or fewer, she was ent.i.tled to one fourth of the estate.

If she had children by the deceased, she had only the usufruct of her portion during her life, and was bound to preserve it for them. If a man had no legitimate children, he could leave his whole inheritance to his natural children, or to their mother; but if he had lawful children, he could leave only one twelfth to the natural children and their mother.

If the father died intestate, without leaving a lawful wife or issue, his natural children and their mother were ent.i.tled to one sixth of the succession, and the rest was divided among the lawful heirs.

[Sidenote: Contracts.]

In the matter of contracts, the Roman law was especially comprehensive, and the laws of France and Scotland are substantially based upon the Roman system. The Inst.i.tutes of Gaius and Justinian distinguish four sorts of obligation,--aut _re_, aut _verbis_, aut _literis_, aut _consenser_. Gibbon, in his learned chapter, prefers to consider the specific obligations of men to each other under promises, benefits, and injuries. Lord Mackenzie treats the subject in the order of the Inst.i.tutes.

"Obligations contracted _re_--by the intervention of things--are called by the moderns real contracts, because they are not perfected till something has pa.s.sed from one party to another. Of this description are the contracts of loan, deposit, and pledge. Till the subject is actually lent, deposited, or pledged, it does not form the special contract of loan, deposit, or pledge." [Footnote: Mackenzie.]

[Sidenote: Loans.]

In regard to loans, the borrower was obliged to take care of it as if it were his own. _In rebus commodatis tails diligentia proestanda est, qualem quisque diligentissimus paterfamilias suis rebus adhibet_.

[Footnote: D. 13, 6, 1 pr.] He could only use a thing for the purpose for which it was lent; he could not keep it beyond the time agreed upon, nor detain it as a set-off against any debt. He was bound to restore the article in the same condition as received, subject only to the deterioration arising from reasonable use, whether a horse, a house, or a carriage. And he was required to make good all injuries caused by his own fault or negligence. If the article perished, without any blame or neglect, the loss fell on the owner. If the loan was for consumption, which was called _mutuum_, like corn, or oil, or wine, the borrower was required to return as much of the same kind and quality, whether the price of the commodity had risen or fallen. In a loan of money, under _mutuum_, the borrower was not required to pay interest. Interest was only due _ex lege_, or by agreement. The rate varied at different times; generally, it was eight and one third per cent., and even more than this in the latter years of the republic. Justinian introduced a scale which varied with different cla.s.ses of society.

Persons of ill.u.s.trious rank could lend money at four per cent., ordinary people at six, and for maritime risks twelve; but it was unlawful to charge interest upon interest. [Footnote: C. 4, 32, 26, Section 1.]

Property would double, at eight and one third, in twelve years, not so rapidly as by our system of compound interest, especially at the rate of seven per cent. In England the usury laws of different monarchs limited interest from ten per cent, to five; but these were repealed in 1854.

Only five per cent. can now be recovered upon any contract.

[Sidenote: Deposits.]

A deposit differed from a loan in this,--that the depositary was not ent.i.tled to any use of a thing deposited, and was bound to preserve it with reasonable care, and restore it on demand. As he derived no advantage, he was ent.i.tled to be reimbursed for all necessary charges.

Ship-masters, innkeepers, and stablers, were responsible for the luggage and effects of travellers intrusted to their care, which policy is now adopted in both Europe and America, on the ground that if they were not held strictly to their charge, being not a very reputable cla.s.s of men in ancient times, they might be in league with thieves. An innkeeper was therefore held responsible for loss, or damage, or theft, to secure the protection of travellers, whose patronage was a compensation. In case of robbery, when goods were taken by superior force, he was not responsible, nor was he for loss occasioned by inevitable accident.

[Sidenote: Pledges and securities.]

At Rome, pledges were customary, as a security for money due, on condition of their restoration after the payment of a debt. Real property, like houses and lands, as well as movables, were the subject of pledge. [Footnote: D. 20, 1.] The creditor was bound to bestow ordinary care and diligence in the preservation of the subject, but he could not use it, or take the profits of it, without a special contract.

By the _pactum antichresis_, the creditor was allowed to take the profits in lieu of the interest on his debt; by the _lex commissoria_, the thing pledged became the absolute property of the creditor if the debt was not paid at the time agreed on. But as this condition was found to be a source of oppression, it was prohibited by a law of Constantine. [Footnote: C, 7, 35.] When the debt, interest, and all necessary expenses were paid, the debtor was ent.i.tled to have his pledge restored to him. After the time of payment was pa.s.sed, the creditor had a right to sell the pledge, and retain his debt out of the produce of the sale; if there was a deficiency, the balance could be recovered by an action; if there was a surplus, the debtor was ent.i.tled to it. The Roman pledge was of the nature of the modern business of p.a.w.nbroking and of a mortgage.

[Sidenote: Verbal Contracts.]

Next to the perfection of contracts by the intervention of things _re_, were obligations contracted by _verbis_--solemn words-- and by _literis_ or writing. The _verborum obligatio_ was contracted by uttering certain formal words of style, an interrogation being put by one party and an answer given by the other. These stipulations were binding. In England all guarantees must be in writing.

[Sidenote: Written obligations.]

The _obligatio literis_ was a written acknowledgment of debt chiefly employed when money was borrowed, but the creditor could not sue upon the note within two years from its date, without being called upon also to prove that the money was in fact paid to the debtor.

[Sidenote: Sales.]

Contracts perfected by consent--_consenses_--had reference to sale, hiring, partnership, and mandate. All contracts of sale were good without writing. When an article was sold and delivered, the market price, as fixed by custom, determined the price, if nothing had been said about it. The seller was bound to warrant that the thing sold was free from defects, and when the subject did not answer this implied warranty, the sale might be set aside. But the seller could stipulate that he should not be held to warrant against defects. Property was not transferred without actual delivery. When the sale was completed, all the risks of the thing sold pa.s.sed to the purchaser. In the case of commodities sold by weight, number, or measure, the contract was not completed until the goods were weighed, counted, or measured, which sometimes caused considerable difficulty. After delivery, the seller was bound to warrant the t.i.tle to the buyer, and to indemnify him for any loss. [Footnote: D. 22, 2. C. 8, 45.]

[Sidenote: Leases.]

[Sidenote: Agents and Partners.]

In regard to hiring, all sorts of things, which were the subject of commerce, may be let for hire. Leases of land and houses come under this head. They were generally given for five years, and unless there was an express stipulation, the lessee might sublet to another. The lessor was required to deliver the subject in a good state of repair, and maintain it in that condition, and to guarantee its peaceable enjoyment; the lessee was bound to use the subject well, to put it to no use except that for which it was let, to preserve it in good condition, and restore it at the end of the term. He was bound also to pay the rent at the stipulated period, and when two years' rent were in arrear, the tenant could be ejected. The tenant of a farm was ent.i.tled to a remission of his rent if his crop was destroyed by an unforeseen accident or calamity. A contractor who agreed to undertake a piece of work was required to finish it in a proper manner, and if from negligence or ignorance the work was defective, he was liable to damages. In a partnership, if there were no express agreement, the shares of profit and loss were divided equally. Each partner was bound to exercise the same care for the joint concern as if it were his own. The acts of one partner were not binding on another, if he acted beyond the scope of the partnership. If one of the partners advanced money on account of the partnership, each of the partners were bound to contribute to the indemnity in proportion to his share of the concern; and if any of them became insolvent, the solvent shareholders were obliged to make up the deficiency. [Footnote: D. 17, 2, 67.] An agent could be employed to transact business for another, but was required to act strictly according to his orders, and the mandant, who gave the orders, was bound to ratify what was done by the mandatary, and to reimburse him for all advances and expenses incurred in executing the commission. By the Roman law agents were not remunerated. Donations could not be made beyond a certain maximum. Justinian ordered that when gifts exceeded five hundred solidi, a formal act stating the particulars of the donation should be inscribed in a public register.

When a person spontaneously a.s.sumed the management of the affairs of another in his absence, and without any mandate, this was called _negotiorum gestio_, and the person was bound to perform any act which he had begun, as if he held a proper mandate, and strictly account for his management, while the princ.i.p.al was bound to indemnify him for all advances and expenses.

When money was paid through error it could be recovered, under certain circ.u.mstances. But this point is a matter concerning which the jurists differ.

[Sidenote: Libels.]

[Sidenote: Damages.]

Acts which caused damage to another obliged the wrongdoer to make reparation, and this responsibility extended to damages arising not only from positive acts, but from negligence or imprudence. In an action of libel or slander, the truth of the allegation might be pleaded in justification. [Footnote: D. 47, 10, 18.] In all cases it was necessary to show that an injury had been committed maliciously. But if damage arose in the exercise of a right, as killing a slave in self-defense, no claim for reparation could be maintained. If any one exercised a profession or trade for which he was not qualified, he was liable to all the damage his want of skill or knowledge might occasion. When any damage was done by a slave or an animal, the owner of the same was liable for the loss, though the mischief was done without his knowledge and against his will. If any thing was thrown from a window of a house near the public thoroughfare, so as to injure any one by the fall, the occupier was bound to repair the damage, though done by a stranger.

Claims arising under obligations might be transferred to a third person, by sale, exchange, or donation; but to prevent speculators from purchasing debts at low prices, it was ordered that the a.s.signee should not be ent.i.tled to exact from the debtor more than he himself had paid to acquire the debt with interest,--a wise and just regulation which it would be well for us to copy. In regard to the extinction of obligations the creditor is not bound to accept of payments by instalments, or any thing short of proper payment at the time and place agreed upon. When several debts were due, the debtor, in making payment, could appropriate it to any one he pleased. [Footnote: D. 46, 3, 1.] When performance became impossible, without any fault of the debtor, such as when the specific subject had perished by unavoidable accident, the obligation was extinguished; but if the impossibility was caused by the fault of the debtor, he was still liable. This was a great modification of the severity of the ancient code, when a debtor could be sold into slavery for his debt. As certain contracts are formed by consent alone, so they could be extinguished by the mutual consent of the contracting parties, without performance on either side. In some cases the mere lapse of time extinguished an obligation, as in accordance with the modern system of outlawry.

[Sidenote: Law of actions.]

The next great department of Roman jurisprudence pertained to actions and procedure. The state conferred on a magistrate or judge jurisdiction to determine questions according to law. Civil jurisdiction pertains to questions of private right; criminal jurisdiction takes cognizance of crimes. When jurisdiction was conferred on a Roman magistrate, he acquired all the powers necessary to exercise it. The _imperium merum_ gave the power to inflict punishment; the _imperium mixtum_ was the power to carry civil decrees into execution. A _real action_ was directed against a person in the territory where the subject in dispute was located.

By the ancient const.i.tution, the king had the prerogative of determining civil causes. The right then devolved on the consuls, afterwards on the praetor, and in certain cases on the curule and plebeian ediles, who were charged with the internal police of the city.

[Sidenote: The Praetors.]

The praetor, a magistrate next in dignity to the consuls, acted as supreme judge of the civil courts, a.s.sisted by a council of jurisconsults to determine questions in law. At first one praetor was sufficient, but as the limits of the city and empire extended, he was joined by a colleague. After the conquest of Sicily, Sardinia, and the two Spains, new praetors were appointed to administer justice in the provinces. The praetor held his court in the comitium, wore a robe bordered with purple, sat in a curule chair, and was attended by lictors.

[Sidenote: Other judges.]

The praetor delegated his power to judges, called Judex, Arbiter, and Recuperatores. When parties were at issue about facts, it was the custom for the praetor to fix the question of law upon which the action turned, and then to remit to a delegate to inquire into the facts and p.r.o.nounce judgment according to them. In the time of Augustus there were four thousand judices, who were merely private citizens, generally senators or men of consideration. The judex was invested by the magistrate with a judicial commission for a single case only. After being sworn to duty, he received from the praetor a formula containing a summary of all the points under litigation, from which he was not allowed to depart. He was required not merely to investigate facts, but to give sentence. And as law questions were more or less mixed up with the case, he was allowed to consult one or more jurisconsults. If the case was beyond his power to decide, he could decline to give judgment. The arbiter, like the judex, received a formula from the praetor, and seemed to have more extensive power. The recuperatores heard and determined cases, but the number appointed for each case was usually three or five.

[Sidenote: The centumvirs.]

The centumvirs const.i.tuted a permanent tribunal composed of members annually elected, in equal numbers, from each tribe, and this tribunal was presided over by the praetor, and divided into four chambers, which, under the republic, was placed under the ancient quaestors. The centumvirs decided questions of property, embracing a wide range of subjects. [Footnote: _Cicero de Orat_., i. 38.] The Romans had no cla.s.s of men like the judges of modern times. The superior magistrates were changed annually, and political duties were mixed with judicial.

The evil was partially remedied by the inst.i.tution of legal a.s.sessors, selected from the most learned jurisconsults. Under the empire, the praetors were greatly increased. Under Tiberius, there were sixteen who administered justice, beside the consuls, six ediles, and ten tribunes of the people. The emperor himself became the supreme judge, and he was a.s.sisted in the discharge of his judicial duties by a council composed of the consuls, a magistrate of each grade, and fifteen senators. The Praetorian prefects, although, at first, their duties were purely military, finally discharged important judicial functions. The prefect of the city, in the time of the emperors, was a great judicial personage, who heard appeals from the praetors themselves.

[Sidenote: Witnesses.]