1936 buckland nair ch1 roman, common law

8/8/2019 1936 BUCKLAND NAIR Ch1 Roman, Common Law

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/9MAROMAN LAW ANDCOMMON LAW

A C O M P A R I S O N I N O U T L I N EB Y T H E L A T E

W. W. B U C K L A N DA N D

A R N O L D D. M c N A IC.B.E., LL.D., Q.C., F.B.A.

4 .1% Fellow of Gonwille and Caius Collpge, Cambn'dge

S E CO N D E D I T I O N R E V I S E D B YF. H. L A W S O N

D.C.L., F.B.A.Professor of Cornparatiwe Law in the Uniwersity of Oxford andFelIau of Brarenose Collpge

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C A M B R I D G E


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P U B L I S H E D B YT H E S Y N D I C S OF T H E C A M B R I D G E U N I V E R S I T Y P R E S S

Bentley House, zoo Euston Road, London, N.W.1American Branch: 32 East 57th Street, Ne w York 22, N.Y.West African Office: P.O. Box 33, Ibadan, Nigeria

First edition 1 9 3 ~Second edition '952Reprinted wi th cwrcctions 1965

First printed in Great Bri tain ar the Un ivtrsi?y Prr ~s , ambridgeR ~ p r i n f e dy offset-lithography by Jarro ld W Sons L td , Norwich


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Vlll C O N T E N T SChapter X I I . PROCEDURE Page 3

I . Substantive and Procedural Law 32. Consent of the Parties. Arbitral Origin ofRoman Procedure 43. Oaths 44. Discovery of Facts and Documents 45. Representation in Litigation 46. Forms of Action 47. Contracts of Record 48. Appeals 49. Judgement 410. Prescription: Limitation and Abatement of Actions 4I I. Delay in securing Judgement 4I 2. Interdicts and Injunctions 4

Index 4


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2 T H E S O U RC E S

presiding officer, himself an elected 'mag istrate', i.e. a hig hofficer of State. T he re could b en o am endmen ts : he m easuremust be passed or rejected as it stood. Even th e presidingmagistrate had no t a free hand in early times; n o me asurecould become law without 'auctoritas patrum ', the ap-proval of a body w hich see ms to have consisted of the patri-cian members of th e Senate. And, till the bad tim es at theclose of the Republic, all measures were previously con-sidered by the Se nate an d subm itted to the Assem bly in aform which the Senate had approved. ' T h e Senate was notelective; vacancies were filled by nomination, at first by th eConsul, later by the Censor, for the time being.By the end of the Republic, when th e Em pir e had be-come a vast area, popular A ssemblies of the old type hadbecome impracticable, and, early in th e Em pire, by no a ctof legislation, but by the Emperor's influence, legislationpassed to th e Senate, which was now substantially nomi-nated by him. Its enactments (senatusconsuita) show agradual transition from instructions to the magistrates,which had always been within the province of the Senate,to direct legislation. He re, too, the measures were pro-posed by the presiding m agistrate, who was th e E mp ero ror his nominee, so that t he Senate had very little indepen-dence. And when in the second century th e Em pero rclaimed to legislate directly, senatusconsuita soon ceased tobe utilised: thenceforw ard the Em peror was the sole legis-lator. T h u s th e evolution of legislative power was fro mpopular legislation to legislation by th e Head of th e State,exactly the opposite course to that which it has hithertotaken with us, thoug h it must be admitted th at to-day th etendency is for very few bills to become law which are no tprepared by the government and then submit ted to thelegislature.In addition to these methods, there existed in the latercenturies of the Republic and in the first century of the

Jolowicz, cir. pp. 30, 3 I .


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L E G l S L A T I O N

Empire a method of legislation to which the common lawhas no real parallel. The administration was in the handsof annually elected magistrates, and the more important ofthese, Consuls, Praetors, Aediles, had the ius edicendi, i.e.the power of issuing proclamations of the principles theyintended to follow. For the most part these seem to havebeen no more than declarations of policy, but that of thePraetor became a great deal more. The Praetor Urbanushad charge of the administration of justice. All ordinarylitigation came before him in the first instance and the issuewas framed under his supervision, though the actual trialwas before a iudex, who was not a professional lawyer, buta mere private citizen of the wealthier class, aided by pro-fessed lawyers. At some time in the second century B.c.,a statute, the I. Aebutia, authorised a more elastic systemthan the legis actio hitherto in force.' The new method, byformulae, needed explanation, and the Praetor's Edict atonce assumed great importance as the agency by whichthis was given. T he power of moulding the procedure andthe forms of action carried with it, inevitably, much powerover the law itself, though there is no reason to supposethis was originally contemplated. However this may be-it may have been only a tolerated usurpation of power-the Praetor began to give actions where the civil law hadgiven none and defences which the civil law had not re-cognised, in such a way as to create a great mass of law.The Edict was valid only for the year, but in fact it wasrenewed from year to yea; by the s&cessive Praetors, withonly such changes as experience suggested. It was thus aconvenient mode of experimental legislation. A good rulesurvived: a bad one was dropped or modified. The ten-


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6 T H E S O U R C E Sand before the growth of parliamentary power in the thir-teenth and fourteenth centuries, the Chancellor, by reasonof his control, as the head of the royal secretariat, over theissue of original writs, had a quasi-legislative power ofdeveloping the common law. T o quote Pollock and Mait-land:' 'A new form of action might be easily created. Afew words said by the chancellor to his clerks: "such writsas this are for the future to be issued as of coursen-would be as effective as the most solemn legi~lation.'~

A 2. CASE LAWThe Romans had, in principle, no case law: he decision ofone Court did not make a precedent binding if the pointarose again. This was inevitable. In a system in which theiudex was not a lawyer, but a private citizen, little more thanan arbitrator, it would be impossible for his judgements tobind. It is true tha t he usually acted with legal advisers,but this would not suffice, for to make the decisions bindingon others would be to give legislative power, within limits,to indeterminate groups of irresponsible advisers.3 Thisdoes not indeed apply with the same force in the laterRoman law, when, in principle, cases were tried to decisionby the magistrate himself, who was often a distinguishedlawyer; and when they were, as they might be, delegatedfor trial, the iudex datus was normally a lawyer chosen fromthose practising in the Court.4 But it is not surprising thatno such innovation was made as to give their judgementsforce as precedents. The later Emperors were autocrats,not likely to allow to the lawyers what was in effect legis-lative power.' i. p. 171.' ee also Holdsworth, i. pp. 397, 398: 'writ, remedy an d right are

correlative terms'.3 On the consiiium of th e iudex, Wenger, R~mischtsZiviipmzrssrtchtpp. 29, 194. It is quite possible that some of the advice so given found its

way into the writings of th e jurist;, an d so acquired authority.4 Bethmann-Hollweg, Civiiprozcss, iii. pp. I 2 I sgg.


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10 T H E SOURCES

irom case upon case, with the difference that ours adecided cases and theirs are discussed cases, more opendispute. The underlying principles are there and somtimes come to the surface, but it has been left to modeRomanists to work them out, and it is not surprising thin setting them forth for the purposes of the modeRoman law they have often arrived at principles which anot Roman law at all. Nothing could be more unlike tmethod of Papinian than that with which Windschestarted on his great work. Th e 'Willenstheorie' whipervades his Alkemeiner Teil (it is much less traceable the detailed treatment of the law) is not Roman at all. comes from Kant, who expressly a r n s his readers that is not expounding any actual system of law.' Even tByzantines, t h ~ u g hhey speak more readily of voluntthan the Roman jurists did, have nothing on which t'Willenstheorie' can reasonably be based.=

3. J U R I S T I C W R I T I N G SFrom the absence of authority attaching to cases it followas a corollary that the opinions of learned lawyers enjoya much greater authority than with us. Our Courts do nindeed go so far as to refuse all help in a difficult case frothe writings of one known to have, or to have had, prfound knowledge of the matter in hand, but recoursenot often had to this kind of writing, and it is always dowith a clear recognition of the fact that, however southe propositions may be, they are 'not authority'.3 It

Philosophy o Law, trans. Hastie, p. 44.But it is certainly present in the Prussian Code of 1794,whence it cbe traced back, through theNatural Lawyers, to the maxims contained m

especially in the final title (so. 7) of the Digest. This at least appears frostudy of such a book as Zouche's Elcmcnta Jurisprudentiae, rtc., 162

3 Allen, Law in t h Making, 6th ed. pp. 264-9, has pointed out tin two branches of our law, namely, real property and conflict of lawour Courts have been readier to resort to the works of text-writers andallow to them a considerable influence.


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J U R I S T I C W R I T I N G S I I

tru e that som e ancient writers, e.g. Bracton and Littleton ,are differently treated. But these books are used m uch asGaius is used by students of the Roman law. What isfound in their books is not authoritative because they saidit, but because they recorded it: it is often t he chief sourceof our knowledge of the early law. It is largely because thecase is authoritative that the w riter is not, a nd it does no tseem wholly insignificant tha t in th e U nit ed States, wherethe system of precedent shows some signs of breakingdown, the authority of writings is much greater than it iswith us. In American Courts writing s of great lawyersand essays in legal periodicals are very frequently cited,not indeed as of binding authority, but as carrying greatweight. In our Courts this is rarer, except where theCourt has occasion to enquire into some other system of1aw.I An othe r factor has made for th e greater recognitionof legal literature in th e Un ited States. M od ern repre-sentative assemblies seem inclined to regard legislation astheir primary duty. There are many legislative bodies inthe United States and it is computed that they have pro-duced in the present ce ntur y more statutes than have beenenacted in 811 the legislatures of the known world in allprevious history. It seems tha t in som e States the Cou rtsshow a tendency to treat this m ass of legislation with somefreedom, though it is important to distinguish betweenmatters entirely regulated by statute, such as Adoption,and those in which th e legislatures have merely purportedto amend the comm on law in detail, or to clarify it. Butwhere both case law and statute law are handled looselythe writer on law is likely to have more influence.But the practice is undoubtedly changing: one might almost saythat any author of ability who is prepared to go bcyond thc cases,whether he attemDts to build UD a body of doctrine or to answer undecided


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I 2 T H E S O U R C E ST he Roman a t t itude was v e v di fferent f rom ours . W e

need not consider the inteqwetko of the early law. ThePontiffs, who, by ingen ious distortion s of the text, or wh atpassed for the text, of ancient laws, introduced new rulesan d even new institu tion s into the law, were officials, an dtheir action was in fact, thou gh not in form, delegated legis-lation. It was in principle not unlike th at of the Praetor,thoug h on th e one hand less comprehensive, a nd on th eother affecting directly the civil 1aw.I When, in mid-Republic, the task of interpreting law passed into thehands of lay lawyers, som ething of this power, thou gh noformal authority, passed to them, bu t very soon the Ed ictwas beginning to be the most convenient agency for lawreform, and it was mainly by suggestions to the Praetorthat the lawyers induced changes in the law. Theretarehowever cases of more direc t influence. It was the exampleset by Antistius Labeo which definitely established thevalidity of codicils, i.e. in the Roman sense of the word,informal instruments by which the provisions of a willmig ht be modified or, even witho ut a will, the distributionof the property could be determined.=It seems also that the purely consensual commercialcontracts of Sale, Hire, etc., the early history of which isobscure, owed their recogn ition to t he jurists of th e laterRepublic. But in all this there was no suggestion of anyformal authority. Aug ustus m ade a change by introducingth e ius respondendi, by wh ich som e, probably only a few,privileged jurists could give sealed responsa under theauthority of the Em per or, an d Ha dria n m ade these responsabinding if they were all agreed. W e cannot go into the

I On the old inte'pretatio, Jolowicz, cit. pp. 85 sgg.; Schulz, History oRoman Legal Science, pp. 5-37.For their rules and history, Buckland, Text-book, p. 360. An in-teresting parallel is afforded by the story (see Hart in 40 L.2.R. (19z4)pp. 2 21-2 26) that Lord Thu rlow invented the married woman's restranton anticipation for the purpose of a marriage settlement of which he wa,to become a trustee.


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I T H E SOURCESsuch a commentary. Of course he did not succeed inpreventing the writing of commentaries or the use omatter not in his canon, but these writings and citationshad no authority.The question for us, therefore, is the state of things inpost-classical times, when there were no more responsaand no more great jurists, and before Justinian's legis-lation. Here too there is a distinction to be drawn. Afterthe Law of Citations of A.D. 426I it is quite clear whawritings were .authoritative and what was the extent otheir authority. But, for the fourth century, things arereally very dark. A11 that we know is that there was legislation under Constantine, one enactment declaring thatcertain notes of Paul and Ulpian on Papinian were to beabolished, which no doubt means that they could not becited, and another declaring the works of pa d , includingthe Sententiae, to be confirmed in their recepta auctoritas,'and we are told by Justinian of an enactment excludingnotes of Marcian on Papinian.3 There may have beenearlier legislation but the words recepta auctoritas rathersuggest that the writings of the great jurists of the past hadacquired a defacto authority in the Courts, though it is nopossible to say how far this authority went. I t can hardlybe that any sentence of any book of one of these men boundthe court , and it may be ;hat the rule enacted by Hadrianas to actual responsa was applied and that they bound theCourt if uncontradicted by any other writing. In view othe innumerable conflicts of which we have so many tracesthis would mean little more than that they could be cited.Indeed, the authority seems to have been something likethat which attached to writers on International Law tilrecent times. In the absence of any evidence of limitinglegislation it is not unlikely that contemporary lawyers

= C. Th . I. 4. 3.a C.T h . I. 4. I [A.D. 3211;C.Th . I. 4. 2 [A.D. 3271.3 Const. 'DCOuc tm' 6.


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J U R I S T I C W R I T I N G S = 5the post-classical me n generally, came to be cited, and tha tit was this mass of matter, which by t he fifth century hadbecome unmanageable, that was cut out by the Law ofCitations which d rove men back to the classical literature.For it is obvious on its terms that it did not cut out muchclassical literature of importance. All this, however, islittle more than conjecture.Before leaving the question of the c ontribution m ade byresponsa to the development of R oman law, we should notethe important part played by professional opinion in onebranch of English law, namely the practice of conveyan-cers. Ho ldsw orth l cites a num ber of judicial acknowledge-ments of this fact and states that in course of time 'thepractice of these conveyancers, who settled the commonforms which carried out in practice the principles of thelaw, tended to be treated by the courts as such cogentevidence of the law, that it can be regarded almost as asecondary source of law'.

4. CUSTOMLaw may be said to begin, everywhere, in custom, in thesense that when a central authority begins to intervene inthe settlements of disputes, the rules which it applies aremainly those rules of co nduc t which have been ha bituallyobserved by members of the community in their dealingswith one another. O u r own common law is described byBlackstone as the general custom of the realm.2 It isnotoriously, as a matter of history, nothing of the kind.The common law was brought into existence by theKing's Justices, all over the country, precisely becausethere was no general custom of the realm. T h e customs ofdifferent parts of the country, settled by different elementsof our hybrid population, w ere very diverse, and m anorialjustice had brought it about that there was an almost

I pp. 355' 384-387.a Commtrrtarirr, Introd. Sect. iii.


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I 6 THE S O U RC E Sinfinite variety of customs prevailing in small areas.deed, anyone who has had occasion to study the law copyholds (which to a large extent evaded the unifyiprocess by which this common law was created) can fosome idea of what the law of England would be like todbut for the compulsion towards uniformity applied by tKing's itinerant Justices. They gradually substituted fthis mass of customs a law which doubtless has its rootsGermanic custom,' but a great part of which was apparenof their own creation.

The Roman common law, the ius civile of republiclanguage, had perhaps a better claim to be called tgeneral custom of the realm ; or it is now generally agrethat the law of the XI1 Tables was based upon existiLatin custom, and we can see from what is left of tTables that they assume an immense amount of custowhich they do not state. It is however obvious that thtoo was greatly modified and augmented by the lawyePomponius tells us indeed that the law had a customabasis: 'coepit populus Romanus incerto magis iure consuetudine aliqua uti', is said of the state of thinmended by the XI 1 Tables,z but, speaking of it after thenactment, he says it is 'compositum a prudentibus'3 athat it 'sine scripto in sola interpretatione prudentiuconsistit'.4 Except in that sense, general custom, thouit is occasionally mentioned, plays only a very small pin the developed Roman law. The only case in whichseems to raise a practical issue is the question whetherstatute can be abolished by non-use. We are plainly .toby Julian that it can, for the reason that i t is immaterwhether the people expresses its will tacitly by conduct by a formal statute.5 In fact, there are several statu

Pollock, Expansion of the Common Lmu, pp. I I sgg.' D . I . Z . 2 . 3 . ' 3 D . I . 2 . 2 . 3 . 4 D. I . 2. 2. 12.5 D. . 3. 32. I . Whether the reasoning is Julian's or Tribonian's need not here conider .


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18 T H E S OUR C E Swhich allow local custom in some concrete cases witsaying anything about statute, it seems that this wasrule at least of later law.

5. G E N E R A L R E F L E X I O N SThough to laymen and even to lawyers, in countrieslaws of which a re codified, a statute seems the no rma l fof law, it must be b orne in min d tha t in the classical agRoman law, and thro ug hou t our own legal history, staso far as private law is concerned, occupies only a very ordinate position.' Of the many hund reds of leges thaon record, not more than about forty were of importin the private law, and though the Edict, regardedelegated legislation, and the senarusconsulra of the eEmpire constitute a considerable addition, it still remtrue th at the m ain agency in legal progress was in Roas with us, no t the legislator, bu t the lawyer. As we seen the metho d was not the same as with us. W ith usthe jud ge who is directly effective. W ith the R omawas the lawyer, by his opinions comm unicated to matrates, iudices or su itors who consulted him. But essentthe agency is of the same kind, for the English Bencrecruited from the Bar and preserves close contact wiMoreover, at Rome and in England the lawyers hnever l iked l eg i~ l a t i o n . ~t is only when th ey have arra t an impasse from which legislation is the only escapmo re freque ntly with us than at Rom e-that the lawhave been willing to advise the legislator to act.T h e later Ro man law and ou r own recent history sat first sight to indicate a change in both systems. Th e Emperors were immeasurably more active in legislathan their predecessors or any earlier legislative ageOur statute books for the last hundred years have mu ch bulkier than tho se of earlier centuries. But th

Except in land law and company law,.a Schulz, Principles of Roman L aw , pp. 6-1 .


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G E N E R A L R E F L E X I O N S I 9semblance here is largely superficial. Though our modernlegislature has intervened and codified some few parts ofour private law, the great mass of our modern legislationis concerned with what may be called administration,legislation rendered necessary by the complexity of ourmodern life. And even those codifications of fragments ofthe private law are in the main little more than orderlystatements of results already reached by the Courts andare themselves being every day modified by the action ofthose Courts. But in Rome the civilisation was in decay.Th e successors of the great lawyers were of an inferior typeand the necessary reforms came from the Emperor andhis officials, partly because an absolute monarchy is in-tolerant of any authority other than its own, but partly

'1 because there was no one else with the necessary know-- ledge and skill.'.In the preceding paragraphs the word 'source' has been

used to denote the agency by which a rule of law is created.These agencies, however, do not work in vacuo: they applyideas derived from various sources. Thus it is widelv heldthat the aequitas which plays so great a part in Roman law isessentially only a borrowing, through the rhetoricians, ofthe &K~K&u of the Greek philosophers. The movementfrom form to intent, from verba to voluntas, from stricturnius to aequitas, is said to have this origin. But though theinfluence of Greek thought on the Roman lawyers cannotbe denied, and had much to do with this progress, this isan over-statement of the matter: the Romans had notwaited for the Greeks to tell them that law was a socialscience and the servant, though at times the reluctant


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R O M A N AN D E N G L I S H M E T H O D S 2 1

E XC UR SU S: ' R O M A N A N D E N G L I S H M E T H O D SIt is right to emphasise the general resemblance in themethods followed by Roman and English law. Neither isin general a coherent intellectual system; both are ratherways of doing the legal business of society, observed anddeveloped more or less instinctively by relatively smallgroups of men who have been trained by their predecessorsin traditional procedures and habits of decision. No doubtthe Roman law of the post-classical period, and Englishlaw from and after the career of Pollock, have tended tobecome more self-conscious and theoretical in character,but Roman law never reached a state at all comparable tothat reached by the pandectists of the nineteenth century,nor has English law yet reached it, if it ever will.

I . Yet there is some danger of overdoing the likeness, between Roman and English methods. In one departmentat least, that of real property, English law is much more

systematic than Roman law ever was. One may even saythat it is more systematic, more abstract and more intellec-tualised than any part of any foreign system derived fromRoman law. This is the more surprising in that it hashardly been touched by civilian influences; though the oldlearning seems to have taken its final form at the handsof the Roman Catholic conveyancers, who doubtless im-ported into it some of the scholastic logic which was morecharacteristic of their thought than that of their Protestantcontemporarie~.~ he tradition of accurate professionaldraftsmanship, which depends for its certaintybery largelyon the strict doctrine of precedent, long upheld by EnglishCourts, is however found in many other branches of legalwork, especially commercial law. It is one of the mostmarked characteristics of English law. I t is perhaps evenmore strikingly developed in the United States.


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22 T H E S O U R C E S

Perhaps it is precisely because both Roman and Elaw are original creations and have for the most partup without much regard for system that each has proan incomparable elementary treatise, namely Gaiustutes and Blackstone's Commentaries. Both books haan extraordinary influence in determining the maiof legal education and in ensuring the spread of Rand English law to other lands.' Both, after a peundue depreciation, have come into their own asof exceptional but peculiar quality. They are, ilike all the best elementary books, works of injournalism, simple, clear, and persuasive, containinhardly disfigured by, a few unimportant mistakes. countries have produced literary works that arethorough and more scientific, but hardly so influe

The missionary work of Gaius was of course mainly donethe Institutes o f Justinian.