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 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 Claudius
it was found necessary to institute a court specially charged with
their adjudication—that of the praetor fdeicommissarius.
The employment of a 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 incapacitated by the 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 transfer of the universal hereditas or an aliquot part of it to the beneficiary (fideicommissum hereditatis), or only of some particular thing (fideicommissum rei singularis), a testamentary trust had various advantages over either a direct institution or a direct bequest (legatum). Still the 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 prejudice of the beneficiary. In 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 Nero and the Pegasian in that of Vespasian, which not only secured the beneficiary against the trustee's (i.e. the heir's) repudiation of the inheritance, but also protected the latter from all 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 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 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 inap ropriate either for disherison of sui or institution of an heir; but if confirmed by testament, either 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 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 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 mother and her child by a marriage that was unaccompanied with manus stood related to each other only as cognates, being in law members of different families; consequently their chance of succession to each other was remote, being postponed to that of their respective agnates. The purpose of the senatusconsult was to prefer a mother to all agnates of her deceased child except father and brother and 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 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 free birth who were mothers of three children and freedwomen who were mothers of four, thus making it ostensibly a 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 grandparents but also to that of their paternal grandmother.
iii. Judicial Procedure.
The Formular System.[1]—The ordinary procedure during the greater part of the first three centuries of the Empire was still Formular System. two-staged; it commenced before the praetor (in jure) and was concluded before a judge or judges (in judicio). But the legis actiones had with a few exceptions given place to praetorian formulae. Under the sacramental system parties, and particularly the plaintiff, had themselves to formulate in statutory or traditional words of style the matter in controversy between them; and as they formulated, so did it go for triallto centumviral court or judex, with the not infrequent result that it was then all too late discovered that the real point in the case had been missed. Under the formular system parties were free to represent their plaint and defence to the praetor in any words they pleased, the plaintiff asking for a formula and usually indicating the style on the album that he thought would suit his purpose, and the, 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 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 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 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 Republic. Gaius ascribes its introduction and definitive establishment to the lex Aebutia and two judiciary 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 (1) 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 urban praetor. There were also formulae of a 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 mere echoes of the statutory words of style uttered by the plaintiff, and that they were not written but spoken in the hearing of witnesses.
A large proportion of the personal actions of the formular system were evolved out of the legis actio per condictionem. The sequence Its application to Personal Actions. of operations may have been something like this. Taking the simplest form of it, the action for certa pecunia under the Silian law, the first step was to drop the formal condictio from which it derived its character of legis aetio, thus avoiding a delay of thirty days; the plaintiff stated his demand 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 so on. In each of these examples the formula included only two of the four principal clauses that might find place in it[3]—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 joint 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
- ↑ See Keller (as on p. 547, n.), §§ 23-43; Bethmann-Hollweg (as in same note), vol. ii. §§ 81-87; Bekker (as in same note), vol. i. chaps. 4-7, vol. ii. chaps. 15, 19, 20; Baron, Gesch. d. röm. Rechts (Berlin, 1884), vol. i. §§ 202-215.
- ↑ 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, adjudicatio 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 fictions (§§ 32-38), exceptions (§§ 115-125), and replications, duplications, &c. (§§ 126-129).
