Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA
.pdf396 PARTICULAR DELICTS AND TORTS
to a claim of a debt. This consideration removes from the field some apparent cases. In Roman law live-stock dealers were responsible for all serious defects whether they knew of them or not. It is true that historically, by reason of the methods and powers of the aediles who created the liability, the action was penal in character, but essentially it is a case of implied warranty, since it was possible to contract out where the defects were unknown.1 The special liabilities of innkeepers and carriers which exist in both systems can be analysed in the same way, though in both systems there is an action in tort or delict.2 The liability for refusing to carry or receive, the conception of a common calling, did not exist in Roman law, and is not in point, for the liability is for refusal without excuse. The liability to custodia in some contracts3 is of the same type, but is regarded as contractual.
Justinian's first head of liability quasi ex delicto, that of the index qui litem suamfacit, can be thought of as vicarious in the sense that the judge, by his wrongful conduct, took upon himself the liability of one of the parties; but it is not liability without fault. However, with this exception, the various cases of vicarious liability in both systems are essentially liabilities without fault. This is shown clearly in the Roman law of noxal liability by the rule that the liability is limited by the right of noxal surrender: if there is actual fault in the employer he is liable in full, with no option of surrender.4 It is also shown by the history of the matter: originally the wrongdoer alone was liable, but his master had a right to ransom him by paying the penalty.5 But in all these cases, noxal liability and the quasi-delicts and those coming under our principle oirespondeat superior, though the defendant may have committed no wrong, a
1Buckland, Text-book, pp. 491 sqq.
2Buckland, cit. pp. 580 sq.9 599; Winfield, cit. p. 151.
3Buckland, cit. pp. 560 $q.
4D. 9. 4. 2. pr. 5 Buckland, cit. p. 600, n. 9 and references.
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wrong has been committed. It is true that the same rule applied in Roman law to damage by animals, actio de pauperie* and the texts are clear that wrong cannot be imputed to animals; but the rules date from primitive times, when, on the one hand, this was by no means clear, and, on the other, the notion of guilt as an element in liability had hardly developed.
More interesting are the cases in which, so far as appears, there is no fault at all. They are difficult to find in Roman law. Where a liability for damnum infectum arises2 it is not necessarily anyone's fault that the neighbouring property has got into a dangerous state. In the possessory interdicts a defendant possessing in good faith may find himself bound to pay for the fruits twice over, a penalty without fault.3 This appears to be a historical survival, into the source of which we need not go. In our law the best illustrations of it are perhaps the rule based on Rylands v. Fletcher,* of strict or 'absolute liability',5 and the policy of the former Workmen's Compensation Acts. It is observed by Dean Pound,6 speaking however rather of American tendencies than of those of English law, that while the nineteenth century aimed at getting rid of liability without fault, the modern tendency is to increase its scope. To some extent the existence of liability without fault is a confession of practical inability to get evidence of fault; but this applies especially to cases where the safety of premises, plant, etc., is deemed to be warranted. The liability of the master is justified partly by the need to get a better defendant, for the workman in charge of dangerous things is not likely to be able to compensate for the damage he does, and partly by the fact that the employer who for
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own purposes equips the servant may reasonably be |
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D. 9. 1. |
2 P. 393, ante. |
3 G. 4. 167. |
4 (1868), L.R. 3 H.L. 330. |
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As to the inadmissibility of this expression, Winfield, (1926) 42 L.Q.R. |
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pp. 37 sqq. |
The Spirit of the Common Law, pp. 188 sq. |
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398 PARTICULAR DELICTS AND TORTS
required to take the risks attendant on the undertaking. The policy of the former Workmen's Compensation Acts, where there was no fault at all, or need not have been, was no doubt, as Dean Pound says,1 due to 'a strong and growing tendency, where there is no blame on either side, to ask in view of the exigencies of social justice, who can best bear the loss*. But it may be suggested that the rule would not have complied with the 'exigencies of social justice* if it were not for the great development of insurance, which in fact in the majority of cases now spreads each individual loss over the whole body of employers. Indeed, one may hazard the guess that if the principle of the National Insurance Act, 1911, had been accepted two decades earlier, it would have been extended to cover the risks of injuries to workmen. This from the point of view of a coherent legal system would have been preferable to creating a new kind of liability without fault.2
1 Loc. cit.
3 This development has now taken place. See National Insurance (Industrial Injuries) Act, 1946 (9 and 10 Geo. VI, c. 62).
CHAPTER XII. PROCEDURE
1. SUBSTANTIVE AND PROCEDURAL LAW
To many persons, especially to those theorists who maintain that there are no rights but rights of action, the law of procedure, or, rather, the law of actions, is the most important part of the system. It is not easy to think of it as merely the machinery by which the real law, the substantive law, is put into operation. Thus it comes about that our earliest legal text-book of any importance, Glan- vill's, though called a Treatise on the Laws and Customs of
England^ is mainly concerned with procedure. In modern times J. D. Mayne states a great part of the substantive law in a treatise on damages, i.e. he regards a man's right as, essentially, what can be recovered by litigation. So too Henry Roscoe in the same way states a great mass of substantive criminal law in a work entitled The Law of
Evidence and Practice in Criminal Cases. There is nothing new in this: it is indeed the primitive way of looking at law. Chapter xi of Maine's Early Law and Custom is a demonstration of the fact that in all early communities the procedure dominates the law and that (p. 389) 'substantive law has at first the look of being gradually secreted in the interstices of procedure'; the XII Tables begin with, and appear to deal most fully with, procedure. The Edict and Digest follow this plan. It is only in the institutional books that procedure takes its place as an instrumental or adjective law. In Justinian's law the old forms of action are gone: the plaintiff states his case in the way which seems most convenient to him. Nevertheless the Byzantine lawyers still think in terms of actions: with them, as with us, though the forms of action are dead, 'they still rule us from their graves'.
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2. CONSENT OF THE PARTIES. ARBITRAL ORIGIN OF ROMAN PROCEDURE
In both systems of law there was a great reluctance, more than a reluctance, to give judgement against a defendant who had not appeared. But the underlying principles do not seem to be the same. In our law this reluctance does not rest on need for consent of the parties :x the basis is that 'the law wants to be exceedingly fair, but is irritated by contumacy V though the practical result is much the same, and all sorts of inconveniences are inflicted on the defendant who fails to defend the action. There does not seem to be here any underlying idea that the Court could not have proceeded to judgement if it had thought fit to do so, but only that it was not fair play. But in the older Roman law the rule was based on the principle that all jurisdiction depended on the consent of the parties.3 This in turn rests on the notion that litigation is essentially a private arbitration established under the approval of the State, as a substitute for self-help, the business of the State officials being only to see that this arbitration is conducted in proper form. This character the procedure retains in form, and to some extent actually, throughout the classical age. But in fact ways were found of putting pressure on a recalcitrant defendant, ways based on the imperium of the magistrate. If a defendant would not take the proper procedural steps after he had been summoned, or if he evaded summons by hiding, the Praetor would order seizure of his goods, missio in possessionem.* The arbitrator (iudex)> a private citizen, must be one chosen by the parties
r Though cases have occurred in which consent to a particular mode of trial might be essential, as is shown by the peine forte et dure\ so too in certain cases a person's consent is needed before he can be tried summarily.
2P. and M. ii. p. 595.
3The parallel in the law of nations is striking, whether the reason be the same or not.
4Buckland, Text-book, p. 631.
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in agreement. But if a defendant persisted in rejecting names, without reason, he was probably treated as inde- fensus, liable to missio inpossessionem. In some cases security was required for various purposes. A defendant who refused this was indefensus. These securities were in form contracts, like our recognisances, and, like them, they were contracts only in name, for they could be compelled and their content wasfixedby the magistrate.1 Thus in classical law the consent, though nominally necessary, was very unreal, and in the procedure of later law, when cases were tried by a index who was a public official, or a person deputed by him, it had disappeared altogether.
It is a result of the fact that the index was a mere private person, chosen as a sort of arbitrator with the sanction of the Court, that the initiation of proceedings was entirely informal, and was done by a summons delivered by the plaintiff himself mero motu, knoton as in ius vocatio. This seems to have been the Anglo-Saxon method,2 which also like the Roman required the plaintiff at the time of the summons to state generally the ground of complaint. But while private summons soon disappeared from our ordinary procedure, it was the normal method in Rome as long as the formulary system lasted, i.e. till the middle of the third century. Indeed it lasted longer, for though one would not expect a citizen to set in motion an administrative enquiry like the later procedure by his own volition, it seems that the litis denuntiatio which had superseded the in ius vocatio remained an entirely private act till early in the fourth century. Even then it continued so far private that the summons was served by the party himself, though he had to have previous authority from the magistrate. But in the fifth century there was a change. Litis denuntiatio was gradually superseded by what is called the libellary process, in which the first step was a statement of claim submitted to the court, which then itself issued a
1 D. 45. 1. 52; 46. 5. 1. 10. |
2 Holdsworth, ii. p. 103. |
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summons to the defendant accompanying it by a copy of the statement of claim—libellus conventionis. The writ was returnable in a very short time, but this high rate of speed was abandoned for the later steps; very long delays were permissible to the parties, but there is still some obscurity as to the law under Justinian on these matters. There seems to have been the same speediness of beginning and slow progress afterwards in the matter of appeals.
From its origin in arbitration comes the most marked characteristic of Roman classical procedure. The trial was in two stages. The issues were formulated before the magistrate and agreed on by the parties, approved by him, and then sent for trial to the index accepted by them. This index must not be thought of as a kind of single juryman who had to try the facts, with guidance from the court as to the law; he decided the issue as stated in the pleadings with no authority over him, though he commonly had his own legal advisers. But he had nothing to do with execution : for this it was necessary to go back to the magistrate.1 The unofficial position of the index had other results which look odd to modern eyes. No witnesses could be compelled to attend. There were very few rules of evidence. Hearsay was freely admitted. Written statements might be put in from persons unsworn and not present. Indeed there hardly could have been rules of evidence, for there was no obvious way of making them effective, since, the index being a private citizen, not an officer in a hierarchy, there was no appeal from hisjudgement. Perhaps such rules were not so necessary as they are thought to be in a modern jury case, for the common juryman is not usually a well educated or highly intelligent man, while the indices were selected by the parties from a list consisting of men in the upper ranks of society. Practically the only check on the index was that if he acted with clear unfairness or obvious
1 As in England to enforce the award of an arbitrator it is necessary to resort to the Court.
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negligence he might himself be liable to an action by the sufferer ('iudex qui litem suam facit').1 Execution might be resisted, but only on the ground of some formal defect in the proceedings, not for error. In default of this it might be possible to get some magistrate to exercise his power of veto upon any proceedings under the judgement, but this procedure must often have been a matter of influence.
In later law all this was changed. The judge was an official, usually, or often, a lawyer. There was an elaborate system of appeals. All the proceedings were in the hands of officials. Thus, the original summons, which had been by the party himself, on his own authority, was now done under the authority of the magistrate. Witnesses were officially summoned, and punished if they did not appear. Consent being no longer necessary, there was now no need for the indirect means of compelling co-operation which had been employed, and judgement could be given against an absent defendant, though only after long delays. More rules of evidence appeared. Hearsay was in general excluded and there was much legislation as to minimum of evidence and exclusion of certain persons from giving evidence. The rule developed (there are earlier traces of it): 'testis unus testis nullus'. In fact it is clear that in the age of Justinian oral testimony was discredited, and the main material, in civil suits, was documentary evidence, a practice borrowed from the Greeks, and rendered possible in commercial matters by the fact that, again a borrowing from the Greeks, commercial transactions were now almost invariably written.
Another fundamental change, also a part of the growing officialism of the process, was the abandonment of the old division into two parts. The magistrate or his deputy now heard the whole case from start to finish. The procedure has become (it had been from the third century) 'administrative ', an enquiry conducted by administrative officers; thus, under Justinian, it does not seem, though the matter is
1 D. 44. 7. 5. 4; Inst. 4. s-fr-
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disputed, that the public had any right to be present at the hearing, which was now in a court-house, a state of things very different from that in classical law when the iudex sat in the o^tn forum. The mode of execution also reflects the changed conception of the proceeding. In classical law this was not for the Court but for the plaintiff, under supervision by the Court. There still survived in classical times an old crude system under which the defendant could be seized, under authority of the magistrate, and detained till he saw reason, but the more usual method was to obtain the leave of the magistrate to seize his whole estate and sell it en bloc^ a stage which would not commonly be reached except in full insolvency, where there were many creditors. In later law execution was carried out by the magistrate by compelling the actual handing over of the thing in dispute where that was possible. If this was not applicable, as where the judgement was an order for payment of money, the court either took pledges or seized and sold so much as was necessary to satisfy the judgement, on modern lines.
3. OATHS
The mere oath, as a form of proof, played a much greater part throughout the history of Roman law than it has in our system, except in our very early days. The Roman proceeding looks very archaic. In some actions, especially claims for certain sums of money, the classical law allowed the plaintiff in the opening stage of the process to offer the defendant an oath, which was to challenge him to swear to the truth of his defence, i.e. not to his good faith, of which something more is to be said, but to the absolute validity of his defence. If he took the oath the action was lost. If he refused it he was condemned. He was however entitled to take a third course, i.e. to offer the oath back to the plaintiff (relatio), who thereupon had the same two alternatives with analogous results, but had no right again to offer it back. The odd result was that if the plaintiff had
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once initiated this proceeding (the defendant could not do so) the matter could never get to an actual hearing. In later law the scope of the proceeding was extended. It could be done in any action and, under Justinian, at any stage in the proceedings. It no doubt served to shorten proceedings where there was no real defence and, in the case of claims for certain sums of money, the effect is not unlike that of our procedure under Order 14.1 As the defendant had yet another possible course when the oath was offered, i.e. to require an oath of good faith from the plaintiff, with refusal of the action as the penalty for refusing to take it, the whole thing looks rather like compurgatioy but the resemblance is only superficial.
4. DISCOVERY OF FACTS AND DOCUMENTS
The Roman classical procedure admitted Interrogatories. In both systems they are a means of discovery of facts. In Roman law they occupied a much narrower field than in ours, but in that narrow field they were of great importance. In actions for wrongs committed by a man's slaves he could be interrogated on the ownership and actual possession of the slave, with serious consequences if the answer was false or was refused. So in actions against the heres of a debtor the defendant could be asked whether he was in fact heres and, if so, for what share (since he was liable only pro rata\ with analogous penalties for falsity or refusal. And there were a few other cases. In later law this system had disappeared, but on the other hand any party could be interrogated on any point at any stage, but his answer, or refusal to answer, only provided evidence. It will be noticed that in the actiones interrogatoriae of classical law the machinery is open only to the plaintiff. But perhaps it is unnecessary to pursue this topic further, because it seems probable that our system of interrogatories, which was the creation of the Court of Chancery, is thus only a borrowing from a Roman source.
1 Rules of the Supreme Court (Revision), 1962.