procedure so cumbrous and complex as that of their possessory
interdicts.
2. A praetorian stipulation[1] was a stipulatory engagement imposed upon a man by a magistrate or judge, in order to secure a Praetorian stipulations. third party from the chance of loss or prejudice through some act or omission either of him from whom the engagement was exacted or of some other person for whom he was responsible. Although called praetorian, because the cases in which such stipulations were exigible were set forth in the Edict, there can be no question that they originated in the jus civile; in fact, they were just a means of assuring to a man in advance the benefit of an action of the jus civile whereby he might obtain reparation for any injury suffered by him through the occurrence of the act or omission contemplated as possible. They were enforced nearly always by granting or refusing an action or by missio in possessionem. Ulpian classifies them (rather illogically) as cautionary (cautionales), judicial and common. The first were purely precautionary, and quite independent of any action already in dependence between the party moving the magistrate to exact the stipulation and him on whom it was desired to impose it. There were many varieties of them, connected with all branches of the law—for example, the cautio damni infecti, security against damage to a man's property in consequence, say, of the ruinous condition of his neighbour's house, the cautio usufructuaria that property usufructed should revert unimpaired to the owner on the expiry of the usufructuary's life interest, the aedilian stipulation against faults in a thing sold, and so forth. In all these cases the stipulation or cautio was a guarantee against future loss or injury, usually corroborated by sureties, and made effectual by an action on the stipulation in the event of loss or injury resulting. Judicial stipulations, according to Ulpian's classification, were those imposed by a judge in the course of and with reference to an action in dependence before him, as, for example, the cautio judicatum solvi (that the defendant would satisfy the judgment), the cautio de dolo (that a thing claimed in the action would not be fraudulently impaired in the meantime) and many others. Common were such as might either be imposed by a magistrate apart from any depending action or by a judge in the course of one, such as that taken from a tutor or curator for the faithful administration of his office, or from a procurator that his principal would ratify what he did.
3. Missio in possessionem was the putting of a person in possession provisionally in the first instance, either of the whole estate of Missio in possessionem. another (missio in bona) or of some particular thing belonging to him (missio in rem). The former was by far the more important. It was resorted to as a means of execution not only against a judgment-debtor but also against a man who fraudulently kept out of the way and thus avoided summons in an action, or who, having been duly summoned, would not do what was expected on the part of a defendant; against the estate of a person deceased to which no heir would enter, thus leaving creditors without a debtor from whom they could enforce payment of their claims; and also against the estate that had belonged to a person who had undergone capitis deminutio, if the family head to whom he had subjected himself refused to be responsible for his debts. Missio in rem was granted where, for example, a man refused to give cautio damni infecti; the applicant was then put in possession of the ruinous property for his own protection.
4. In integrum restitutio,[2] reinstatement of an individual, on grounds of equity, in the position he had occupied before some occurrence In integrum restitutio. which had resulted to his prejudice and for which no other legal remedy existed was one of the most remarkable manifestations of the exercise of magisterial imperium. It was not that the individual in question, either directly by action or indirectly by exception, obtained a judgment that either rendered what had happened comparatively harmless or gave him compensation in damages for the loss he had sustained from it, but that the magistrate—and it could only be the praetor, the urban or praetorian prefect, a provincial governor or the emperor himself—at his own hand pronounced a decree that as far as possible restored the status quo ante. It was not enough, however, to entitle a man to this extraordinary relief, that he was able to show that he had been taken advantage of to his hurt, and that no other adequate means of redress was open to him; he required in addition to be able to found on some subjective ground of restitution, such as minority, or, if he was of full age, intimidation which could not be resisted, mistake of fact, fraud, absence or the like. It required also to be applied for within a limited period—originally an annus utilis, but under Justinian a quadrennium—counting from the time the party was in a position to make the application. What should be held to amount to sufficient ground of restitution, either objective or subjective, was at first left very much to the discretion of the magistrate; but even here practice and jurisprudence in time fixed the lines within which he ought to confine himself, and made the principles of in integrum restitutio as well settled almost as those of the actio quad metus causa or the actio de dolo.
V. The Period of Codification
(Diocletian to Justinian.)
i. Historical Events that Influenced the Law.
Supremacy of the Emperors as Sole Legislators.—From the time of Diocletian onwards the making of the law was exclusively Emperors sole legislators. in the hands of the emperors. The senate still existed, but shorn of all its old functions alike of government and legislation.[3] The responses of patented jurists were a thing of the past. It was to the imperial consistory alone that men looked for interpretation of old law or promulgation of new.
In the reign of Diocletian rescripts were still abundant; but the constitutions in the Theodosian and Justinianian Codes from the time of Constantine downwards are mostly of a wider scope, and of the class known as general or edictal laws (leges generales edictales). It would be wrong, however, to infer that rescripts had ceased; for Justinian's Code contains various regulations as to their form, and the matter is dealt with again in one of his Novels. The reason why so few are preserved is that they were no longer authoritative except for the parties to whom they were addressed. This was expressly declared by the emperors Arcadius and Honorius in 398 in reference to those they issued in answer to applications for advice from officials; and it is not unreasonable to assume that a limitation of the same sort had been put at an earlier date on the authority of those addressed to private parties. Puchta is of opinion that the enactment of Honorius and Arcadius applied equally to decreta, for the reason that during this period matters of litigation did not come under the cognisance of the emperors except on appeal, and that under the new arrangements of Constantine the judgment of affirmance or reversal was embodied in a rescript addressed to the magistrate from whom the appeal had been taken. The rule of Arcadius and Honorius was renewed in 425 by Theodosius and Valentinian, who qualified it, however, to this extent—that, if it contained any distinct indication that the doctrine it laid down was meant to be of general application, then it was to be received as an edict or lex generalis. To this Justinian adhered in so far as rescripts in the old sense of the word were concerned; but he declared that his judgments (decreta) should be received everywhere as laws of general application, and so should any interpretation given by him of a lex generalis, even though elicited by the petition of a private party. The imperial edicts, adjusted in the consistory, were usually addressed to the people, the senate or some official civil, military or ecclesiastical, according to the nature of their subject-matter.
Influence of Christianity.[4]—A disposition has sometimes been manifested to credit nascent Christianity with the humaner spirit Christianity—its influence. which began to operate on some of the institutions of the law in the first century of the Empire, but which in a previous section we have ascribed to the infiltration into jus civile of doctrines of the jus naturale, the product of the philosophy of the Stoa. The teaching of Seneca did quite as much—nay, far more—to influence it then than the lessons that were taught in the little assemblies of the early converts. It would be a bold thing to say that, had Christianity never gained its predominance, that spirit of natural right would not have continued to animate the course of legislation, and to evoke, as years progressed, most of those amendments in the law of the family and the law of succession that were amongst the most valuable contributions of the imperial constitutions to the private law. It may well be that that spirit was intensified and rendered more active with the growth of Christian belief; but not until the latter had been publicly sanctioned by Constantine, and more especially after Theodosius declared it to be the religion of the state, do we meet with incontestable records of its influence. We find them in enactments in favour of the church and its property, and of its privileges as a legatee; in those conferring or imposing on the bishops a supervision of charities and charitable institutions, and a power of interfering in matters of guardianship; in the legitimation per subsequens matrimonium of children born of concubines; in the introduction of a mode of manumitting slaves in facie ecclesiae;
- ↑ Schirmer, Ueber die prätorischen Judicial-Stipulationen (Greifswald, 1853); Keller-Wach, Civilprocess, § 77; Bekker, Aktionen, ii. chap. 16.
- ↑ Savigny, System d. röm. Rechts. vol. vii. §§ 315-343; Karlowa, Röm. R. G. ii. pp. 1064-1104; Keller-Wach, op. cit. § 79; Bekker, Aktionen, ii. chap. 18.
- ↑ There was a senate both at Constantinople and at Rome during the later Empire. In his History, Zosimus, iii. 11, says: [Ἰουλιανὸς] ἔδωκε μὲν τῇ πόλει [Κωνσταντινουπόλει] γερουσίαν ἔχειν ὥσπερ τῇ Ρώμῃ. Both senates were addressed by the emperors on matters of legislation. See Cod. Theod. vi. 2.
- ↑ See Troplong, De l'influence du christianisme sur le droit civil des Romains (Paris, 1843, and subsequently); Merivale, The Conversion of the Roman Empire (Boyle Lectures for 1864) (London, 1864), particularly lect. iv.; Allard, Le Christianisme et l'empire romain (2nd ed., Paris, 1897).
