In the Roman civil law, existimationis minutio only occurs: (1) in the cases determined by popular enactments 1; (2) in consequence of a reprimand from the censor. But here again the jus honorarium outstripped the civil law. Towards the close of the republic the censor ceased to excercise his old functions and the vacancy thus created was supplied by the praetor. For the praetorian edict was concerned with persons whose civic dignity was impaired in so far as their disabilities in regard to judicial proceedings came into question. Thus the praetor in his edict enumerated those to whom, as persons of tarnished reputation, he would refuse the full jus postulandi, i.e. to whom he would deny the right to make motions in court (postulare) otherwise than on behalf of themselves or certain close relations. In another part of the edict he specified those to whom, as persons of tarnished reputation, he declined to grant the right of being represented by an agent in an action before him. But in thus denying to certain parties full legal capacity in judicial proceedings (including, inter alia, the unrestricted jus postulandi) the praetor did not directly pronounce them 'infames.' He had neither occasion nor power formally to curtail the civic honour which a person enjoyed. But, says Gajus, 'those whom the praetor places under such disabilities we call infamous.' It was, then, in those lists contained in the praetorian edict that the views which society took of the cases. of existimationis minutio found legal expression and were, so to speak, codified; imperfectly, it is true, but nevertheless in such a way as to be decisive of the future attitude of the law towards civic honour. And it was from these sections of the praetorian edict that Justinian's compilers took their catalogue of cases of existimationis minutio. There were, more particularly, two groups of cases which were contrasted with one another, the cases of 'infamia immediata' and of 'infamia mediata.' Infamy was said to be 'immediate,' if it attached to a person at once, ipso jure, on the commission of some act which deserved to be visited with social disgrace. Thus it attached to persons engaged in a disreputable trade, to soldiers ignominiously discharged from military service, to persons in the relation of a double marriage or double betrothal. On the other hand, infamy was said to be 'mediate,' if it did not attach directly, but only after a court of law had passed judgment on the delinquent on the ground of some act which deserved to be visited with social 1 Thus e.g. the Twelve Tables (viii. 22) declared: qui se sierit testarier libripensve fuerit, ni testimonium fatiatur, improbus intestabilisque esto. disgrace. Such was the effect above all things of every criminal sentence touching life, limb or liberty. A similar result however followed condemnation in certain civil cases, more especially if judgment were given against a person in a civil action on account of a dishonourable breach of duty (e.g. as guardian, partner, depositary, agent). Those civil actions in which condemnation entails infamy are called 'actiones famosae.' No codification of the law of honour can, in the nature of things, be complete. It was necessary, therefore, to allow the Roman judges a discretionary power to take account of such cases of infamy as had not been specified in any statute or the praetorian edict. Looked at from this point of view, there were two kinds of existimationis minutio, 'infamia' and 'turpitudo.' In the case of 'infamy' the conditions under which it should attach were fixed by the law, viz. by statutes and the praetorian edict. In the case of so-called ' turpitude,' the conditions under which it should attach were fixed, not by the law, but by the free discretion of the judge acting, in each individual case, on the verdict of public opinion, in other words, on the verdict of society. Both these forms of minutio existimationis (viz. infamia and turpitudo) produce this result that the judge, acting on his own discretion, may take them into account, wherever the character of the person affected is concerned. He may hesitate, for example, before admitting such a person as a witness or allowing him to act as a guardian. Or again, if an infamis or turpis is instituted in a will, the judge may admit the brothers and sisters of the deceased to the querela inofficiosi testamenti. The following effects, moreover, are peculiar to infamy: it extinguishes the jus suffragii and the jus honorum; it restricts the jus connubii (by disqualifying the infamis from marrying any free-born person); and it also restricts the right to make motions in court on behalf of others. But these special disqualifications incident to infamy have ceased to exist in Justinian's time. As far as a man's personality, as such, is concerned, the only effect, under Justinian's law, both of 'infamy' and 'turpitude' is that the persons affected are liable to be subjected to certain disabilities by the judge in the exercise of his judicial discretion. PART III THINGS CHAPTER XXI THE LAW OF PROPERTY SECTION 1. RELIGIOUS BASIS OF PROPERTY BY FUSTEL DE COULANGES SECTION 2. DEVELOPMENT OF THE IDEA OF PROPERTY SECTION 3. EARLY HISTORY OF PROPERTY AND THE VILLAGE COMMUNITY BY HENRY S. MAINE SECTION 4. THE VILLAGE COMMUNITY AS A PRIMITIVE INSTITUTION BY GEORGE LAURENCE GOMME CHAPTER XXII ORIGIN OF COMMERCIAL INSTITUTIONS CHAPTER XXIII PRIMITIVE COMMERCIAL LAW BY CARL KOEHNE CHAPTER XXIV BARTER AND TRANSFER SECTION 1. BARTER BY JOSEF KOHLER SECTION 2. PRIMITIVE TRANSFER OF GOODS BY FELIX SOMLÓ PLEDGE SECTION 1. FORMS OF PLEDGE RIGHTS BY JOSEF KOHLER SECTION 2. THE PLEDGE IDEA BY JOHN H. WIGMORE CHAPTER XXVI SURETYSHIP BY JOSEF KOHLER CHAPTER XXVII EVOLUTION OF THE LAW OF CONTRACT SECTION 1. THE FIDES COMMANDMENT By B. W. LEIST SECTION 2. EARLY LAW OF CONTRACT BY HENRY S. MAINE SECTION 3. SPONSIO AND PRIMITIVE CONTRACT CHAPTER XXVIII SALES AND LOANS AT ROME BY RUDOLPH SOHM CHAPTER XXIX INTEREST BY JOSEF KOHLER CHAPTER XXX SUCCESSION SECTION 1. SURVEY OF THE LAW OF SUCCESSION BY JOSEF KOHLER SECTION 2. RELIGIOUS BASIS OF INHERITANCE BY FUSTEL DE COULANGES SECTION 3. EARLY HISTORY OF TESTAMENTARY SUCCESSION BY HENRY S. MAINE CHAPTER XXI THE LAW OF PROPERTY SECTION 1 RELIGIOUS BASIS OF PROPERTY 1 HERE is an institution of the ancients of which we must not form an idea from anything that we see around us. The ancients founded the right of property on principles different from those of the present generation; as a result, the laws by which they guaranteed it are sensibly different from ours. ence. We know that there are races who have never succeeded in establishing among themselves the right of private property, while others have reached this stage only after long and painful experiIt is not, indeed, an easy problem, in the origin of society, to decide whether the individual may appropriate the soil, and establish such a bond between his being and a portion of the earth, that he can say, This land is mine, this is the same as a part of me. The Tartars have an idea of the right of property in a case of flocks or herds, but they cannot understand it when it is a question of land. Among the ancient Germans the earth belonged to no one; every year the tribe assigned to each one of its members a lot to cultivate, and the lot was changed the following year. The German was proprietor of the harvest, but not of the land. The case is still the same among a part of the Semitic race, and among some of the Slavic nations. On the other hand, the nations of Greece and Italy from the earliest antiquity, always held to the idea of private property. We do not find an age when the soil was common among them; nor do we find anything that resembles the annual allotment of land 2 [By FUSTEL DE COULANGES, "The Ancient City"; translated by Willard Small; 11th ed., Lothrop, Lee, and Shepard Co., Boston; reprinted by permission.] 2 Some historians have expressed the opinion that at Rome property was at first public, and did not become private till Numa's reign. This error comes from a false interpretation of three passages of Plutarch ("Numa," 16), Cicero ("Republic," II. 14), and Dionysius. of Halicarnassus (II. 74). These three authors say, it is true, that Numa distributed |