Note 15 — BOOK II. CONCERNING THE CONDUCT OF CAUSES. (continued 2)

A large part of the preceding Book has been borrowed from the Roman jurisprudence, and some of it is older than the Twelve Tables. It is hardly necessary to remark that the intelligence and experience of semi-barbarians are unequal to the task of the framing, construction, and execution of enactments relating to the enforcement of civil obligations, and the testamentary disposition of property, as set forth in these chapters. The power to distrain, referred to in Chapter VIII as effecting the property of a surety for a debt, is a remedy whose origin antedates all history. It was the pignoris captio of the Romans, among whom it was a summary proceeding, undertaken without previous application to a judicial tribunal. It was supplemented by the manus injectio, or seizure of the person of a debtor or wrongdoer; followed by his subjection to hard labor, and often to cruel treatment, until the unpaid claim was satisfied, or the tort he had committed, had, in the opinion of the injured party, been sufficiently punished. This form of execution was much used by the Visigoths, and its severity was somewhat modified by their laws; but while its most oppressive features were eliminated, enough remained to render the proceeding liable to great abuse.

The rules relating to the execution, attestation and proof of wills and other legal documents, contained in the Forum Judicum were, for the most part, derived from the Codes of Theodosius and Justinian. The provisions governing nuncupative and holographic testaments are very similar in all these collections. The will made by a traveller or a soldier, while on a journey or absent in the service of the government, is merely the peculium castrense, or military will of the Roman legionary. Codicils, introduced by the laws of Justinian, were unknown to the Visigoths.—[Ed.]