in the recognition of the efficacy of certain acts done in presence
of two or three of the clergy and thereafter recorded in the church
registers; in the disabilities as to marriage and succession with
which heretics and apostates were visited, and in a variety of minor
matters. Of greater importance were three features for which it
was directly responsible—the repeal of the caduciary provisions of
the Papia-Poppaean law, the penalties imposed upon divorce, and
the institution of the episcopalis audientia.
The purpose of the caduciary law was to discourage celibacy and encourage fruitful marriages; but legislation in such a spirit could not possibly be maintained when celibacy had come to be inculcated as a virtue, and as the peculiar characteristic of a holy life. The penalties alike of orbitas and coelibatus were abolished by Constantine in the year 320. The legislation about divorce, from the first of Constantine's enactments on the subject down to those of Justinian, forms a miserable chapter in the history of the law. Not one of the emperors who busied himself with the matter, undoing the ill-advised work of his predecessors and substituting legislation of his own quite as complicated and futile, thought of interfering with the old principle that divorce ought to be as free as marriage and independent of the sanction or decree of a judicial tribunal. Justinian was the first who, by one of his Novels, imposed a condition on parties to a divorce of common accord (communi consensu), namely, that they should both enter a convent, otherwise it should be null; but, so distasteful was this to popular feeling, and so little conducive to improvement of the tone of morals within the conventual precincts, that it was repealed by his successor. The legislation of Justinian's predecessors and the bulk of his own were levelled at one-sided repudiations, imposing penalties, personal and patrimonial (1) upon the author of a repudiation on some ground the law did not recognize as sufficient—and the lawful grounds varied almost from reign to reign—and (2) upon the party whose misconduct gave rise to a repudiation that was justifiable. The bishop's court (episcopale judicium, episcopalis audientia) had its origin in the practice of the primitive Christians, in accordance with the apostolic precept, of submitting their differences to one or two of their brethren in the faith, usually a presbyter or bishop, who acted as arbiter. On the state recognition of Christianity the practice obtained legislative sanction, Constantine giving the bishop's court concurrent jurisdiction with the ordinary civil courts where both parties preferred the former, and by a later enactment (whose authenticity, however, is open to some doubt) going so far as to empower one of the parties to a suit to remove it to the ecclesiastical tribunal against the will of the other. He also declared that the judgments were to be enforced by the civil courts.[1] For various reasons, advantage was taken of this power of resorting to the bishop to an extent which seriously interfered with the proper discharge of his spiritual functions, so that in 398 Arcadius in the Eastern Empire judged it expedient to revert to Constantine's original rule, and, at least as regarded laymen, to limit the right of resort to the episcopal judicatory to cases in which both parties consented. The same thing was done by Valentinian in the Western Empire in 452. It is impossible to say with any approach to exactitude what effect this intervention of the clergy as judges in ordinary civil causes—for they had no proper criminal jurisdiction—had on the development of the law. But it can hardly have been without some influence in still further promoting the tendency to subordinate act and word to will and intention, to deal leniently with technicalities, and to temper the rules of the jus civile with equity and considerations of natural right.
Abandonment of the Formular System of Procedure.[2]—The formular system, with its remit from the praetor to a sworn judex who was New methods of procedure. to try the cause, was of infinite advantage to the law; for the judgment was as a rule that of a free and independent citizen, untrammelled by officialism, fresh from some centre of business, chosen by, and in full sympathy with, the parties between whom he had to decide. Such a system was incompatible with the autocratic government of Diocletian and Constantine; and it is with no surprise that we find the former of these sovereigns instructing the provincial governors that in future, unless when prevented by pressure of business (or, according to a later constitution of Julian's, when the matter was of trifling importance), they were not to remit them but were themselves to hear the causes brought before them from first to last, as had previously been the practice in the extraordinariae cognitiones. The remit in the excepted cases was not, as formerly, to a rivate citizen, but to what was called a judex pedaneus, who acted as an inferior substitute of the magistrate and was probably a matriculated member of the local bar; and for a time his delegated authority was embodied in a formula after the old fashion. But even this exceptional use of it did not long survive, for an enactment by the two sons of Constantine, conceived in terms the most comprehensive, declared fixed styles to be but traps for the unwary, and forbade their use in any legal act whatever, whether contentious or voluntary. The result was, not only the formal disappearance of the distinction between the proceedings in jure and in judicio (judicium receiving a more extensive meaning) but the practical (though not formal) disappearance also of the distinctions between actions in jus and in factum, and between actiones directae and actiones utiles, the conversion of the interdict into an actio ex interdicto, admission of the power of amendment of the pleadings, condemnation in the specific thing claimed, if in existence, instead of its pecuniary equivalent, and execution accordingly by the aid of officers of the aw.
Under the new system a process was full from first to last of intervention by officials. The in jus vocatio of the XII. Tables—the procedure by which a plaintiff himself brought his adversary into court—became a thing of the past. So also did the vadimonium. In the earlier part of the period the proceedings commenced with the litis denuntiatio introduced in the time of Marcus Aurelius and remodelled by Constantine; but under Justinian (though probably begun before his reign) the initial step was what was called the libellus conventionis. This was a short and precise written statement addressed by the plaintiff to the court, explaining (but without detail) the nature of the action he proposed to raise and the claim he was making, which was accompanied by a formal undertaking to proceed with the cause and follow it out to judgment, under penalty of having to pay double costs to the defendant. If the judge was satisfied of the relevancy of the libel, he pronounced an interlocutor (interlocutio) ordaining its service on the respondent; this was done by an officer of the court, who cited him to appear on a day named, usually at a distance of one or two months. The defendant, through the officer, had to put in an answer (libellus contradictionis), at the same time giving security for the proper maintenance of the defence and eventual satisfaction of the judgment. If defendant did not appear after three summonses the case was heard and decree given in his absence. On the day appointed the parties or their procurators were first heard on any dilatory pleas, such as defect of jurisdiction; if none were offered, or those stated repelled, they then proceeded to expound their respective grounds of action and defence, each finally making oath of his good faith in the matter (juramentum calumniae), and their counsel doing the same.
From this point, which marked the litis contestatio or joinder of issue, the procedure was much the same as that in judicio under the formular system. Evidence was taken and judgment given. But in all cases in which the demand was that a particular thing should be given or restored, and the plaintiff desired to have the thing itself rather than damages, execution might be specific and effected through officers of the law (manu militari). Where, on the other hand, the condemnation was pecuniary, the usual course, where performance was not made, was for the judge, through his officers, to take possession of such things belonging to the defendant as were thought sufficient to satisfy the judgment (pignus in causa judicati captum), and they were eventually sold judicially if the defendant still refused to pay; the missio in bona of the classical period was not resorted to except in the case of insolvency.
The Valentinian Law of Citations.[3]—This famous enactment, the production of Theodosius (II.), tutor of the youthful Valentinian Valentinian's law of citations. III., was issued from Ravenna in the year 426, and was addressed to the Roman senate. It ran thus:—
“We accord our approval of all the writings of Papinian, Paul, Gaius, Ulpian and Modestine, conceding to Gaius the same authority that is enjoyed by Paul, Ulpian and the rest, and sanctioning the citation of all his works. We ratify also the jurisprudence (scientia) of those earlier writers whose treatises and statements of the law the aforesaid five have imported into their own works,—Scaevola, for example, and Sabinus, and Julian, and Marcellus,—and of all others whom they have been in the habit of quoting as authorities (omniumque quos illi celebrarunt), provided always, as their antiquity makes them uncertain, that the texts of those earlier jurists are verified by collation of manuscripts.[4] If divergent dicta be adduced, that party shall prevail who has the greatest number of authorities on his side; if the number on each side be the same, that one shall prevail which has the support of Papinian; but, whilst he, most excellent of them all, is to be preferred to any other single authority, he must yield to any two. [Paul's and Ulpian's notes on his writings, however, as already enacted, are to be disregarded.] Where opinions are equal, and none entitled to preference, we leave it to the discretion of the judge which he shall adopt.”
- ↑ The truth of this as well as the previous rule depends on the authenticity of a Sirmondian constitution. See Cuq, Inst. Jurid. ii. p. 868 n.
- ↑ Wieding, Der Justinianeische Libellprocess (Vienna, 1865); Bethmann-Hollweg (Gesch. d. C. P.), vol. iii. (1866); Muther (rev. Wieding), in the Krit. Vierteljahrschrift. vol. ix. (1867), pp. 161 seq., 329 seq.; Wieding, in same journal, vol. xii. (1870), pp. 228 seq.; Bekker, Aktionen, vol. ii. chaps. 23, 24; Cuq, Inst. Jurid. 2nd ed. ii. pp. 875 seq.
- ↑ Theod. Cod. i. 4, 3; Puchta, in the Rhein, Museum f. Jurisprud. vol. v. (1832), pp. 141 seq., and Verm. Schriften (Leipzig, 1851), pp. 284 seq.; Karlowa, Röm. Rechtsgesch. vol. i. pp. 933 seq.; Sohm, Inst. § 21, nn. 1 and 2, and authorities there cited.
- ↑ There is, however, a good deal of doubt as to what is meant by the words collatione codicum in this Edict. See Sohm as in preceding note, and authorities cited by him.
