710 ROMAN LAW [CODIFICATION. Missio in either of the whole estate of another (missio in bona) or of some par- posses- ticular thing belonging to him (missio in rein). The former was by iionem. 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, e.g., where a man refused to give cautio damni infecti ; the applicant was then put in possession of the ruinous property for his own protection. In in- 4. In integrum restitutio, 1 reinstatement of an individual, on tegrum grounds of equity, in the position he had occupied before some resti- occurrence which had resulted to his prejudice, was one of the most tutio. remarkable manifestations of the exercise of the 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 compensa- tion 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. What should be held to amount to a sufficient ground of restitution, either objective or subjective, was at first left very much to the discretion of the magis- trate ; 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 quod metus causa or the actio de dolo. CHAPTER V. THE PERIOD OF CODIFICATION. (Diocletian to Justinian.) I. HISTOKICAL EVENTS THAT INFLUENCED THE LAW. Emperors Supremacy of the Emperors as Sole Legislators. From sole legis- the time of Diocletian downwards the making of the law lators. wag exc i us ively in the hands of the emperors. The senate still existed, but shorn of all its old functions alike of government and legislation. 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 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 cognizance of the emperors except on appeal, and that under the new arrangements of Constantine the judg- ment of affirmance or reversal was embodied in a rescript ad- dressed to the magistrate from whom the appeal had been taken. The rule of Arcadius and Honorius was renewed in 425 by Theo- dosius 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 inter- pretation given by him of & lex generalis, even though elicited by 1 In addition to the authorities in note 2, p. 709, see Savigny, System d. rom. Rechts, vol. vii. 315-343. 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. Establishment of Christianity as the State Religion* A disposi- Ch _ tion has sometimes been manifested to credit nascent Christianity tianity with the humaner spirit which began to operate on some of the the sta institutions of the law in the first century of the empire, but which religioi in a previous section we have ascribed to the infiltration into the jus civile of doctrines of the jus naturale, the product of the philo- sophy of the Stoa. The teaching of Seneca aid 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 pre- dominance, that spirit of natural right would not have continued to animate the course of legislation, and to evoke, as years pro- gressed, most of those amendments in the law of the family and the law of succession that were amongst the most valuable contribu- tions 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 by Theodosius declared 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 recognition of the efficacy of certain acts done in presence of two or three of the clergy and thereafter re- corded 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-Poppsean law, the penalties im- posed 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 Constan- tine in the year 320. The legislation about divorce, from the first of Constantino's enactments on the subject down to those of Justin- ian, forms a miserable chapter in the history of the law. Not one of the emperors who busied himself with the matter, undoing the work of his predecessors and substituting legislation of his own quite as complicated and futile, thought of interfering with the old prin- ciple 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 re- pudiations, imposing penalties, personal and patrimonial (1) upon the author of a repudiation on some ground the law did not recog- nize as sufficient and the lawful grounds varied from reign to reign and (2) upon the party whose misconduct gave rise to a repudia- tion 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, usu- ally a presbyter or bishop, who acted as arbiter. On the establish- ment 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 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. 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 Honorius judged it expedient to revert to the 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. 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 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 animus, to deal leniently with technicalities, and to temper the rules of the jus civile with equity and considerations of natural right. 2 See Troplong, De ^influence du christianisme sur le droit civil des Remains, Paris, 1843 (and subsequently) ; Merivale, The Conversion of the Roman Empire (Boyle Lectures for 1864), London, 18G4.
