JUS NATUKALE.] ROMAN LAW 709 Edict ; and the statutory recognition which the latter then obtained did nothing to impair its efficiency.
- ced- Procedure extra Ordinem. l The two-staged procedure, first in
i extra, jure and then in judicio, constituted the ordo judiciorum priva- linem. torum. Early in the empire, however, it became the practice in certain cases to abstain from adjusting a formula and making a remit to zjudex, and to leave the cause in the hands of the magis- trate from beginning to end. This course 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 dis- closure of family misunderstandings. Thus, the earliest questions that were raised about testamentary trusts were sent for considera- tion and disposal to the consuls, apparently because, in the existing 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 (dare oportere) to pay him his bequest. Had the difficulty arisen at an earlier period, and in the heyday of the constructive energy of the pnetors, they would probably have solved it with an actio infactum. As it was, it fell to the emperors to deal with it, and they adopted the method of extraordinaria cognitio, the jurisdic- tion which they in the first instance conferred on the consuls being before long confided to a magistrate specially designated for it, the praetor fideicommissarius. Questions between tutors and their pupil wards in like manner began to be dealt with extra ordinem, the cognition being entrusted by Marcus Aurelius to a praetor tute- laris ; while fiscal questions in which a private party was interested went to a praetor fisci, whose creation was due to Nerva. Claims for aliment between parent and child or patron and freedman rested on natural duty rather than on legal right ; they could not therefore well be made the subject-matter of zjudicium, and con- sequently went for disposal to the consuls or the city prefect, and in the provinces to the 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, advocates, and public teachers for their honoraria, and by officials for their salaries, the Eomans refusing to admit that these could be recovered by an ordinary action of location. In all those extra- ordinary cognitions the procedure began with a complaint addressed to the magistrate, instead of an in jus vocatio of the party com- plained against ; it was for the magistrate to require the attendance of the latter (ewcatio) if he thought the complaint relevant. The decision was a judicatum or decretum according to circumstances. ect Jural Remedies flowing directly from the Magistrate's Imperium. 2
- is- Great as were the results for the law of the multiplication and
al simplification of judicia through the formular system, it may be
- r- questioned whether it did not benefit quite as much from the
tion. direct intervention of the praetors in certain cases in virtue of the supreme power with which they were invested. This manifested itself principally in the form of (1) interdicts ; (2) pnetorian stipula- tions; (3) missio in possessionem ; and (4) in integrum restitutio. er- 1. The interdicts 3 have already been referred to as in use under ts. the regime of the jus civile ; but their number and scope were vastly increased under that of the jus praetorium. The char- acteristic of the procedure by interdict was this, that in it the praetor reversed the ordinary course of things, and, instead of wait- ing for an inquiry into the facts alleged by a complainer, provision- ally assumed them to be true and pronounced an order upon the 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 decree), or prohibitory : restitutory, when, for example, the respondent was ordained to restore something he was alleged to have taken posses- sion of by violent means, to remove impediments he had placed in the channel of a river, and so on ; exhibitory, when he was ordained to produce something he was unwarrantably detaining, e.g., the body of a freeman he was holding as his slave, or a will in which the complainer alleged that he had an interest ; prohibi- tory, 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 highway, a watercourse, the access to a sepulchre, and so forth. If the respondent obeyed the order pro- nounced in a restitutory or exhibitory 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 injunction was justified, (2) whether there had been breach of it, and, (3) if so, what damages were due in consequence. The procedure therefore was often anything but summary. 1 See Keller (as on p. 681, note 1), 81 ; Bethmann-Hollweg (as in same note), vol. ii. 122 ; Bekker (as in same note), vol. ii. chap. 23 ; Baron, Gesch. d. rom. Rechts, vol. i. 220. 2 Keller, 74-80 ; Bethmann-Hollweg, vol. ii. 98, 119-121 ; Bekker, vol. ii. chaps. 16-18 ; Baron, vol. i. 216-219. 3 In addition to the authorities in last note, see K. A. Schmidt, Das Tnter- diktenverfahren d. Rom. in geschichtl. Entwickelung, Leipsic, 1853 ; Machelard, Theorie des interdits en droit remain, Paris, 1864. In the possessory interdicts uti possidetis and utrubi in particular it was extremely involved, due to some extent to the fact that they were double interdicts (interdicta duplicia), i.e., addressed indifferently to both parties. Gaius says, but, as most jurists think, erroneously, that they had been devised as ancillary to a litigation about ownership, and for the purpose of deciding which of the parties, as possessor, was to have the advantage of standing on the defensive in the rei vindicatio.* 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 infinitely more cumbrous than the vindicatio to which they led up. Take the interdict uti possidetis, which applied to immovables, as utrubi did to movables. Both parties being 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 clandes- tine or violent exclusion of the first, nor in virtue of a grant from him during pleasure, from continuing to possess as at present." It is manifest that this decided nothing ; it was no more than a pro- hibition of disturbance of the status quo ; it left the question entirely open which of the parties it was that was in possession, and which that was forbidden to interfere. The manner of its explication was somewhat singular. Each of the parties was bound at once to commit what in the case of one of them must have been a breach of the interdict, by a pretence of violence offered to the other (vis ex conventu) ; 5 each of them was thus in a position to say to the other "We have both used force ; but it was you alone that did it in defiance of the interdict, for it is I that am in possession." The interim enjoyment of the fruits was then awarded to the highest bidder, who gave his stipulatory promise to pay for them to his adversary in the event of the latter being successful in the long run ; penal sponsions and restipulations were exchanged upon the question which of them had committed a breach of the interdict ; and on these, four in number, formulae were adjusted and sent to a judex for trial. If the procedure could not thus be explicated, because either of the parties declined to take part in the vis ex conventu, or the bidding, or the sponsions and restipulations, he was assumed to be in the wrong, and, by what was called a secondary interdict, required to abstain from disturbing the other "in all time coming." Whatever we may think of the action system of the Romans in the period of the classical jurisprudence, one cannot help standing aghast at a procedure so cumbrous and complex as that of their possessory interdicts. 2. A praetorian stipulation 6 was a stipulatory engagement im- Praetor- posed upon a man by a magistrate or judge, in order to secure a ianstipu- third party from the chance of loss or prejudice through some act lations. 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. Ulpian classifies them as cautionary (cautionales), judicial, and common. The first were purely pre- cautionary, and quite independent of any action already in depend- ence between the party moving the magistrate to exact the stipu- lation 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 usu- fructuary's life interest, the sedilian 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 cor- roborated by sureties, and made effectual by an action on the stipu- lation 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 guardian 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 4 If that had been their original purpose, they must have been unknown as long as a rei vindicatio proceeded per sacramentum ; for in the sacramental real action both parties vindicated, and both consequently were at once plaintifls and defendants. 5 So Gaius calls it ; it was probably the same thing as the vis rn.oribv.sfa.cta. referred to by Cicero, Pro Caec., 1, 2, 8, 22. 6 To the authorities in note 1 above add Schirmer, Ueber die pratorischen Jitdicial-Stipulationen, Greifswald, 1853.
