of liberi the right to petition for bonorum possessio opened to the
nearest collateral agnates of the intestate, under their old name
Praetorian order of intestate succession.
of legitimi heredes. (3) Under the jus civile, on failure of
agnates (and of the gens where there was one), the succession
was vacant and fell to the fisc; unless perchance it was
usucapted by a stranger possessing pro herede. The
frequency of such vacancies was much diminished by the
recognition by the praetors of the right of cognates to claim
bonorum possessio in the third place. Who they had primarily
in view under the name of “cognates” it is impossible to say;
The epithet is most frequently applied by modern writers to kinsmen
related through females; but in its widest sense it included all
kinsmen without exception, and in a more limited sense all kinsmen
not entitled to claim as agnates. There were included amongst
them therefore—although it is very probable that the list was not
made up at once, but from time to time by the action of a series
of praetors—not merely kinsmen related through females (who
were not agnates), but also agnates of a remoter degree who were
excluded as such because the nearest agnates in existence had
declined, persons who had been agnates but by reason of capitis
minutio had lost that character, female agnates more distantly
related than sisters, and children of the intestate who at the
time of his death were in an adoptive family. All these took
according to proximity, but not beyond the sixth degree and the
children of a second cousin in the seventh. (4) Finally, the claim
passed to the survivor of husband and wife; assuming always that
their marriage had not involved manus. This list constituted
the praetorian order of succession on intestacy among freeborn
citizens. The praetorian order of succession to freedmen and
emancipati was necessarily different, the patron or quasi-patron
taking the place of agnates; but it is too detailed and complex
to be gone into here.
All these bonarum possessiones had to be formally petitioned for. In that ab intestato descendants were allowed a year for doing so, while other persons were limited to 100 days, the period for those entitled in the second place beginning when that of those entitled in the first had expired, and so on. The grant was always made at the risk of the petitioner; nothing was assured him by it; it might turn out real and substantial (cum re) on merely nominal (sine re), according as the grantee could or could not maintain it against the heir of the jus civile. For the latter was entitled to stand on his statutory or testamentary right, without applying to bonorum possessio, although in fact he often did so for the sake of the summary procedure it supplied him for in gathering the effects of the deceased.
The Law of Procedure.—The use of the formular system of procedure as alternative to that by the “actions of the law” Law of Procedure. commenced long before the end of the period now under consideration; and we have had occasion more than once to observe how greatly it facilitated the development of the institutions of property and contractual obligation. But as the change was only completed in the early Empire it will be more convenient to defer explanation of the nature of the new procedure in the meantime.
IV. The Jus Naturale and Maturity of Roman Jurisprudence
(The Empire until the time of Diocletian.)
i. Characteristics and Formative Agencies of the Law during the Period.
Characteristics generally and Recognition of a Jus Naturale in particular.—The first three centuries of the Empire witnessed the perfection of Roman jurisprudence and the commencement of its decline. During that time the history of the law presents no such great landmarks as the enactment of the XII. Tables, the commencement of a praetor's edict, the recognition of simple consent as creative of a contractual bond, or the introduction of a new system of judicial procedure; the establishment of a class of patented jurists speaking as in a sense the mouthpieces of the prince, and the admission of all the free subjects of the Empire to the privileges of citizenship, are about the only isolated events to which one can point as productive of great and lasting results. There were, indeed, some radical changes in particular institutions, such as the caduciary legislation of Augustus, intended to raise the tone of domestic morality and increase fruitful marriages, and the legislation of the same emperor and his immediate successor for regulation of the status of enfranchised slaves; but these, although of vast importance in themselves, and the first of them influencing the current of the law for centuries, yet left upon it no permanent impression. It was by much less imposing efforts that it attained the perfection to which it reached under the sovereigns of the Severan house—a steady advance on the lines already marked out in the latter years of the Republic. The sphere of the jus Quiritium became more and more circumscribed, and one after another of the formalities of the strict jus civile was abandoned. The manus of the husband practically disappeared; the patria potestas of the father lost much of its significance by the recognition, notwithstanding it, of the possibility of a separate and independent estate in the child (peculium castrense); slaves might be enfranchised to a certain extent by informal manumission; res mancipi constantly passed by simple tradition, the right of the transferee being secured by the Publician action; servitudes and other real rights informally constituted were maintained as effectual tuitione praetoris; an heir's acceptance of a succession could be accomplished by any indication of his intention, without observance of the formal cretio of the earlier law; and many of the incidental bargains incident to consensual contract, but varying their natural import, that used to be embodied in words of stipulation, came to be enforceable on the strength of formless contemporaneous agreements.
The preference accorded by the magistrates and jurists and judges to the jus gentium over the jus civile is insufficient to Idea of a jus naturale. account for these and many other changes in the same direction, as well as for the ever-increasing tendency evinced to subordinate word and deed to the voluntas from which they arose. They are rather to be attributed to the striving on the part of many after a higher ideal, to which has been given the name of jus naturale.[1] It is sometimes said that the notion of a jus naturale as distinct from the jus gentium was peculiar to Ulpian, and that it found no acceptance with the Roman jurists generally. But this is inaccurate. Justinian, indeed, has excerpted in the Digest and put in the forefront of his Institutes a passage from an elementary work of Ulpian's, in which he speaks of a jus naturale that is common to man and the lower animals, and which is substantially instinct. This is a law of nature of which it is quite true that we find no other jurist taking account, and it may be attributed to a habit, specially noticeable in Ulpian's writings, of making tripartite classifications. But though the classical jurists are undoubtedly indistinct in their conceptions about the matter, many of them refer again and again to jus naturale in the sense of law based on natural reason; and Gaius is the only one (Justinian following him) who definitely, though not consistently, makes it synonymous with jus gentium. There can be no question that the latter was much more largely imbued with precepts of natural law than was the jus civile, but it seems incorrect to say that natural law and jus gentium were identical; it is enough to cite but one illustration, pointed out again and again in the texts: while the one admitted the legality of slavery, the other denied it. While the jus civile studied the interests only of citizens, and the jus gentium those of freemen irrespective of nationality, the law of nature had theoretically a wider range and took all mankind within its purview. The doctrine of the jus gentium agreed in this respect with that of the jus civile—that a slave was nothing but a chattel; yet we find the latter, when tinctured with the jus naturale, recognizing many rights as competent to a slave, and even conceding that he might be debtor or creditor in a contract, although his obligation or claim could be given effect to only indirectly, since he could neither sue nor be sued.[2]
Voigt thus summarizes the characteristics of this speculative Roman jus naturale:—(1) its potential universal applicability to Characteristics of jus naturale. all men, (2) among all peoples, (3) at all times, and (4) its correspondence with the innate conviction of right (innere Rechtsüberzeugung).[3] Its propositions, as gathered from the pages of the jurists of the period, he formulates thus:—(1) recognition of the claims of blood (sanguinis vel cognationis ratio); (2) duty of faithfulness to engagements—is
