Roman Law
From LoveToKnow 1911
ROMAN LAW.i The term Roman law is indefinite and ambiguous, being used in more than one sense. First, in a wide sense, it comprehends the totality of the laws of the Roman state, which were observed by its subjects during about thirteen centuries, from Romulus to Justinian. In a second and stricter meaning it indicates the law as consolidated by Justinian or, in other words, the law contained in the Corpus Jun5 Civilis, which is the name that has been given since the 16th century to Justinians legislative works as a whole, and distinguishes them from the Corpus Junis Canonici. In this acceptation it is equivalent to, and is often called, civil law as contrasted with canon law. In a third and loose sense Roman law embraces, in addition to the Corpus Junis, the interpretations of it after Justinian by medieval and modem courts, jurists and commentators adapting it to the customs and laws of their own countries and times. The German expression, for example, modernes (or heutiges) romisches Recht, indicates the Roman law as it was applied in Germany in modern times. Such medieval and modern interpretation, however, is also sometimes expressed, in English usage at least, by the term civil law as contrasted with native or common law; writers in, this field being usually styled civilians rather than Romanists. It is to the Roman law in the first of the above-mentioned three significations that the present article is devoted.
To give a proper sketch of Roman law it must be treated historically. Nearly all systems of positive law are the product more or less of an historic development, but the Roman r6e~tY has this great advantage over other systems, that it historic was at all times a homogeneous body complete in itself. treat- For the Romans were comparatively little indebted to ment. other peoples for their jurisprudence, and, when they did borrow legal ideas and institutions from others, they generally transformed or modified these in adapting them to their own native system, so that they became substantially Roman. Moreover, the various stages of progress of the law from its genesis to its maturity and ultimate consolidation can be traced in unbroken continuity. Beginning in 753 B.C., the traditionally accepted date of the foundation of Rome, it continued its course till the death of Justinian in A.D. 565. Allowing for the first three centuries being without historic evidence, we have at least an authenticated evolution of about 1000 years. Of no other system of law, ancient or modern, can anything like the same thing be said.
As to the proper method of historic treatment there have been different opinions. Without going into these, it is enough to say that the subject may be treated from two sides, viz. on the one side in relation to the external sources of the law, including therein the political and social conditions and the various constitutional changes at different periods affecting the development of the law, as well as the modes in which the law manifested itself and the legal literature from which our knowledge of it is derived; on the other side it may be treated in relation to the several departments or institutions of the law in view of their development or changes through time or circumstance, such as marriage, slavery, property, and so forth. This corresponds to what Leibnitz described as external and internal history respectively, terms which are now rather out of vogue. Of course it is possible to treat the historic sources of the law, constitutional and literary, independently of the doctrines, and this is now often done; but unless both are discussed the field of Roman law is not covered. Both the external and the internal history, however, may be treated together or in a measure interwoven, and it is in this way that the subject is treated in the following pages. But constitutional events affecting the law are only noticed very summarily, details about these being given in separate articles.
Modern writers on the history of the Roman law have as a rule, for the purpose of systematic treatment, divided the subject into definite historic periods. Gibbon, in the Division 44th chapter of his Decline and Fall of the Roman into Empire, seems to have been the first to suggest this historic mode of treatment, though the particular periods of epochs. division he selected (being based on an artificial symmetry of about three hundred years each) are not satisfactory.2 In the present article, the division made by Muirhead in his article in the 9th edition of this Encyclopaedia into five historic epochs has been left unaltered, These are: (1) the regal period; (2) thejus civile, representing the period from the establishment of the Republic until the subjugation of central and southern Italy; (3) the jus gentium andjus honorarium, representing the latter half of the Republic; (4) the jus naturale and maturity of Roman jurisprudence, representing the period of the Empire until the beginning of the reign of Diocletian; (5) the period of codification, i.e. from Diocletian to Justinian. Not that there is any sharp or fundamental division between these or, indeed, between any historic epochs. The law is a unity: it has its roots in the past and grows with the nation itself, and, like it, decays; there is no break in its continuity. The division is made merely for convenient treatment of the subject.
It must be kept in view that our knowledge of Roman customs and laws earlier than the XII. Tables and even for some time after them cannot be based on strict historical evidence; it is almost entirely traditional and conjectural, and different writers will take different views according to the relative value they place upon this or that piece of presumptive evidence.
It is only the private law that is dealt with in the present article. - -
I. THE REGAL PERIOD
i. The People and the Law.
The Beginnings of the St ate,T he early Romans were not different from other Indo-European communities in their essential characteristics. The tribe, the clan, the family, the individual: each of these appears in course of development prior to the XII. Tables. Putting aside much of the traditional accounts of Livy, Dionysius, and other ancient historians, regarding the foundation of Rome and its early political and social life, as mythical, modern critical historians are none the less agreed that in the earliest period of their existence as a settled community the Romans were subjected to the govern~ ment of a king (rex), with a council of elders (senatus) and an assembly of burghers (comitia cuniata).
It used to be a somewhat common opinion that the primitive Romans were a sort of amalgam of three different racesLatin, Sabine and Etruscan. This opinion is mainly based upon the tradition that the state was originally formed by a union of three tribes called Ramnes, Tities and Luceres; the Ramnes being of the Latin race, the Tities of the Sabine and the Luceres of the Etruscan. Attempts have even been made to find in the Roman laws and institutions traces of the influence of each of these races, and especially of the first twopatria potestas and manus, for example, being attributed to the Latin or dominant race; adoption and confarreation to the Sabine; fOrms and ceremonial (such as lictors, fasces, &c.) to the Etruscan.3 But this attractive theory of a union of three races, apart from the suspicion of a symbolic trichotomy (tres tnibus) due to later times, is based on no substantial evidence;4 many of the See Muirhead, Historical Introduction (2nd ed., 1899), pp. 35, and authorities there cited.
Some writers deny the existence of the tribes altogether, but this goes too far. See Bruns-Lenel in Holtzendorffs Encyklopo4ie d. Rechtswissenscha~ft, i. p. 86.
institutions attributed to the Sabines and Etruscans were, as Mommsen and others have shown, common to all peoples of Greek-Italian stock, and could not be strange to the Latins. We must hold that the Romans were essentially a Latin race, though influenced by a considerable admixture with Sabine and, to a lesser degree, Etruscan races (see RoME).
Patricians, Clients and Plebeians.But whatever their ethnographic descent, it is pretty certain that the Roman. civitas Divisions was in the earliest period an organization that was of the patriarchal in its essence, but in which there was to be people. distinguished, on the one hand, a dominant class enjoying all the rights of citizenship, and, on the other, a semi-servile or quasi-vassal class excluded from such rights. The former class were called patricii or Quirites; i the latter were called clientes and (later) plebeii.
PatriciansThere was part of the law of Rome that even in the Empire was known by the name ~f jus Quiritium, and this in the regal period was the only law. The patricians at ~ first were the Quirites, and prior at least to the time of Servius Tullius they alone enjoyed rights under this law.
From their number the council of elders was selected; they alone could take part in the curiate comitia; they alone could contract a lawful marriage and make a testament; in a word, all the peculiar institutions of early Rome were for their benefit alone.
But these rights and prerogatives they enjoyed as members of gentes or clans, the clans being aggregations of families bearing a common name and theoretically at least tracing g~~netes. their descent from a common ancestor. These clans, of which there were normally three hundred altogether according to a rather doubtful tradition, were organized constitutionally in curies. Of the curies, again, there were thirty in all, there being probably ten in each of the three tribes, organized primarily for military and secondarily for political and religious purposes. Though for the federation of the curiae and gentes Rome required a common ruler and common institutions, religious, military and political, yet it was long before such federation into a state displaced entirely the separate institutions of the several gentes. Every clan had its own cult peculiar to its own members. It had its common property and its common burial-place. It probably had some common council or assembly, for we read not only of special gentile customs, but of gentile statutes and decrees. Tradition records instances of wars waged by individual gentes, indicating that they had the right to require military service alike from their members and dependants. Widows and orphans of deceased clansmen were under the guardianship of the gens or of some particular member of it to whom the trust was specially confided. If a clansman left no descendants, his property passed to his fellowgentiles. Finally, its members were always entitled to rely upon its assistance, to have maintenance when indigent, to be ransomed from captivity, and to be avenged when killed or injured.
Along with the gentiles there were in Rome from the earliest period other persons known by the name of clientes (clients).
Cli nt Their origin is wholly unknown. Some of them may e ~. have been the original inhabitants of Rome and their descendants, but more probably they were mostly immigrants from other communities or citizens of conquered towns whom the Romans were unable or unwilling to treat as slaves. Some may have been slaves to whom liberty de facto had been given. Following a custom familiar both to Latins and Sabines, such persons were placed under the protection of the heads of patrician families. The relationship was hereditary on both sides, and known as that of patron and client. The client2
i The derivation of the name is uncertain, and ancient writers differed about it. It probably comes either from qu-iris, a Sabine word for a spear, or from curia. The derivation from Cures is inadmissible. See Mommsen, Rm. Staatsrecht (1887, 1888), iii. I, p. 5 n.
-The derivation of cliens from cluere indicates the relationship one who is called on, who hearkens. The theory that clientage became a dependent member of his patrons clannot gentilis but gentilicius. His patron had to provide him with what was necessary for his sustenance and that of his family; and, as ownership or possession of lands increased in extent, it was probably not unusual for the patron or his gens to give him during pleasure a plot of land to cultivate for himself. The patron had, moreover, to assist him in. his transactions with third parties, and obtain redress for him when. injured. The client, on the other hand, had to maintain his patrons interests by every means in his power. But the advantage must have been chiefly on the side of the client, who, without becoming a citizen, obtained directly the protection of his patron and his clan, and indirectly that of the state. A large number of clients attached themselves to and received protection from the king as patron royal clients, as Cicero calls them.
The plebeians (plebs, from irAijOor, meaning crowd), as distinguished from the clients, must be regarded as a heterogeneous mass of non-gentile freemen. It used to be Piebelans.
the prevailing opinion among modern writers, following the Roman historians, that the plebeians existed as a body since the very beginning of the city. They v~ cre thought to be mainly composed of immigrants and refugees who, while being allowed personal liberty, declined to submit themselves to a patron. But recently a theory of Mommsen, based on solid philological and other grounds, has obtained wide adhesion and tends to become the dominant one. Mommsens view is that at first there were only two classes in the community, the patricians and clients, or, in other words, that the only plebeians were the clients who, as such, possessed only quasi-liberty (Halbfreiheit), and that it was not till after a century or two that the practice of voluntary cientage began to decay and the class of plebeian freemen arose. This was partly due to gentes dying out, so that the clients attached to them were left without patrons; partly to the numbers of foreigners at Rome (through transplantation. of the in.habitants of conquered cities and otherwise) having become so large that they felt themselves sufficiently powerful to do without protection; and partly to other causes.3
However this be, it is generally admitted that, during the latter part of the present ,epoch at least, plebeians existed as a body composed of individuals of mixed races not united by any gentile organizations of their own. nor attached to any Roman gentes. Tradition attributes to Numa the formation of gilds or societies of craftsmen, such as potters, carpenters, gold- and silver-smiths (collegia opificum) at Rome, eight or nine in number. This, though probably a myth as regards Numa, may be taken as slight evidence of the creation among the plebeians of associations for trade and other purposes, that to some extent compensated them for the want of gentile organization. These gilds seem to have had a common cult and a common council to arrange disputes and consolidate customs. Between the brethren (sodales) there was a bond of close alliance and interdependence, each owing duty to the other similar to what might be claimed from a guest or a kinsman.
The Regulatives of Public and Private Order.It would be absurd to expect any definite system of law in those early times. What passed for it was a composite of fas, jus and boni mores, whose several limits and characteristics it is extremely difficult to define. This may to some extent be accounted for by the fact that much of what was originally within the domain of fas, once it had come to be en.forced by secular tribunals, and thus had the sanction of human authority, was no longer distinguishable from jus; while it may be that others of its behests, once pontifical punishments for their contravention had gone into desuetude, sank to nothing higher than precepts of boni mores.
arose from the voluntary subjection of poorer citizens to the rich is an hypothesis supported by no satisfactory authority.
Mommsen, Staatsrecht, iii. 1, pp. 66 seq. and pp. 127 seq. Fora different view, Karlowa, Ram. Rechtsgeschichte, i. 62. Cf. Cuq, Instil. fund. des Romains (2nd ed., 19048), i. 1112.
By fasi was understood the will of the gods, the laws given by heaven for men on earth, much of it regulative of ceremonial, F but a by no means insignificant part embodying rules as. of conduct. It appears to have had a wider range than jus. It forbade that a war should he undertaken without the prescribed fetial ceremonial, and required that faith should be kept even with an enemy when a promise had been made to him under sanction of an oath. It enjoined hospitality to foreigners, because the stranger guest was presumed, equally with his entertainer, to be an object of solicitude to a higher power. It punished murder, for it was the taking of a godgiven life; the sale of a wife by her husband, for she had become his partner in all things human and divine; the lifting of a hand against a parent, for it was subversive of the first bond of society and religion,the reverence due by a child to those to whom he owed his existence; incestuous connections, for they,defiled the altar; the false oath and the broken vow, for they were an insult to the divinities invoked; the displacement of a boundary or a landmark, not so much because the act was provocative of feud, as because the march-stone itself, as the guarantee of peaceful neighborhood, was under the guardianship of the gods. Some breaches of fas were expiable, usually by a peace-offering to the offended god; others were inexpiable. When an offence was inexpiable, the punishment was usually what is called sacratio capitis, excommunication and outlawry of the offender. The precepts of the fas therefore were not mere exhortations to a blameless life, but closely approached to laws, whose violation was visited with punishments none the less effective that they were religious rather than civil.
The derivation of the word jus is disputed. The usual derivation is from the Sanskrit, ju, to join, bind or unite, from which some deduce as its signification that which Jus. binds. the bond of society, others that which is regular, orderly or fitting. Bral identifies it with the jos or jaus of the Vedas, and the jaes or jaos of the ZendAvestawords whose exact meaning is controverted, but which he interprets as divine will or power.f If Brals definition can be adopted we obtain a very significant interpretation of the words addressed by the presiding magistrate to the assembled comitia in asking them whether they assented to a law proposed by him,Velitis, jubeatis, Quirites, &c., Is it your pleasure, Quirites, and do you hold it as the divine will, that, and so on. As legislation by the comitia of the curies and centuries was regarded as a divine office, and their vote might be nullified by the fathers on the ground that there had been a defect in the auspicia, and the will of the gods consequently not clearly ascertained, this explanation of Brals seems not without support,vox populi vox del. If it be right, then the main difference between fas and jus was that the will of the gods, which both embodied, was in the one declared by inspired and in the other by merely human agency. -
This jus might be the result either of traditional and inveterate custom (jus moribus constitutum) or of statute (lex).3 As to the customs, it can well be believed that at the outset they were far from uniform; that not only the customs of the three original tribes but those also of the different gentes varied, 2 Nouv. rev. hisl. (1883), p. 605. But see J. Schmidt in Mommsen, Staatsreckt, iii. 310 n.
1 For the distinction between jus and lex, see Mitteis, Romisches Privatrecht (1908), i. 30 seq. There is some controversy about the etymology of the word lex. See l3rbal, l.c. p. 6f 0; Schmidt in Mommsen, S.R. iii. 308 n. While lex is often used like ,jus to express law generally, it early acquired two distinct meanings, viz. (i) an obligation of any kind expressly incorporated in a private deed (lex privata), as in the phrases lex mancipif, lex contractus, &c.; (2) a comitial enactment, hence occasionally called lex publica (Gaius, i. 3 and ii. 104). But by the Jurists of the Republic this latter meaning was extended so as to cover all laws resulting from the will of the people, including, for example, plebiscites and even senatorial or proconsular ordinances (leges data.,).
and that they only gradually approximated, and in course of time consolidated into a general jus Quirilium. Of legislation there was, so far as is known, practically almost nothing What went by the name of boni mores (as distinct from jus moribus constitutum) must also be regarded as one of the regulatives of public and private order Part of what B fell within their sphere might also be expressly mes. regulated by jas or jus; but there was much that was only gradually brought within the domain of these last, and even down to the end of the Republic not a little that remained solely under the guardianship of the family tribunal or the censors regimen morum. The functions of those who took charge of boni mores were twofold: sometimes they restrained by publicly condemningthough they could not preventthe ruthless and unnecessary exercise of legal right, as, for example, that of the head of the house over his dependants, and sometimes they supplied deficiencies in the law by requiring observance of duties that could not be enforced by any legal process. Dutiful service, respect and obedience from inferiors to superiors, chastity, and fidelity to engagements, express or implied (Jides), were among the o,fficia that were thus inculcated, and whose neglect or contravention not only affected the reputation, but often entailed punishments and disabilities, social, political or religious. It was the duty of those in arthority to enforce their observance by such animadversio as they thought properthe paterfamilias in his family, the gens among its members, the king in relation to the citizens generally; and many a wrong was prevented not by fear of having to make reparation to the party injured but by the dread of the penalties that would follow conduct unbecoming an upright citizen.
That the bulk of the law during the regal period was customary is universally admitted, and that no laws were committed to writing prior to the XII. Tables is generally believed. Yet the jurist Pomponius, a contemporary of Hadrian, speaks of certain laws enacted by the comitia of the curies, which he calls leges regiae and which, he says, were collected by one Sextus Papirius, a prominent citizen in the reign of Tarquinius Superbus, under the name of Jus Papirianum.4 We are also told by Paul that this work was commented on by a certain Granius Flaccus,5 who was, it is supposed, of the time of Julius Caesar or Augustus. No remains of this Jus Papirianum are extant, but we have a considerable number of so-called leges regiae cited by Livy, Dionysius and others, which contain rules of the private law relating..almost entirely to matters of fas and which appear to have been enacted under the kings We are also told by Servius, the commentator on Virgil, that there was a work known to Virgil called de Ritu Sacrorum, in which leges regiae were collected.6 The authenticity of these laws, however, is disputed, and the question is one of difficulty. Some modern writers of high authority (e.g. Mommsen hold that the Jus Papirianum is an apocryphal compilation made from pontifical records about the close of the Republic.1 It has even been attributed (the suggestion was first made apparently by Gibbon) to Granius Flaccus himself. Nevertheless, the internal evidence from the character and language of the laws themselves (apart from the weight that must be given to the testimony of Pomponius, Servius and other ancient writers) is favorable to their great antiquity, and it is best to accept the view that the leges regiae are authentic remains of laws of the regal period. This does not, however, involve the belief that they were collected by Papirius, nor that they were enactments of the comitia curiata, as Pomponius says. They seem rather to have been regulations made by the king at his own hand.
Dig. i. 2.2, 2 and 36. In the latter passage Papirius is given the praenomen Publius.
i Dig. 1. i6, 144.
6 Serv., in Aeneid, 12, 836, cited in Bruns, Fontes, p. 3.
1 It has been suggested that a work of the jurist Manilius mentioned by Pomponius (Dig. i. 2.2, 39) is its source (Zeitsehrift d.
Say. Stilt. Xxiv. 420~
or perhaps old-established customs formulated by the higher pontiffs and ascribed to the kings.i It is also stated by Dionysius that under Servius Tullius various laws, fifty in number, dealing with contracts and delicts, were enacted in the comitia of the curies.2 But we have no corroboration of this, and recent writers are now generally agreed in regarding the statement as a legend.
ii. Reforms of Servius Tullius.
It is generally agreed that towards the end of the regal period, and connected with the king traditionally called Servius Tullius, a great reform of the constitution took place, which exercised much influence on the subsequent development of the law. No doubt there is a good deal of myth attached to the name of Servius, who seems to have been regarded by later Romans as a popular monarch, like Alfred by the English, but the main features of the traditional account of the constitutional reforms of this period may be taken as based on fair presumptive evidence. That all of them indeed were evolved from one brain is hardly credible, and that some of them were in observance de facto before being made constitutionally binding is very likely.
The design attributed to Servius was that of altering the old constitution in order to promote an advance towards equality between patricians and plebeians. He is credited with having desired, on the one hand, to ameliorate the position of the plebs and, on the other, to make them bear a proportionate share of the burdens of the statein particular, to serve in the army and contribute to the war tax (tribulum). He effected this by giving them qualified rights of citizenship, not indeed by admitting them into the gentile organizations, but by creating a new political assembly of a distinctly military character in which they as well as the gentiles could take part. The so-called Servian reforms may be roughly summarized under the following four heads, viz. (1) a division of the Roman territory within the city walls into four local wards called tribus (to which a number of tribes outside the cit ytribus rusticaewere afterwards in course of time added); (2) the establishment of a register of the citizens (census) which was to contain, in addition to a record of the strength of their families, a statement of the value of their lands, with the slaves and cattle employed in their cultivation, and which was to be revised periodically; (3) a division of the people, as appearing in the census, into five classes for military purposes, determined by the value of their holdings in land and its appurtenances, with a subdivision of each class into so-called centuriae; (4) the creation of a new assembly with legislative power called comitia centuriala, in which the vote was to be takeii by centuriae. While it may be an open question how far these reforms, and particularly the institution of the centuriate comitia, were actually due to Servius, or only a result of his arrangements, the whole conception of the new constitution is obviously of early date and indicative of considerable statesmanship.
The plebeians were thereby made constitutionally part of the populus Romanus; they became citizens (Quirites).1 They got commercium and also connubium so far that their marriages jilter Se were recognized as legal marriages. Rights and duties See Clark, Hist. of Roof. Law (1906), i. 1619; Kipp, Geschichte d. Quellen (1903), pp. 2425. The most comprehensive treatise on these royal laws, which also contains references to the earlier literature, is that of Voigt, Uber die Leges Regiae (Leipzig, 1876). An exhaustive collection of them, including numerous references to royal institutions by Livy, Dionysius and others, is given in Bruns, Fontes Juris, 6th ed. i. I seq. Another collection is in Girard, Textes, 3rd ed. pp. 3 seq.
2 Dion. iv. 10, 13.
The view of some recent writers that the plebeians had at all times participated in the jus Quiritium and were admitted to the curiate comitia and even had gentile rights (see Lend in Holtzendorifs F.neykloi5die d. Rechtswissenschaft, 6th ed. i. 90 nfl. I, 2, and authorities there cited), must be decidedly negatived. Not only does it render the whole tradition about the Servian reforms untrustworthy, but the accounts of the struggles between patricians and plebs in the early Republic are left largely without meaning were so far to be measured by each citizens position as a holder of lands; the amount of land (including slaves and cattle appurtenant thereto)4 held by him on quiritarian title was to determine the nature of the military service he was to render, the tribute he was to pay, and his right to take part in the new political assembly. It is indeed probable that a good while before Servius the conception. of individual ownership of lands and things necessary for their cultivation had been reached, and that such ownership was recognized not only among the gentiles, but also de facto even more largely among the plebeians. The common lands of the gentes had become split up, to a considerable extent, among families and individuals. However this be, the creation of the census ensured, as far as possible, certainty of title, as it was declared that no transfers of property enrolled in it would be recognized unless made by public conveyance with observance of certain prescribed formalities.5 The form of conveyance thus legally sanctioned was called originally mancupium, afterwards mancipium, and at a still later period mancipatio, while the lands and other things that were to pass by it came to be known as res mancipii (or mancipi). Hence arose a distinction of great importance in the law of property (which lasted till Jdstinian formally abolished it), between res mancipi and res nec mancipi; the former being transferable only by mancipation or surrender in court, the latter by simple delivery (see infra, p. 541).
iii. Institutions of the Private Law.
Law of the Family.6The word familia in Roman law had at once a more extensive and a more limited meaning than it has in its English form. Husband, wife and The children did not necessarily constitute an independ- patrician eat family among the Romans, as with us, nor were familY.
they all necessarily of the same one. Those formed a family who were all subject to the poweroriginally manus,1 later potestas or jusof the same head (paterfamilias). The paterfamilias was himself a member of the family only in the sense in which a king is a member of the community over which he rules. He might have a whole host dependent on him, wife and sons and daughters, and daughters-in-law and grandchildren by his sons, and possibly remoter descendants related through males; so long as they remained subject to him they constituted but one family, that was split up only on his death or loss of citizenship. But if his wife had not passed in manum (a result apparently unknown among the patricians at this period), she did not become a member of hi~ family: she remained a member of the family in which she was born, or, if its head were deceased or she had been emancipated, she constituted a family in her own person. Both sons and Modern writers are not agreed as to whether movable ref mancipi were included with lands in the valuation of property for fixing the classes.
i Or else by cessio in jure, though this may not have been before the XII. Tables, and it was in any case of very limited operation.
6 On tribal family and matriarchate among the Romans in prehistoric times, consult Westermarck, History of Human Marriage (London, 1891); Post, Grundriss der ethnologischen Jurisprudenz. (1894) i. 15160. Familia and family are used in this section solely to designate the group of free persons subject by birth, marriage or adoption to the same paterf amities. Strictly the word familia meant the household and all belonging to it. It had also the following principal meanings: (1) a gens or branch of a gens (group of families in the stricter sense); (2) the whole body of agnatic kinsmen (famitia communi jure); (l) the family estate or patrimonium, as in the provisions of the XII. Tables about intestate succession, e.g. adgnatus proximus familiam ha beta (4) the family slaves collectively, as in the phrase familia rustica. See Mommsen, Staatsr. iii. 10 fl. 16 a. 22; Rivier, Prcis du droit defamille romain (Paris, 1891), I.
This word menus, though in progress of time used technically to express the power (hand) of a husband over his wife in familia, was originally the generic term for all the rights exercised, not only over the things belonging but also over the persons subject to the head of the houseas seen, for example, in the words manumission and emancipation. Cf. Inst. i. 5 pr. It should be observed that among uncivilized peoples there is always a very small vocabulary, and the same word often has to do duty in several sensese.g. familia, mancipium, nexum, cc put.
daughters on emancipation ceased to be of the family of the paterfamilias who had emancipated them. A daughters children could never as such be members of the family of their maternal grandfather; for children born in lawful marriage followed the family of their father, while those who were illegitimate ranked from the moment of birth as patresfamilias and inatresfamilias.
With the early Romans, as with the Hindus and the Greeks, marriage was a religious duty a man owed alike to his ancestors Marilage. and to himself. Believing that the happiness of the dead in another world depended on their proper burial and on the periodical renewal by their descendants of prayers and feasts and offerings for the repose of their souls, it was incumbent upon him above all things to perpetuate his race and his family cult. The Romans were always strictly monogamous. In taking to himself a wife, he was about to detach her from her fathers house and make her a partner of his family mysteries. With the patrician at least this was to be done only with divine approval, ascertained by auspicia. His choice was limited to a woman with whom he had connubium (~irt-yauLa) or right of intermarriage. This was a matter of state arrangement; and in the regal period Roman citizens could have it outside their own bounds only with members of states with which they were in alliance, and with which they were connected by the bond of common religious observances. A patrician citizen, therefore, if his marriage was to be reckoned lawful (justae nuptiae), had to wed either a fellow-patrician or a woman who was a member of an allied community. In either case it was essential that she should be outside his sobrinal circle, i.e. more remote in kinship than the sixth degree. The ceremony was a religious one, conducted by the chief pontiff~ and the flamen of Jupiter, in presence of ten witnesses, representatives probably of the ten curies of the bridegrooms tribe, and was known as farreum or confarreatio. Its effect was to dissociate the wife entirely from her fathers house, and to make her a member of her husbands; for confarreate marriage involved in manum conventio, the passage of the wife into her husbands hand or power, provided he was himself paterfamilias; if he was not, then, though nominally in his hand, she was really subject like him to his family head. Any property she had of her ownwhich was possible only if she had been independent before marriagepassed to him as a matter of course; if she had none, her paterfamilias usually provided her a dowry (dos), which shared the same fate. In fact, so far as her patrimonial interests were concerned, she was in much the same position as her children; and on her husbands death she had a share with them in his inheritance as if she had been one of his daughters. In other respects manus conferred more limited rights than patria potestas; for Romulus is said to have ordained that, if a man put away his wife except for adultery or one or two other grave offences, he forfeited his estate half to her and half to Ceres, while if he sold her he was to be given over to the infernal gods.i Patria potestas was the name given to the power exercised by a father, or by his paterfamilias if he was himself in potestate, over the issue of such justae snptiae. The Roman poStes~~as. jurists boasted that it was a right enjoyed by none but Roman citizens; and it certainly was peculiar to them in this sense, that nowhere else, except perhaps among the Latin race from which they had sprung, did the paternal power attain such an intensity. The omnipotence of the paterfamilias and the condition of utter subjection to him of his children in potestate became greatly modified in the course of centuries; but originally the children, though in public life on an equality with the house-father, in private life, and so long as the poteslas lasted, were subordinated to him to such an extent as, according to the letter of the law, to be in his hands little better than his slaves. They could have nothing of their own: all they earned was his; and, though it was quite common when they grew up for him to give them peculia, cattle of their own, to manage for their own benefit, these were only defacto theirs, but de jure his. For offences committed by them outside the family circle, for which he was not prepared to make amends, he had to surrender them to the injured party, just like slaves or animals that had done mischief. If his right to them was disputed, he used the same action for its vindication that he employed for asserting his ownership of his field or his house: if they were stolen, he proceeded against the thief by an ordinary action. of theft; if for any reason he had to transfer them to a third party, it was by the same form of conveyance that he used for the transfer of things inanimate. Nor was this all; for, according to the old formula recited in that sort of adoption. known as adrogation, he had over them the power of life and death, jus vitae necisque.
It might happen that a marriage was fruitless, or that a man saw all his sons go to the grave before him, and that the paterfamilias had thus to face the prospect of the Ad~gaextinction. of his family and of his own descent to tion and the tomb without posterity to make him blessed. To adoption. obviate so dire a misfortune, he resorted to the practice of adoption, so common in India and Greece. If it was a paterfamilias that he adopted, the process was called adrogation (adrogatio); if it was a filiusfamilias it was simply adoptio. The latter, unknown probably in the earlier regal period, was, as we first know it, a somewhat complicated conveyance of a son by his natural parent to his adopter, the purpose of course being expressed; its effect was simply to transfer the child from the one family to the other. But the former was much more serious, for it involved the extinction of one family that another might be perpetuated. It was therefore an affair of state. It had to be approved by the pontiffs, who probably had to satisfy themselves that there were relatives of the adrogatee to attend to the manes of the ancestors whose cult he was renouncing; and on their favorable report it had to be sanctioned by a vote of the curies, as it involved the deprivation of his gens of their possible right of succession to him and possible prejudice to creditors through capitis deminutio. If it was sanctioned, then the ad rogat us, from being himself the head of a house, sank to the position of a filiusfamilias in the house of his adopting parent; if he had had wife or children subject to him, they passed with him into his new family, and so did everything that belonged to him and that was capable of transmission from one person to another. The adopting parent acquired potestas over the adopted child exactly as if he were the issue of his body; while the latter enjoyed in his new family the same rights exactly that he would have had if he had been born in it.
The inanus and the patria potestas represent the masterful aspects of the patricians domestic establishment. Its conjugal. and parental ones, however, though not so prominent in the pages of the jurists, are not to be lost sight of. The patrician family in the early history of the law was governed as much by fas as by jus. The husband was priest in the family, but wife and children alike assisted in its prayers, and took part in the sacrifices to its lares and, penates. As the Greek called his wife the house-mistress, ~th7roLza, so did the Roman speak of his as materfamilias,1 the house-mother. She was treated as her husbands equal. As for their children, the potestas was so tempered by the natural sense of parental duty on the one side and filial affection on the other that in daily life it was rarely felt as a grievance; while the risk of an arbitrary exercise of the domestic jurisdiction, whether in the heat of passion or under the impulse of justifiable resentment, was guarded against by the rule which required in grave cases the paterfamilias to consult in the first place the near kinsmen of his cl~,ild, maternal as well as paternal. Even the incapacity of the children of the family to acquire property of their own cannot in those times have been regarded as any serious hardship; for, though the legal title to all their acquisitions was in the housefather during his life, yet in truth they were acquired for and belonged to the family as a whole, and he was little more than a trustee to hold and administer them for the common benefit.
The patria potestas, unless the paterfamilias voluntarily put an end to it, lasted as long as he lived and retained his status. The marriage of a son, unlike that of a daughter passing into the hand of a husband, did not release him from it, nor did his children become subject to him so long as he himself was in potest ate. On the contrary, his wife passed on marriage into the power of her father-in-law, and their children as they were born fell under that of their paternal grandfather; and the latter was entitled to exercise over his daughters-in-law and grandchildren the same rights that he had over his sons and unmarried daughters. But there was this difference, that, when the pater-familias died, his sons and daughters who had remained in potestate and his grandchildren by a predeceased son instantly became their own masters (sui juris), whereas grandchildren by a surviving son simply passed from the potestas of their grandfather into that of their father.
The acquisition of domestic independence by the death of the family head frequently involved the substitution of the Ouard- guardianship of tutors (tatela) for the po~estas that !anship had come to an end. This was so invariably of tutors. in the case of females sui juris, no matter what their age: they remained under guardianship until they had passed by marriage in manum mariti. It was only during pupillarity, however, that males required tutors, and their office came to an end when puberty was attained. It is improbable that during the regal period a testamentary appointment of tutors by a husband or parent to wife or children was known in practice. In the absence of it the office devolved upon the gens to which the deceased paterfamilias belonged.
Family Organization among the Plebeians.If perfect identity of customs cannot be assumed to have existed amongst the patrician gentes in the regal period of Rome, far less can it be supposed to have existed amongst the heterogeneous population (Latins, Etruscans, Greeks, &c.)
of which the plebs was constituted. Nevertheless, contiguity of residence and community of interests tend inevitably to unify customs and cause dissimilarities to disappear, and the plebeians must have not only gradually brought their own customs into unison inter se, but adapted them at the same time in many respects to those of the patricians. Even to those of non-Latin race manus over their wives and potestas over their children would become a desideratum. Though the plebeians seem to have been always excluded from confarreation, and their matrimonial unions must have been at first informal and irregular from the point of view of the Quirites, two civil modes of acquiring marital manus were available to them after they obtained citizenship, viz. coemptio and usus. Some writers hold that neither of these modes was legally recognized prior to the XII. Tables.1 This may be so, but it is improbable. As the pleheians obtained by the Servian constitution full capacity for quiritarian ownership, it was at once open to them to adapt the modes sanctioned for acquiring property to the acquisition of marital manus. Coemptio was just a simple adaptation of mancipation above referred to (see also infra, p. 540). It was, as we may infer from what we know of it at a later time, a sale of the woman to the man per aes et libram for a nominal price. The price being fictitious, a piece of copper (raudusculum) was used to represent it, and this was handed over to the seller, who would ordinarily be the womans paterfamilias, or, if she were sui juris, her gentile tutor. The nuncupatory words used in the ceremony have unfortunately not been preserved; necessarily, of course, they varied from those of an ordinary mancipation of property.2 Though called by the jurists a mode of constituting marriage, coemptio, as we know it, was strictly a mode of creating manus; for, though usually contemporaneous with, it might, as Gaius informs us, follow the marriage at any distance of time, and was not dissolved by divorce, but required a separate act of remancipation. Students of comparative law have observed that in coemptio there are clear traces of earlier bride purchase, so common even nowadays among uncivilized tribes, where a real price in cattle or sheep, and not a mere nominal one, has to be paid for the b:ide. Usus, on the other hand, was a mode of acquiring marital manus by possession of the woman as wife for a certain period of timelong cohabitation.3 Whether this was recognized by the law prior to the XII. Tables depends probably upon whether usucaption, as. a mode of acquiring property, was settled by custom earlier than the Tables. Some writers, however, think it older than coemptio, and as a de facto relation prolonged cohabitation as man and wife must have existed from very early times. Comparative historians with good reason trace in usus the relics of primitive bride capture. Both coemption and usus, from the time they were first recognized by the jus Quiritium, undoubtedly created patria potestas and agnatic rights.
Law of Pro perty.4The history of the early Roman community, like many other primitive communities, is marked by the disintegration of the gentes and the growth of individual property. Yet the distribution of land in land. amongst the early Romans is one of the puzzling Patriproblems of their history. The Sexvian constitution ciai,s. apparently classified the citizens and determined their privileges, duties and burdens according to the extent of their lands; and yet we know nothing for certain of the way in which these were acquired. All is conjectural. We have indeed a traditional account of a partition by Romulus of the little territory of his original settlement into three parts, one of which was devoted to the maintenance of the state and its institutions, civil and religious, the second (ager publicus) to the use of the citizens and profit of the state, and the third (ager privatus) subdivided among his followers. Varro and Pliny relate that to each paterfarnilias among his followers he assigned a homestead (heredium) of two jugera, equal to about an acre and a quarter. These heredia were to be held by him and his heirs for ever (quae heredem sequerentur); Pliny adding that to none did the king give more. This can only be accepted as a partially correct account of what may have taken place at some early period during the kingly rgime. There can be little doubt that a portion of the Roman territory, gradually augmented through new conquests, was early reserved by the state as ager publicus; that is sufficiently attested by the complaints made for centuries by the plebeians of its monopolization by the patricians. It is also probable that heredia (i.e. plots of land within the city) may have been granted to the heads of the gentile families, many of whom would be living in pagi on their respective gentile lands outside the city. Such heredia became family property, administered, as such by the paterfamilias, but inalienable by him. In this respect the position would be very similar to what existed among the an.cient Germans and exists to-day in India among the Hindus. Even late in the Republic, when the idea of It would thus ctire defects in a coemption just as usucaption did defects in mancipation.
See Giraud, Recherches sur le droit de pro priit chez les Romains (Aix, 1838); Mace, Histoire de la propriite &c., chez les Romains (Paris, 1851); Hildebrand, De antiquissimae agri Romani distributionis fide (Jena, 1862); Cuq, Instit. jurid., 2nd ed., vol. i. pp. 72 seq.; Beaudouin, La Limitation desfondsde terre (1894), pp. 259 seq.
individual ownership was paramount, it was still considered a disgrace for a man to alienate his heredium. But though the existence of monogamous families seems to imply private ownership to some extent, yet, as formerly indicated, a large part of the Roman territory at, and for a good while after, the foundation of the city must have been gentile lands held by the separate clans for the use of their members. 1~he fact that the majority of the rural tribes bore the names of wellknown patrician gentes favors the conclusion that even in the later regal period a good many of the clans still held lands in their collective capacity. It was at some uncertain time before Servius that there began to be a break-up of these gentile lands and their appropriation by individual members. Under the influence of this movement lands were acquired and held by families and individuals to a large extent. A patricians holding must have been sometimes pretty large so as to enable him to make grants (so often alluded to by ancient writers) to his clients, but we have no means of estimating the normal size. The heredia were small; even during the Republic there is some evidence (e.g. the traditional story about Cincinnatus) that seven jugera were regarded as the normal extent of a patricians holding for his own and his familys use. On the other hand, twenty jugera are commonly supposed to have been the qualification for enrolment in the first of the Servian classes. Of course it must be kept in view that a patrician did not necessarily hold all his lands by gratuitous assignation or concession either from the state or from his gens; purchase from the former was by no means uncommon, and it may have been on his purchased lands that his clients were usually placed. Those dependants were also probably employed in large numbers upon those parts of the ager publicus which were occupied by the patricians and were in historic times known as possessiones. These, of course, were not the property of their occupants; it was the lands acquired by assignation or purchase that were alone, apart from the heredia, regarded as theirs exjure Quiritium.
The traditional accounts of the early distribution of lands among the plebeians are even, if possible, more vague than those property regarding the patricians. They had apparently become In land holders de facto of land in large numbers before the among Servian reforms. But they can have attained that plebelan& position only by gradual stages. While their earliest grants of land, probably from the kings, can only have been during pleasure, latterly, as they increased in number and importance, they were allowed to have permanent possession. That those who had means also acquired lands by purchase from the state may be taken for granted. The distinction between de facto possession and ownership was at best a very vague one at this period, and, like the holders of provincial lands in later times, the plebeians might have the benefits of ownership without ownership. The result of the Servian constitution was to convert this de facto property or permanent possession into quiritarian ownership.1
There are some writers who maintain that in the regal period, prior to the Servian reforms, though after the collective ownerProperty ship of the gentes had begun to disintegrate, there in mov- was no private property in movables. This proposiableL tion can at most be accepted only in a qualified sense. If it be meant that movables generally were not then recognized as objects of quiritarian dominium which could be vindicated by any real action, it may be admitted. But otherwise the distinction between meum and tuum must have been well recognized, de facto at least. Men must have been in the habit of transferring things from one to another by simple delivery in respect of barter, sale or otherwise, and any violent or theftuous appropriation of things in a mans occupation would be punished by magisterial authority or by ordinary sell-redress by the injured party. A sort of ownership in possession must at least have been recognized for movables generally.2
But apart from this, we must believe that certaiIi kinds of movables, viz, those which have been described as appurtenant to land and necessary for its cultivationwhich with land formed the real objects, as distinct from the personal subjects, of the familiawere treated from the time of Romulus downwards, as in manu of the patresfamilias. These were the res mancipi already referred to. Quiritarian ownership in them, as we have seen, was recognized both for patricians and plebs by the Servian constitution, periodical registration of them in the census and transference by the quasi-public act of mancipation being probably required. Earlier even than with lands, the conception of private ownership, it has been said, connected itself with them.3
A short explanation may now be given of the ceremony of mancipation and the nature of res mancipi.
Mancipation is described by Gaius, with particular reference to the conveyance of movable res mancipi, as a pretended sale in presence of not less than five citizens as witnesses and a libri pens holding a pair of copper scales. The transferee, Manalpawith one hand on the thing being transferred, and using ~
certain words of style, declared it his by purchase with a piece of copper (which he held in his other hand) and the scales (hoc aere aeneaque libra); and simultaneously he struck the scales with the as, which he then handed to the transferrer as figurative of the price. The principal variation when it was an immovable that was being transferred was that the mancipation did not require to be on the spot: the land was simply described by its known name in the valuation roll. Although in the time of Gaius only a fictitious salein fact the formal conveyance upon a relative contractyet it was not always so. Its history is very simple. The use of the scales fixes its introduction at a time when coined money was not yet current, but raw copper nevertheless had become a standard of value and in a manner a medium of exchange. That, however, was not in the first days of Rome. Then, and for a long time, values were estimated in cattle or sheep, fines were imposed in them, and the deposits in the legis actio sacramento (infra, p. 549) took the same form. The use of copper, as a substitute for them in private transactions was probably derived from Etruria. But, being only raw metal or foreign coins, it could be made available for loans or payments only when weighed in the scales: it passed by weight, not by tale. There is no reason for supposing that the weighing was a solemnity, that it had any significance beyond its obvious purpose of enabling parties to ascertain that a vendor or borrower was getting the amount of copper for which he had bargained.
It was this practice of everyday life in private transactions that Servius apparently adopted as the basis of his mancipatory conveyance, engrafting on it one or two new features intended to give it publicity and, as it were, state sanction, and thus render it more serviceable in the transfer of censuable property. Instead of the parties themselves using the scales, an impartial balance-holder, probably an official, was required to undertake the duty, and at least five citizens were required to attend as witnesses, who were to be the vouchers to the census officials of the regularity of the procedure. Whether they were intended as representatives of the five classes in which Servius had distributed the population, and thus virtually of the state, is disputed, though the fact that, when the parties appealed to them for their testimony, they were addressed not as testes but as Quirites lends some color to this view.4 Servius is also credited with the introduction of rectangular pieces of copper of different but carefully adjusted weights, stamped by his authority with various devices (aes signatum), which are i Mancipation seems to have been a very ancient mode of conveyance. The use of the balance in barter or sale was known to the ancient Egyptians at least as early as 2000 B.C., as may be seen on reliefs in the temple of Dehr-el-Bahri in Upper Egypt. The derivation of mancipium (mancipatio) from manu capere, to seize with the hand, is given by Gaius and is confirmed by the fact that at all times in its history the acquirer had to lay his hand on the thing being acquired, during the ceremony, if a movable. So where several things were being mancipated in a lot, this had to be done to each separately. With lands and other immovables it was different: they might be mancipated in absence, which goes some way to prove that mancipation must have been extended to them at a later period. The derivation of mancipatso given by Muirhead (Historical Introduction, 2nd ed., pp. 59 seq.) from manum capere, i.e. to acquire power (manus), is open to the objection that it places the abstract idea of power before the concrete symbol of it. Cf. Cuq, Institutions juridiques, 2nd ed., i. p. 80 n. See Gai. ii. 104.
usually supposed to have been. intended to take the place of the raw metal (ass rude) formerly in use, and so facilitate the process of weighing; but there is more reason for thinking they were cast and stamped as standards to be put into one scale, while the raw metal whose weight was to be ascertained was put into the other.
Instead, therefore, of being a fictitious sale, as Gaius describes It, and as it became after the introduction of coined money in the 4th century of the city, the mancipation, as regulated by Servius, was an actual completed sale in the strictest sense of the term. What were the precise words of style addressed by the transferee to the transferrer, or what exactly the form of the ceremonial, we know not. But, as attendance during all the time that some thousands of pounds, perhaps of copper, were being weighed would have been an intolerable burden upon the five citizens convoked to discharge a public duty, it may be surmised that it early became a common practice to have the price weighed beforehand, and then to reweigh, or pretend to reweigh, before the witnesses only a single little bit of metal (raudusculum), which the transferee then handed to the transferrer as the first pound and the last, and thus representative of the whole.i And where no real price was intended, as in constituting a dos or in coemption, a raudusculum would also be employed. Whatever may have been. its form, however, its effect was instant exchange of property against a price weighed in the scales. The resulting obligation on the vendor to maintain the title of the vendee, and the qualifications that might be superinduced on the conveyance by agreement of parties the so-called leges mancipiiwill be considered below in connection with the provisions of the XII. Tables on the subject (infra, p. 542).
The things included in the class of res mancipi were lands and houses held on Quiritarian title, together with rights of way and aqueduct, slaves, and the following domestic beasts of draught or burden, viz. oxen, horses, mules and donkeys; all others were res nec mancipi. Many theories have been propounded Rmeasnc,p, to account for the distinction between these two classes of things, and to explain the principle of selection that admitted oxen and horses into the one, but relegated such animals as sheep and swine to the other. But there is really little difficulty. Under the arrangement of Servius, what was to determine the nature and extent of a citizens political qualifications, military duties and financial burdens was apparently the value of his heredium (and other lands, if he had any), and what may be called its appurtenancesthe slaves that worked for the household, the slaves and beasts of draught and burden that worked the farm, all of which lived and worked in common with the free members of the familia. But the cattle a man depastured on the public meadows were no more res mancipi than his sheep, a fact which, though ultimately in., the later Empire lost sight of, was still understood in the time of Gaius,2 To say that the things classed as res mancipi were selected for that distinction by Servius because they were what were essential to a family engaged in agricultural pursuits would be to fall short of the truth. They constituted the familia in the sense of the family estate proper; whereas the herds and flocks, and everything else belonging to the paterfcfmilia-s, fell under the denomination of pecunia. So the words are to be understood perhaps in the well-known phraseology of the mancipatory testament, familia pecuniaque mea.3 The public solemnity of manci patio thus sanctioned as a mode of transferring a Quiritarian right of property, for which manus was probably as yet the only descriptive word in use, was not long in being adapted to and utilized for other transactions in which other kinds of manus were sought to be acquired. These new adaptations, if confined at first for the most part to plebeians, were also soon made use of by the patricians, perhaps before as well as after the XII. Tables, and became by custom part of the common law. Such were, for example, coemption (as explained above), emancipation and adoption of fihiifamilias, and mortis causa alienation of a familia and nexum.
Law of SuccessionThe legal order of succession during the regal period was extremely simple. It was this. on the death Sgjcces- of a paterfamiias his patrimony devolved upon those slon of his descendants in polestate who by that event amongst became sui juris, his widow (being loco fihiae) taking the patri an equal share with them, and no distinction being ~ made between movables and immovables. Such persons were styled self-heirs (sui heredes). Failing widow and children, The conjecture is suggested by the words of style in the solutio per aes et tibram, Gai. iii. ~ 173, 174. There were some debts from which a man could be effectually discharged only by payment (latterly fictitious) by copper and scales in the presence of a libripens and the usual five witnesses. In the words addressed to the creditor by the debtor making payment these occurredhanc tibi libram primam posiremamque expendo (I weigh out to you this the first and the last pound). The idea is manifestly archaic, and the words, taken strictly, are quite inappropriate to the transaction in the form it had assumed long before the time of Gaius.
~ Gai. ii. i5; Ulpian, Frag. xix. 1.
Gai. ii~ 104~ By the time of the XII. Tables the sharp distinction between these two terms is tending to disappear.
his patrimony went to his gens. The notion that between the descendants and the gens came an intermediate class under the name of agnates does not seem well founded as regards the regal period; the succession of agnates as such seems to have been first legally recognized by the XII. Tables, probably to meet the case of the plebeians, who, having no genies, were without legal heirs in default of children.4
The later jurists more than once refer to the perfect equality of the sexes in the matter of succession in the ancient law.i But it was rather nominal than real. A daughter who had passed into the hand of a husband during her fathers lifetime of course could have no share in the latters inheritance, for she had ceased to be a member of his family. One who was in potesiate at his death, and thereby became sui juris, did become his heir, unless he had prevented such a result by testamentary arrangements; but even then it was in the hands of the gens to prevent risk of prejudice to themselves. For she could not marry, and so carry her fortune into another family, without their consent as ,her guardians; neither could she without their consent alienate any of the more valuable items of it; nor, even with their consent, could she make a testament disposing of it in prospect of death. Her inheritance, therefore, was hers in name only; in reality it was in the hands of her guardians.
Of primogeniture or legal preference of one member of the family over the others there is not the faintest trace. And yet we are told of heredia remaining in a family for many generationsa state of matters that would have been impossible had every death of a paterfamilias necessarily involved a splitting up of the family estate. It is conceivable that this was sometimes prevented by arrangement amongst the heirs themselves; and the practice of every now and then drafting the younger members of families to colonies diminished the number of those who had a claim to participate. But the simplest plan of avoiding the difficulty was for the paterfamilias to regulate his succession by testament; and this was probably had recourse to, not so much for instituting a stranger heir when a man had no issue-according to patrician notions his duty then was to perpetuate his family by adopting a sonas for partitioning the succession when he had more children than one.
There were two sorts of testaments made use of by the patricians of the regal periodthat made in the comitia of the curies (test. calatis comitils) and that made in the presence of the army (probably represented for this Tes purpose by a few comrades) on the eve of battle ~~ (test. in procinctu factum). The first at leastand the second was just a substitute for it on an emergencywas far from being an independent exercise of the testators voluntas. For, though in course of time, and under the sanction of the uti legassit ita jus eslo of the XII. Tables, the curies may have become merely the recipients of the oral declaration by the testator of his last will, in order that they might testify to it after his death, it is impossible not to see in the comitial testament what must originally have been a legislative act, whereby the testators peers, for reasons which they and the presiding pontiffs thought sufficient, sanctioned in the particular case a departure from the ordinary rules of succession. The pontiffs were there to protect the interests of religion, and the curies to protect those of the testators gens; and it is hardly conceivable that a testament could have been sanctioned by them which so far set at nought old traditions as to, deprive a fihiusfamilias of his birthright, at least in favor of a stranger.
It is quite true, however, that from the first the order of succession was agn.atic; for it was those only of a mans children who were agnate that had any claim to his inheritance; and the gens was, theoretically at least, just a body of agnates. The supposed mention of agnates in a law attributed to Numa is a conjecture of P. E. I-Iuschkes (in Analecia litteraria, Leipzig, 1826, p. 375). The law is preserved in narrative by Servius, In Virg. Eclog. iv. 43, which runs thus: In Numae legibus cautum est, ut si quis imprudens occidisset hominem, pro capite occisi et natis ejus in cautione (Scalig., concione) offerret arietem. Huschkes substitution of agnatis for et natis is all but universally adopted; but, even were it necessary, it need mean nothing more than his children in potesiale or his gens.
i The Voconian law of 169 B.C. avowedly introduced something new in prohibiting a man of fortune from instituting a woman, even his only daughter, as his testamentary heir; but even it did not touch the law of intestacy. See Girard, Manuel, 4th ed. p. 8f6.
It may safely be assumed that by custom at all events the children of a plebeian usually took his estate on his death inSucces- testate. But, as he was not a member of a gens, 81013 there was no provision for the devolution of his sucamongst cession on failure of children. The want of them he ~:be,ans could not supply by adrogation, as he had for long, it is thought, no access to the assembly of the curies; and it is doubtful if adoption of a Jiliusf amities was known before the XII. Tables. If therefore, as seems probable, the XII. Tables first introduced the succession of agnates, a plebeian unsurvived by children was necessarily heirless, that is to say, heirless in law. But custom seems to have looked without disfavour on the appropriation of his heredium by an outsider: a brother or other near kinsman would naturally have the earliest opportunity, and, if he maintained his possession of it in the character of heir for a reasonable period, fixed by the XII. Tables at a year, the law dealt with him as heir, and in course of time the pontiffs imposed upon him the duty of maintaining the family sacra. This was probably the origin, and a very innocent and laudable one, of the usucapio pro herede, which Gaius condemns as an infamous institution, and which undoubtedly lost some of its raison dtre once the right of succession of agnates had been introduced.
There is no trace of testamentary succession among the plebs prior to the Servian constitution, nor is it in the least M ,~tt degree likely that there was any such. Primitive causa5 communities are slow to realize the conception of convey- private testaments, and the plebeians could not at ance by this period make a public one either calatis comitiis mancipa- or in procinctu. But not long after their admission to citizenship there is reason to conjecture that mancipation was employed by them, not indeed to make a testament instituting an heir and taking effect only on the testators death, but to make a conveyance of a whole patrimony mortis cause. The transaction took the form of an absolute acquisition, in exchange for a price (usually nominal), of the transferrers familia,1 by a friend, technically called familiae emptor, on trust to distribute, on the transferrers death and according to his instructions, whatever the transferee was not authorized to retain for himself. The transferrer may also have had power to reserve in the mancipation a usufruct of the estate while he lived.1 Like so many other of the transactions of the early law, it was legally unprotected so far as the third parties were concerned whom the transferrer meant to benefit; they could only trust to the fides of the transferee. This mortis causa alienation, whatever the date of its introduction, was the forerunner of the so-called testament per aes et libram, to be afterwards described (infra, p. 543).
Contract and its BreachTo speak of a law of obligations in connection with the regal period, in the sense in which the Contract words were understood in the later jurisprudence, and fts would be a misapplication of language. It would breach, be going too far to say, however, as is sometimes done, that before the time of Servius Rome had no conception of contract; for men must have bought and sold, or at least bartered, from earliest timesmust have rented houses, hired labor, made loans, carried goods and been parties to a variety of other transactions inevitable amongst a people engaged to any extent in pastoral, agricultural or trading pursuits. It is true that a patrician family with a good establishment of clients and slaves had within itself ample machinery for supplying its ordinary wants, and was thus to a great extent independent of outside aid. But there were not many such families. There must therefore have been contracts and some customary rules to regulate them, though these were presumably very imperfect. In many cases, such as those alluded to, one of the parties at least must have trusted to the 2 For a different view cf. Maine, Ancient Law, ed. Pollock, pp.
214 seq.
good faith of the other. What was his guarantee, and what remedy had he for breach of engagement?
His reliance in the first place was on the probity of the party with whom he was dealingon the latters reverence for Fides, and the dread he had of the disapprobation of his fellows should he prove false, and of the penalties, social, religious or pecuniary, that might consequently be imposed on him by his gens in the case of a patrician, by his gild in the case of a craftsman, or by the king in the case of any other plebeian.3 If the party who had to rely on the others good faith was not satisfied with his promise and the grasp of the right hand that was its seal,4 he might require his solemn oath (jusjurandum); and it can hardly be doubted that, whatever may have been the case at a later period, in the time of the earlier kings he who forswore himself was amenable to pontifical discipline. If he preferred a more substantial guarantee, he took something in pledge or pawn from the other contractor; and, though he had no legal title to it, and so could not recover it by judicial process if he lost possession, yet so long as he retained it he had in his own hand a de facto means of enforcing performance. Upon performance he could be forced to return it or suffer a penaltynot by reason of obligation resulting from a contract of pledge, for the law as yet recognized none, but because, in retaining it after the purpose was served for which he had received it, he was committing theft and liable to its punishment. At this stage breach of contract, as such, does not seem to have founded any action for damages or reparation before the tribunals; but it is not improbable that, where actual loss had been sustained, the injured party was permitted to resort immediately to self-redress by seizure of the wrong-doer or his goods. Self-help was according to the spirit of the time not self-defence merely in presence of imminent danger, but active measures for redress of wrongs already completed.
There was one contract, however, notorious in after years under the name of nexum, that must have received legal sanction soon after the Servian reforms, though probably, like mancipa- Contract tion of property itself, known in practice earlier. In the per XII. Tables it is apparently referred to as an existing aes et institution. In its normal character it was a loan of money, flbram~~ or rather of the raw copper that as yet was all that stood for money. How far in its original use it was accompanied by any formalities beyond the weighing of it in a pair of scales (which was rather substance than form) we know not; and what right it conferred on the creditor over his debtor who failed to repay can be only matter of speculation. Apparently the result of the Servian reforms was the regulating and ensuring the publicity of the contract and making the creditors right of self-redress by apprehension (manus injectio) and imprisonment, &c., of his debtor conditional on the observance of the prescribed formalities of the nexum. The character and effects, however, of this the earliest independent contract of the jus civile, are much disputed and will be explained below on p. 545 seq.
Public and Private O,ffences and their Punishment.For anything like a clear line of demarcation between crimes and civil injuries we look in vain in regal Rome. Offences Offences against the state itself, such as trafficking and their with an enemy for its overthrow (proditio) or treason- punishable practices at home (perduellio) were matter of ment.
state prosecution and punishment from the first. But in the case of those that primarily affected an individual or his estate there was a halting between, and to some extent a confusion of, the three systems of private vengeance, sacral Such as debarment from gentile or gild privileges, exclusion from right of burial in the gentile or gild sepulchre, fines in the form of cattle and sheep, &c.
Some of the old writers (e.g. Liv. i. 21, 4, xxiii. 9, 3; Pun. H.N. xi. 45; Serv. in Aen. iii. 687) say that the seat of Fides was in the right hand, and that to give it (proniittere dextramis this the origin of the word promise ,?) in making an engagement was emphatically a pledge of faith. See a variety of texts illustrating the significance of the practice, and testifying to the regard paid to Fides before foreign influences and example had begun to corrupt mens probity and trustworthiness, in Lasaulx, Ueber d. Ezd bei d. Rmern (Wurzburg, 1844), p. 5 seq.; Danz, Der sacrale Schulz im rOm. Rechtsverkehr (Jena, i857), pp. 139, 140. Cf. Pernice, Labeo, vol. ii. (2nd ed., Halle), p. 459 seq.
atonement and public or private penalty.1 These may be said to have followed in sequence but overlapped each other. The same sequence is observable in the history of the laws of other nations, the later system gradually gaining ground upon the earlier and eventually superseding it.i The remarkable thing in Rome is that private vengeance should so long not only have left its traces but continued to be an active power. According to tradition it was an admitted right of the gens or kinsmen of a murdered man in the days of Numa; a law of his is said to have provided that, where a homicide was due to misadventure, the offering to them of a ram should stay their hands (supra, p. 533). And this seems to have been also prescribed in the XII. Tables (VIII., 24). To avenge the death of a kinsman was more than a right: it was a religious duty, for his manes had to be appeased; and so strongly was this idea entertained that, even long after the state had interfered and made murder a matter of public prosecution, a kinsman was so imperatively bound to set it in motion that if he failed he was not permitted to take anything of the inheritance of the deceased. The talion we read of in the XII. Tables is also redolent of the vindicta privata, although practically it had become no more than a means of enforcing reparation. And even the nexal creditors imprisonment of his defaulting debtor (infra, p. 551), which was not abolished until the 5th century of the city, may not unfittingly, in view of the cruelties that too often attended it, be said to have savoured more of private vengeance than either punishment or procedure in reparation.
Expiatio, supplicium, sacratio capilis, all suggest offences against the gods rather than against either an individual or the state. But it is difficult to draw the line between different classes of offences, and predicate of one that it was a sin, of another that it was a crime and of a third that it was but civil injury. They ran into each other in a way that is somewhat perplexing. Apparently the majority of those specially mentioned in the so-called leges regiae and other records of the regal period were regarded as violations of divine law, and the punishments appropriate to them determined upon that footing. Yet in many of them the prosecution was left to the state or to private individuals. It is not clear, indeed, that there was any machinery for public prosecution except in treason and murder the former because it was essentially a state offence, the latter because it was comparatively early deemed expedient to repress the blood-feud, which was apt to lead to deplorable results when clansmen and neighbors appeared to defend the alleged assassin.
Take some of those offences whose sanction was sacratio capitis. Breach of duty resulting from the fiduciary relation between patron and client, maltreatment of a parent by his child, exposure or killing of a child by its father contrary to the Romulian rules, the ploughing up or removal of a boundary stone, the slaughter of a plough-ox all these were capital offences; the offender, by the formula sacer eslo, was devoted to the infernal gods. Festus says that, although the rules of divine law did not allow that he should be offered as a sacrifice to the deity he had especially offended (nec fas est eum immolari), yet he was so utterly beyond the pale of the law and its protection that any one might kill him with impunity. But, as the sacraiio was usually coupled with forfeiture of the offenders estate or part of it to religious uses, it is probable that steps were taken to have the outlawry or excommunication judicially declared, though whether by the pontiffs, the king or the curies does not appear; such a declaration would, besides, relieve the private avenger of the incensed god of the chance of future question as to whether or not the citizen he had slain was sacer in the eye of the law.
That there must have been other wrongful acts that were regarded in early Rome as deserving of punishment or penalty of some sort, besides those visited with death, sacration or forfeiture of estate, total or partial, cannot be doubted; no community has ever been so happy as to know nothing of thefts, robberies and assaults. The XII. Tables contained numerous provisions in reference to them; but it is extremely probable that, down at least to the time of Servius Tullius, the manner of dealing with them rested on custom, and was in the main self-redress, restrained by the intervention of the king when it appeared to him that the injured party was going beyond the bounds of fair reprisal, and frequently bought See Rein, Das CriminalrechtderRomer (Leipzig, 1844), pp. 24 seq.; Clark, Early Roman Law: Regal Period (London, 1872), pp. 34 seq.; Mommsen, Strafrechi, pp. 6, 36, 900.
2 Probably every offence at first was an act attributable to the whole family or clan, and it was upon them or by them and not upon the individual wrong-doer or by the injured party that vengeance was taken.
off with a composition. When the offence was strictly within the family or the gens, it was for those who exercised jurisdiction over those bodies to judge of the wrong and prescribe and enforce the penalty.
Jurisdiction and Procedure.Of the course of justice, whether in criminal or civil matters, during the regal period we know little that can be relied on. Ancient writers speak of the king as having been generally supreme in both. But this can be cour~e oi accepted only with considerable, reservation. For the paterfamilias, aided by a council in cases of importance, was judge within the familyhis jurisdiction sometimes excluding that of the state, at other times concurring with it, and not to be stayed even by an acquittal pronounced by it. He alone was competent in any charge against a member of the family for a crime or offence against the domestic orderadultery or unchastity of wife or daughter, undutiful behaviour of children or clients, or the like. Death, slavery, banishment, expulsion from the family, onprisonment, chains, stripes, withdrawal of peculium, were all at his command as punishments; and it may readily be assumed that in imposing them he was freer to take account of moral guilt than an outside tribunal. The indications of criminal jurisdiction on ,the part of the gens are slight; but its organization was such that it is difficult not to believe that it must occasionally have been called on to exercise such functions. And it must not be lost sight of that, as murder seems to have been the only crime in regard to which private revenge was absolutely excluded, the judicial office of the kings must have been considerably lightened, public opinion approving and not condemning self-redress so long as it was kept within the limits set by usage and custom.
The boundary between civil and criminal jurisdiction, if it existed at all, was extremely shadowy. Theft and robbery, for example, if one may conclude from the position they held in the later Jurisprudence, were regarded not as public but as private wrongs; and yet when a thief was caught in the act of theft by night he might be slain, and when,by day might be scourged and thereafter sold as a slave. But in both cases it may also be assumed that a practice, afterwards formally sanctioned by the XI!. Tablesthat of the thief compounding for his life or freedomwas early admitted, and the right of self-redress thus made much more beneficial to the party wronged than when nothing was attained but vengeance on the wrongdoer. In assaults, non-manifest thefts, and other minor wrongs, self-interest would in like manner soon lead to the general adoption of the practice of compounding; what was originally a matter of option in time came to be regarded as a right; and with it there would be occasional difficulty in settling the amount of the composition, and consequent necessity of an appeal to a third party. Here seems to be the origin of the kings jurisdiction in matters of this sort. He was the natural person to whom T1,e king to refer such a dispute; for he alone, as supreme magis- as /u~e. trate, had the power to use coercion to prevent the party wronged insisting on his right of self-redress, in face of a tender by the wrongdoer of what had been declared to be sufficient reparation. But that self-redress was not stayed if the reparation found due was withheld; as the party wronged was still entitled at a much later period to wreak his vengeance upon the wrongdoer by apprehending and imprisoning him, it cannot reasonably be doubted that such also was the practice of the regal period.
How far the kings exercised jurisdiction in questions of quiritarian right, such as disputes about property or inheritance, is by no means obvious. Within the family, of course, such questions were impossible, though between clansmen they may have been settled by the gens or its chief. The words of style used in the sacramental real action (infra, p. 548) suggest that there must have been a time when the spear was the arbiter, and when the contending parties, backed possibly by their clansmen or friends, were actual combatants, and victory decided the right. Such a procedure could not long survive the institution of a state. In Rome there seems to have been very early substituted for it what from its general complexion one would infer was a submission of the question of right to the pontiff s as the repositories of legal lore. Their proper functions, however, being sacred, they had to bring what was a question of purely civil right within their jurisdiction, by engrafting on it a sacral element, viz, by requiring each of the parties to make oath to the verity of his contention; and the point that in form they decided was which of the two oaths was false and therefore to be made atonement for. In substance, however, it was a finding on the real question at issue; and the party in whose favor it was pronounced was free to make it effectual if necessary by self-redress in the ordinary way.
Of Servius, Dionysius saysusing, as he often does, language more appropriate to the republican than to the regal periodthat he drew a line of separation between public and private ~
judicial processes, and that, while he retained the former in his own hands, he referred the latter to private judges, i~C flflS. and regulated the procedure to be followed in causes brought before them.3 Something of the sort was absolutely necessary. He was enormously increasing the number of the citizens,that is to say, of those who were to enjoy in future the privileges of quiritarian right, and multiplying the sources of future disputes that would have to be determined by the tribunals. The nature of the jurisdiction created by him, if any, to meet the new aspect Of things is much controverted. He has been credited with the institution of the collegiate courts of the Centumviri and the Decemviri (stlilibus judicandis) ~s well as the private judge (unus judex), but the arguments in support of this view are not strong, and are, of course, based wholly on presumptions. However, it will be convenient to say a few words about each of these courts here.
The centumviral court i is often referred to by Cicero, and the range of its jurisdiction in his time seems to have included every ~ possible question of manus in the old sense of the word status of individuals, property and its easements, and inheritance whether testate or intestate. By the time COU of Gaius the only matters apparently that were in practice brought before it were questions of inheritance by the jus civile, though theoretically it was still competent in all real actions, and the lance, the emblem of quiritarian right generally, was still its ensign. During the later Republic the Centumv-iri formed a quasicorporate body of private judges selected originally from the tribes (afterwards from the ordinary list of judices) annually by the urban praetors.i Some writers identify the centumviral court wish the Romulian senate of 100; others attribute its institution to Servius Tullius and hold that it was a plebeian court at first; others make it contemporaneous with the XII. Tables; others bring it down to the 6th century of the city; while the weight of recent authority is in favor of the view that it is not earlier than the beginning of the 7th century. The arguments in support of these several views cannot be gone into here. It is enough to say that we have no positive proof of its existence earlier than the 7th century, though presumptions are in favor of its having, been somewhat earlier. In the exercise of their office the Centumviri acted more independently than private judices ventured to do, and even introduced some considerable reforms into the law.
There was a court at Rome during the Republic called the Decemriri shill bus judicandis.3 These decemvirs in historic times Decem constituted a quasi-corporate body of judicial magistrates, viral whose duty it was to try certain kinds of actions, especially those relating to personal liberty. During the Principate, while ceasing to act as a separate court, they presided over the divisions into which the centumviral court had been under Augustus divided. Their origin is quite unknown. Pornponius indeed says that they were originally created soon after the institution of the peregrin praetorship in 242 B.C. for this very purpose of presiding over centumviral cases,4 but this statement is generally discredited and, if true, their practice of so presiding must quickly have gone into disuse. Those writers who attempt to trace back the centumvirs to the regal period give, as a rule, a like antiquity to the Decemv-iri shlitibus judicandis. On the other hand, some authorities identify them with the decemoiri judices mentioned by Livy as having been declared by the lex ValeriaHoratia to be as sacrosanct as the tribunes of the plebs. But these latter judices seem to have been a purely plebeian court which early went into desuetude, and there is really no evidence of identity.
So far back as historic evidence goes we find that actions were tried and judgments pronounced by judices and arb-itri. There Judicca never was more than a single judge (unus or unicusjudex)
d appointed to try a case, but there might be more than one arb#rl arbiter, and frequently there were three. All kinds of actions, even a sacramental action in rem, could be brought before the unus judex, but especially appropriate to him were all personal claims of alleged indebtedness, whether arising out of a legal or illegal act, denied either in toto or only as to the amount. Matters of that sort involved as a rule no general principle of law but rather mere disputes as to facts, which could well be decided by a single individual. There is much more reason for crediting Servius with the institution of the single judge (the arbiters may have been a creation of the XII. Tables) than with either of the collegiate courts. If we believe that in the early regal period the king acting with the pontiffs kept all jurisdiction in his own hands, it is plain that this must have become a practical impossibility after the admission of the plebeians to citizenship. For the trial of disputed facts it would be necessary to delegate jurisdiction, and iLiter~ature: Huschke, Servius Tullius, pp. 585 seq.; KellerWach, Rose. civil Process (1883), 6; Bethmann-Hollweg, Geschichte d. C. P. i. 23; Wlassak, Process-Geseize, i. 125 seq. and ii. 201 seq.; Girard, Organisahion judiciaire des Romains, i. 23 n.; Martin, Le tribunal des cenluml~irs (Paris, 1904). In this last-named work a succinct account of the court and the various theories about it is given.
On the question of their election, see Greenidge, Legal Procedure in Ciceros Time, pp. 41 and 264.
Girard, Organisation judiciaire, i. 159; Pauly - Wissowa, Encyklopadie, .r.1. Decemviri.
Dig. i. 2, 29.
Livy, ix. 46, 5~ Karlowa. Rose. R.G. i f~.
the earliest judices may have been the kings commissioners for such cases. If this be right, it was the beginning of a system that bore wondrous fruit in after years, and that, as will be shown in the sequel, helped the praetors to build up, through the formulae, the whole body of equity. -
Under the kings it is not improbable that several of the legis achiones, more or less undeveloped, were already in use, Civil probut the nature of these actions will be more conveni- cedure.
ently considered later on (infra, p. 566).
II. THE Jus CIVILE
(From the establishment of the Republic until the subjugation of central and southern Italy.)
i. Constitutional Events affecting the Law.
Jus Civile contrasted with Jus Quiritium.The term jus civile, as used to designate this chapter, though almost synonymous with, may be taken as somewhat more corn- Nature prehensive than, jus Quiritium. It is a term of of Jug later origin than the latter. Jus Quiritium was Clviie.
based entirely on old custom and legislation, finding, one might say, its culmination in the XII. Tables; whereas in the jus civile, as here understood, there appears the element of doctrinal interpretation of both statute and customthe magistrates and jurists (particularly the pontiffs) adding much to the earlier law by introducing into it this element. We can say that the jus civile in this sense is jus Quiritium as developed by interpretation. It is as yet, however, little influenced, as was the more comprehensive jus civile of later periods, by the elements of jus gent-i urn and equity. Still nowhere, we must note, are the terms jus Quiritium and jus dy-he placed in contrast by the jurists; they were each jus pro prium civium Ron1anorum. In the classical law the term jus Quiritium seems to be used principally in formulae framed in accordance with old custom.
Though our information regarding the present period is less legendary than that of the kings, it is still far from being completely authentic, as no original documents belonging to it are extant. There is little dispute evi~dce. among critics that Rome was sacked and burned by the Gauls about 387 B.C. or a few years later, and it is probable that the original pontifical annals (annales maxirni) upon. which Livy and other Roman historians have presumably based their narratives of early history were destroyed at that time along with all other written records. What credence, then, we may give to the ancient historical narratives, for the period of the Republic antecedent to this event, depends largely upon how far the pontifices managed to have their lost records restored. In any case, however, there is sufficient presumptive evidence to warrant belief in such prominent events of the early Republic as the creation of two annually elected patrician consuls, with potestas similar to that of the kings, the creation of tribunes of the plebs, the enactment of the decemviral code, and periodic struggles between patricians and plebs, the one to keep and the other to gain political power. To know the exact dates of these events is relatively of little importance. -
Legislation in Favor of tile Plebs.In their uphill battle for social and political equality the plebeians conquered stage by stage. The more important of their successes may here just be mentioned, with all reserve as to credibility, in the order of their traditional dates. By the lex Valeria (de provocatione) of 509 B.C. it was provided that no Roman citizen should be deprived of life, liberty or citizenship (i.e. suffer poena capitis), or be scourged, by any magistrate within the city, without an appeal (provocatio) to the comitici centuriata. This statute was often referred to by later Romans as a sort of Magna Carta; Livy calls it unicuin praesidium libertatis. In 494 or 471 BC: the tribunes of the plebs were created with right of intercession, and about the same time plebeian aediles and judices decemviri (the latter to act as judges or arbiters in litigations); the persons of all these officials being declared inviolable during their tenure of office. About 471 B.C. the conciiurn plebis became legislatively recognized, the tribunes were elected in it, and its resolutions (plebiscita) became directly binding on. plebeians. The XII. Tables, twenty years later, were the fruit of the agitation of the plebeians for a revision and written embodiment of the law. In 449 plebiscita were subject presumably to auctoritas patrumdeclared by the lex Valeria-Horatia binding on the whole populus, while about the same time, or perhaps a little earlier, the patrician-plebeian comitia of the tribes was instituted.i By the lex Canuleia of 445 B.C. intermarriage between patricians and plebeians was sanctioned. Repeated protests by the plebeians against the monopolization of the public domain land by members of the higher order resulted in the definite admission of their right to participate in its occupation by one of the Licinian laws of 367 B.C. The long course of cruel oppression of mn.solvents (mainly plebeians) by their patrician creditors was put an end to by the Poetilian law about 326 B.C., depriving nexal contract of its privileges and generally prohibiting the use of chains and fetters on persons incarcerated for purely civil debt. By the Hortensian law of about 287 B.C. plebiscita were declared binding (presumably without auctoritas patrum) on the whole body of citizens. And from 421 B.C., when one of their number first reached the regular state magistracy as quaestor, down to 252 B.C., when one was elected pontifex maxisnus, the plebeians gradually vindicated their right as citizens to share in all the honors of the state. There is also evidence that plebeians were early in the Republic admitted to the senate and also to the comitia curiata.
The legislative bodies during the present period were thus three in number: the comitia of the centuries, the concilium Legisla- plebis and the com-itia tribula. As to the comitia of tive the curies, it seems to have hardly concerned itself bodies. with general legislation, but met merely to confer imperium on the higher magistrates and to sanction testaments and adrogations of the gentiles. The legislation of the centuries dealt for the most part (though the XII. Tables were enacted by it) with questions affecting public and constitutional rather than private interests. It could be convened only by a magistrate having military imperium, i.e. at first only the consuls, ior the reason that it was theoretically a military assembly met for civil purposes (exercitus civilis). It is called in the XII. Tables comitiatus maximus. Its procedure was cumbrous and ill-adapted for legislation. As to the relation of the concilium plebis to the comitia tributa there is much controversy. The old opinion. which identified them is now generally abandoned. According to Mommsenf they differed in the following points: (1) The comitia was an assembly of the whole people voting in tribes instead of centuries, while the concilium was an assembly of the plebs alone; (2) the comitia was always convoked and presided over by a patrician magistrate (often the praetor), while the concilium had to be convoked and presided over by a plebeian official (usually a tribune); (3) in the coinitia auspices had to be taken beforehand, but not in the concilium; (4) an enactment of the comitia was a lex binding on all the populus, while an enactment of the concilium was a plebiscitum binding only on the plebs. It is, however, not possible to take Mommsens view that plebiscita were not binding on the whole populus prior to the lex Hortens-ia, without disregarding distinct statements of Livy as to the lex ValeriaHoratia and the lex Publilia.3 But whatever the relation of these two legislative assemblies to each other may have been originally, it is certain that the Hortensian law equalized them so far as their effects were concerned, and, looking to the small number of patricians compared with the plebs, it would probably be a matter of indifference in which assembly the vote was taken. The greater part of the legislation dealing with the private law in the later Republic consisted of plebiscita.
There is diversity of opinion about this. Mommsen thinks the comitfa iributa was earlier than the XII. Tables, and that the lex ValeriaHoratia applied to it. See next note.
2 Mommsen, ROm. Forschungen, i. 177 seq.; Rm. Staalsrechl, iii.
322 Seq.
Livy, iii. 55, 3; Viii. 12, 34.
ii. The XII. Tables.
Causes of their EnactmenLThe change from monarchy to republic brought of itself no benefit to the plebs, but rather the reverse. One of their chief complaints was against the administration of justice. They complained that they were kept in. ignorance of the laws, and that in particular the consuls used their magisterial punitive powers (coercitio) unfairly and with undue severity when a plebeian was the object of them. The state of matters gradually became so intolerable that in the year 462 B.C., according to the ancient tradition, a proposal for a statute was made by C. Terentilius Arsa, one of the tribunes, by which a commission should be appointed to draw up a code of laws in. writing. He carried a rogation in. the concil-ium plebis to this effect. The senate at first strenuously resisted, but after a few years was induced to give way, and its assent to the proposal was obtained.
Tradition records that the first practical step towards its realization was the despatch of a mission to Athens, to study the laws of Solon and collect any materials that might be of service in preparing the projected code. on of On the return of the commissioners in 452 B.C. all the XII. the magistracies were suspended, and a body of ten. Tables.
patricians, called decemviri leg-i bus scribundis, was appointed with consular powers, under the presidency of Appius Claudius, for the express purpose of putting the laws into shape. Before the end of the ensuing year (45,) the bulk of the code was ready and was at once passed into law by the comitia of the centuries and published on ten tables (whether of brass or wood is doubtful), which were set up in the Forum. Next year, owing to additions being found necessary, the decemvirate was renewed, with, however, a change of membership (some plebeians being chosen), and in the course of a few months it had completed the supplemental matter. On. the downfall of the decemvirate, these new laws, after being duly accepted by the comitia, were published on two other tables, thus bringing the number up to twelve. The code then received the official name of Lex XII. Tabularum.
The foregoing account of the enactment of the Tables is an attempt to summarize what is stated by Livy and other Roman writers on the subject. Though inconsistent and sometimes even contradictory about details, these writers are on the main facts in concordance. Until a few years ago, the fact of the publication of such a code about the date above given had been accepted by modern historians, even the most iconoclastic, without question; unlike the leges regiae, the XII. Tables had always been regarded as authentic. But in his History of Rome, published in 1898, Professor Pais of Turin4 emitted the view that the decemviral code was really a private compilation made about the year 304 B.C. by Cn. Flavius, the scribe of Appius Claudius the censor, and probably at the latters instigation; or, in other words, that it was just the so-called Jus Flavianum which all writers had hitherto regarded as a work dealing with the styles of legis actiones and the calendar of court days. In Paiss view the annalists, in. accordance with a habit of theirs, duplicated the same event by counterfeiting an earlier Appius Claudius, &c., in order to magnify the antiquity and authority of the laws collected by Flavius, while the whole account of the decemviral legislation was invented by them. More recently Professor Lambert of Lyons has attempted by similar arguments to prove that the XII. Tables were a private compilation of customs already in observance, and of sacerdotal and other rules already in circulation, made about 197 B.C. by the jurist Aelius Paetus, and were in fact identical with the Tripertila or Jus Aelianum, which had always heretofore been supposed to contain merely a recension of the Tables with an interpretation and commentary.f This is not the place to discuss these theories. Though of course incapable of positive disproof, the weight Pals, Storia di Roma (Turin,, i. 566 seq.
1 Nouvelle Revue historique (1902), xxvi. 149 seq.; Revue gn~rale du droit, nos. ~ et 6; Milanees, Appleton (iqo,-~), pp. 126 seq.
of presumptive evidence is against them; they have hitherto found little or no support from other Romanists, and they have, in our opinion, been sufficiently refuted on philological and other grounds by Girardi and others.2
There were provisions in the Tables that were almost literal renderings from the legislation of Solon; and others bore a remarkable correspondence to laws in observance in Greece, urces. but they may have been only indirectly borrowed.3 By far the greater proportion of them, however, were native and original,not that they amounted to a general formularization of the hitherto floating customary law, for, notwithstanding Livys eulogium of them as the fountain of the whole law, both private and public, it seems clear that many branches of it were dealt with in the Tables only incidentally, or with reference to some point of detail. The institutions of the family, the fundamental rules of succession, the solemnities of such formal acts as mancipation, nexum, and testaments, the main features of the order of judicial procedure, and so forthof all of these a general knowledge was presumed, and the decemvirs thought it unnecessary to define them. What they had to do was to make the law equal for all, to remove every chance of arbitrary dealing by distinct specification of penalties and precise declaration of the circumstances under which rights should be held to have arisen or been lost, and to make such amendments as were necessary to meet the complaints of the plebeians and prevent their oppression in the name of justice. Probably very little of the customary law, therefore, was introduced into the Tables, that was already universally recognized, and not complained of as either unequal, defective or oppressive. Only one or two of the laws ascribed to the kings (assuming their greater antiquity) reappeared in them; yet the omission of the rest did not mean their repeal or imply denial of their validity, for a few of them continued still in force during the Empire, and are founded on by Justinian in his Digest. Neither apparently were any of the statutes of the Republic anterior to the Tables embodied in them, although for long afterwards many a man had to submit to prosecution under these laws and to suffer the penalties they imposed.
The original Tables are said to have been destroyed when Rome was sacked and burned by the Gauls. But they were probably I? at once reproduced, and transcripts of them in more or em ns. less modernized language must have been abundant if, as Cicero says was still the case in his youth, the children were required to commit them to memory as an ordinary school task. This renders all the more extraordinary the fact that the remains of them are so fragmentary and their genuineness in many cases so debateable. They were embodied, as above mentioned, in the Triperlita of Sextus Aelius Paetus in the year 197 sc., who probably republished them in somewhat modernized language and from whose work, it is thought, all later writers took their contents. They must have formed the basis of all the writings on the jus civile down to the time of Servius Sulpicius Rufus, who first took the praetors edicts as a text; and they were the subjects of monographs even by authors later than Sulpicius, amongst them by M. Antistius Labeo in the early years of the Empire, and by Gaius, probably in the reign of Antoninus Pius. Yet a couple of score or so are all that can be collected of their provisions in what profess to be the ipsissima verba of the Tables, though in a form in most cases more modern than what we encounter in other remains of archaic Latin of the 4th century of the city. These are contained principaily in the writings of Cicero, the Noctes Atticae of Aulus Gellius, and the treatise De verborum significatione of Festus; the two latter dealing with them rather as matters of antiquarian curiosity than as rules of positive law. There are also many allusions to particular provisions in the pages of Cicero, Varro. Gellius and the elder Pliny, as well as in those of Gaius, Paul, Ulpian and other ante-Justinian jurists; but these are not to be implicitly relied on, as we have evidence that they frequently represent the (sometimes divergent) glosses of the interpreters rather than the actual provisions of the statute. Reconstruction has therefore been a work of difficulty, and the results far from satisfactory, that of the latest editor, Voigt, departing very considerably from the versions generally current during the last halfcentury.4
Textes, pp. 34; Nouv. Rev, his!. xxvi. 38! seq.
2 Erman, Z. d. Say. Stilt. (1903), xxiii. 450; Lenel, Z. d. Say.
Stift. (1905), xxvi. 498.
The decemvirs may have obtained them either from Magna Graecia cr from Etruria, as the story of a mission to Athens is improbable. -- -
Dirksens Ubersicht der bisherigen Versuche zur Krztik u. Herstellung d. Zwolf-Tafel-Fragmente (Leipzig, 3824), supplies the basis of almost all the later work on the Tables anterior to that of Voigt Schoell, in his Legis XII. Tab. reliquiae (Berlin, 1866), made a valuable contribution to the literature of the subject from a philological point of view His version has been adopted substantially by Bruns in his Fontes juris, i. 16 seq. (6th ed. by Mommsen and Gradenwitz), and Girard in his Textes (3rd ed., Paris, 1903). See In form the laws contained in the Tables were of remarkable brevity, terseness and pregnancy, with something of a rythmical cadence that must have greatly facilitated their retention e1
in the memory. Rarely, if ever, were the rules they ~~,ejI embodied permissive; they were nearly all in the im- teristics perative mood, sometimes entering into minute detail but generally running on broad lines, surmounting instead of removing difficulties. Their application might cause hardship in individual instances, as when a man was held to the letter of what he had declared in a nexum or mancipation, even though he had done so under error or influenced by fraudulent misrepresentations; the decemvirs admitted no exceptions, preferring a hard-and-fast rule to any qualifications that might cause uncertainty. The system as a whole is one of jus as distinguished from fas. In the royal laws execration (sacratio capitis, sacer esto) was a common sanction; but in the Tables it occurs only once pure and simple, and that with reference to an offence that could be committed only by a patrician, material loss caused by a patron to his client (paironus, si clienti fraudem faxsit, sacer esto). In all other cases the idea that a crime was fin offence against public order, for which the community was entitled in self-protection to inflict punishment on the criminal, is prominent. Hanging and beheading, flogging to death, burning at the stake, throwing from the Tarpeian rocksuch are secular penalties that are met with in the Tables; but often, though not invariably, the hanging and so forth is at the same time declared a tribute to some deity to whom the, goods of the criminal are forfeited (consecratio bonorum). The Tables also recognize the system of self-help.
The manus injectio of the third Tablethe execution done by a creditor against his debtorwas probably in essence the same .procedure as under the kings, but with the addition of some regulations intended to prevent its abuse. Against a thief taken in the act the same procedure seems to have been sanctioned; it was lawful to kill him on the spot if the theft was nocturnal, or even when it was committed during the day if he used arms in resisting his apprehension. Accordiiig to Cicero there was a provision in these words: Si telum manu fugit magis quam jecit, arietem subicito:
this is perhaps just a re-enactment in illustrative language of the law attributed to Numa, that for homicide by misadventure if the weapon have sped from the hand rather than been aimed a ram was to be tendered as a peace-offering to the kinsmen of him who had been slain. The original purpose must have been to stay the blood revenge, but in the Tables it can only have been intended to stay the prosecution which it was incumbent on the kinsmen of a murdered man to institute. So with talionic penalties: si membrum rupit ni cum eo pacit, talio esto such, according to Gellius, were the words of one of the laws of the Tables, and they undoubtedly recognize talion, an eye for an eye, a tooth for a tooth; while at the same time regulating it by enabling the injured man to bring an action and sanctioning a money recompense (Wehrgeld) in lieu of it.f The structure of the provisions of the Tables was not such as to enable the plain citizen to apply them to concrete cases, or to know how to claim the benefit of them in the tribunals, without some sort of professional advice. Pomponius states Interprethat no sooner was the decemviral legislation published tfI~ti:fl than the necessity was felt for its interpretation, and for the ab,:s preparation by skilled hands of styles of actions by which its provisions might be made effectual. Both of these duties fell to the pontiffs as the only persons who, in the state of civilization of the period, were well qualified to give the assistance required; and Pomponius adds that the college annually appointed one of its members to be the adviser of private parties and of the judices in those matters. The interpretatio, commenced by the pontiffs and continued by the jurists during the Republic, which, Pomponius says, was regarded as part of the jus civile, was not confined to explanation of the words of the statute, but was in some cases their