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ROMAN LAW

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Originally appearing in Volume V23, Page 529 of the 1911 Encyclopedia Britannica.
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ROMAN LAW.' The term " Roman law " is indefinite and ambiguous, being used in more than one sense. First, in a wide sense, it comprehends the totality of the laws of the Roman state, which were observed by its subjects during about thirteen centuries, from Romulus to Justinian. In a second and stricter meaning it indicates the law as consolidated by Justinian or, in other words, the law contained in the Corpus Juris Civilis, which is the name that has been given since the 16th century to Justinian's legislative works as a whole, and distinguishes them from the Corpus Juris Canonici. In this acceptation it is equivalent to, and is often called, " civil law " as contrasted with canon law. In a third and loose sense Roman law em-braces, in addition to the Corpus Juris, the interpretations of it after Justinian by medieval and modern courts, jurists and commentators adapting it to the customs and laws of their own countries and times. The German expression, for example, modernes (or heutiges) romisches Recht, indicates the Roman law as it was applied in Germany in modern times. Such medieval and modern interpretation, however, is also some-times expressed, in English usage at least, by the term "civil law " as contrasted with native or common law; writers in this field being usually styled civilians rather than Romanists. It is to the Roman law in the first of the above-mentioned three significations that the present article is devoted. To give a proper sketch of Roman law it must be treated historically. Nearly all systems of positive law are the product Necessity more or less of an historic development, but the Roman for has this great advantage over other systems, that it historic was at all times a homogeneous body complete in itself. treat- For the Romans were comparatively little indebted to meat. other peoples for their jurisprudence, and, when they did borrow legal ideas and institutions from others, they generally transformed or modified these in adapting them to their own native system, so that they became substantially Roman. Moreover, the various stages of progress of the law from its genesis to its maturity and ultimate consolidation can be traced in unbroken continuity. Beginning in 753 B.C., the traditionally accepted date of the foundation of Rome, it continued its course till the death of Justinian in A.D. 565. Allowing for the first three centuries being without historic evidence, we have at least an authenticated evolution of about woo years. Of no other system of law, ancient or modern, can anything like the same thing be said. As to the proper method of historic treatment there have been different opinions. Without going into these, it is enough to say that the subject may be treated from two sides, viz. on the one side in relation to the external sources of the law, including therein the political and social conditions and the various constitutional changes at different periods affecting the development of the law, as well as the modes in which the law manifested itself and the legal literature from which our knowledge of it is derived; on the other side it may be treated in relation to the several departments or institutions of the law in view of their development or changes through time or circumstance, such as marriage, slavery, property, and so forth. This corresponds to what Leibnitz described as external and internal history respectively, terms which are now rather out of vogue. Of course it is possible to treat the historic sources of the law, constitutional and literary, independently of the doctrines, and this is now often done; but unless both are discussed the field of Roman law is not covered. Both the external and the ' This article represents a recast of the article contributed to the 9th edition of the Encyclopaedia by the late Professor Muir-head. A large part of that article has been retained by the present writer, and the plan of arrangement, though altered in some respects, has been adhered to in the main.internal history, however, may be treated together or in a measure interwoven, and it is in this way that the subject is treated in the following pages. But constitutional events affecting the law are only noticed very summarily, details about these being given in separate articles. Modern writers on the history of the Roman law have as a rule, for the purpose of systematic treatment, divided the subject into definite historic periods. Gibbon, in the Division 44th chapter of his Decline and Fall of the Roman into Empire, seems to have been the first to suggest this historic mode of treatment, though the particular periods of epochs. division he selected (being based on an artificial symmetry of about three hundred years each) are not satisfactory.' In the present article, the division made by Muirhead in his article in the 9th edition of this Encyclopaedia into five historic epochs has been left unaltered. These are: (1) the regal period; (2) the jus civile, representing the period from the establishment of the Republic until the subjugation of central and southern Italy; (3) the jus gentium and jus honorarium, representing the latter half of the Republic; (4) the jus maturate and maturity of Roman jurisprudence, representing the period of the Empire until the beginning of the reign of Diocletian; (5) the period of codification, i.e. from Diocletian to Justinian. Not that there is any sharp or fundamental division between these or, indeed, between any historic epochs. The law is a unity: it has its roots in the past and grows with the nation itself, and, like it, decays; there is no break in its continuity. The division is made merely for convenient treatment of the subject. It must be kept in view that our knowledge of Roman customs and laws earlier than the XII. Tables and even for some time after them cannot be based on strict historical evidence; it is almost entirely traditional and conjectural, and different writers will take different views according to the relative value they place upon this or that piece of presumptive evidence. It is only the private law that is dealt with in the present article. _ I. THE REGAL PERIOD i. The People and the Law. The Beginnings of the State,—The early Romans were not different from other Indo-European communities in their essential characteristics. The tribe, the clan, the family, the individual: each of these appears in course of development prior to the XII. Tables. Putting aside much of the traditional accounts of Livy, Dionysius, and other ancient historians, regarding the foundation of Rome and its early political and social life, as mythical, modern critical historians are none the less agreed that in the earliest period of their existence as a settled community the Romans were subjected to the government of a king (rex), with a council of elders (senatus) and an assembly of burghers (comitia curiata). It used to be a somewhat common opinion that the primitive Romans were a sort of amalgam of three different races—Latin, Sabine and Etruscan. This opinion is mainly based upon the tradition that the state was originally formed by a union of three tribes called Ramnes, Tities and Luceres; the Ramnes being of the Latin race, the Tities of the Sabine and the Luceres of the Etruscan. Attempts have even been made to find in the Roman laws and institutions traces of the influence of each of these races, and especially of the first two—patria potestas and manus, for example, being attributed to the Latin or dominant race; adoption and confarreation to the Sabine; forms and ceremonial (such as lictors, fasces, &c.) to the Etruscan.' But this attractive theory of a union of three races, apart from the suspicion of a symbolic trichotomy (tres tribus) due to later times, is based on no substantial evidence;' many of the z See as to historic epochs Muirhead, Hist. Introd. to the Law of Rome (2nd ed. by Goudy, 1899), p. 421. ' See Muirhead, Historical Introduction (2nd ed., 1899), pp. 3-5, and authorities there cited. 4 Some writers deny the existence of the tribes altogether, but this goes too far. See Bruns-Lend in Holtzendorff's Encyklopadie d. Rechtswissenschaft, i. p. 86'. institutions attributed to the Sabines and Etruscans were, as Mommsen and others have shown, common to all peoples of Greek-Italian stock, and could not be strange to the Latins. We must hold that the Romans were essentially a Latin race, though influenced by a considerable admixture with Sabine and, to a lesser degree, Etruscan races (see RoME). Patricians, Clients and Plebeians.—But whatever their ethnographic descent, it is pretty certain that the Roman civitas Divisions was in the earliest period an organization that was of the patriarchal in its essence, but in which there was to be people. distinguished, on the one hand, a dominant class enjoying all the rights of citizenship, and, on the other, a semi-servile or quasi-vassal class excluded from such rights. The former class were called patricii or Quirites;' the latter were called clientes and (later) plebeii. Patricians.—There was part of the law of Rome that even in the Empire was known by the name of jus Quiritium, and this in the regal period was the only law. The patricians at Paid- first were the Quirites, and prior at least to the time of clans. Servius Tullius they alone enjoyed rights under this law. From their number the council of elders was selected; they alone could take part in the curiate comitia; they alone could contract a lawful marriage and make a testament; in a word, all the peculiar institutions of early Rome were for their benefit alone. But these rights and prerogatives they enjoyed as members of gentes or clans, the clans being aggregations of families bear- ing a common name and theoretically at least tracing The their descent from a common ancestor. These clans, of genies. which there were normally three hundred altogether according to a rather doubtful tradition, were organized constitutionally in curies. Of the curies, again, there were thirty in all, there being probably ten in each of the three tribes, organized primarily for military and secondarily for political and religious purposes. Though for the federation of the curiae and genies Rome required a common ruler and common institutions, religious, military and political, yet it was long before such federation into a state displaced entirely the separate institutions of the several gentes. Every clan had its own cult peculiar to its own members. It had its common property and its common burial-place. It probably had some common council or assembly, for we read not only of special gentile customs, but of gentile statutes and decrees. Tradition records instances of wars waged by individual genies, indicating that they had the right to require military service alike from their members and dependants. Widows and orphans of deceased clansmen were under the guardianship of the gens or of some particular member of it to whom the trust was specially confided. If a clansman left no descendants, his property passed to his fellow-gentiles. Finally, its members were always entitled to rely upon its assistance, to have maintenance when indigent, to be ransomed from captivity, and to be avenged when killed or injured. Along with the gentiles there were in Rome from the earliest period other persons known by the name of clientes (clients). Clients. Their origin is wholly unknown. Some of them may have been the original inhabitants of Rome and their descendants, but more probably they were mostly immigrants from other communities or citizens of conquered towns whom the Romans were unable or unwilling to treat as slaves. Some may have been slaves to whom liberty de facto had been given. Following a custom familiar both to Latins and Sabines, such persons were placed under the protection of the heads of patrician families. The relationship was hereditary on both sides, and known as that of patron and client. The client 2 t The derivation of the name is uncertain, and ancient writers differed about it. It probably comes either from quiris, a Sabine word for a spear, or from curia. The derivation from Cures is inadmissible. See Mommsen, Rom. Staatsrecht (1887, 1888), iii. 1, p. n. 2.The derivation of cliens from cluere indicates the relationship—one who is called on, who hearkens. The theory that clientagebecame a dependent member of his patron's clan—not gentilis but gentilicius. His patron had to provide him with what was necessary for his sustenance and that of his family; and, as ownership or possession of lands increased in extent, it was probably not unusual for the patron or his gens to give him during pleasure a plot of land to cultivate for himself. The patron had, moreover, to assist him in his transactions with third parties, and obtain redress for him when injured. The client, on the other hand, had to maintain his patron's interests by every means in his power. But the advantage must have been chiefly ,on the side of the client, who, without becoming a citizen, obtained directly the protection of his patron and his clan, and indirectly that of the state. A large number of clients attached themselves to and received protection from the king as patron—" royal clients," as Cicero calls them. The plebeians (plebs, from 7rAi Dos, meaning crowd), as distinguished from the clients, must be regarded as a heterogeneous mass of non-gentile freemen. It used to be Plebeians. the prevailing opinion among modern writers, following the Roman historians, that the plebeians existed as a body since the very beginning of the city. They were thought to be mainly composed of immigrants and ref ugees who, while being allowed personal liberty, declined to submit themselves to a patron. But recently a theory of Mommsen, based on solid philological and other grounds, has obtained wide adhesion and tends to become the dominant one. Mommsen's view is that at first there were only two classes in the community, the patricians and clients, or, in other words, that the only plebeians were the clients who, as such, possessed only quasi-liberty (Halbfreiheit), and that it was not till after a century or two that the practice of voluntary clientage began to decay and the class of plebeian freemen arose. This was partly due to genies dying out, so that the clients attached to them were left without patrons; partly to the numbers of foreigners at Rome (through transplantation of the inhabitants of conquered cities and otherwise) having become so large that they felt themselves sufficiently powerful to do without protection; and partly to other causes? However this be, it is generally admitted that, during the latter part of the present , epoch at least, plebeians existed as a body composed of individuals of mixed races not united by any gentile organizations of their own nor attached to any Roman genies. Tradition attributes to Numa the formation of gilds or societies of craftsmen, such as potters, carpenters, gold- and silver-smiths (collegia opificum) at Rome, eight or nine in number. This, though probably a - myth as regards Numa, may be taken as slight evidence of the creation among the plebeians of associations for trade and other purposes, that to some extent compensated them for the want of gentile organization. These gilds seem to have had a common cult and a common council to arrange disputes and consolidate customs. Between the brethren (sedales) there was a bond of close alliance and interdependence, each owing duty to the other similar to what might be claimed from a guest or a kinsman. The Regulatives of Public and Private Order.—It would be absurd to expect any definite system of law in those early times. What passed for it was a composite of fas, jus and boni mores, whose several limits and characteristics it is extremely difficult to define. This may to some extent be accounted for by the fact that much of what was originally within the domain of fas, once it had come to be enforced by secular tribunals, and thus had the sanction of human authority, was no longer distinguishable from jus; while it may be that others of its behests, once pontifical punishments for their contravention had gone into desuetude, sank to nothing higher than precepts of boni mores. arose from the voluntary subjection of poorer citizens to the rich is an hypothesis supported by no satisfactory authority. 3 Mommsen, Staatsrecht, iii. 1, pp. 66 seq. and pp. 127 seq. For a different view, Karlowa, Ram. Rechtsgeschichte, i. 62. Cf. Cuq, Instil. jurid. des Remains (2nd ed., 1904-8), i. 11-12. By fas' was understood the will of the gods, the laws given by heaven for men on earth, much of it regulative of ceremonial, 1 as. but a by no means insignificant part embodying rules of conduct. It appears to have had a wider range than jus. It forbade that a war should he undertaken without the prescribed fetial ceremonial, and required that faith should be kept even with an enemy when a promise had been made to him under sanction of an oath. It enjoined hospitality to foreigners, because the stranger guest was presumed, equally with his entertainer, to be an object of solicitude to a higher power. It punished murder, for it was the taking of a god-given life; the sale of a wife by her husband, for she had become his partner in all things human and divine; the lifting of a hand against a parent, for it was subversive of the first bond of society and religion,—the reverence due by a child to those to whom he owed his existence; incestuous connexions, for they defiled the altar; the false oath and the broken vow, for they were an insult to the divinities invoked; the displacement of a boundary or a landmark, not so much because the act was provocative of feud, as because the march-stone itself, as the guarantee of peaceful neighbourhood, was under the guardianship of the gods. Some breaches of fas were expiable, usually by a peace-offering to the offended god; others were inexpiable. When an offence was inexpiable, the punishment was usually what is called sacratio capitis, excommunication and outlawry of the offender. The precepts of the fas therefore were not mere exhortations to a blameless life, but closely approached to laws, whose violation was visited with punishments none the less effective that they were religious rather than civil. The derivation of the word jus is disputed. The usual derivation is from the Sanskrit, ju, to " join, bind or unite," from Jus which some deduce as its signification " that which binds," " the bond of society," others " that which is regular, orderly or fitting." Brgal identifies it with the jos or jaus of the Vedas, and the jaes or jaos of the Zend-Avesta—words whose exact meaning is controverted, but which he interprets as " divine will or power." 2 If Breal's definition can be adopted we obtain a very significant interpretation of the words addressed by the presiding magistrate to the assembled comitia in asking them whether they assented to a law proposed by him,—Velitis, jubeatis, Quirites, &c., " Is it your pleasure, Quirites, and do you hold it as the divine will, that," and so on. As legislation by the comitia of the curies and centuries was regarded as a divine office, and their . vote might be nullified by the fathers on the ground that there had been a defect in the auspicia, and the will of the gods consequently not clearly ascertained, this explanation of Breal's seems not without support,—vox populi vox dei. If it be right, then the main difference between fas and jus was that the will of the gods, which both embodied, was in the one declared by inspired and in the other by merely human agency. This jus might be the result either of traditional and inveterate custom (jus moribus constitutum) or of statute (lex).3 As to the customs, it can well be believed that at the outset they were far from uniform; that not only the customs of the three original tribes but those also of the different genies varied, 1 Breal derives fas from the Greek O us. It signifies the divinely inspired word. Breal et Bailly, 101. s Nouv. rev. hist. (1883), p. 6o5. But see J. Schmidt in Mommsen, Staatsrecht, iii. 310 n. ' For the distinction between jus and lex, see Mitteis, Romisches Privatrecht (1908), i. 30 seq. There is some controversy about the etymology of the word lex. See Brbal, 1.c. p. 61o; Schmidt in Mommsen, S.R. iii. 308 n. While lex is often used like jus to express law generally, it early acquired two distinct meanings, viz. (i) an obligation of any kind expressly incorporated in a private deed (lex privata), as in the phrases lex mancipii, lex contractus, &c.; (2) a comitial enactment, hence occasionally called lex publics (Gains, i. 3 and ii. 104). But by the jurists of the Republic this latter meaning was extended so as to cover all laws resulting from the will of the people, including, for example, plebiscites and even senatorial or proconsular ordinances (leges datae).and that they only gradually approximated, and in course of time consolidated into a general jus Quiritium. Of legislation there was, so far as is known, practically almost nothing What went by the name of boni mores (as distinct from bus moribus constitutum) must also be regarded as one of the regulatives of public and private order Part of what Boni fell within their sphere might also be expressly mares regulated by jas or jus; but there was much that was only gradually brought within the domain of these last, and even down to the end of the Republic not a little that remained solely under the guardianship of the family tribunal or the censor's regimen morum. The functions of those who took charge of boni mores were twofold: sometimes they restrained by publicly condemning—though they could not prevent—the ruthless and unnecessary exercise of legal right, as, for example, that of the head of the house over his depend-ants, and sometimes they supplied deficiencies in the law by requiring observance of duties that could not be enforced by any legal process. Dutiful service, respect and obedience from inferiors to superiors, chastity, and fidelity to engagements, express or implied (fides), were among the officia that were thus inculcated, and whose neglect or contravention not only affected the reputation, but often entailed punishments and disabilities, social, political or religious. It was the duty of those in authority to enforce their observance by such animadversio as they thought proper—the paterfamilias in his family, the gens among its members, the king in relation to the citizens generally; and many a wrong was prevented not by fear of having to make reparation to the party injured but by the dread of the penalties that would follow conduct unbecoming an upright citizen. That the bulk of the law during the regal period was customary is universally admitted, and that no laws were committed to writing prior to the XII. Tables is generally believed. Yet the jurist Pomponius, a Legea contemporary of Hadrian, speaks of certain laws fegt8e. enacted by the comitia of the curies, which he calls leges regiae and which, he says, were collected by one Sextus Papirius, a prominent citizen in the reign of Tarquinius Superbus, under the name of Jus Papirianum.' We are also told by Paul that this work was commented on by a certain Granius Flaccus,5 who was, it is supposed, of the time of Julius Caesar or Augustus. No remains of this Jus Papirianum are extant, but we have a considerable number of so-called leges regiae cited by Livy, Dionysius and others, which contain rules of the private law relating.,almost entirely to matters of fas and which appear to have been enacted under the kings We are also told by Servius, the commentator on Virgil, that there was a work known to Virgil called de Ritu Sacrorum, in which leges regiae were collected.6 The authenticity of these laws, however, is disputed, and the question is one of difficulty. Some modern writers of high authority (e.g. Mommsen hold that the Jus Papirianum is an apocryphal compilation made from pontifical records about the close of the Republic.' It has even been attributed (the suggestion was first made apparently by Gibbon) to Granius Flaccus himself. Nevertheless, the internal evidence from the character and language of the laws them-selves (apart from the weight that must be given to the testimony of Pomponius, Servius and other ancient writers) is favourable to their great antiquity, and it is best to accept the view that the leges regiae are authentic remains of laws of the regal period. This does not, however, involve the belief that they were collected by Papirius, nor that they were enactments of the comitia curiata, as Pomponius says. They seem rather to have been regulations made by the king at his own hand. 4 Dig. i. 2. 2, § 2 and § 36. In the latter passage Papirius is given the praenomen Publius. 3 Dig. 1. 16, 144. ' Serv., in Aeneid, 12, 836, cited in Bruns, Fontes, p. 3. It has been suggested that a work of the jurist Manilius mentioned by Pomponius (Dig. i. 2. 2, § 39) is its source (Zeitsehrift d. Sag. Stitt. xxiv. 420)>
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