Online Encyclopedia


Online Encyclopedia
Originally appearing in Volume V23, Page 545 of the 1911 Encyclopedia Britannica.
Spread the word: it!
REGAL PERIOD] or perhaps old-established customs formulated by the higher pontiffs and ascribed to the kings.' 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.' 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 observ- ance 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 state--in 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. (I) a division of the Roman territory within the city walls into four local wards called tribus (to which a number of tribes outside the city—tribes rusticae—were 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 centuriata, in which the vote was to be taken 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).3 They got commercium and also connubium so far that their marriages inter se were recognized as legal marriages. Rights and duties ' See Clark, Hist. of Rom. Law (1906), i. 16-19; Kipp, Geschichte d. Quellen (1903), pp. 24-25. 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. seq. Another collection is in Girard, Texles, 3rd ed. pp. 3 seq. 2 Dion. iv. to, 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 Lenel in Holtzendorff's Bncyklobadie d. Rechtswissenschaft, 6th ed. i. 90 nn. 1, 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.529 were so far to be measured by each citizen's position as a holder of lands; the amount of land (including slaves and cattle appurtenant thereto)' 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 genies 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.' 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 Justinian 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. S41). iii. Institutions of the Private Law. Law of the Family 6—The 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 ent 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 power—originally manus," later potestas or jus—of 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 grand-children 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 his 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 res mancipi were included with lands in the valuation of property for fixing the classes. Or else by cessio in jure, though this may not have been before the XI I. Tables, and it was in any case of very limited operation. ' On tribal family and matriarchate among the Romans in pre-historic times, consult Westermarck, History of Human Marriage (London, 1891) ; Post, Grundriss der ethnologischen Jurisprudenz, (1894), i. 15-160. 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 paterfamilias. 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 gees (group of families in the stricter sense) ; (2) the whole body of agnatic kinsmen (familia communi jure); (3) the family estate or pairimonium, as in the provisions of the XII. Tables about intestate succession, e.g. adgnatus proximus familiam habeto; (4) the family slaves collectively, as in the phrase familia rustics. See Mommsen, Staatsr. iii. io n. 16 n. 22; Rivier, Precis du droit de famille romain (Paris, 1891), § i. This word manus, 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 house—as 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 senses—e.g. familia, mancipium, nexum, ca put. daughters on emancipation ceased to be of the family of the paterfamilias who had emancipated them. A daughter's 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 matresf amilias. With the early Romans, as with the Hindus and the Greeks, marriage was a religious duty a man owed alike to his ancestors Marriage. 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 father's 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 (irr-yapia) 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 bridegroom's tribe, and was known as farreum or confarreatio. Its effect was to dissociate the wife entirely from her father's house, and to make her a member of her husband's; for confarreate marriage involved in manum conventio, the passage of the wife into her husband's " 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 own—which was possible only if she had been independent before marriage—passed 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 husband's 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.' Patria potestas was the name given to the power exercised by a father, or by his paterfamilias if he was himself in potentate, Patch over the issue of such justae nuptiae. The Roman potestas. 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 potentate became greatly modified in the course of centuries; but originally the children, though in public ' See Plutarch, Rom. 22; Marquardt, Rom. Altert. v. 7. The question whether a husband could in early law sell his wife is one on which modern writers are not agreed. The better opinion is that he could not do so if the marriage was by confarreation. Apart from the lex regia above mentioned, it would have been inconsistent with her dignity as maeerfamilias. There is certainly no trace of its having been done. In marriages by coemption and usus, on the other hand, it is not improbable that it was allowed, though here also there is no evidence of on an equality with the house-father, in private life, and so long as the potestas 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 de facto 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 Adrogaextinction of his family and of his own descent to tton 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 favourable 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 adrogatus, 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 manus and the patria potestas represent the masterful aspects of the patrician's 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. t)omeoatns. tc The patrician family in the early history of the law was retatt 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 fares and. penates. As the Greek called his wife the house-mistress, SEO7rowa, so did the Roman speak of his as materfamilias,2 the house-mother. She was treated as her husband's 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 2 Materfamilias is used in the texts in two distinct senses—(t) as a woman sui juris, i.e. not subject to any family head; and (2) as a wife in manu mariti. guarded against by the rule which required in grave cases the paterfamilias to consult in the first place the near kinsmen of his crud, 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 house-father 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 potentate. 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 paterfamilias 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 grand-children 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 Guard- guardianship of tutors (tutela) for the potestas that ianship 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 genies in the regal period of Rome, far less Plebeian can it be supposed to have existed amongst the heterofamily. geneous 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.' This may be so, but it is improbable. As the plebeians 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 woman's 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 t See as to coemptio, Cuq, Institutions juridiques, 2nd ed., i. p. 62.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 bride. Usus, on the other hand, was a mode of acquiring marital manus by possession of the woman as wife for a certain period of time—long 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 Property.'-The history of the early Roman community, like many other primitive communities, is marked by the disintegration of the genies and the growth of property individual property. Yet the distribution of land in land. amongst the early Romans is one of the puzzling Pate/-problems of their history. The Servian constitution clans. 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 paterfamilias 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 regime. 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 ancient Germans and exists to-day in India among the Hindus. Even late in the Republic, when the idea of 2 One or two writers of the later Empire (e.g. ,Servius, in Georg. I. 31) describe coemptio as a mutual purchase, the man and woman taking alternately the position of emptor and using nuncupatory' words as such ; but this seems to be a misapprehension and not consistent with what Gaius says. See the arguments in favour of it in Muirhead, Historical Introduction; 2nd ed. pp. 414-415. Girard, Manuel, 4th ed. p. 15o, gives a probable explanation of the mistake of these late authors. 3 It would thus cure defects in a coemption just as usucaption did defects in mancipation. ' See Giraud, Recherches sur le droit de propriete chez les Romains (Aix, 1838) ; Mace, Histoire de la propriete &c., chez les Romains (Paris, 1851); Hildebrand, De antiquissimae agri Romani distributionis fide (Jena, 1862) ; Cuq, Instil. jurid., 2nd ed., vol. i. pp. 72 seq. ; Beaudouin, La Limitation des fonds de 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. The fact that the majority of the rural tribes bore the names of well-known patrician gentes favours 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 patrician's 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 patrician's holding for his own and his family's 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 ex jure 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 plebeian& 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.' There are some writers who maintain that in the regal period, prior to the Servian reforms, though after the collective owner-Property ship of the gentes had begun to disintegrate, there in mov- was no private property in movables. This proposiable& 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 tuunz 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 man's occupation would be punished by magisterial authority or by ordinary sell-redress by the injured party. A sort of ownership in ' On this question of land-holding among the early patricians and plebeians, consult Cuq, Institutions juridiques des Romains, 2nd ed., vol. i. pp. 73–76; Bourcart (French translation of Muir-'wad's Historical Introduction), p. 58o, and authorities there cited.possession must at least have been recognized for movables generally.' But apart from this, we must believe that certaih'kinds of movables, viz. those which have been described as appurtenant to land and necessary for its cultivation—which with land formed the real objects, as distinct from the personal subjects, of the familia—were treated from the time of Romulus down-wards, 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.' 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 Maacl libripens holding a pair of copper scales. The transferee, pa" with one hand on the thing being transferred, and using aon. 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 sale—in fact the formal conveyance upon a relative contract—yet 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 colour to this view.' 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 ' The position of the plebeians in this respect did not differ from that of the patricians. 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 mancipatio 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. 8o n. 4 See Gai. ii. § 104. usually supposed to have been intended to take the place of the raw metal (aes 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.' And where no real price was in-tended, 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 mancipii—will be considered below in connexion 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 Rea res nec mancipi. Many theories have been propounded mancipi. 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 citizen's 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 appurtenances—the 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? 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 paterfamilias, fell under the denomination of petunia. 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 menus 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 filiifamilias, and mortis cause alienation of a familia and nexum. Law of Succession.—The legal order of succession during the regal period was extremely simple. It was this. on the death suoces- of a paterfamilias his patrimony devolved upon those sion of his descendants in potestate who by that event amongst became sui juris, his widow (being loco filiae) taking the patri- an equal share with them, and no distinction being cans' 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 libram, 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 occurred—hanc tibi libram primam postremamque 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. 15; Ulpian, Frag. xix. i. 3 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.' The later jurists more than once refer to the perfect equality of the sexes in the matter of succession in the ancient law.' But it was rather nominal than real. A daughter who had passed into the hand of a husband during her father's lifetime of course could have no share in the latter's inheritance, for she had ceased to be a member of his family. One who was in potestate at his death, and thereby became sui juris, did become his heir, unless he had pre-vented 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 generations—a 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 son—as 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 period—that made in the comitia of the curies (test. calatis comities) and that made in the presence of the army '(probably represented for this Testa- purpose by a few comrades) on the eve of battle ments. (test. in procinctu factum). The first at least—and the second was just a substitute for it on an emergency—was far from being an independent exercise of the testator's voluntas. For, though in course of time, and under the sanction of the uti legassit ita jus es-10 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 testator's 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 testator's 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 filiusfamilias of his birthright, at least in favour of a stranger. 3 It is quite true, however, that from the first the order of succession was agnatic; for it was those only of a man's 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. Huschke's (in Analecta 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." Huschke's substitution of agnates for et natis is all but universally adopted; but, even were it necessary, it need mean nothing more than his children in potestate or his gens. ' 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. 816. It may safely be assumed that by custom at all events the children of a plebeian usually took his estate on his death in-testate. But, as he was not a member of a gens, there was no provision for the devolution of his succession on failure of children. The want of them he 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 filiusfamilias 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 Gains condemns as an infamous institution, and which undoubtedly lost some of its raison d'etre 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 Mortis degree likely that there was any such. Primitive 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 testator's death, but to make a conveyance of a whole patrimony mortis causa. The transaction took the form of an absolute acquisition, in exchange for a price (usually nominal), of the transferrer's familia,' by a friend, technically called familiae emptor, on trust to distribute, on the transferrer's 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.2 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 fore-runner of the so-called testament per aes et libram, to be afterwards described (infra, p. 543)• Contract and its Breach.—To speak of a law of obligations in connexion with the regal period, in the sense in which the Contract words were understood in the later jurisprudence, and its 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 times—must have rented houses, hired labour, 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 ' The familia, as the collective name for a man's lands and mancipable appurtenances, became itself capable of mancipation. The conveyance was universal. There would be, it is thought, nothing discreditable in a man's conveying his heredium in this form. 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 dealing—on the latter's 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 other's 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 penalty—not 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 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 con-tract and making the creditor's right of self-redress by apprehension (menus 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 Offences 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- Punish-able 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 3 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; Plin. 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 (promittere dextram—is 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 men's probity and trustworthiness, in Lasaulx, Ueber d. Eid bei d. Romern (Wurzburg, 1844), p. 5 seq.; Danz, Der sacrale Schutz im rom. Rechtsverkehr (Jena, 1857), pp. 139, 140. Cf. Pernice, Labeo, vol. ii. (2nd ed., Halle), p. 459 seq. Succes- sion amongst the plebeians. cause communities are slow to realize the conception of convey- private testaments, and the plebeians could not at ante by this period make a public one either calatis comitiis mancipa- or in procinctu. But not long after their admission lion. atonement and public or private penalty .l 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.2 The remark-able 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 creditor's 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 capitis, 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 neighbours 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-oxall these were capital offences; the offender, by the formula sacer esto, 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 (nee 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 sacratio was usually coupled with forfeiture of the offender's 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 Criminalrecht der Romer (Leipzig, 1844), pp. 24 seq. Clark, Early Roman Law: Regal Period (London, 1872), pp. 34 seq.; Mommsen, Strafrecht, 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 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 Early having been generally supreme in both. But this can be course of accepted only with considerable reservation. For the justice. paterfamilias, aided by a council in cases of importance, was judge within the family—his 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 order—adultery or unchastity of wife or daughter, undutiful behaviour of children or clients, or the like. Death, slavery, banishment, expulsion from the family, imprisonment, 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 XII. Tables—that of the thief compounding for his life or freedom—was 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 king's jurisdiction in The king matters of this sort. He was the natural person to whom es judge. to refer such a dispute; for he alone, as supreme magis- 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 con-tending 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 pontiffs 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 favour it was pronounced was free to make it effectual if necessary by self-redress in the ordinary way. Of Servius, Dionysius says—using, as he often does, language more appropriate to the republican than to the regal period—that 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, and regulated the procedure to be followed in causes brought before them.' Something of the sort was absolutely necessary. He was enormously increasing the number of the citizens,—that is to say, of 3 Dion. Hal. iv. 25. Servian reforms. 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 (stlitibus judicandis) as 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 ' is often referred to by Cicero, and the range of its jurisdiction in his time seems to have included every Centum• possible question of manus in the old sense of the word viral status of individuals, property and its easements, and court. inheritance whether testate or intestate. By the time 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 Centumviri formed a quasi-corporate body of private judges selected originally from the tribes (afterwards from the ordinary list of judices) annually by the urban praetors.' Some writers identify the centumviral court wish the Romulian senate of loo; 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 favour 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 favour 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 Decemviri stlitibus judicandis.3 These decemvirs in historic times Dim_ constituted a quasi-corporate body of judicial magistrates, viral whose duty it was to try certain kinds of actions, especially court. those relating to personal liberty. During the Princi- pate, while ceasing to act as a separate court, they pre-sided 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,' 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 Decemviri stlitibus judicandis. On the other hand, some authorities identify them with the decemviri judices mentioned by Livy 6 as having been declared by the lex Valerie-Horatia 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 arbitri. There judices" never was more than a single judge (unus or unicus judex) and appointed to try a case, but there might be more than one „mob„ 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 tote 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 'Literature: Huschke, Servius Tullius, pp. 585 seq. ; Keller-Wach, Rom. Civil Process (1883), § 6; Bethmann-Hollweg, Geschichle d. C. P. i. § 23; Wlassak, Process-Gesetze, i. 125 seq. and ii. 201 seq. ; Girard, Organisation judiciaire des Remains, i. 23 re; Martin, Le tribunal des centumvirs (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 Cicero's Time, pp. 41 and 264. Girard, Organisation judiciaire, 1. 159; Pauly - Wissowa, Encyhlopadie, s.v. " Decemviri.” Dig. i. 2, § 29. 6 Livy, ix. 46, 5: Karlowa, Rom. R.G. i_ 16.the earliest judices may have been the king's 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 actiones, more or less undeveloped, were already in use, civil pro-but 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 com- Nature prehensive than, jus Quiritium. It is a term of 0f" Jus later origin than the latter. Jus Quiritium was Ctvile." 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 custom—the 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 gentium and equity. Still nowhere, we must note, are the terms jus Quiritium and jus civile placed in contrast by the jurists; they were each jus proprium civium Romanorum. 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 historic evidence. 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 'maximi) 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 Favour of the 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 poem capitis), or be scourged, by any magistrate within the city, without an appeal (provocatio) to the comitia centuriata. This statute was often referred to by later Romans as a sort of Magna Carta; Livy calls it unicum praesidium libertatis. In 494 or 471 B.C: 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 concilium 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 patrum—declared 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.' 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 insolvents (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 maximus, the plebeians gradually vindicated their right as citizens to share in all the honours 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 Leesla- plebis and the comitia tributa. As to the comitia of rive 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, for 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 con-cilium plebis to the comitia tributa there is much controversy. The old opinion which identified them is now generally abandoned. According to Mommsen2 they differed in the following points: (i) 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 pre-sided over by a plebeian official (usually a tribune); (3) in the comitia 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 Mommsen's view that plebiscita were not binding on the whole populus prior to the lex Hortensia, without disregarding distinct statements of Livy as to the lex Valeria-Horatia and the lex Publili¢' 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. 1 There is diversity of opinion about this. Mommsen thinks the comitia tributa was earlier than the XII. Tables, and that the lex Valeria.Horatia applied to it. See next note. 2 Mommsen, Rom. Forschungen, i. 177 seq.; Rom. Staatsrecht, iii. 322 seq. J Livy, iii. 55, 3 ; viii. 12, 14.ii. The XII. Tables. Causes of their Enactment.—The 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 concilium 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 compttamight be of service in preparing the projected code. uton 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 legibus 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 (451) 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 tithenclry. 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 Turin' 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 latter's 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 Pais's 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 Tripertita or Jus Aelianum, which had always heretofore been supposed to contain merely a recension of the Tables with an interpretation and commentary.' This is not the place to discuss these theories, Though of course incapable of positive disproof, the weight Pais, Stories di Roma (Turin), i. 566 seq. 5 Nouvelle Revue historique (1902), xxvi. 149 seq.; Revue generak du droit, nos. 5 et 6; Melanges, Appleton (1903), pp. 126 seq. 538 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 Girard' and others.2 There were provisions in the Tables that were almost literal renderings from the legislation of Solon; and others bore a re- markable correspondence to laws in observance in Greece, Sources. but they may have been only indirectly borrowed.' 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 Livy's 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 forth,—of all of these a general know-ledge 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 Remains. at once reproduced, and transcripts of them in more or 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 Tripertita of Sextus Aelius Paetus in the year 197 B.c., 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 praetor's edicts as a text; and they were the subjects of mono-graphs 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 principally 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 half-century.' ' Textes, pp. 3–4; Nouv. Rev. hist. xxvi. 381 seq. 2 Erman, Z. d. Say. Stilt. (1903), xxiii. 450; Lenel, Z. d. Say. Stijl. (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. Dirksen's Ubersicht der bisherigen Versuche zur Kritik u. Herstellung d. Zwolf-Tafel-Fragmente (Leipzig, 1824), supplies the basis of almost all the later work on the Tables anterior to that of Voigt. Schoell, in his Legis XIL 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 114ommsen and Gradenwitz), and Girard in his Textes (3rd ed., Paris, 1903). See[JUS CIVILE 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 General in the memory. Rarely, if ever, were the rules they charac 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 re-moving 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 (patronus, si clienti fraudem faxsit, sacer esto). In all other cases the idea that a crime was an 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 rock,—such 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 Table—the execution done by a creditor against his debtor—was 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. According 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.' 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, I without some sort of professional advice. Pomponius states tan that no sooner was the decemviral legislation published than the necessity was felt for its interpretation, and for the Tables. 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 Pornponius 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 expansion, in others their also Muirhead, Historical Introduction (2nd ed., 1899), and Words-worth, Fragments and Specimens of Early Latin (Oxford, 1874), pp. 253 seq. The last-named writer in a subsequent part of his volume (pp. 502–38) has added notes, historical, philological and exegetical, which constitute a valuable commentary on the Tables as a whole. Voigt's two volumes, under the title of Geschichte and System des Civil-und-Criminal-Rechtes wie Processes, der XII. Tafeln nebst deren Fragmenten (Leipzig, 1883), contain an exposition of the whole of the earlier jus civile, whether embodied in the Tables or not. The history of them occupies the first hundred pages or thereby of the first volume; his reconstruction of fragments and allusions—a good deal fuller than any earlier one and supported by an imposing array of authorities, which, however, often rest on arbitrary assumptions—is in the same volume, pp. 693–737. There is little doubt that talio was actually enforced under the decemviral code, just as it was under the Jewish and Mahommedan codes, and as we see it among semi-civilized communities (e.g. the Abyssinians) at the present day. See Code of Khammurabi, 196 seq.; Leviticus xxiv. 20; Lane, Modern Egyptians, p. 94. Many references are given by Lenel in Z. d. Say. Stiff. xxiv. 509. limitation, and in many the deduction of new doctrines from the actual jus scriptum, and their development and exposition. An event that did much to diminish the influence of the pontiffs in connexion with it was the divulgement in the year 304 B.c., as already mentioned, by Cn. Flavius, of a formulary of actions and a calendar of lawful and unlawful days, which got the name of Jus Flavianum. The practice adopted in the beginning of the 6th century by Tiberius Coruncanius, the first plebeian chief pontiff, of giving advice in law in public had a still greater effect in popularizing it; and the Tripertita or Jus Aelianum, some fifty years later—a collection that included the Tables, the inter pretatio and the current styles of actions—made it as much the heritage of the laity as of the pontifical college. Subsequent Legislation.—Of legislation during the 4th and 5th centuries that affected the private law we have but scanty Subse- record. The best-known enactments are the Canuleian quent law of 445 B.C. above mentioned; the Genucian, iegisia- Marcian and other laws about usury and the rate of :ion. interest; the Poetilian law of 326 B.C. abolishing imprisonment of nexal debtors by their creditors; the Silian law, probably not long afterwards, which introduced a new farm of process for actions of debt; and the Aquilian law about 287 B.C., which amended the decemviral provisions for actions of damages for culpable injury to property, and continued to regulate the law on the subject even in the books of Justinian. iii. Development of the Substantive Institutions of the Law. The Citizen and his " Caput."—The early law of Rome was essentially personal, not territorial. A man enjoyed the benefit The of its institutions and of its protection, not because he citizen happened to be within Roman territory, but because and his he was a citizen,—one of those by whom and for whom "caput. its law was established. The theory of the early Romans was that a man sojourning within the bounds of a foreign state was at the mercy of the latter and its citizens, that he himself might be dealt with as a slave, and all that belonged to him appropriated by the first comer; for he was outside the pale of the law. Without some sort of alliance with Rome a stranger had no right to claim protection against maltreatment of his person or attempt to deprive him of his property; and even then, unless he belonged to a state entitled by treaty to the international judicial remedy of recuperatio, it was by an appeal to the good offices of the supreme magistrate, or through the intervention of a citizen to whom he was allied by the (frequently hereditary) bond of hospitium, and not by means of any action of the jus civile set in motion by himself. A non-citizen—originally hoslis, and afterwards usually called peregrinus'-in time came to be regarded as entitled to all the rights recognized by so-called jus gentium as belonging to a freeman, and to take part as freely as a Roman in any transaction of the jus gentium; but that was not until Rome, through contact with other nations and the growth of trade and commerce, had found it necessary to modify her jurisprudence by the adoption of many new institutions of a more liberal and less exclusive character than those of the jus civile. A citizen's civil personality was technically his caput. The extent of it depended on his family status. It was only among citizens that the supremacy of the paterfamilias and the subjection of those in rnanu, potestate or mancipio were recognized—only among them therefore that the position of an individual in the family was of moment. While in public life a man's supremacy or subjection in the family was immaterial, in private life it was the paterfamilias alone who enjoyed full jural capacity. Those subject to him had a more limited personality; and, so far as capacity to take part in transactions of the jus civile was concerned, it was not inherent in them but derived from their paterfamilias: they were the agents of his 1 Neither " alien " nor " foreigner " is an adequate rendering of peregrinus. For peregrini included not only citizens of other states, independent or dependent, but also htro)uSes,—men who could not call themselves citizens (cives) at all, as, for example, the dediticii whom Rome had vanquished and whose civic organization she had destroyed, offenders sent into banishment, &c., and also, until Caracalla's general grant of the franchise, the greater portion of her provincial subjects.will, representatives of his persona in every act whereby a right was acquired by them for the family to which they be-longed. Whenever a citizen either ceased altogether to be a member of a Roman family or passed, either permanently or temporarily, into subjection to some paterfamilias outside his own "capitis family,2 there was technically capitis minutio or deminudeminutio. To harmonize with the gradually estab- t"O." lished conception of jural personality in non-citizens, and perhaps also from their partiality for tripartite divisions, the jurists about the end of the Republic divided capitis deminutio into three degrees, viz. maxima, media and minima—a division unknown to lawyers of an earlier period when civitas was theoretically identified with libertas. When a citizen forfeited his freedom, his capitis deminutio was said to be maxima; he lost all capacity, whether under the jus civile or the jus gentium. When, retaining freedom, he went into exile or joined a Latin colony, or otherwise became a peregrin, the loss (deminutio) of his capacity was only media or minor; it was his rights and privileges under the jus civile that alone were affected. When both freedom and citizenship remained, and there was produced merely the severance of connexion with a particular family (familiae mutatio), the loss was said to be minima. Illustrations of c. d. minima present themselves in the case of a paterfamilias be-coming filiusfamilias by adrogation, or a materfamilias passing into the hand of a husband by confarreation or coemption; in both cases he or she who had been sui juris thereby became alieni juris. It was immaterial whether the change was from a higher family position to a lower, or from a lower to a higher,3 or to the same position in the new family that had been held in the old—as when a filiusfamilias was transferred by his father into the potestas of an adopter, or when the filiifamilias of a person giving himself in adrogation passed with him into the potestas of the adrogator: in every case there was capitis minutio. It was not the change of family position that caused it, but the subjection to a new potestas. Thus the civil personality of Titius while a filiusfamilias in the potestas of Sempronius, e.g. the expectancy of succession, the agnatic relationships, the derivative capacity for being a party to a mancipation or a sponsio that resulted from the relationship, all came to an end through the subjection to a new paterfamilias, temporary or permanent. He might acquire another and independent capacity on becoming sui juris by emancipation, or another derivative capacity on passing into the potestas of Maevius by adoption; but while subject to a new paterfamilias his old personality quoad civilia was extinguished. This is what some of the jurists mean when they say that capitis deminutio was civil death.' An important consequence of minima capitis deminutio was that it not only extinguished patria potestas where it existed, but severed the bond of agnation between the capite minutus and all those who had previously been related to him as agnates. There was no longer any right of succession between them on intestacy; their reciprocal prospective rights of tutory were defeated, and the minutio of either tutor or ward put an end to-a subsisting guardianship, assuming always that it was a tutela• legitima or agnatic cura furiosi. Very remarkable, yet quite logical, was the doctrine that the minutio extinguished the claims of creditors of the minutus; their debtor, the person with whom they had contracted, was civilly dead, and dead without an heir, and therefore there was no one against whom an action of the jus civile could be directed in order to enforce payment. But equity eventually provided a remedy, by 2 This is Mommsen's theory. See Staatsrecht, iii. r. p. 8. ' Children who became sui juris by their parent's death, as they came under no new potestas, were not regarded as capite minuti. Owing to the ill-defined views among the Roman jurists them-selves regarding the nature of cap. dem. various theories more or less divergent have been maintained about it by modern writers, of none of which can it be said that it has been generally accepted. Mommsen's theory, above adopted, seems to present fewest difficulties. See the subject discussed and authorities cited by Goudy in 2nd edition of Muirhead's Historical Introduction, pp. 422-27. giving the creditors a praetorian action in which the minutio was held as rescinded, and which the new paterfamilias was bound to defend on pain of having to give up all the estate he had acquired through the adrogation or in manum conventio. In other respects also the strict effects of this capitis minutio were attenuated or done away with by the jurists of the Empire, e.g. as regards personal servitudes. The Law of the Family Relations.—So far as appears no serious inroad was made by the XII. Tables on the law affecting husband taw of and wife, unless in the recognition of the legality of family so-called " free " marriages, i.e. entered into without relations. any solemnity, and not involving that subjection of the wife to the husband (manus) which was a necessary consequence of the patrician confarreation and plebeian coemption. These latter were left untouched, while on the other hand acquisition of marital manus through uses was fully recognized. As formerly mentioned, it had become a practice with some of the plebeians to tie the marriage bond rather loosely in the first instance, possibly in consequence of objection by the women (as became quite general even among patricians at a later period) to renounce their independence and right to retain their own property and earnings, but more probably because taking a woman to be merely the mother of children (matrimonium) had been practically forced upon them before coemption had been introduced as a means of making her a lawful wife, and so they had become in a manner habituated to it. But the idea that, as a man might acquire the ownership of a thing to which his legal title was defective by prolonged possession of it, so he might acquire manus over the woman with whom he had thus informally united himself by prolonged cohabitation with her as his wife had probably matured and become customary law. The Tables accepted it; all that was needed was to define the conditions under which manus should be held to have been superinduced, and the wife converted from a doubtful uxor into a lawful materfamilias. Hence the pro-vision that, if a woman, married neither by confarreation nor coemption, desired to retain her independence, she must each year absent herself for three consecutive nights from her husband's house (trinoctialis usurpatio)—twelve months' uninterrupted cohabitation being required to give him that power over her which would have been created instantly had the marriage been accompanied by either of the recognized solemnities. Amongst the fragments of the Tables so industriously collected there is none that refers to a wife's marriage portion (dos) ; but it is hardly conceivable that it was as yet unknown. Justinian says that in ancient times it was regarded as a donation to the husband with his wife, rather than as a separate estate that was to be used by him while the marriage lasted but to revert to her or her representatives on its dissolution. And it is easy to see that, where there was manus, the wife becoming a member of her husband's family and everything of hers becoming his, such must originally have been its character.' But even then, when a man gave his daughter (iliafamilias)—who could have nothing of her own—in marriage, and promised her husband a portion with her, there must have been some process of law for compelling him to pay it; and Voigt's conjecture that an actio dictae dotis was employed for the purpose has something in its favour.' As regards divorce, Cicero alludes vaguely to a provision in the Tables about a man depriving his wife of the house-keys and turning her out of doors, with some such words as " take what is thine and get thee gone." This can only refer to free or non-manus marriages, but even for hand marriages, while repudiations by husbands (but not by wives) were competent, the statement of the historians is that they were few and far between until the 6th century of the city, and that, until the same date, any man who turned his wife away, however serious the ground, without the cognition of the family council, was liable to penalties at the hands of the censors.' Of the two or three provisions of the Tables,known to us that affected details of the patria potestas, which itself was assumed to be so well established by customary law as to need no statutory sanction or definition, one was in the words " si pater (familias) ter filium venum duuit, a patre filius liber esto." This came to be construed by the pontifical lawyers as meaning that so powerful ' See Cicero, Top. iv. 23. 2 Voigt, XII. Tafeln, ii. p. 486. It has not, however, received any support from more recent writers. ' See Esmein, Melanges, pp. 23 seq.was the bond of the potestas over a son that it could not be completely loosed until the father had three times gone through the process of fictitious sale by which emancipation was effected. But the conception of the law seems to indicate that its original purpose must have been rather to impose a penalty on the father and confer a benefit on a son in potestate, by declaring him ipso jure free from it on a certain event, than to place difficulties in the way of his emancipation. " If a house-father have thrice sold his son, the latter shall be free from his father." It reads as if the intention were to rescue the son from what, by its frequent repetition, was suggestive of a total absence of parental affection rather than reluctant obedience to overwhelming necessity. May not its object have been to restrain the practice, which did not wholly disappear even in the late Empire, of men selling their sons or giving them to their creditors in security of loans—such sales or pledges, at the time of the Tables, being effected only by an actual transfer of the child per aes et libram as a free bondman (in mancipii causa), accompanied by, in the case of a loan, a pact for reconveyance when the loan was repaid? Whatever its ratio, however, and whatever the earlier practice, it was upon this law that the interpreting pontiffs based the rules for adoptions and emancipations of fcliifamilias. The usual procedure in adoptions was as follows: The natural father mancipated his son to a friend for a nominal price and the latter then manumitted him, the son thereupon reverting into his father's potestas. This was repeated a second time with the same result. After the third sale (patria potestas being extinguished) the purchaser remancipated to the parent. In the latter's hands the son was now in causa mancipii, and so in a position in which he could be permanently transferred to the adopter. This was effected by an in jure cessio, in which the adopter averred that the child was his filiusfamilias, and in which judgment was at once given in his favour on the natural parent's admission or tacit acquiescence. A similar method was followed in emancipation of a filius, except that of course there was no cessio in jure, but instead thereof the parent manumitted immediately after the reconveyance to him. Neither in adoption nor emancipation, however, was remancipation to the paterfamilias essential, though it was usual, and in the case of emancipation carried with it important rights of succession and tutory. For daughters and grandchildren the pontifical jurists by a casuistic interpretation of the said law held one mancipation to be in all cases enough to extinguish the patria potestas. The nature of the relation between master and slave, like that of manus and patria potestas, seems also to have been too notorious to require exposition in the Tables. We find recorded only two references to it, one dealing with the case of a slave who had a conditional testamentary gift of freedom (statu liber), the other with noxal surrender (noxae deditio). The provision about noxal surrender was not limited to a slave; it was apparently to the effect that, if a member of a man's family (familiaris, i.e. a son or a daughter in potestate or a slave) committed a theft of, or did mischief to, property belonging to a third party, or a domestic animal be-longing to one man did harm to another, the father of the delinquent child, or the owner of the slave or animal, should either surrender him or it to the person injured or make reparation in damages. In course of time the surrender came to be regarded as a means of avoiding the primary obligation of making reparation. But comparative jurisprudence recognizes in the enactment of the Tables a modified survival of the ancient right of an injured party to have the delinquent corpus—man, beast or thing—given up to him to wreak his revenge upon it privately, the modification consisting in the alternative of reparation offered to the owner. This noxal surrender, failing reparation, had gone out of use in the case of daughters in potestate before the time of Gaius, and in the case of sons before that of Justinian; but it was still sanctioned so far as slaves and domestic animals were concerned even in that emperor's legislation. Guardianship and the Introduction of the Order of Agnates.—So long as Rome was patrician the gens apparently charged itself with the guardianship of a clansman's orphan pupil Gentile children and his widow and unmarried daughters guardian-above pupillarity after his decease (tutela), as well ship. as with that of male members of his family who were sui juris, but above the age of pupillarity, when they chanced to be lunatic, imbecile, prodigal or helplessly infirm (curs, curatio). The gens in council, in all probability, appointed one of its members to act as tutor or curator as the case might be, itself prescribed his duties, and itself called him to account for any failure in his administration. But, as this gentile tutory could not be extended to the plebeians, among whom some law of guardianship was as much required as among their fellow-citizens of the higher order, the decemvirs found it expedient to devise a new one of universal application. The Tables contained no express authority for testamentary nomination of tutors to the widow of the testator, or to his pupil children and grown-up unmarried daughters; but such appointment, if unknown previously, was soon held to be justified by a liberal interpretation of the very inclusive provision, " uti legassit suae rei, ita jus esto." In the absence of testamentary appointment the nearest male agnates of lawful age were to be tutors. This tutory of agnates was an invention of the decemvirs, just as was the agnates' right of succession on intestacy. The plebeians had no genies, at least until a much later period; so, to make the law equal for all, it was necessary to introduce a new order of heirs and tutors. " Tutores . . . ex lege XII. Tabularum introducuntur Guard- ... agnati " is the very notable language of Ulpian. ianship And his words are very similar in speaking of their °i right of succession; for, while he says of testamentary agnates, inheritances no more than that they were confirmed by the XII. Tables, he explains that the legitimae hereditates of agnates and patrons were derived from them.' The phrases legitima cognatio, legitima hereditas, legitimi heredes, tutela legitima, tutores legitimi themselves proclaim the origin of ag- nation, agnatic inheritance and agnatic tutory; for, though the word legitimus might be applied to any institution based on statute, yet in the ordinary case it indicated one introduced by the XII. Tables, the law of laws. A man's agnates, in the strict sense, were those of his collateral kinsmen who were subject to the same patria potestas as himself, or would have been had the common ancestor been still alive. A man's sons and daughters in potestate, therefore, whether the relationship was by birth or adoption, and his wife in manu (being filiae loco) were each other's agnates. But a wife not in manu was not their agnate; nor were children who had been emancipated or otherwise capite minuti the agnates of either their brothers and sisters or their mother in manu. A man was an agnate of his brother's children, assuming always that there had been no capitis deminutio on either side; but he was not an agnate of his sister's children, for they were not ejusdem familiae: they were agnates of their father's family, not of their mother's. In like manner, and again assuming the absence of minutio capitis, the children of brothers were each other's agnates, but not the children of a brother and a sister or of two sisters. Brothers and sisters were agnates of the second degree; a man and his brother's children were of the third, the children of twc, brothers (patrueles) of the fourth, and so on,—it being a condition, however, that the kinship should always result either from lawful marriage or from adoption in one or other of its forms. When, therefore, a man died leaving pupil male descendants or unmarried female descendants who by his death became sui juris, they got their brothers of lawful age as their tutors; if he was survived by his wife, and she had been in manu, her sons, or it might be stepsons, acted for her in the same capacity; in either case they took office as the nearest qualified male agnates. If the widow had no sons or stepsons of full age, and the children consequently no qualified brothers, the tutory devolved on the agnates next in order,—i.e. the brothers german and consanguinean of the deceased husband and father; for they were agnates of the third degree. And so with agnates of the fourth and remoter degrees? Failing agnates who could demonstrate their propinquity, the tutory passed to the gens when the ward happened to belong to one. This is nowhere expressly stated; but Cicero gives what he represents to be an enactment of the Tables, making the fellow-gentiles of a lunatic his guardians on failure of agnates; and analogy seems to justify the extension of the same rule to the case of sane pupil and female wards? The curatory of minors above pupillarity was of much later date than the Tables. The only curatories they sanctioned were those of lunatics (furiosi) and spendthrifts (prodigi). A ' Ulp. Frag. xxvii. 5, " legitimae hereditatis jus . ex lege Duodecim Tabularum descendit." This derivation of agnatic inheritance from the XII. Tables was specially noticed by Danz in his Gesch. d. rom. Rechts (2nd ed., Leipzig, 1871–73), ii. 95, but is generally ignored. 2 To determine the degree of propinquity between two persons it was necessary to count the generations upwards from the first to the common ancestor and downwards from him to the second. Consequently brothers were related in the second degree, uncle and nephew in the third, first cousins in the fourth, and so on. 3 See Gai. i. 165.lunatic was committed to the care of his agnates, and, failing them, of his fellow-gentiles; and a few words in Festus seem to suggest that arrangements had to be made by them for his safe custody. Mancipation and the Law of Property.—In the early law, as we have seen, there was no technical word for ownership of things: it was an element of the house-father's manus. In time, although it is impossible to say when, the word dominium came into use, but, so far as can be discovered, it did not occur in the XII. Tables, and must have been of later introduction. In those days, when a man asserted ownership of a thing, he was content to say, " It is mine," or " It is mine according to the law of the Quirites." It is said by some jurists of eminence that under the law of the Tables what afterwards came to be called " dominium ex jure Quiritium " was competent only in the case of res mancipi—of a man's house and farm, and things appurtenant thereto, as slaves and animals with which he worked them. There is much to be said for this hypothesis, but it is so far contradicted by Ulpian and Paul, who tell us that tigna juncta (that is, building materials, vine stakes and the like, which undoubtedly were res nec mancipi) were exceptionally excluded from vindication. On the other hand, these texts may be explained as mere deductions by interpretation at a later time of the words " ne solvito " of the XII. Tables.' At any rate it is pretty certain that before the close of the present period res nec mancipi as well as res mancipi could be held in quiritarian ownership. The modes in which these two classes of things might be acquired in property were various. But there was this important difference: that, while a natural mode of acquisition sufficed in the case of res nec mancipi, some civil one was necessary for the derivative acquisition, at all events, of res mancipi. The most important were mancipation, surrender in court, usucapion and bequest as singular modes, and inheritance, in manum conventio, adrogation and purchase of a confiscated estate, as universal ones. All of these, with the exception of mancipation, applied equally to res mancipi and res nec mancipi. But there was, in addition, for res nec mancipi, what was the commonest of all the modes of transferring things of this class, simple tradition. If the transfer of these was by the owner, with the intention of passing the property, then the simple delivery of possession (traditio) was enough, unless indeed it was in virtue of a sale; in which latter case the ownership remained with the vendor, notwithstanding the change of possession, until the price was paid or security given for it.' Only mancipation, surrender in court and usucapion, however, need be noticed at present. The origin of the distinction between mancipable and nonmancipable things, and of the form of conveyance by mancipation applicable to the first, has been explained (supra, p. 529).6 Maaoipa-Originally mancipation was not the imaginary sale that tiers. Gaius speaks of, but as real a sale as could well be conceived—the weighing in scales, held by an official, of the raw metal that was to be the consideration for the transfer of a res mancipi, and the handing of it by the transferee to the transferrer, with the, declaration that thereby and therewith the thing in question became his in quiritary right. On the introduction of coined money weighing became unnecessary. The price was counted out before the ceremony, or sometimes left to be done afterwards; and though, in that spirit of conservatism that was so marked in the adhesion ' Dig. xlvii. 3, I pr. and xlvi. 3, 98, § 8. See Cuq, Inst. Jurid. and ed. i. gI n.; and on tignum junctum in general, Girard, Manuel de droil romain, 4th ed. p. 330. ' Our only authority for attributing this fundamental rule to the XII. Tables is Justinian's Institutes, ii. 1, § 41, where there is clear evidence of a Tribonianism. The rule undoubtedly must have been applied to res mancipatae in the Tables, and possibly its extension to tradition of res nec mancipi may have been due to interpretation. See Girard, ut supra, p. 288; cf. Cuq, Institutions Jurid. i. p. 87. 6 Literature: Leist, Mancipation and Eigenthumstradition (Jena, 1865); Jhering, Geist. d. rom. Rechts, vol. ii. § 46; Bechmann, Der Kau nach gemeinem Recht (Erlangen), i. pp. 47–302; Voigt, XII. Tafeln, vol. i. § 22, vol. ii. §§ 84-88; Kalowa, Rom. Rechtsgesch. ii. pp. 363-81. Owner-ship in "res mancipi" and "ms nec man- cipi." to time-honoured forms after their raison d'l.tre was gone, the scale-bearer and the scales were still retained as indispensable elements of the mancipation, yet the scales were simply touched by the purchaser with a raudusculum or a single coin, in order that he might be able to recite the old formula: " I say that this slave is mine in quiritary right, and that by purchase (for such and such a price) with these scales and this bit of copper." And that one coin, says Gaius, was then handed by the transferee to the transferrer as if it were in fact the price of the purchase (quasi pretii loco). Thus transformed, the mancipation was undoubtedly an imaginary sale; for the real price might have been paid weeks or months before, or might not be paid until weeks or months afterwards. The mancipation had become nothing more than a conveyance, and in this form it continued down to the end of the 3rd century of the Empire to be the appropriate mode of transfer of a res mancipi, or at least of conferring on the transferee of such a thing a complete legal title (dominium ex jure quiritium). After that, however, it seems gradually to have gone into disuse, being inapplicable to lands out of Italy that did not enjoy what was called jus Italicum; and long before the time of Justinian it had practically disappeared. The effects of a mancipation, provided the price had been paid or security given for it, were that the property passed instantly to the purchaser, and that the transferrer was held to warrant the transferee against eviction from the moment the price was received. In the absence of either payment or sureties for it, the title still remained with the vendor, so that it was in his power, by means of a real action, to get back what had been mancipated, even though it had passed into the possession of the vendee. The vendor's liability to the vendee in the event of eviction is usually supposed to have arisen ipso jure—that is to say, without anything expressly said about it; the acceptance by the transferrer of the coin with which the scales had been struck was held to have imposed upon him an obligation to maintain the transferee in possession, under a penalty of double the amount of the price, recoverable by the latter by what is usually called an actio auctoritatis. But this ipso jure obligation did not arise when the mancipation was either really or fictitiously gratuitous (nummo uno),—really, in the case of donations, &c., fictitiously, when, on purpose to exclude the warranty, the recital of the transferee was that the price was a single sesterce. The right of a vendee to sue an actio auctoritatis arose only when eviction resulted from a decree in a regular judicial process at the instance of a third party disputing his title, and was conditional on his having done all that was necessary on his part to bring his vendor (auctor) into the field to defend his own interests. And the duration of the auctoritas was limited by the Tables to two years in the case of lands and houses, to one year in the case of other things. As possession for those periods was sufficient to cure any defect in the vendee's title, it was but reasonable that with their expiry the vendor's liability on his warranty should be at an end. By a provision of the Tables in the very inclusive terms, " cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto," the importance of mancipation was immensely increased; for any sort of qualification germane to the transaction might be super-induced upon it, and the range of its application thus greatly extended. Such qualifications were spoken of as leges mancipii,—self-imposed terms, conditions or qualifications of the conveyance and, as integral parts of the transaction per aes et libram, they partook of its binding character and were law between the parties. The matter of oral declaration might be the acreage of lands, their freedom from burdens or right to easements, reservation of a usufruct, undertaking to reconvey on a certain event, or what not, so long as it did not express a term or condition; the result was just so many obligations created per aes et libram, whose contravention or denial (Cicero tells us) was punished with a twofold penalty.' Ordinarily the words spoken in the hearing of the witnesses fixed the beginning and the end of the liability; it was enough that they were literally complied with, however much the other party might be injured by something inconsistent with their spirit, or which he had not taken the precaution to require should be made matter of declaration. But there was an exception (although not introduced until long after the Tables) in the case of that particular mancipatory agreement which was known by the name of fiducia, i.e. where the mancipation was to a creditor in security or to a friend for safe custody, and the engagement was to return the thing mancipated, in the one case when the debt secured by it was paid and in the other on demand. In such cases the transferee took the conveyance more in the transferrer's interest than his own; he became a sort of trustee, entitled to be treated with consideration, and neither mulcted in a twofold penalty when his inability to reconvey was due to no fault of his, nor forced to reconvey until relieved of charges incurred by him in reference to 'Cie. de Off. iii. 16, § 65. Some writers, e.g. Girard, Manuel de droit roman, p. 550, n. 5, take the view that, apart from the actin auctoritatis, it was only where the extent of the land was misstated (attic, de mock agri) that the penalty of a du plum was ipso jure incurred. But this puts a gloss on Cicero's language.the property. Accordingly it became the practice to import into the mancipation a reference to fides—" fidi fiduciae causa meum esse aio," with explanation of the purpose, conditions, &c., of the fiducia, and this explanation as a rule. not in the nuncupatory words, forming a relative lex mancipii, but in a separate agreement or pactum fiduciae. This pact then became enforceable not by ordinary legis actio, as part of the mancipation, but separately on grounds of good faith alone. It gave rise to an actio fiduciae which some writers think was just an application of the legis actio per judicis postulationem, but which more probably was originally an action in factum granted by the urban praetor by virtue of his imperium. In any case it was one of the earliest instances of an action inter rives based on principles of good faith. The fiduciary clause had the effect of freeing alike the right of the vendor and the obligation of the vendee from the hard-and-fast lines of the jus slrictum, and subordinating them to the principles of bona fides? Of the civil modes of acquiring property on singular title applicable to both res mancipi and res nec mancipi surrender in court (in jure cessio) was just a rei vindicatio arrested in its initial Sawn- stage. The parties, cedent and cessionary, having pre- der in viously arranged the terms of transfer—sale, donation or court otherwise—appeared before the magistrate; the cession- ary, taking the position of plaintiff, declared the thing his in quiritary right; the cedent, as defendant, was asked what he had to say in answer; and, on his admission or silence, the magistrate at once pronounced a decree (addictio) which completed the transfer, but which might be subject to a fiduciary reservation or deduction of a servitude. It was probably more resorted to for the constitution of servitudes, both real and personal, and transfer of such rights as pairia potestas, tutory-at-law of a woman, or an agnatic inheritance that had already opened, than for conveyance of property. For it was not only inconvenient, inasmuch as it required the parties to appear before the supreme magistrate in Rome, and could not be carried through by any one under power (as mancipation might), but it had also the serious disadvantage that it did not ipso jure imply any warranty of title by the cedent in the event of eviction or give rise to an action de modo agri. Nor did it, like mancipation and tradition, make payment of the price a condition precedent of the transfer of property. The reason was that in form the right of the cessionary flowed from the magisterial decree: " Since you say the thing is yours, and the cedent does not say it is his, I declare it yours," and not from any act or word of the cedent's, who was passive in the matter. Usucapion,3 regulated by the XII. Tables, but not improbably recognized previously in a vague and uncertain way, converted uninterrupted possession (usus) into quiritary property usu- by efflux of time. The provision in the Tables, as capion. given by Cicero, was to this effect: " usus auctoritas fundi biennium est, ceterarum rerum omnium annuus est." The relation in which the words usus and auctoritas stand to each other has been a subject of much discussion: the prevailing opinion amongst modern civilians is that the two words should be taken disjunctively, the first alone referring to usucapion, and the second to the warranty of title incumbent on the vendor in a mancipation, and that both were limited to two years in the case of lands (and, by extensive interpretation, houses), and to one year in the case of anything else. In the later jurisprudence the possession required to be based on a sufficient title and the possessor to be in good faith. But the decemviral code, as is now generally admitted, contained no such requirements; any citizen occupying immovables or holding movables as his own, provided they were usucaptible and he had not taken them theftuously, acquired a quiritary. right in two years or one, as the case might be, simply on the strength of his possession. Originally, therefore, it was simply the conversion of de facto possession, no matter how acquired so long as not by theft, into legal ownership when prolonged for the statutory period, too often the maintenance of might at the cost of right. But in time it came to be regarded rather as a remedy for some defect of title, arising either from irregularity of conveyance or incapacity of the party from whom a transfer had been taken; and with the progress of 2 There is much diversity of opinion about fiducia. See Oertmann, Fiducia im ram. Privatrecht (Berlin, 189o) ; Girard, Manuel, 4th ed. pp. 519–23; Sohm, Institutionen (Eng. trans., 2nd ed.), pp. 63–65. ' Literature: Stintzing, Das Wesen von bona fides and titulus in d. ram. Usucapionslehre (Heidelberg, 1852) ; Schirmer, Die Grundidee d. Usucapion im ram. Rechi (Berlin, 1855) ; Pernice, Labeo, 2nd ed. ii. 328 seq. ; Voigt, XII. Tafeln, ii. § 91, Karlowa. Rom. R.G. ii. 387 seq. ; Esmein, " Sur 1'histoire de 1'usucapion,' Melanges (1886), pp. 171 seq. jurisprudence it developed into the carefully regulated positive prescription which has to a greater or less extent found a place in every modern system. The conception of the abstract notion of a real right in (or over) the property of another person (jus in re aliena) is not to be looked for at so early a period in the history of the law as that now under consideration. The rural servitudes of way and water were no doubt very early recognized, for they ranked as res mancipi, and the XII. Tables contained various regulations in reference to the former. Usufruct, too, was probably not unknown; but the urban praedial servitudes bear the impress of a somewhat later jurisprudence. Pignorate and hypothecary rights were certainly unknown as rights protected by action.' Between private parties the only thing legally recognized of the nature of a real security was the fiducia that is described above. Approaching more nearly to the modern idea of a mortgage was the security praedibus praediisque required by the state from those indebted to it in assurance of their obligations. Here there was the double guarantee of sureties (praedes) and mortgages of lands of theirs (praedia subsignata); but how they were dealt with when the debtor made default is by no means clear. Changes in the Law of Succession.—The two forms of testament of the regal period, viz., that made in the comitia of Forms of the curies and that by soldiers on the eve of battle, testa- still remained in use in the early Republic; though IDeaa. before the end of the Republic they were displaced by the general adoption of that executed with the copper and scales (testamentum per aes et libram). It seems to be the general opinion that it was to the first two alone that the words applied which stood in the forefront of the provisions of the XII. Tables about inheritance: "uti legassit suae rei, ita jus esto." Whether resort was to the comitia or to the army, the testator's own will in the matter was henceforth to be supreme. There was to be no more reference to the pontiffs as to the expediency of the testament in view of the interests of the family sacra and of creditors of the testator's; from legislators, sanctioning a departure from the ordinary rules of succession, the assembled Quirites became merely witnesses—recipients of the oral declaration of the testator's will in regard to his inheritance? The testament with the copper and the scales is depicted by Gaius as a written instrument. But he presents it in what Testa- might be described as the third stage of its history. meat Its probable origin has been explained (supra, p. 534). per aes et It was originally not a testament but only a make- libram. shift for one. A plebeian was not qualified in the regal period to make a testament in the comitia; so, instead, he transferred his estate to a friend on whom he could rely, with instructions how to distribute it on his death. The transferee was called familiae emptor, because the conveyance was in form a mancipation for a nominal price. It is not at all unlikely that the same device may occasionally have been resorted to by a patrician who had neglected to make a regular testament, and was seized with mortal illness before he had an opportunity of appealing to the curies.' But such a disposition was not a testament, and may not have been so called. A testament was the nomination of a person as the testator's heir. It made the person instituted as fully the representative of the testator after his death as his heir-at-law would have been had he died Hypothecary rights were unknown until near the end of the Republic. But Festus (s.v. Nancitor "; see Bruns, Fontes, 6th ed., iii. 16) speaks of a provision in the Cassian league between Rome and the Latin states of the year 262 u.c.—" Si quid pignoris nasciscitur, sibi habeto "—which may suggest that the Romans at this period were not altogether unacquainted with pledge or pawn of movables as a transaction of some value de facto if not de jure. : See Girard, Manuel de droit romain, 4th ed. p. 800. On the uti legassit " law of the Tables see ibid. p. 782, and cf. Cuq, Institutions Juridiques, 2nd ed. pp. 124-125. The comitia, Gaius tells us (ii. § 102), met only twice a year to sanction testaments. In Mommsen's view, Rom. Chronologie (1859), pp. 241 seq., these days were the 24th of March and the 24th of May.intestate. The original mortis causa mancipation that opened the way for the testament per aes et libram conferred upon the familiae emptor no such character. Gaius says that he stood in place of an heir (heredis loco), inasmuch as he had such of an heir's rights and duties as the familiae venditor had it in his power to confer and impose; butte transaction was but a conveyance of estate, with a limitation of the right of the grantee. It has been argued that, as the law did not recognize conditional mancipation, the conveyance must have operated as a complete and immediate divestiture of the grantee. But this does not follow. For it was quite competent for a man, in transferring property by mancipation, to reserve to himself a life interest; and apparently it was equally competent for him to postpone delivery of possession, without infringing the rule that the mancipation itself could not be ex certo tem pore. So far as one can see, therefore, there was nothing to prevent the grantor of the conveyance (or quasi-testator) bargaining that he was to retain the possession till his death; and, as the familia was an aggregate of estate (universitas rerum) which retained its identity notwithstanding any change in its component elements, he must in such case have been as free to operate on it while he survived, as if he had never conveyed it by mancipation. Cicero incidentally remarks 4—what indeed the nature of the transaction of itself very distinctly suggests—that the true testament with the copper and the scales had its statutory warrant, not in the uti legassit suae rei of the XII. Tables, but in the provision contained in the words: " cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto." Reflection on the import and comprehensiveness of these words led the pontifical interpreters to the conclusion that there was nothing in them to prevent the direct institution of an heir in the course of the verba muncupata engrafted on a mancipation. From the moment this view was adopted and put in practice the familiae mancipatio ceased to be a transfer of the testator's estate to the familiae emplor; the latter's purchase was now for form's sake only, though still an indispensable form, since it was it alone that, according to the letter of the statute, imparted efficacy to the nuncu patio. But it was the nuncu patio—the oral declaration addressed to the witnesses—that really contained the testamentary disposition, i.e. the institution of an heir, with such other provisions as the testator thought fit to embody in it. This was the second stage in the history of the testament per aes et libram. The third was marked by the introduction of tablets in which the testamentary provisions were set out in writing, and which the testator displayed to the witnesses, folded and tied up in the usual manner, declaring that they contained the record of his last will. Gaius narrates the words spoken by the familiae emplor and addressed to the testator as follows: " Your estate and belongings (familia pecuniaque tua), be they mine by purchase with this bit of copper and these copper scales, subject to your instructions, but in my keeping, that so you may lawfully make your testament according to the statute (quo to jure testamentum facere possis secundum legem publicam)." The meaning of the words " in my keeping (endo custodelam meam)" is not quite obvious; they are probably remnants of an older style, but may be due to a clerical error of the writer of the Verona MS. Certain it is that they no more imported a real custody than a real property in the familiae emplor; for the testator remained so entirely master of his estate that the very next day if he pleased he might mancipate it anew to a different purchaser, and nuncupate fresh testamentary writings. The nuncupation by the testator was in these terms: " As is written in these tablets so do I give, so do I legate, so do I declare my will; therefore, Quirites, grant me your testimony "; and, adds Gaius, " whatever the testator had set down in detail in his testamentary tablets he was regarded as declaring and confirming by this general statement." To the appeal of the testator the witnesses responded by giving their testimony in words which unfortunately are not preserved; and then the testament was sealed by testator, officials and witnesses, the seals being outside according to the early fashion.6 Although this testament with the copper and the scales was justified in the first instance by the provision of the XII. Tables as to the effect of nuncupative words annexed to a mancipation, yet in course of time it came to be -subordinated to that other one which dealt directly with testamentary dispositions: uti legassit suae rei, ita jus esto. Upon the words uti legassit the widest possible meaning was put by the interpreters: not only was a testator held entitled on the strength of them to appoint tutors to wife and children, to enfranchise slaves and make bequests to legatees, but he might Cie. De Oral. i. 57, § 245. 6 On the above passage of Gaius, see Sohm, Inst. § 99. Jura In re aliena. even disinherit a child in his potestas (suns heres) in favour of a stranger, so long as he did so in express terms. Institution of a stranger, without specific mention of the suns heres, however, was fatal, if the latter was a son; for without express disherison (exheredatio) his father could not deprive him of the interest he had in the family property as in a manner one of its joint owners. It can hardly be supposed that disherison was contemplated by the compilers of the Tables; it was foreign to the traditional conception of the family and the family estate. But it was a right whose concession could not be resisted when claimed as embraced in the uti legassit, although generally discountenanced, and as far as possible restrained by the strictness of the rules imposed on its exercise. In the absence of a testament, or on its failure from any cause, the succession opened to the heirs ab intestate. So Intestate notoriously were the sui heredes entitled to the first success place—and that not so much in the character of heirs Sion. as of persons now entering upon the active exercise of rights hitherto existing, though in a manner dormant—that the compilers of the XII. Tables thought it superfluous expressly to declare it. " If a man die intestate, leaving no suus heres, his nearest agnate shall have his estate. If the agnate also fail, his gentiles shall have it." It has been pointed out, in dealing with the tutory of agnates, that the notion of agnation, as a bond distinct from that which connected the gentile members of a clan, was due to the decemvirs. They had to devise a law of intestate tutory and succession suitable alike to the patricians who had genies and to the plebeians who had none. To put the latter in exactly the same position as the former was beyond their power; for the fact had to be faced that the plebeians had no gentile institutions, and to create them was impossible. The difficulty was overcome by accepting the principle of agnation upon which the patrician gens was constructed, and establishing an agnatic circle of kinsmen (perhaps at first limited to the sixth degree) to which the gens as a collective body should be postponed in the case of the patricians, and which should come in place of it in the case of the plebeians. It was not perfect equalization, but the nearest approach to it that the circumstances permitted. The difference was that, when the agnates of a plebeian intestate failed, his inheritance was vacant; whereas, on failure of those of a patrician, there was devolution to his gens in its collective capacity. Two " interpretations " put upon the statute had an important bearing in this connexion, viz. (1) that, if the nearest agnates in existence declined the succession, those next in degree were not allowed to take it; and (2) that no female agnate could take it more remote than a sister of the deceased intestate. The division among two or more agnates was always per capita, not per stir pes. The order of intestate succession thus established by the XII. Tables, which prevailed until amended by the praetors probably in the 8th century of the city, was first to the sui heredes of the deceased, next to his nearest agnate or agnates, and finally, if the deceased was a patrician, to his gens.l His sui heredes, speaking broadly, were those of his descendants in his potestas when he died who by that event (or even after it, but before his intestacy became manifest) became sui juris, together with his wife in manu (who, as regarded his succession, was reckoned as a daughter); but they did not include children whom he had emancipated or daughters who had passed in manum of a husband. Emancipated children did not even come in as agnates on failure of sui; for emancipation severed the tie of agnation as well as that of potestas. For the same reason no kinsman who had been emancipated, and so cut off from the family tree, could claim as an agnate; for those only were agnates who were subject to the same patria potestas, or would have been had the common family head been still alive. The opening of a succession (technically delatio hereditatis) in favour of sui heredes, whether in virtue of a testamentary institupositton tion or by operation of law on intestacy, at once invested of6eirs. them with the character, rights and responsibilities of heirs. No acceptance was necessary, nor, according to the rules of the jus civile, was any declinature competent. They 1 This was for freeborn citizens; for freedmen, the patron (or his children in potestate) took the place of the nearest agnates.had been all along in a manner joint owners with their parent of the family estate, which by his death had become, nominally at least, an inheritance; and, as he had not thought fit to terminate their interest in it by emancipating or disinheriting them, they were not now allowed to disown it. Hence they were spoken of as necessary heirs (heredes sui et necessarii). A slave, too whom his owner had instituted in his testament with gift of liberty was a necessary heir: he could not decline, and was invested with the character of heir the moment the testator died. Not so with stranger institutes or agnates taking on intestacy: they were free to take or reject the inheritance as they saw fit; consequently, an act of acceptance (aditio) was necessary on their part to make them heirs. This was a formal declaration before witnesses, which got the name of cretio.2 It was not unusual for a testator, in instituting an heir, to require that he should make a formal declaration of acceptance within a limited time, failing which his right should pass to a substitute, who in turn was required to enter within a certain time; and so on with any number of substitutes, the series ending with one of his slaves, who became heir without entry, and thus saved the testator from the disgrace of post mortem bankruptcy in the event of the inheritance proving inscl ent. The uti legassit of the Tables, as interpreted by the pontiffs, conferred upon a testator very great latitude of testamentary disposition, even to the extent of disherison of sui heredes. This was a course, however, that was probably rarely resorted to unless when a child had been guilty of gross ingratitude, or when the parent had reason to believe his estate was insolvent and desired to protect his children from the responsibilities of inheritance. Usually his sui, if he had any, would be his institutes, and the purpose of the testament either to apportion the estate amongst them as he thought expedient, or to give him an opportunity of appointing tutors, bequeathing legacies, or enfranchising slaves. On intestacy the sui took equally but per stirpes; that is to say, grandchildren by a son who had predeceased or been emancipated, but who themselves had been retained in their grandfather's potestas, took amongst them the share to which their father would otherwise have been entitled, instead of taking equal shares with their surviving uncles. It was by no means unusual, when the whole inheritance descended to sons, for them to hold it in common for many years as quasi partners (consortes) ; but any one of them was entitled at any moment to claim a partition which was effected judicially, by an arbitral procedure introduced by the XII. Tables, termed a judicium (or arbitrium) familiae erciscundae. Where two or more strangers were instituted testamentarily, whether to equal or unequal shares, if one of them failed either by predecease or declinature his share accrued ipso lure to the others; for it was a rule that early became proverbial that a man could not die partly testate and partly in-testate. There was the same accrual among agnates on intestacy; and both they and stranger testamentary institutes had the same action for division of the inheritance that was made use of by sui heredes. According to Gaius it was as a stimulus to heirs to enter as soon as possible to an inheritance that had opened to them, and thus make early provision alike for satisfying the claims of Usucapio creditors of the deceased and attending to his family sacra, that the law came to recognize the somewhat re- here. markable institution of usucapion or prescriptive acqui- sition of the inheritance in the character of heir (usucapio pro herede). Such usucapion was impossible—there was no room for it--if the deceased had left sui heredes; for the inheritance vested in them the moment he died. But, if there were no sui heredes, then any person taking possession of the property that had belonged to the deceased, and holding it for twelve months without interruption, thereby acquired it as if he were heir: in fact, according to the views then held, he acquired the inheritance itself. Gaius characterizes it as a dishonest acquisition, inasmuch as the usucapient knew that what he had taken possession of was not his. But, as already explained, the usucapion of the XII. Tables did not require bona fides on the part of the uscapient; he might acquire ownership by prolonged possession of what he knew did not belong to him so long as he did not appropriate it theftuously, i.e. knowing that it belonged to another. But an inheritance unappropriated by an heir who had nothing more than a right to claim it belonged in strictness to no one; and there was no theft, therefore, when a person took possession of it with a view to usucapion in the character of heir. There can be little doubt that on the completion of his possession he was regarded as heir just as fully as if he had taken under a testament or as heir-at-law on intestacy—that is to say, that he was held responsible to creditors of the deceased and required to charge himself with the family sacra. Gaius does not say as much; but both the Coruncanian and the Mucian edict 2 imposed the latter burden upon him who had usucapted by possession the greater part of a deceased person's estate; and it is but reasonable to suppose that the burden of debts must in like manner have fallen on the usucapient or usucapients in proportion to the shares they had taken of the deceased's property. 2 Gai. ii. 164-193. ' Cie. de leg. ii. 48, 49. The Law of Obligations.—In his Liber Aureorum Gaius says -obligations arise from either contract or delict, or miscellaneous Law of causes (variae causarum figurae). But those arising obiiga- from contract fill a place in the later jurisprudence :ions. vastly greater than those arising from delict. In the XII. Tables it was different. In them delicts were much more prominent than contracts—wrongs entitling the sufferer to demand the imposition of penalties upon the wrong-doer that in most cases covered both reparation and punishment. The disproportion in the formulated provisions in reference to the two sources of obligation, however, is not surprising. For, first of all, the purpose of the decemviral code was to remove uncertainties and leave as little as possible to the arbitrariness of the magistrates. In nothing was there more scope for this than in the imposition of penalties; and, as different offences required to be differently treated, the provisions in reference to them were necessarily multiplied. In the next place, the intercourse that evokes contract was as yet very limited. Agri-culture was the occupation of the great majority; of trade and commerce there was little; coined money had hardly begun to be used as a circulating medium. Lastly, the safe-guards of engagement then lay to a great extent in the sworn oath or the plighted faith, of which the law (jus) hardly yet took cognisance, but which found a protection quite as potent in the religious and moral sentiments that had so firm a hold on the people. It may be asked—If a man purchased sheep or store cattle, a plough, a toga, a jar of wine or oil, had he no action to compel Contract delivery, the vendor no action for payment of the price? is Did the hire of a horse or the loan of a bullock create no general obligation? Was partnership unknown, and deposit, and pledge, and suretyship in any other form than that of vadimonium? One can have no hesitation in answering that, as transactions of daily life, they must all have been more or less familiar. It does not follow, however, that they were already regulated by law and protected by the ordinary tribunals. Modern historical jurists are pretty well agreed that not only the real con-tracts of loan (mutuum and commodatum), deposit, and pledge, but also the consensual ones of sale, location, partnership, and mandate, and the verbal one of suretyship, were as yet barely recognized by law. The law recognized conveyance but hardly contract. Sale was the offspring of barter—of instant exchange of one thing for another. With such instant exchange there was no room for obligation to deliver on either side. The substitution of coined money for the raw metal can hardly have effected any radical change: the ordinary practice of those early times must still have been ready-money transaction—an instant exchange of ware for price; and it can only have been when, for some reason or other, the arrangement was exceptionally for delivery or payment at a future date, say next market day, that obligation was held to have been created. Was that obligation enforceable by the civil tribunals? Some jurists hold that it was—that at no time were the jus gentium contracts outside the protection of judicial remedies, although by a simpler procedure than that resorted to for enforcement of the contracts of the jus civile. But two provisions in the XII. Tables seem to prove that it was not so enforceable when they were drawn up. The first is that already referred to as recorded by Justinian—that, where a thing was sold and delivered, the property, nevertheless, was not to pass until the price had been paid or sureties (vades) for it accepted by the vendor. Far from being a recognition of the obligatory nature of the transaction, this provision is really a recognition of the inability of the law to enforce payment of the price by the vendee; it is a declaration that, on the latter's failure to pay, the vendor, unprotected by any personal action, should be entitled to get back the thing sold as still his own, no matter in whose hands he found it. The second related to the case of a person who had bought a victim for sacrifice, but had failed to pay for it. A real action for its revindication by the seller after it had been consumed on the altar was out of the question; so he was authorized by the Tables, by the process of ytgnoris ca pie, at his own hand to appropriate in satisfaction a sufficient equivalent out of the belongings of the purchaser, against whom he had no personal action. It was a principle of the law of Rome through the whole of its history, though in course of time subject to an increasing Reyuis- number of exceptions, that mere agreement between lies of two persons did not give him in whose favour it was binding conceived a right to demand its enforcement. To CO°tra`L entitle a man to claim the intervention of the civil tribunals to compel implement of an engagement undertaken by another, it was necessary (subject to those exceptions)
End of Article: REGAL
REGALIA (Lat. regalis, royal, from rex, king)

Additional information and Comments

There are no comments yet for this article.
» Add information or comments to this article.
Please link directly to this article:
Highlight the code below, right click and select "copy." Paste it into a website, email, or other HTML document.