INTRODUCTORY

The arrangement of the Institutes. Justinian’s Institutes declare that ‘the whole of our law relates either to persons or to things or to actions’.

The Romans never evolved a coherent theory of legal per­sonality. For the modern lawyer, as has been said above, the word ‘person’ means any entity capable of rights and duties, but for the Roman lawyer the word persona had no such technical meaning. It meant simply, as ‘person’ does in ordinary speech today, a human being, whether capable of rights and duties or not. And so a slave was a persona, but he was not a person in the modern legal sense. The Romans had in fact no term to differentiate those personae who were capable of rights and duties from those who were not. But they had less need for such a term than we do. For we admit the possibility that a legal

¹ ‘Actions’ will not be treated separately.

person may not be a human person—may not be a persona in the Roman sense at all. In modern law a group of individuals, small or large, may constitute a legal person distinct from and addi­tional to its members (e.g. a limited company), but for the Roman lawyer such a group was, it seems, no more than a certain number of individuals in a certain relationship to each other. Only human beings could have rights; legal persons were necessarily also natural persons. Admittedly natural per­sons were not always legal persons, but no doubt it seemed self- evident that a slave could have no rights, and so no one was likely to be misled by the lack of a clear terminology.

Moreover the slave might become free and was therefore at least a potential subject of rights and duties. This is perhaps the key to the content of the law of persons. For this part of the law is in fact concerned with the different categories of legal person and the ways in which a man may enter and leave each category. More precisely, since the category of the normal man of full capacity is taken for granted, it can be said to be concerned with the different categories of ‘status’—in the modern sense of a condition in which a man’s rights and duties differ from the normal, that difference not having been created simply, or at all, by his own consent. (In a modern system young children and lunatics provide obvious examples.) Even this is too wide for Gaius, who deals only with the ways in which each status can be created and terminated, leaving the capacities and the in­capacities which result from it to be mentioned, if at all, in the later parts of his Institutes. In this respect, however, we shall not follow his example.

Formalism.

The Roman’s attachment to forms was not confined to the private law, and the Englishman may well sympathize with it when he considers the extent to which, particularly in public affairs, he himself adheres to forms even when they have lost their original significance. Moreover there are sound practical reasons for requiring formality in some parts of the private law. Forms give certainty and clarity to an act—they serve not only to make precise the character of what is done and to mark the moment of its completion, but also to make the parties stop on the brink of the act and thereby to ensure that they know that the decisive moment has come. On the other hand forms have the disadvantage of inflexibility and often of inconvenience. In modern law, on the whole, contracts are informal but acts con­cerning the conveyance of land or the passing of property on death are formal, though the form is usually simple.

Roman law differs from most other systems both in what has been called its ‘economy of forms’ and in the simplicity of the forms themselves. It makes a very small number of forms serve a wide variety of purposes, and the forms contain little that is not necessary for defining and making evident the inner purpose of the act.

There were four main forms. One of these, the stipulatio, an oral question and answer, was used only in the law of contract. The others appear in slightly different guises and in different combinations in different parts of the law, and are prominent in the law of persons. They can therefore most conveniently be treated together at the beginning.

(a) Act before the comitia curiata. This, the least important of the three forms, was ostensibly a legislative act—a ‘private bill’—and was used for one kind of adoption and for the earliest form of will. The comitia curiata which ‘passed the bill’ was the oldest of the Roman assemblies,¹ but in historical times it had no substantial existence as a legislative body, the thirty curiae of which it was composed being represented by the thirty lictors who were in attendance on the presiding magistrate. The substance of the proceedings was therefore the magistrate’s approval of a private act.

(/>) Mancipatio. This was in form a conveyance on sale. In the presence of five witnesses and of a sixth person (libripens) who held a pair of bronze scales, the transferee grasped the object to be conveyed in one hand and a piece of bronze in the other and said (in the case, for example, of a slave), ‘I declare that this slave is mine by Quiritary right,^[XXV] and be he purchased to me with this piece of bronze and these bronze scales.’ He then struck the scales with the bronze, which he gave to the trans­feror. All the participants had to be Roman citizens.

Mancipatio is thus in appearance a cash sale, and one which derives from a period before the existence of coined money.

size=4 color=black face="Times New Roman">(c) In iure cessio. As another method of conveyance, applicable to any property,³ the Romans used what appears to be a col­lusive version of the action asserting ownership (vindicatio) as it appeared in the legis actio procedure. The parties go before the Praetor (in iure) and there the transferee, grasping the thing to be transferred, utters the opening words of the old vindicatio (which are identical with the first clause of the formula of the mancipatio). The magistrate then asks the transferor whether he makes an opposing claim (an contra vindicet); the transferor either remains silent or says ‘no’, and the magistrate then ‘adjudges’ the thing to the transferee. In this form in iure cessio is collusive only in a special sense. For the magistrate is neces­sarily a party to the collusion, since in an ordinary vindicatio if the defendant made no defence the plaintiff merely took the thing claimed, without any ‘adjudging’ by the Praetor. More­over, it has the effects of a conveyance rather than a judgment (e.g. the transferee becomes owner only from the moment of ‘adjudgment’ whereas a judgment would declare him to be already owner). The explanation is probably that it began as a collusive proceeding and, once established, acquired many of the features of a conveyance. A closely similar proceeding was used to manumit a slave.

In these acts, as in nearly all the formalities of Roman law, there is an insistence on the use of formal words. It is not sufficient, for example, to utter merely the substance of the transferee’s assertion. The solemn words alone are capable of producing the legal result intended.