causa haberi, in qua essent, quae testamento his Imp. Iust. -sancimus omnes mortis causa The most important difference between the two lies in this, that mortis causa donationes have a donative character as of a contract, whence they are also operative even without the existence of an heir; and some differences besides remained which are explained by the contractual nature of this species of gifts. Marc. Filiusfamilias qui non potest facere testamentum nec voluntate patris, tamen mortis causa donare patre permittente potest.-1. 25, § 1, D. h. t.3 1 The Senate decided that gifts in contemplation of death made to those whom the statute does not allow to acquire should be regarded as in the same position as if they were legacies that had been given by testament to those who are not allowed by the statute to acquire. * We enact that all gifts in view of death. . . shall need no judicial proceedings, and not require the presence of public persons; but let the matter so proceed that if a man shall desire to make a gift mortis causa in the presence of five witnesses in writing, or without the support of documents, and without the addition of records, the transaction shall remain adequately protected. . . and shall acquire all those effects which last bounties have, and shall be regarded in no particular as different from them. A fil. fam., who cannot make a testament, not even with his father's consent, can however make a gift mortis causa, if the father allow him. BOOK III. a Cf. Puchta, ii. §§ 149-188; Rivier, pp. 221-266, 379402, 529-539; Moyle, Excursus X. BOOK IV. (APPENDIX). THE JUDICIAL ENFORCEMENT OF RIGHTS ('ACTIONES').a BOOK IV. Chapter 1. CHAPTER I. THE CONSTITUTION OF THE COURT. § 187. FORM OF ROMAN CIVIL PROCEDURE. ROMAN Civil Procedure (ordo iudiciorum privatorum) is characterised by the division of judicial functions between the functionary entrusted with the administration of the Law (magistratus iuri dicundo) and the judge (iudex). All regular proceedings were divided into two departments, already externally separated from each other into proceedings in iure (ie., at the Court) before the magistratus iuri dicundo,' and those in iudicio before private persons as jurors. The object and purpose of proceedings in iure' was: Instructions as to the action and disposal of the processual presumptions (as legitimation of the parties and allowance of the action generally), confirmation of the suit, i.e., the formulating of the claims enforced, nomination of the iudex (ordinatio iudicii); it found its conclusion in the 'litis contestatio,' which originally consisted in a ceremonial summoning of witnesses as to the proceedings arranged. The further proceedings, investigation and establishment of the actual conditions of the legal claim (taking the evidence), as well as discussion and consideration of its legal elements-not the mere question of fact-formed the object of procedure 'in iudicio,' closing with the judgment (sententia). Paul. Diac. ex Festo h. v. (p. 57 Müll.): Contestari litem dicuntur duo aut plures adversarii, quod ordinato iudicio utraque pars dicere solet : 'testes estote.'' BOOK IV. Chapter 1. Besides the ordo iudiciorum privatorum,' there still existed proceedings 'extra ordinem,'—' extraordinaria cognitio.' That is, in certain cases the magistrate arranged for no iudicium, but himself investigated and decided the suit." Cases of this extraordinaria cognitio « D. 50, 16, multiplied in the course of time, and became always 178, 2. increasingly the rule, until at last Diocletian abolished A.D. 294 ? the ancient ordo iudiciorum privatorum.' Since a sharp separation between government and administration of justice, and corresponding comprehensive division of administrative and judicial magistracy, is foreign to the Law of the Roman State, jurisdiction appears as an ingredient of superior official authority in general. Originally it belonged in Rome to the Consuls, later on as a special function to the Praetors, and in matters of the market to the Curule Aediles. In Italy, with the exception of the urbica diocesis (Rome and environs), it was transferred by Hadrian to four consulares,' by Marcus Aurelius to several iuridici.' In the Provinces, the control of the administration of justice devolved upon the governors (praesides provinciae). Moreover, there was still in the imperial period an extensive series of special jurisdictions for certain legal matters, as for example, matters of fideicommissum, police and finance, in which latter especially a comprehensive jurisdiction belonged to the officers of the Revenue. The municipal magistrates possessed only a limited, inferior jurisdiction, in matters of small debts. 1 Two or more opponents are said contestari litem (to join issue) because upon the constitution of the tribunal both sides commonly say, 'Ye shall be my witnesses.' BOOK IV. • § 30. Gai. iv. 106-7. Cf. ib. iii. 83; i. 184; Ulp. xi. 27; § 78; and Vat. fgm. 47. In the judicial authority of the magistrates entrusted with the administration of the Law (officium ius dicentis) are distinguished (a) 'iurisdictio' in the narrower sense, that is, the ordinary administration of the Law, as a rule amounting to arrangement of a iudicium in formal suits under Private Law (iudicem iudicare iubere); (3) 'imperium' (mixtum), that is, the higher magisterial arbitrary authority of command and executive cautiones, missiones (including the bonorum possessio), in integrum restitutio"-which belongs to the municipal magistrates only in a limited degree; (y) 'legis actio s. iurisdictio voluntaria,' that is, formal magisterial co-operation for legalisation of certain transactions (manumissio, adoptio, in iure cessio), which the municipal magistrates do not as a rule possess. In respect of their significance and operation in Procedure, the Courts presided over by a Roman magistrate in formulary proceedings are divided into: 'legitima iudicia,' Courts conformable to the purposes of the old ius civile, and dependent upon the old Roman procedure, and 'iudicia imperio continentia,' which were Courts resting upon the absolute power of magistrates. The practical significance of this consists principally: (1) in the latter iudicia being naturally determined with the office (year of office) of the magistrate who had instituted them, whilst the originally unlimited continuance of the legitima iudicia was first limited by the lex Iulia iudiciaria (so-called Limitation of Actions); (2) In their different operation as regards the litis contestatio. Gai. iv. §§ 104-5: Legitima sunt iudicia, quae in urbe Roma vel intra primum urbis Romae miliarium inter omnes sives Romanos sub uno BOOK IV. Chapter I. iudice accipiuntur; eaque e lege Iulia iudiciaria, cives The The competence of the Court in the particular case is governed by the personality of the defendant. personal competence of the Court is decided (1) by the muncipal Law of the person in a 1 Iudicia are legitima which are heard before a single iudex in the city of Rome, or within the first milestone from the city of Rome, being between Roman citizens; and these, according to the l. Iulia iudiciaria, come to an end unless they have been decided within a year and six months. This is what is meant by the common saying, that by the l. Iulia iudiciaria an action dies in a year and six months. § Depending upon the imperium (of the Praetor) are those before recuperatores, and those which are heard before a single iudex, in which the iudex or a litigant is a foreigner. In the same position are all actions which are heard beyond the first milestone from the city of Rome. The actions are said to depend upon the imperium, because they are effectual only so long as the Praetor who authorised them shall retain office.-§ Moreover, an action may indeed be derived from a lex and yet not be legitimum, and conversely, it may not be derived from a lex and yet be legitimum; for . . . if in a case where an action is allowed us by the Praetor's edict the trial be at Rome before a single iudex and all the parties are Roman citizens, the action is legitimum. 'legitimum 'almost untranslatable': Muirhead on Gai. iii. § 180. |