fvorfi

UXUL)

ROMAN LAW,

OUVKAGES DE M, OETOLAN,

Chez M. HENKI PLON, imprimeur de TEmpereur, Rue Garonciere No. 8, a Paris.

Explication historique des Instituts de 1'empereur Justinien, avec le texte, la traduction en regard, et les explications sous chaque paragraphe, precedee de 1'Histoire de la legislation romaine, depuis son origine jusqu'a la legislation moderne, et d'une Generalisation du Droit romain, d'apres les textes ancienne- ment connus, on plus recemment decouverts. Huitieme edition, revue et augmentee, 3 vol. in-8 . . . . . . 22 fr. 50

Cours public d'histoire du Droit constitutional, anciennes con- stitutions des peuples de 1'Europe. 1 vol. in- 8 (epuise).

Le Ministere public en France, Trait e et Code de son organisation, sa competence et de ses fonctious dans 1'ordre politique, iciaire et administratif, par MM. OUTOLAN et LEDEAU, 2 vols. ^-J 12 fr. „

Cours de legislation penale comparee :

Introduction philosophique, 1 vol. in-8 (epuise}. Introduction historique, 1 vol. in-8 (epuise).

Elements de droit penal: Penalite, Juridictions, Procedure ; troi- sieme edition, revue et augmentee, 2 vol. in-8 . . 15 fr. ,,

Resume des elements du droit penal, 1 vol. in-8 . . 10 fr. „

De la Souverainete du peuple, et des principes du gouvernement republicaiu moderne, brochure in-8 (epuisee).

Les Enfantines, Moralites, 1 vol. in-12, format Charpentier, deuxieme edition, augmentee ; chez H. Plou, editeur . . 3 fr. „

Des moyens d'acquerir le domaine international, ou Propriete d'Etat entre les nations, d'apres le droit des gens public ; et De 1'equilibre politique, par EUGENE ORTOLAN, docteur en droit, Redacteur au ministere des aifaires etraugeres ; gr. in-8

3 fr. „

SOUS PRESSE:

Medecine legale, par le Dr. LEGRAND DU SAULLE, laureat de I'lnstitut et de 1'Academie de medecine, medecin de Bicetre, expert pres les tribimaux, etc., et M. OHTOLAX, professeur a la Faculte de droit de Paris ; suivi d'uu Precis de chimie legale, par le Dr. A. NAQUEZ, professeur agrege de la Faculte de medecine de Paris.

^l -

THE HISTORY

or

ROMAN LAW

FROM THE TEXT OF

ORTOLAN'S

HISTOIRE DE LA LEGISLATION ROMAINE ET GENERALISATION DU DROIT

(EDITION OF 1870)

TRANSLATED WITH THE AUTHOR'S PERMISSION

AXD BUrriJUIKXTED BT A

CHROSOMETRICAL CHART OF ROMAS HISTORY

BY

ILTUDUS T. PRICUARD, ESQ., F.S.S.

BABItlKTKB-AT-LAW

A **uU IM» TV !•«•, »TC m\ AND

DAVID NASMITH, !v*g., LL.H.

BABMIXTHB-AT-LAW , C

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LONDON : IJUTTERWORTIIS. 7, FLEET STREET,

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1 -I III IS : H..IM ,j -. roMTEH fc CO. ; K. I' 'S-iMiY.

CAl.flTTA: TJIAl'KI.K, M'ISK A iti. BoMHAY: TH ACKEK, VIMMi * CO. Ml.1.11"! UM (iEoKli

1H71.

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LONDON t

PRINTED BY C. fl O W O R T II AND SONS, NEWTON STREET, HIGH IIOI.RORN.

TRANSLATORS' INTRODUCTION.

THK superior value, a* a study, of the history of the institutions and of the law of Koine to the jurist, the lawyer and the poli- tieian would apj>ear to consist in the fact that the Roman nation present* to the modern student the nu»t perfect and complete specimen we liave of national growth, development and decay. The great influence which the Roman language, literature and institution* have had u)>on modern nations is, unquestionably, in itaelf sufficient to justify the time and rent-arch which have been spent in their study. Hut, apart from this, there is no |>criod of ancient history which contains in so complete and comjmct a form, although extending over many centuries, a diorama of a nation's career from its cradle to its grave.

The position and progress of a nation's life may !«• comjNircd to tliat of an individual man standing on the -pot of open ground between two dark tunnels. Above and around him there Chines the light of heaven, and within the limits of this contracted sphere he moves with a sen>e of freedom and security, but what there is before and In-hind him he cnnnot see. His destiny, how- ever,eomjH'ls him to move forward, but he -lirink- from the hidden danger that may be concealed in the gloom with which his path- wav is enveloped, and hesitates to take a step onward which may prove fatal. While he so Instates a strong ray of light is <-;i-t into the tiiniu I Ix-liiiul him. As he looks steadily tin- light brightens, :m<l. u> it brightens, it rnuMr- him to ili-tm- gui.-h the genenil features of the Un-ality; he sees the dangers by which the path i.- surrounded : h«' al-> marks tin- safest method of avoiding thox* dangers. l»«-i»i^ coni|)elleil to atlvance, ami

vi TRANSLATORS' INTRODUCTION.

having nothing to guide him but the knowledge of what there is behind, he avails himself of that knowledge and endeavours to steer his onward course by the light which has been vouch- safed him.

This gleam of light is the ray thrown by history on the past. It is the only guide a nation has in its progress through the present towards its future destiny.

It is the province, then, of the true historian to throw as clear and steady a ray as possible upon every feature of past experience. It is to collect and arrange facts and causes, and to show effects. He should, therefore, be free from political bias or predilection for personal character or particular classes. He should never be the advocate, rarely the judge. His proper functions are those of a jury — to determine the facts and to draw from them only those inferences which are conclusive and inevitable. And herein lies the immense superiority, as a study of practical utility, of ancient over modern history. The abso- lute impossibility of writing contemporaneous history without a bias has become proverbial. But the truth is not so universally recognized as it ought to be, that the difficulty of writing history impartially is by no means confined to the record of contemporaneous events. It applies with equal force to any history of modern times, so long as the period embraced is suf- ficiently near our own to involve the discussion of principles or institutions current or in existence in our own age. History, indeed, is so full of uncertainties and points of dispute that the perfectly impartial historian who would set himself to weigh each event and every public character in turn, and to place both sides of every question before his readers, in order that having the whole case before them they might form a correct con- clusion, would neither satisfy himself nor his readers; for the passionless summing-up of the judge would impart so dry a character to his pages that his readers would abandon the task of mastering their contents from sheer weariness. The writer of modern history, therefore, adopts one of two alternatives.

M:AN>LAI«»I;X IMI;MI»I ^ ; vii

Either he writes as an advocate— in which case his works are more like pleading than history, and, for all the lessons they profess to impart derived from the experience of the past, are practically useless — or he aims at literary effect, in which case works savour rather of romance than history, truth being sacrificed to the artistic grouping of the picture: and they are, except so far as they may correctly represent the manners of a period, for all purposes of historical study worthless.

In dealing with ancient history, however, all the minor de- tails have been so swept away by time, or buried beneath tin- lapse of ages, as to leave the sharp outline and characteristic

• ires of the landscape unobscured. We are content in ], t these potty details remain in the oblivion in which we find them. To restore them would doubtless be a task of considerable in- terest, but it is a hopeless one; and as the great writer whose work we have in these pages undertaken to bring within the reach of the lln-H-h student and the general reader has well shown, even where this reproduction has been attempted by

• :n id others, imagination has to entered into the composi- tion of the work as to detract from its utility to the student of

ry and jurisprudence. Piles of volume.* have been written, and volume- uion- \\ill probably be written, upon the character of Henrv \ III. and the Reformation; but the character of Constant ine the Great must remain for all time an enigma, and to attempt to determine it would be men waste of labour. Tin- political principles which were the active causes of erenU in an\ | en.nl of modern history arc too much akin to, nay, they are in most cases so exactly the same as those which agitato men's minds in our own day, that it is scarcely in human nature to discuss their effects without bias or predilection.

To deal effectively with history, to make it what it ought to be, if the aim of the writer be higher than the production of a romance, a ray of light directing the policy of the statesman, or of a people, or informing the mind of the jurist as to the ex-

• uce of the |>ast, the writer must pass before his reader's

viii TRANSLATORS' INTRODUCTION.

vision centuries of time, varieties of institutions, and that infinite diversity of elements which contribute to the development and pro- gress of human affairs. He must depict a nation in its infancy, its growth, its manhood, and its old age. He must mark the slow or the rapid changes, the gradual or sudden modifications, and the various influences which connect the beginning with the end, and which constitute the peculiarities or characteristic features of each phase of the ever-varying scene. In order to do this he must study human nature ; he must realize the material and the spiritual elements of the human being, and must be familiar with the springs and motives of human actions.

Starting with the fact that every nation or community is a collection or aggregate of individuals, he must determine wherein and to what extent that which is true concerning the individual is equally true concerning the community, — the terms upon which the individuals agree to form themselves into the community, and the fundamental principles they have laid down and recog- nized as the basis of their union, — their relations to each other, and their relations to external communities, and the influences which from time to time tend to alter or to modify those re- lations.

It is because the national career of Rome contains more of the elements which contribute to the interest and utility of historical study than that of any other nation in the world, and because of the close affinity which exists between many of the principal institutions of modern times and those of Rome, and because of its influence on our literature, and above all upon our laws, that the translators have been led to encourage the hope that the value of a work by the greatest writer on this subject, reduced to a form and clothed in language which will render it accessible to all English readers, will be duly appreciated.

M. Ortolan's History of Roman Law, by far the most masterly work on this interesting subject in any language, has for years been a source from which our English writers on juris- prudence have drawn much of their material. But the work

I MK* IX I KM; IX

t' has not formed, to the extent it ought to have done, a -book in our schools and universities, nor has it been so freely resorted to by the student or the professor as it would have been had its extraordinary merits been more generally more fully recognized. This is owing partly, perhaps mainly, to its being in a foreign language ; but it is also owiui: t-> the fact of its having been regarded too much as a technical work of interest only to the legal student, and to a mistaken though too prevalent a view of the true province of hist. That true province of history has only begun to be recognized in Comparatively recent yean. The impulse which sets in motion the forces whose effects we witness in the battle-fit 1.1. in the noisy struggle of tin- forum, in tlu> tumult in the senate or the market-place, in the asaaasina a despot, in the

destruction of a |x>pular leader, or in the simultaneous rising of a wh-.i.- people, ii kfafl pNBjmi of thought. \'.-.-\ IMMI th«- great value of M. Ortolan's historical work. With the eye of a true philosopher he traces the stream of Roman history to its source, instead of dealing exclusively with the events that lie on

Institutions and laws can only be properly understood by an acquaintance with their origin, with the condition and circum- stances that gave birth to them, with the change* of circum- stances and condition* that modified and finally extinguished tin-in. In the history of individuals as of nations the progress of thought is the key to their career. A nd in the case of nations that progress is indicated by the development of law and of public and private institutions. Thus while investigating the History of Roman Law, M. Ortolan has elaborated the history of Rome. And such a work in the hands of a skilled and pro- fessed jurist is mire to posses* this great advantage, that it will be distinguished by the logical precision, clearness of arrange- in, 'lit and exactitude which the study of law is, above all other**, calculated to impart.

It is, however, of the utmost importance that the student,

x TRANSLATORS' INTUODUCTIOX.

before entering on the history of the political progress of a nation, or the development of its institutions and its laws, should possess the faculty of viewing the subject objectively, by localiz- ing it or giving it its true position in the general history of the world, and of localizing each separate event and recognizing its relations to other events. We shall therefore add a few words upon man as a free-will agent, upon government as a department or branch of the division of the labour of a com- munity, upon law as a governing or regulating principle, and upon the proper method of treating and overcoming the diffi- culty of chronology.

First, then, as to man and his conduct as a free-will agent. A nation is but a collection of individuals. In some respects that which is true of the individual is true of the nation, in others the case is different. The individual is a free-will agent, but this freedom of the will is more or less controlled by cir- cumstances. A man may be free to go from one place to another, but if he elects to go it must be via the existing track ; he cannot ignore those obstacles to his straight course which circumstances over which he has no control have placed in his way. As he does not possess the power of flight he cannot take the short cut of the bird. What is true of physical ob- struction is true of mental. Education has confined each man within certain channels, and taught or accustomed him to arrive at certain ends by the use of given means. Be his religion, for example, what it may, it has given him a distinct bias : and the morality of the community of which he is a member, or that of the particular knot of people with which he is imme- diately connected, will have its influence certainly upon every important act of his life, and perhaps also upon all those of minor and even insignificant importance. Nor is it necessary that he should be conscious of these influences ; as a matter of fact, the great mass of men are not ; they do or they omit to do, they pursue one course and avoid another, rarely being able to assign a reason, and certainly not the true reason. To what

TRANSLATORS' INTRODUCTION. xi

extent this counteracting or opposing force to a pure free-will line of conduct moulds and influences societies it may -be diffi- cult to §ay, but that the force exists is beyond controversy, and this feet must be ever present to the true historian. Again, every community starts with a given number of principles which it recognizes as sound ; these principles are bracketed or combined in a manner more or less |>eculiar to the community, and a {articular lient is given to the direction of their develojv- ment. If, then, we know these fundamental principles, the mode of combination and their bent or tendency, we may deter- mine by anticipation their destiny with almoft as much cer- tainty as we are able to predicate the time and place at which a pedestrian will arrive when we know the point from which he starts, the direction he has taken, and the jtace at which he travels. It is true he may start from a given |tuiut and may take a given direction, but l»eing diverted from his road he may never reach the Mi|.j*.-«-<l destination. In tin same manner our calculation would !M» at fault a# to human or national de- velopment if we disregard or overlook any change in the con- dition*. The principle, however, remain* unaffected, for know- ing the point of divergence, the other data remaining, we have but to intcrcnlculntc the change in order to ascertain the actual destinv. Unquestionable as i» the truth of tin- principle. ati«l easy as is its application to the ph\>ical or moral conn*- of an individual, it- application to the ca>e of n nation in far from simple ; it involves accurate discrimination U-tween cause und effect. Difficulty of application i*. however, the \\orct reason for the abandonment of a numd principle. For in-tance. an act has ju-t U-en pa»M*d in Ilnglanil inaugurating a -\ -t« m of compulsory education. At the present inomeiit the pau]H-ri-m of Knglnnd co-t< £lO,(HM),(MN) |MT annum. SupjMwing the act to IK- ndm 'mistered for one generation bv thoM- who understand what -mini education rvallx i-. the result inu-t !•«• to reduce th«- co«;t of pail|H'rism to at the ino-t one half. Now -up]...-, that one vear In-fore it is ascertained that tif ••••-t of j-aujH-ri-in ha-

Xll TRANSLATORS INTRODUCTION.

been reduced one half, an act is passed making voluntary pau- perism criminal. To what cause would the superficial ascribe the reduction of the cost of pauperism ? To the Criminal Act, to the Education Act, or to that which produced the Education Act ? If to the cause of the Education Act, what is it ? In proportion as you remove the person to whom this case is sub- mitted from the period of its occurrence, so does the difficulty of answering the question increase. The correct answer to the question is, however, the necessary key to a most important feature in the history of the English nation.

The notion of government involves the terms of compact. Is the community free, or is it not ? Is it a union of human beings for the mutual benefit of the members ? If so, accord- ing to the principle of the division of labour, the sovereignty is delegated by the general body to a certain section, to be exer- cised for the benefit of all. Is the community a compound of the conqueror and the conquered ? If so, the governing spirit is oppression, the governed being regarded by their rulers as beasts of burden, whose toils minister to their comfort. Is the community a family ? If so, the father, having the burden of its support, is entitled to the privilege of its direction.

In the first case it is a republic, whether the sovereignty is lodged in the hands of a hereditary monarch, an annual or biennial consul or president ; or whether it is placed in those of a committee, whatever be its constitution. And assuming the sovereignty to be rightly exercised, its exercise will be bene- ficial and satisfactory to the body.

In the second case there is no community of sentiment or interest, and when the opportunity presents itself the organiza- tion will be destroyed by the emancipation of the servile element.

The natural duration of the third case is necessarily short, for the conditions of its existence are daily changing, and with the growth of the self-supporting faculty of the younger mem- bers their dependence decreases.

TRANSLATORS INTRODUCTION. Xlii

It is therefore necessary to determine the true character of the community in order to ascertain the wisdom and fitness of its institutions, their probable duration, and the circumstances by which they may be affected.

Law, properly speaking, is the rule of conduct dictated by a superior to an inferior. It consequently involves the determi- nation and power to enforce it, and the infliction of punishment for non-observance.

Under this head, more or less accurately, may be specified the law of God, the law of the land and the law of morality. The scope of these preliminary remarks does not allow of our entering at any length into a consideration of the fundamental principles of law. We would, however, point out an error which is all the more mischievous from its almost universal acceptation as an unquestioned truth, and which has had the effect of involving whole schools of writers, divines, metaphy- sicians and jurists in an inexplicable maze of perplexities, inducing men to adopt the wildest theories Avith the hope of reconciling or removing difficulties.

One of the most fertile sources of error is the misapplication of terms. The mass of mankind do not think for themselves. They adopt terms and phrases as representing ideas, without questioning their accuracy or considering their true meaning, provided that they have been adopted by others, who, however, while using them may have recognized their real meaning and have used them only in their true and accurate signification. By degrees, however, that true and correct signification becomes lost through non-observance. The terms or phrases come into common use, perhaps they serve as a shibboleth for schools or a watchword for a party. They come to be on everyone's lips and in every page of countless treatises. And by general con- sent a certain signification is allotted to them, a signification however far removed from their real and acciirate meaning. Nor for a long period, perhaps, is there any inconvenient result from this practice. But at length some discussion arises involving,

xiv TRANSLATORS' INTRODUCTION.

possibly, some important principle in which these words or phrases, which have come to bear a signification so far removed from their true and pure origin, are involved in the dispute, or become the weapons of the disputants. Then forthwith arises the utmost possible confusion. Theories are invented to reconcile the irreconcilable. The disputants are at war, as they fancy, about principles, Avhereas they are at one in principle if they could but see it, though at war about words because using them in different acceptations. And if the subject matter of dispute be one in any way connected with religious dogma or metaphysical reasoning, the discord is intensified a hundredfold.

There is no better illustration of this than the mode in which the word " morality " has been twisted from its real and original signification. The word, from mores, " manners" or " custom," in its strict sense signifies the recognized notions and practices of any community at a given time, and used in any other sense it is apt to lead to all sorts of perplexities and many irrecon- cilable conclusions, and not unfrequently to give birth to great injustice and confusion between truth and error. In this sense of the word it must be clear that morality is purely relative. The habit of separate individuals or communities erecting a standard of right and wrong of their own, and measuring the acts and motives of other men by that standard, is universal. Hence men are ever prone to set up a standard of right and wrong in accordance Avith the views, opinions, feelings and practices prevalent in their own time, losing sight of the fact that such views, opinions, feelings and practices may vary and do vary under different conditions and in different stages of civilization, in different communities and in the same commu- nity at different times, whereas that which is in itself good or bad is fixed and immutable. The one is the law of morality, the other the law of God. Many cases of the confusion which has arisen from the want of observing this distinction will readily occur to the mind. Take, for instance, the institutions of marriage and of slavery, and the practice of duelling. It is

TRANSLATORS' INTRODUCTION. xv

immoral for the Englishman to have more than one wife ; it is perfectly moral for the Turk to have several. Less than a hundred years ago duelling was both legal and moral in England ; at the present moment it is illegal, immoral and universally reprobated. So, again, slavery at the commence- ment of this century, at least so far as the coloured races were concerned, was an existing institution, the propriety of which was rarely questioned. At the present moment there is scarcely a civilized nation which does not loathe it as an infamous prac- tice. Yet men, always anxious to judge others by their own standard, and losing sight altogether of the essential principle of the law of morality, have endeavoured to persuade themselves and others that morality is that which is good in the abstract ; and hence we have witnessed the absurdities into which men have been led by assuming that the law of morality is synony- mous with the law of God, and going about to justify such practices for instance as duelling, or such institutions as slavery, by reference to the Bible ; and we have lived to see arguments in favour of polygamy drawn from the example and practice of the Jewish nation. And this principle, or rather this con- founding of principles, has been carried so far as to invade the province of Divine law. The expression so commonly used by schoolmen, " the moral government of God," in reality can signify nothing else than the economy of the Divine govern- ment, measured, shaped and squared so as to fit in with human notions of what ought and ought not to be the principle of that government.

What, then, can be more illogical or more absurd than to affix the stigma of immorality upon practices and institutions prevailing among different communities, or among the same communities at different eras in their history? Or, in other words, what error can be more fatal to a true appreciation of the real principles and facts of history, and the lessons they are calculated to teach, than for the historian to judge or to measure the past by the standard of the present. Institutions have lived

xvi TRANSLATORS' INTRODUCTION.

and died out, laws have been made and repealed, practices allowed to prevail and become obsolete, which, at the time they flourished, were considered as necessary for the well-being of the community as they would at another time be considered pernicious and reprehensible. A nation, like an individual, has various stages of development, and though the treatment suited to the child is ill adapted to manhood, the man is none the less indebted to the discipline of his youth, nor can he in his decline venture with impunity to use the strong diet and violent exercise of his vigorous manhood.

In order to judge of men, of institutions, of laws and of prac- tices, we must identify them with their period ; and in order to identify them with their period, we require before the eye an objective chronology. Dates are worthless unless they convey to the mind positions relatively to a whole, of which the par- ticular date is a fraction. The entire period under discussion must be present to the mind before it is possible to realize the bearing or value of a date, or the circumstance that charac- terizes it. A similar fact is realized by all in connection with the study of geography. We seldom think of describing the relative positions of places by stating their respective degrees of latitude and longitude, and even when we do so, the notion conveyed entirely depends upon the fact of a map being present to the mind's eye. We have all seen, and more or less per- fectly remember, the form and general features of the map of England, though no map is actually before us. When the word Newcastle is mentioned, we at once look as it were to the top or north ; on the mention of Corn Avail, to the south- west; on that of Kent, to the south-east; and though not knowing a given place, when told that it is so many miles north-east of York for instance, with the locality of which we are acquainted, we at once realize its position, and consequently many facts connected with it. This is not the case with history when studied in the ordinary manner, though if possible this power of localization in connection with history is of

TRANSLATORS INTRODUCTION. XV11

greater importance, for everything depends upon it. What is the result ? We hear dates mentioned, but they do not fix our attention upon well ascertained spots. What, for example, is the impression produced by the mention of the dates 1176, 1445, 1562 and 1679, as to English history, or the dates B.C. 445, B.C. 366, A.D. 222, as to Eoman history ? Even to the majority of those who have a tolerable acquaintance with either history, these dates have failed to take a local habitation, and the mention of them recalls no definite impression of events, or series of events, relatively to the surrounding circumstances, and the general course of history.

There is no reason, however, why the student of history should be less able to realize his subject objectively and locally than the student of geography.

A little study of the skeleton Chronometrical Chart which has been prepared for this edition will readily enable him to do so. It is called the skeleton chart in order to prevent the reader, who has not seen the Chronometrical Chart of the History of England by the same author, from supposing that, like this, the latter is confined to a mere outline.

The condition of the Roman law when Justinian undertook its codification, as described at page 439 et seq., will suggest a comparison with our own law at the present time. A good deal of discussion has of late taken place concerning the pro- posed codification of the law of England. In considering this question we must not forget that law is necessarily progressive, and that a body of laws suited to the exigency of a particular period in a nation's history will not always remain equally well adapted to the purposes for which they were originally designed. M. Ortolan's remark, at page 551, on the subject of codification of law, is full of significance. "A code," he says, "ought never to be suffered to stand in the way of progress." Nor is there any necessity that it should do so.

Codification, properly speaking, is the reduction to a simple, a logical, and a concise form of the law of a country at a given

b

XV111 TRANSLATORS INTRODUCTION.

date. It supposes that, up to that time, laws have been enacted in a fragmentary form, and that, as a result of their disjointed character, the legislation of the country is needlessly cumbrous and inaccessible. The most important matter, therefore, to consider, in connection with codification, is the means by which a code may be prevented from becoming an obstacle to progress. To a certain extent, English legislation has shown us, though most imperfectly, how this may be accomplished. At the pre- sent moment our legislature is in the habit, as circumstances may require, of issuing acts of parliament. These are, in fact, means of amending, abrogating or supplementing existing law. The great defect of the present system is that, instead of with- drawing, upon each occasion when alteration is found necessary, the existing law upon any given subject, for instance bank- ruptcy, and issuing a new amended and a complete code upon the subject, that which exists is allowed to remain ; generally, however, it is mutilated, and a new act is promulgated intro- ducing certain changes. The result is that, in order to ascertain the actual law upon the point under consideration, it is necessary to refer to a variety of acts, and much unnecessary labour and expense and the risk of uncertainty and inaccuracy is the con- sequence. All these difficulties might be obviated and the obscurity removed if, whenever any alteration was required in a portion of a statute, the whole statute was repealed and a new act introduced, reproducing those portions which required no amendment and containing the modified or the new clauses in their proper place.

Were this system pursued in respect to our legislation the necessity of a general code would not exist, and alterations in the law could be made with facility and with little attendant expense either to the legislature or to those whose business it is to be familiar with the law. These remarks do not, of course, apply to the codification of what is known as judge-made law, at least to the extent that this branch of law has not, up to the present time, been codified in our country. This neglect has

TRANSLATORS INTRODUCTION. XIX

resulted in the necessity for extensive libraries, access to which can be obtained only at the expense of much time and trouble, and then only by those who happen to be residing in the metropolis or in large provincial towns, where, as an exceptional thing, law libraries are to be found.

It cannot be denied that the laws of any community ought to be comprised within such limits as to put it in the power of a professor or a student to master them by the labour of a few years. Can it be asserted that it is possible to master the law of England by the study of a lifetime ? Whether true or not, it is the generally received opinion, and it is one which it may be observed is generally entertained by those who have bestowed the most labour on, and made the most progress in, the study of law, that a complete knowledge of the laws of England is unattainable in the lifetime of any man.

At the present moment the fusion of law and equity is under serious consideration. Whether such fusion will or will not result in benefit to the community must depend upon the spirit in which it is undertaken. The Court of Chancery was the means devised by our forefathers to prevent the evils which must attend any blind belief in codification. At the present moment the law administered by our Courts of Chancery is to a very small extent in accord with the original spirit of the institution. These Courts, having existed for centuries, have now a legislative and a judge-made law as well defined and as obligatory as that administered in our Common Law Courts, and it is questionable whether in any but a technical sense there is more equity in one of the Superior Courts than in another. The fact really is, that the Courts of Chancery ought to be re- garded as courts for the consideration of cases of a peculiar nature, and as differing from any other court only in the same way that a Court of Bankruptcy or the Criminal Court differs from the Common Law Courts or the Courts of Probate and Divorce, and the law peculiar to those courts should be codified in the way suggested equally with that peculiar to others.

62

XX TKANSLATOKS' INTRODUCTION.

Viewed in this light, it is difficult to understand what the real notion is that is entertained by those who advocate this fusion. If it is to give jurisdiction to all courts alike concerning all matters, this must necessarily result in one of two things : the compelling judges and the profession to become familiar with all branches of the law, which is admitted to be, as the law now stands, an impossibility, or in the simplification and codification of all law as a step precedent to such fusion.

The translators have had the usual difficulty to contend against which attends every effort to give expression to the thoughts and ideas of a great scholar and profound thinker in a language foreign to that in which those ideas were first thought out and clothed with words. It is obvious that the same latitude which is allowed to the translator of a purely imaginative writer, a novelist or a poet, is scarcely permissible in the case of a work upon law and jurisprudence. They have endeavoured, therefore, to adhere as closely as possible to the original consistent with the idiom of the English language. A copious Index will increase the value of the work to the student of Roman history and literature, by affording easy reference to the explanation of technical phrases and terms which are so constantly met with in the works of Cicero, Tacitus, Livy, and the other Latin text-books. While the course of general history, briefly stated and logically arranged, will, with the assistance of the chart, be impressed with facility on the memory.

TABLE OF CONTENTS.

PAGE

INTRODUCTION .. .. .. .. .. .. 1

F1KST EPOCH.— THE KINGS.

Sect. 1. Origin of Rome .. .. .. .. .. ..2

2. Patricians and Plebeians (Patres, Patricii; Plets, Plebii) — Patrons

and Clients (Patroni, Clientes) — Patrician "Gentes" (Popului

Romanus) .. . . . . . . . . 19

3. Tribes and Curies (Tribus et Curies') . . . . . . . . 31

4. Assembly by Curies ( Comitia curiata) . . . . . . 35

5. The Senate (Senatus) . . . . . . . . . . 38

6. The King {Rex) .. .. .. .. .. .. 41

7. The original Elements of private civil Law . . . . . . 41

8. Religious Institutions {Sacra publica, Sacra privata) . . . . 43

9. The Calendar : Days — Fasti or Nefasti . . . . . . 46

10. The Election of Kings, from Cicero's De Republica — " Lex regia " 49

11. International Law — College of the Feciales .. .. ..50

12. The Census . . . . . . . . . . . . 57

13. The Classes {Classes) and the Centuries {Centuries') .. ..57

14. The Assembly by Centuries ( Comitia centuriata) . . . . 64

15. The Knights (Equites) .. .. .. .. ..66

16! The new Local Tribes (ex locis) . . . . . . . . 68

17. The Royal Laws (Leges Regice) — their Collection by Papirius (Jus

civile Papirianum or Lex Papiria) . . . . . . 70

Review of the preceding Period.

Foreign Policy . . . . . . . . . . . . 73

Public Law . . . . . . . . . . . . 75

Sacred Law .. .. .. .. .. ..77

Private Law . . . . . . . . . . . . 79

Manners and Customs . . . . . . . . . . 79

SECOND EPOCH.— THE REPUBLIC.

I. TO THE PASSING OF THE LAWS OP THE TWELVE TABLES. . . 86

Sect. 18. The Valerian Laws (Leges Valeria) — Quaestors of Homicide ( Quces-

tores Parricidii) .. .. .. .. ..88

19. Quaestors of the Public Revenue . . . . . . . . 89

20. Dictator, or Master of the People (Dictator, Magister Popvli — )

Master of the Cavalry (Magister Equitum) . . . . 90

XX11 TABLE OF CONTENTS.

PAGE

Sect. 21. The Struggle between the Plebeians and the Patricians . . . . 91

22. Plebeian Tribunes (Tribuni Plebis*) — The Sacred Laws (Leges

Sacrce).. .. .. .. .. .. ..93

23. The Comitia by Tribes ( Comitia tributa) — Plebiscita (Plebis-scita) 94

24. Plebeian Ediles (^diles Plebeii) . . . . . . . . 96

25. Origin of the Twelve Tables (Lex or Leges XII Tabularum, Lex

decemvir alls)— Decemvirs .. .. .. ..96

26. The Fragments of the Twelve Tables as preserved to us . . 99

FRAGMENTS OF THE TWELVE TABLES. Tab. 1. The Summons before the Magistrate (De in jus vocando). . 102

2. Judicial Proceedings (Dejudiciis) . . .. .. 104

3. Execution following Confession or Judgment (De cere con-

fesso rebusque jure judicatis) . . . . . . 105

4. The Eights of the Father (De jure patrio) . . . . 106

5. Inheritance and Tutelage (De Jicereditatibus et tutelis) .. 107

6. Dominion and Possession (De dominio et possessione} .. 110

7. The Law concerning Beal Property (De jure cedium et

agrorum) . . . . .. .. .. .. 112

8. On Torts (De delictis) . . . . . . . . 114

9. Public Law (De jure publico) .. .. ..119

10. Sacred Law (De jure sacro) .. . . . . . . 120

11. Supplement to the first Five Tables .. .. ..122

12. Supplement to the last Five Tables . . . . . . 123

27. Character of the Twelve Tables . . . . . . . . 124

28. Actions of the Law (Legis Actiones) . . . . . . . . 140

II. FROM THE TIME OP THE TWELVE TABLES TO THE SUBMISSION OP ALL ITALY.

Sect. 29. Lex Valeria Horatia, De Plebiscitis .. .. .. ..147

30. The Canuleian Law (De connubio patrum et plebis) .. .. 147

31. Military Tribunes (Tribuni Militum) .. .. .. 148

32. The Censors (Censores) .. .. .. .. ..149

33. Praetor (Prater} . . . . . . . . . . . . 153

34. Curule ^Ediles (^Ediles Curules) .. .. .. ..154

35. Judge (Judex), Arbitrator (Arbiter), Recuperators (Recuperatores) 155

36. Centum virs ( Centumviri) .. .. .. .. .. 158

37. The Lex Petillia Papiria (De nexis) .. . . . . . . 164

38. On the Disclosure of the Dies Fasti and the Actiones Legis (Jus

Flavianuin) . . . . . . . . . . . . 165

39. Leges Publilise — Lex Hortensia (De plebiscitis') . . . . 166

Revision of the preceding Period.

The Foreign Policy of Home . . . . . . . . 169

Public Law (from the Time of the Twelve Tables to the Sub- mission of all Italy) . . . . . . . . . . 182

Sacred Law .. .. .. .. .. .. 191

Civil Law .. .. .. .. .. ..192

Manners and Customs . . . . . . . . . . 195

TABLE OF CONTENTS. XX111

III. FROM THE TOTAL SUBJUGATION OF ITALY TO THE EMPIRE.

Sect. 40. Praetor Peregrinus .. .. .. •• •• •'• 198

41. The Establishment of the Provinces .. .. .. .. 201

42. The Increase in the Number of Prators . . . . . • 202

43. Proconsuls .. .. •• •• •• •• 203

44. Proprietors .. •• •• •• •• •• 204

45. The Public Consultations of the Jurists (Responsa Prudentum) .. 205

46. A New "Work on the Actiones Legis (Jus JElianum vel Tripertita) 212

47. The gradual Decline of the Actiones Legis— the Creation of a fifth

Action (the Condictio, Lex Silia, and Lex Calpurnia) — the par- tial Suppression of these Actions (Lex jEbutia) . . . . 213

48. The Ordinary or Formulary Procedure (Ordinaria Judicia, vel

per Formulas) — The Extraordinary Procedure (Extraordinaria Judicia) .. .. •• •• •• •• 217

49. The Introduction of Philosophy and especially of Stoicism — Its

Influence upon Jurisprudence . . . • • • . . 225

50. The Seditions of the Gracchi ( GraocTianai) — Agrarian Laws (Leges

agrarics) .. .. •• .. •• •• 226

51. Qu£estiones perpetuse — Cognitiones extraordinarise . . . . 234

52. The Judiciary Laws (Leges judiciariai) .. .. .. 239

63. On the Authority of the Senatus-consulta . . . . . . 241

54. Jus honorarium — Edictum— Edictum perpetuum — Edictum repenti-

num — Interdictum — Edictum tralatitium — Lex Cornelia, de

Edictis .. .. .. .. .. .. .. 244

55. The Social War . . . . . . . . . . . . 250

56. The Civil Wars . . . . . . . . . . . . 251

57. The Servile Wars . . . . . . . . . . . . 252

Review of the preceding Period.

Roman Foreign Policy . . . . . . . . . . 257

Public Law (Jus publicum) .. .. .. .. 261

Jus Sacrum . . . . . . . . . . . . 269

Jus Privatum . . . . . . . . . . . . 269

Manners and Customs . . . . . • . • . . 275

THE THIRD EPOCH.— THE EMPERORS.

I. FROM THE ESTABLISHMENT OP THE EMPIRE TO CONSTANTINE.

Sect. 58. Lieutenants of the Emperor (Legati C&saris} .. .. .. 280

59. Procurators of the Emperor (Procuratores Ccesaris) . . . . 280

60. The Prefect of the City (Prtefectus urbi) . . . . . . 281

61. Praetorian Prefects (Prcefecti Prcctorio) .. .. .. 282

62. Quasstores candidati Principis . . . . . . . . 282

63. The Prsefectus Annonarum . . . . . . . . . . 282

64. Prefect of the Night Guards (Prafectus vigilum) .. . . 283

65. The Senatus-Consulta : their Effects upon the Jus Privatum . . 284

66. Constitutions of the Emperor ( Constitutiones principurn) .. 287

XXIV TABLE OF CONTENTS.

PAGE

Sect. 67. Lex Regia . . . . . . . . . . . . 290

68. The Responsa Prudentmn . . . . . . . . . . 293

69. Labeo and Capito (M. Antistius Labeo et C. Ateius Capita} — The

Two Schools of the Jurists : The Proculeians or Pegasians and the Sabinians or Cassians . . . . . . . . . . 302

70. Lex Julia, De maritandis ordinibus ; Lex Papia Poppaea : called

also Leges Julia et Papia, sometimes Novas Leges, or simply

Leges on Marriage and on Paternity . . . . . . 308

71. Fideicotnmissa— Codicils (Codicilli) .. .. .. .. 314

72. Enfranchisement— Lex JElia Sentia— Lex Furia Caninia . . 315

73. Jus Honorarium— The Edictum Perpetuum of Salvius Julianus. . 319

74. The Advice and the Opinions of the Jurists (Sententice et Opini-

ones) — The express Authority conferred by the Rescript of Adrian . . . . . . . . . . . . . . 322

75. The Jus Latii and the Jus Italicum. under the Emperors . . 334

76. The Colonies and Municipia under the early Emperors — The Tables

of Malaga . . . . . . . . . . . . 338

77. The Rights of Citizenship conceded to all the Subjects of the Empire 339

78. The Modification of the Leges Julia and Papia Poppasa — The Rights

of the Fiscus in Claims upon Caduca . . . . . . 346

79. The Propagation of Christianity . . . . . . . . 357

80. The Irruption of the Barbarians . . . . . . . . 359

81. Decay of the Formulary System or of the Ordo Judiciorum, — The

Extraordinary Procedure (Judlcia Extraordlnaria) introduced generally — Petty Judges (Judices Pedanei) . . ., . . 361

82. Division of the Imperial Government— Two Augusti and Two

Csesars . . . . . . . . . . . . . . 365

Summary of the preceding Epoch.

The External Situation of the Empire . . . . . . 367

Jus Publicum . . . . . . . . . . . . 367

Legislative Power . . . . . . . . . . 369

Executive and Electoral Power . . . . . . . . 369

Judicial Powers . . . . . . . . . . 370

Criminal Matters . . . . . . . . . . 370

The Jus Sacrum . . . . . . . . . . 372

The Jus Privatum . . . . . . . . . . 373

Persons . . . . . . . . . . . . 374

Things and Property . . . . . . . . . . 375

Testaments . . . . . . . . . . . . 375

Successions . . . . . . . . . . . . 376

Contracts and Actions . . . . . . . . . . 376

Manners and Customs . . . . . . . . . . 37(5

II. FROM CONSTANTINE TO JUSTINIAN.

83. Constitutions invalidating the Notes of Paul, Ulpian and Marcian

upon Papinian, and approving the other Writings of Paul and particularly his Sententiae . . . . . . . . . . 379

84. The Gregorian and the Hermogenian Codes ( Gregorianus Codex,

Hermogenianus Codex) .. .. .. .. .. 382

85. Christianity the Religion of the Empire . . . . . . 387

TABLE OF CONTENTS. XXV

Sect. 86. The Foundation of a New Capital . . . . . . . . 388

87. The Bishops (Episcopi)

88. ThePatricii

89. Comites Consistoriani . . . . . . . . «

90. Quaestor Sacri Palatii . . . . . . . . .

91. Magistrates of the Provinces

92. Other Functionaries of the Empire — A New Hierarchical Nobility . . 392

93. Innovations of Constantino in the Jus Privatum — Abrogation of

the Penalties against Ccelibes and Orbi — New Amendments of

the Leges Julia and Papia . . . . . . . . 393

94. Agricolae or Coloni . . . . . . . . . . 402

95. Suppression of the Formulae (De Formulis sublatis) .. .. 406

96. The Defensores Civitatum .. .. .. .. ..410

97. The Division of the Empire .. .. .. .. ..411

98. The Public Schools of Constantinople and of Home .. ..411

99. The Responsa Prudentum — Lex de Responsis Prudentum .. 412

100. The Theodosian Code . . . . . . . . ..416

101. Theodosius projects an extended Code . . . . . . 421

102. Fragmenta Vaticana— Mosaicarum et Romanarum Legum Collatio

— Consultatio veteris cujusdam Jurisconsult! .. .. 422

103. The End of the Western Empire . . . . . . . . 428

104. Roman Laws published by German Kings . . . . . . 432

III. JUSTINIAN EMPEROE, A.D. 527.

105. Codex Justinianeus — Codex vetus . . . . . . . . 443

106. Quinquaginta Decisiones . . . . . . . . . . 444

107. The Digest or Pandects (Digesta, Pandectce) ,. . . . . 447

108. Institutes (Institutiones, Instituta, Elementa) . . . . 458

109. New Edition of the Code ( Codex repetitce Prcelectionis) . . 459

110. Novelise Constitutiones — afterwards Authenticse, Corpus Anthenti-

corum . . . . . . . . . . . . . . 461

111. Corpus Juris Civilis .. .. .. .. .. 471

112. Tribonian or Tribunian . .. .. .. .. 476

113. Theophilus and some other Professors of Law . . . . . . 477

114. The teaching of Law before and after Justinian . . . . 478

General Survey of the preceding Period.

The External Situation of Constantinople . . . . . . 489

The Jus Publicuin . . . . . . . . . . 490

Criminal Matters . . . . . . . . . . 490

Civil Matters . . . . . . . . . . . . 491

The Jus Sacrum . . . . . . . . • , . 491

The Jus Privatum . . . . . . . . . . 492

Persons . . . . . . . . . . . . 493

Things and Property . . . . . . . . . . 493

Wills .. .. .. .. .. .. ..493

Succession . . . . . . . . . . . . 494

Contracts . . . . . . . . . . . . 494

Actiones . . . . . . . . . . . . 494

Manners and Customs . . . . . . . . . . 494

XXVI TABLE OF CONTENTS.

PAGE

THE DESTINY OF THE ROMAN LAW IN THE EAST AND WEST AFTER JUSTINIAN.

§ I. IN THE EAST. Sect. 115. The Greek Jurists of the Sixth Century . . . . . . 496

116. The Manuals or Codes of the Byzantine Emperors : Ecloga,

Proehiron, Epanagoge, Basilicce ... . . . . .. 501

117. The Greek Jurists posterior to the Basilicas — The Fall of the

Eastern Empire . . . . . . . . . . 506

118. Byzantine Law subsequent to the Sixteenth Century .. . . 511

§ II. THE WEST.

119. The Publication of the Law of Justinian in Italy . . . . 513

120. The Maintenance of the Law of Justinian after the Fall of the

Byzantine Power in Italy — The Extent of this Power — The Roman Nationality of the Population . . . . . . 514

121. The Influence of the Clergy upon the Maintenance of Justinian's

Law in Italy .. .. .. .. .. .. 517

122. The Influence of the Principle of the Personality of the Laws upon

the Maintenance of the Law of Justinian in Italy . . . . 520

123. First Indication of the Law of Justinian in Gaul . . . . 522

124. Revival of the Study and Teaching of the Texts of Justinian

towards the end of the Eleventh Century — The School of Bologna and the Glossators — Placentinus in France, Vacarius in England . . . . . . . . . . . . 527

125. Brachylogus et Petri Exceptiones Legum Romanorum . . . . 534

126. Manuscripts and Texts of the Corpus juris Justiniani — The

Pandectae Florentine and the Vulgate— The ancient Digest, the Infortiatum and the new Digest . . . . . . 536

127. The Schools of the Jurists from the Glossators to the Sixteenth

Century .. .. .. .. .. . . 541

128. Roman Law considered as an Element of French Law .. . . 548

EPOCHS OF ROMAN LAW AS GENERALLY RECEIVED.

THE FIRST PERIOD, OR THE INFANCY OF LAW . . . . . . 552

SECOND PERIOD, ITS YOUTH . . . . . . . . . . 552

THIRD PERIOD, ITS MANHOOD . . . . . . . . • • 553

FOURTH PERIOD, ITS OLD AGE . . . . . . . . . . 553

List of the Works of the Jurists from whose Writings the Pandects of Jus- tinian were compiled . . . • • • • • . . • • 555

GENERALIZATION OF ROMAN LAW.

THE IDEA OF THIS GENERALIZATION, AND, FIRST— ITS USES . . . . 558

THE IDEA OF THIS GENERALIZATION, AND, SECONDLY— ITS SPIRIT . . 559

THE ORDER OF GENERAL EXPOSITION . . . . . . . . 559

TABLE OF CONTENTS. XXV11

PAGE

PART L— OP EIGHT AND THE ELEMENTS OF ITS GENERATION.

PRELIMINARY ARTICLE.

Sect, 1. The Idea of Law .. .. .. .. .. ..561

2. Immediate Consequences of Law . . . . . . • • 565

3. Component Elements of the Generation of Law . . . . 565

I. OF PERSONS. CHAPTER I.— COMPONENT NOTIONS.

4. Idea of Person .. .. .. .. .. .. 567

5. Second Acceptation of the word Person . . . . . . 568

CHAPTER II. — STATUS.

6. Idea and component Elements of Status . . . . . . 568

§ I. Liberty (Libertas).

7. Liberty — Slavery (Servitus) — Colonization ( Colonatus) . • . . 569

8. Enfranchisement (Manumissio}— Free Men (Ingenui) — and Enfran-

chised Slaves (Liberti, Libertini) .. . . .. .. 571

9. Successive Modifications in the Condition of the Enfranchised . . 571

§ II. Citizenship (Civitas).

10. Civis, Peregrinus, Hostis, Barharus . . . . . . . . 572

11. Successive Communication of the Jus Civitatis to Persons without

the Precincts of Home . . . . . . . . . . 574

12. Gradual Alteration of the Civil Law . . . . . . . . 576

§ III. Familia.

13. General Idea of a Eoman Family . . . . . . . . 576

1 4. The Basis of the Roman Family . . . . . . . . 578

15. Power — The Chief of the Family {Paterfamilias') — Persons Sui

Juris or Alieni Juris . . . . . . . . . . 578

16. Divers kinds of Power (Potestas, Manus, Mancipium) . . . . 580

17. Marriage (Justce Nuptice) and the various Unions between the

Sexes {Concubinatiis, Stuprum, Contubernium) . . .. 584

18. Cognatio, Agnatio— Gens, Adfinitas .. .. .. .. 586

19. Different Acceptations of the Word Familia, . . . . . . 589

20. Successive Modifications of the Law relating to the Family . . 590

§ IV. On the Loss or Change of Status ( Capitis Deminutio).

21. Maxima, Media, Minima {Capitis Deminutio) . . . . 591

CHAPTER III.— OTHER CONDITIONS AFFECTING PERSONS BESIDES STATUS {Status).

22. Generally.. .. .. .. .. .. ..592

23. Existimatio . . . . . . . . . . . . 593

24. Rank— Dignity .. .. .. .. .. ..595

25. The Profession . . . . . . . . . . . . 595

26. Religion . . . . . . . . . . . . . . 595

27. The Domicile (Domicilium: where one is Incola) ; the Local City

(where one is Civis, Municeps) . . . . . . . . 596

28. The Sex . . 599

XXV111 TABLE OF CONTENTS.

PAGE

Sect. 29. Age .. .. .. .. .. .. .. 6oo

30. Physical or Mental Defects . . . . . . . . . . 603

CHAPTER IV. — OP THE CAPACITY OP PERSONS.

31. Generally . . . . . . . . . . . . 604

32. Tutela— Cura .. .. .. .. .. ..604

CHAPTER V.— LEGAL

33. Populus — Curiae — Magistratui — Hsereditas — Peculium — Univer-

sitas .. .. .. .. .. .. ..605

CHAPTER VI. — THE EXTINCTION OF PERSONS. 31 .. .. .. .. .. .. .. ,. 607

ARTICLE SECOND.— II. OF THINGS.

CHAPTER I.— OF FUNDAMENTAL PRINCIPLES.

Sect. 35. General Idea of Things . . . . . . . . . . 608

CHAPTER II.— CLASSIFICATION OF THINGS.

36. Relations under which may be ranged the Principal Divisions of

Things . . . . . . . . . . . . . . 609

§ I. In Relation to their Creation.

37. Things Corporeal and Incorporeal . . . . . . . . 610

§ II. In Relation to Religion.

38. Res Divini Juris and Res Humani Juris . . . . . . 610

§ III. In Relation to the State.

39. Rights of Citizenship — The Idea of the Commercium applicable to

Things as well as to Persons . . . . . . . . 612

40. Roman Soil (Ager Romanus) ; Italian Soil, or that which enjoyed

Roman Privileges (Italicum Solum) ; and Provincial or Foreign Soil (Solum Provinciale) . . .. .. .. .. 612

41. Res Mancipi and Res ncc Mancipi . . . . . . .. 614

§ IV. In Relation to the Proprietor.

42. Res omnium, Publicse, Universitatis, Singulorum, Nullius . . 620

43. Things in our Patrimony {Bono), or out of our Patrimony . . 621

44. Public Land, Property of the State (Ager Publicus) ; Private Land,

Property of Individuals (Ager Privatus) .. .. .. 621

§ V. Tilings considered physically and legally.

45. Movable Things (Res mobiles, seu moventes) or Immovable (Res

.Soli, Immobiles) .. .. .. .. .. 623

46. Things divisible or indivisible — Principal or accessory . . . . 625

47. Genus and Species — Things which are determined by Weight, by

Number or by Measure (qua pondere, nil-mere , mensurdve con- stant)— Of so called Res fungibiles — Things quce ipso usu con- sumuntur; qii>ce in abiisu continentur . . . . . . 626

§ VI. In Relation to their Composition or Aggregation.

48. A particular Thing (Res singularis — Rerum Universitas) . . 628

TABLE OF CONTENTS. XXIX

PAGE

ARTICLE THIRD.— III. OF FACTS.

§ I. Component Ideas.

Sect. 49. Idea of Fact . . . . . . . . 629

50. The Subject of the Act . . . . • • • • . . 630

51. Acts create Eights .. .. . • •• •• •• 631

§ II. Legal Facts or Acts.

52. Idea of the legal Fact or Act . . . . • • . . 631

53. The Form of legal Acts . . . . . • • • • • 632

54. Special Character of the Koman Law with Respect to legal Acts . . 632

55. Acts of Civil Law — Acts of the Law of Nations . . . . 637

56. One Citizen could not be represented by another . . . . 637

57. Will, Consent (Consensus); Ignor&nce(Iffnorantia); Error (Error);

Cosenage (Dolus bonus, Dolus mains); Violence and Fear ( Vis,

Metus).. .. .. .. -. •• •• 638

§ III. Acts other than Legal Acts.

58. The Conception of Acts other than Legal Acts; the Principles

which regulated their Consequences in Law . . . . . . 639

§ IV. Elements inseparable from Acts.

59. The Time (Dies) ; the Place (Locus') . . . . . . 640

§ V. Authentification of Facts.

60. Proo'fs (De Probationibus) .. .. .. •• •• 641

61. Presumptions (De Prcesumptionibus) .. .. •• 643

62. Doubtful Facts (De Rebus dubiis) . . . . . . . . 645

§ VI. Fictiones Juris.

63. Fictions of the Civil and of Praetorian Law . . . . . . 645

CONCLUSION OP THE FIRST PART.

64. Creation of Eights . . . . . . . . . . . . 647

PART II.— EIGHTS AND ACTIONS.

ARTICLE FIRST.— EIGHTS. CHAPTER I. — GENERAL CLASSIFICATION OF EIGHTS.

65. Pers/ ,al Eights — Eeal Eights— (A Classification not adopted in the

EC ianLaw) .. .. .. .. .. ..647

66. Idea jf Personal and of Eeal Eights . . . . . . . . 648

67. Various Denominations of Eeal Eights and of Personal Eights . . 651

CHAPTER II. — PERSONAL EIGHTS. § I. Obligations.

68. General Idea of the Obligation or Personal Eight .. .. 653

69. Obligatlo, properly so called amongst the Eomaiis . . . . 655

70. Creation of Obligations . . . . . . . . • • 65(5

71. Transfer of Obligations .. .. .. .. .. 6(»0

72. Extinction of Obligations . . . . . . . . 600

XXX TABLE OF CONTENTS.

PAGE

§ II. Personal Rights, other than Obligation properly so called.

Sect.73 .. .. .. .. .. .. .. .. 662

CHAPTEE III.— EEAL RIGHTS.

74. Idea common to all Real Rights . . . . . . . . 663

75. Mancipium — Dominium — Proprietas . . . . . . . . 663

76. Possessio .. .. .. .. .. .. .. 665

77. Different Kinds of Dominium — Successive Alterations of Civil Law 666

78. Acquisition — Transmission — Loss of Estate or Property . . 667

79. Real Rights other than Proprietas and Possessio . . . . 670

CHAPTER IV. — CONSIDERATIONS APPLICABLE TO PERSONAL RIGHTS AND TO REAL RIGHTS.

Sect. 80. Rights relating to the State, to the Family, to the Moral or Physical

Individuality of Man . . . . . . . . . . 671

81. Acquisitions or Successions per Universitatem .. .. 671

ARTICLE SECOND. — OF ACTIONS. § I. Preliminary Notions.

82. Rights— Jurisdiction — Procedure . . . . . . . . 672

83. General Idea of the Actio . . . . . . . . . . 673

84. Three Epochs and Three Systems of Judicial Procedure in Roman

Law .. .. .. .. .. .. .. 673

85. Distinction between Jus and Judicium — Magistratus and Judex 674

86. The State appoints the Magistrate — the Parties the Judex . . 675

87. The Public Administration of Justice . . . . . . 676

§ II. Legis Actiones.

88. The Functions of the Magistrate and the Judex under this System 677

89. Forms of Procedure, or Actions of the Law (Let/is Actiones) . . 678

90. Signification of the Word Actio under the Legis Actiones . , 679

91. Fictitious Application of the Legis Actiones to Cases where there

was no real Suit, in Jure Cessio . . . . . . . . 680

92. Decline of the Legis Actiones .. . . . . . . 680

§ III. Formula or Ordinaria Judicia.

93. The Magistrate and the Judge under the Formula System . . 681

94. The Formulae . . . . . . . . . . . . 682

95. Signification of the Term Actio under the Formula System . . 685

96. Actions in Rem and in Personam . . . . . . . . 685

97. Exceptio — Replicatio— Duplicatio— Triplicatio — Prsescriptio .. 687

98. Interdicta .. .. .. .. .. ..689

99. Extra Ordinem Cognitio— Extraordinaria Judicia . . . . 690

100. The Decline of the Formula System . . . . . . . . 691

§ IV. Judicia Extraordinaria.

101. Jus and Judicium, the Office of the Magistrate and that of the

Judge became identical .. .. .. .. .. 691

102. The Change of the Character of the Actio, the Exceptio and the

Interdict, under the extraordinary Procedure, and especially under Justinian .. .. .. .. .. .. 693

103. The various Significations of the Word Actio . . .. . . 694

CONCLUSION . . . . . . , . . . . . . . 695

ABBREVIATIONS.

Gai. ii. 22

Ulp. xxiv. 26 ..

Ulp. lust

Paul. Sent. iii. 3, 17 ..

Paul. Frag

Cod. Theod. viii. 12, 8,

§1- Vatic. J. E. Frag. § 7

LL. Mos. et Horn. Coll. xvi. 4.

Dig. xxxviii. 7, 2, § 1, f. Ulp.

Cod

Inst.

Theo.

For Gaius's Institutes, commentary second, para- graph twenty-second.

„ Ulpian, title twenty-four, paragraph twenty-six. „ Fragments of the Institutes of Ulpian.

„ Pauli Sentential, third book, third title, para- graph seventeen.

„ Fragment on Fiscal Law ascribed to Paulus.

„ Theodosian Code, eighth book, title twelve, section eight, paragraph one.

„ Fragment of Roman Law discovered by M. Mai in the Library of the Vatican, paragraph seven.

„ Comparison between the Law of Moses and the Roman Law, title sixteen, paragraph four.

„ Digest, book thirty-eight, title seven, section two, paragraph one, fragment of Ulpian.

„ Justinian's Code.

„ Justinian's Institutes.

„ Paraphrase of the Institutes by Theopliilus.

ERRATA.

Page 59, line 17, for " censitares" read " censitarii."

Page 98, line 10, for "B.C. 454" read "B.C. 451."

Page 98, last line,/or " B.C. 452 " read "B.C. 449."

Page 202, line 19, for " mancipia" read " municipia."

Page 223, line 1, for " administratio " read " demonstratio."

Page 248, line 26, for " repentine" read " repentina."

Page 377, line 23, for " Maximin " read " Maximian."

Page 459, note 2, for " de Justiniani" read " Justiniani."

Page 496, in heading, for " UNDER JUSTINIAN" read " AFTER JUSTINIAN."

Page 642, line 16, for " a-lv, written," read " fit, with."

INTRODUCTION.

EVERY historian ought to be a jurist, every jurist a historian. It is impossible to understand an enactment without a thorough acquaintance with its history. But then the question occurs, what is this history ? Does it consist in dry tables of laws ar- ranged in chronological order? Certainly not. The manners of a nation, its movements, its wars, its growth, its civilization, are each of them causes that mould the national law. It is our task to investigate these causes, indicate their influence, and trace the changes they have brought about. Most writers have made the history of law subordinate to that of the people, and have been content to trace their progress, independently of the development of law, to an epoch when their system of jurispru- dence underwent some striking modification. I prefer, how- ever, an opposite course, and consider that the history of the people should be subordinate to that of their law. As land- marks in the progress of a nation, I select great political events which modify the national character by changing the govern- ment. In these revolutions public law is remodelled, and if in some cases the legal system no less than the national character appears to remain unchanged, we must take care not to be de- ceived by an outward semblance of conformity, for we shall find that in all such cases the seed has been sown which sooner or later will bear the fruit of change.

Adopting, then, this system in treating of Roman law, we shall have in this summary to consider the subject in three divisions, corresponding to three epochs — That of the Kings, that of the Republic, and that of the Empire.1

1 The divisions ordinarily adopted in books upon the history of law will be found in the Appendix.

VOL. I. B

THE HISTORY OP ROMAN LAW.

FIRST EPOCH.

THE KINGS.

SECTION I. — ORIGIN OF ROME.

2. THE infancy of all ancient nations is wrapt in obscurity; their earliest history is clouded by a mass of doubtful traditions and incredible fables. This remark is especially applicable to the Romans, whose origin, though not of great antiquity, was veiled even from their own eyes. Popular stories, heroic bal- lads, the Pontifical annals, containing the records of prodigies and supernatural events, formed the basis of their history, which were supplemented by a species of tradition adopted by poets, historians, publicists and jurists, vaguely at first, but gathering assurance by repetition till it came to be regarded as a historical record. This is the national belief, and is to be traced in every branch of Roman literature.

3. The critic and the sceptic of modern times, however, have ruthlessly assailed these traditions of Roman origin, and it has become the fashion to rank them with the fables of mythology, not only as to that portion of the narrative which is manifestly fable, but also to much which has the semblance of truth.

4. These efforts have not been solely iconoclastic. Criticism has attempted to reconstruct. It has endeavoured to resuscitate from its decay the Rome of early times, whose origin was a mystery even to its own people. Love of popularity, the eager- ness of theorists, not unfrequently the fertility of imagination, have given birth to rash conjectures, which, in addition to the

THE HISTORY OF ROMAN LAW. 3

charm of novelty, possessed sufficient fascination to secure for a time popular favour.

These efforts were not confined to modern times; for specu- lations on this subject commenced with the revival of literature in the sixteenth century. In a work written in 1685, Peri- zonius traces the basis of early Roman history to old popular ballads and funereal songs. And Cato, in his treatise " Origines," alludes to the odes which used to be sung long before his time on festive occasions in the houses of men of rank, in praise of the heroes from whom they claimed descent. Cicero also alludes to these odes with a regret that they had become obso- lete.1 Perizonius warns the student against reliance upon these poetical effusions, which had their origin in vanity and the love of the marvellous.5

Thus it must be borne in mind that the mythical character of early Roman history, although it has been brought promi- nently into notice by the careful research of modern times, was not a new idea; and, without alluding specially to several minor efforts in this direction to be found in the " Transactions of the Academic des Belles Lettres," Dr. Beaufort, in 1738, published a dissertation on the uncertainty of the five first periods of Roman history.3 And some years previously Vico, at Naples, whose footsteps Niebuhr in our own time has to a certain extent followed, undertook the reconstruction of this doubtful epoch upon more independent data, derived from the great principles of the Philosophy of History.4

6. But these researches have been carried still further back into the vista of time, and attempts have even been made to

1 Cicero, In Brutum, § 19 : "Atque principio et fine uno" (1720); "De con-

utinam exstarent ilia carmina, qua? mul- stantia jurisprudentise," in two parts;

tis saeculis ante suam ajtatem in epulis " De constantia philosophise et De con-

esse cantitata a singulis convivis de stantia philologies" (1721) ; but espe-

clarorura virorum laudibus, in Originl- cially in his " Scienza nuova" (1st edit.

bus scriptum reliquit Cato ! " 1725; 2nd and 3rd edit. 1730, 1744).

3 Pemomns, Animadvert, historic^, Niebuhr, " Histoire romainc " (first

ch. 5 et 6, Amsterd., 1685. volumes printed 1811 and 1812, recast

3 Utrecht, 1738. Also, by the same in subsequent editions) ; French trans- author, "La Republique romaine," La lation by M. de Golbery (six vols. 8vo., Haye, 1766. 2 vols. in 4to. 1830 to 1837). Niebuhr died January

4 Vico, amongst his early Latin 2nd, 1831, before the completion of his works, in his " De uno universi juris great work.

B 2

4 THE HISTORY OF ROMAN LAW.

trace the progress of civilization in ages anterior to the birth of Rome, by rekindling to life the ashes of Italian nationalities long concealed beneath the ruins of the colossal city, by reproducing Italy as she existed prior to its foundation with all her in- habitants, their diverse states, their institutions, their languages long buried in the past. The labours of Lanzi have demon- strated the possibility of deciphering with tolerable accuracy the writing, and not unfrequently the language of this ancient people, by a study of their monuments. And we are indebted to Micali for some interesting essays upon the main features of their general history. These are pleasing speculations, which, could the limits of my work admit of it, should undoubtedly find a place here.

6. There was in the poetry and literature of Greece, as also in that of Rome, its offspring, a tendency to ascribe a Grecian character to the origin of the Italian States. This is shown in the three grand epic events of Grecian poetry, the return of Hercules from his Iberian expedition, when he opened the road to the ocean, placing restrictions upon its use ; the voyage of the Argonauts, in which Hercules himself assisted at the outset, and the dispersion of the Grecian or Trojan heroes after the fall of Troy, with the wanderings of Ulysses and .ZEneas. The genius of the poet has, in all these popular legends, attributed to the Greeks the capture and possession of Italian soil. Add to these that other obscure legend of the Pelasgi, whom Homer calls " a race divine," * but who might have been called, accord- ing to Myrsilus of Lesbos, by a play upon the word which the wit of the ancients could appreciate, Pelargi, that is to say, a "race of storks."2 To them the Dodonian oracle might have said, " Go seek the sea-girt land of the Sicilians consecrated by its inhabitants to Saturn and the Cotylaeus."3

This influence of Grecian mythology and literature upon that of Rome caused the Romans to overlook the study of the ancient population of Italy, their real ancestors ; and hence the exploits, the customs, institutions and languages of the

1 Od. lib. xix. 177. 3 Ibid. § 19. Macrobius, Satur-

2 Dion. lib. i. § 28. nalia, lib. i. c. 7.

THE HISTORY OF ROMAN LAW. 5

people from whom the founders of Rome were descended, have been, if not altogether forgotten, at any rate obscured. And the share which the aboriginal races took in developing the civilization of Italy has been overshadowed by the influence which the Greek colonies, located on different parts of the Italian shores, contributed to that result. This influence, too, has caused the primitive appellation of a part of these shores to be merged in the name of Magna Grgecia, and this to such an extent as to make it appear that Italy owes its civilization to that country alone.

It is however still possible to trace in these Roman writers vestiges which we may recognize as those of the ancient Ita- lians. Medals, coins, funereal monuments with inscriptions, and written monuments of still greater value, a variety of works of art and industry consecrated to domestic or public use, or to religious rites, together with the remains of walls still subsisting, the magnitude and solidity of which have given them the name of Cyclopasan ; in one word, all the treasures of archaeological research are at hand to aid us in this attempt at historical restor- ation. Micali, whose works have been already cited, has made this attempt ; it is true with a certain amount of national prejudice, but with ability that claims attention and asserts authority.

7. We shall mislead ourselves and others, if we seek in any other direction for the bases of the history of Roman law. And with due regard to the eminent services rendered by Niebuhr in the details of Roman history, he has laid himself open to censure for the influence he has attributed to Grecian, in comparison with Italian genius, throughout the whole course of his study of Roman institutions. The old popular ballads, which purport to relate the story of the foundation of Rome and which were in existence even in the time of Cato, were at least adapted to the condition of the language of his period. And the popular ballads, descriptive of the earliest times of Rome, were of Italian character and not imported from without. Of the same type were those religious institutions, belief and practices among the Romans, derived from antiquity, which influenced their life,

6 THE HISTORY OF ROMAN LAW.

both public and private. It would be an error to look upon these institutions and customs as created and improvised for the first time by the Romans. Rome, at first, was nothing more than a nucleus where the principle of agglomeration, so charac- teristic of the Italians, had been developed, and it resembled many other similar centres of association formed by the numer- ous minute sections into which the inhabitants were subdivided. In some cases, however, the principle of confederation among the different towns and colonies resulted in the acquisition of increased power and more extended territorial limits. The religious rites, the magisterial office, the costumes or external insignia, the fasces, the axes, the lictors, the curule chairs, are all of Italian origin.1 If Greece was able to introduce into the religion of Italy the greater part of its deities, Italy, on the other hand, derived from sources more remote its national divinities not unfrequently borrowed in its turn by Greece, such as Janus and his companion Camese symbols of the land of birth, Vesta the goddess of the sacred fire, Faunus and many others whose names are less commonly known, not to mention the Camamian nymphs invoked by the poets in the Augustan age. Varro also, in speaking of the altars consecrated by King Tatius to Rome, tells us that they have Sabine characteristics.2 And, as regards language, if Greece has added much to the Roman vocabulary as it has descended to us, the primitive roots of the language are undoubtedly of Italian source — roots deeply set in the very elements of Italian speech and which have been too much overlooked by the grammarians of the later time of the republic and the empire, but which nevertheless indicate their origin.

In fact, Rome following the usage of other Italian towns, had its protecting deity and its sacred name of Latin derivation.

1 Macrobius, Saturnalia, lib. i. ch. to Vetulonia, one of the principal

6 : " Tullus Hostilius, Hosti filing, Etruscan towns : —

rex Romanorum tertius debellatis Kissenos IHEC prima dedit pracedere fasces,

EtruSClS^Sellam curnlem lictoresqne et Kt junxit totidem tacito terrore secures ;

togam pictam atque priEtextam, qua3 Hajc altas eboris decoravit honorecumles,

insignia magistratuum Etruscorum Et P™ceps Tyrio vestem pratexuit ostro.

erant, primus ut Romre haberentur, 2 Varro, De lingua latino,, lib. iv.

instituit." See also Livy, lib. i. § 8 ; § 74: " Et arte Sabiuam lingnam olcnt

and Silius, in his poem on the Punic qure Tati regis voto sunt Roma; dedi-

wars (ode 8, line 485 et seq.), referring catae."

THE HISTORY OF ROMAN LAW. 7

This name it was forbidden to the initiated to divulge, lest the enemy becoming acquainted with it should invoke the aid of the deity against the city. The mystery attaching to this divinity and its sacred appellation was such that it ultimately became forgotten by the Romans themselves, and was unknown even to the most learned among them. Valerius Soranus perished, ac- cording to Pliny, for having divulged it.1 As to the word " Roma," Verrius relates that it was forbidden to reveal its origin.2

8. A research into the history of the old Italian nationalities anterior to Roman dominion is attended, in addition to many other difficulties, with the same embarrassment that we feel in connection with the history of nations still extant, as, for in- stance, the Swiss cantons, the German states or the Italian republics of the middle ages. This arises from the existence of a multiplicity of petty states — a town or a village with its in- habitants and adjacent territory playing the part of a " Power " and calling itself a " people " — each having its own history and its own institutions, while the rivalries, alliances, negociations and hostilities which arise among them confine the attention of the student to mere details. The mistake so often made by substituting the history of corporations and colonies for that of nations is a source of incessant fatigue to the mind, and is especially distasteful in modern times when we are accustomed to great national unions, and to the centralization of power developed by the growth of civilization.

But how vastly the proportions of this historic problem increase in magnitude, how widely extended becomes the range of contemplation when discarding the theory that the Italian nationalities consisted of so many distinct races sprung from the

1 Macrobins, Saturnalia, lib. iii. abolitum enunciaA'it Valerius Soranus,

c. 9 : " Nam proptcrea ipsi Roinani ct luitque mox pcenas."

Dcnm in cujus tutcla urbs Roma cst, 2 Fcstus, on the word Roma : "Caite-

et ipsins urbis Latinum nomen ignotum rum causam ejus appellationis inveiiisse

esse voluerunt." " Ipsius vero urbis ait Verrius vetitam esse publicari."

nomen etiam doctissimis ignotum est." Reference must be made to the etymo-

Pliny, Hist, natur., lib. iii. § 9, no. 11: logical discussion in the same passage

"Roma ipsa, cujus nomen alterum upon the Greek fables in order to ex-

diccre, arcanis ca^remoniarum nefas plain the name Rome, habetur, optimaque et salutari fide

8 THE HISTORY OP ROMAN LAW.

soil, indigenous and aboriginal, we adopt the principle usually accepted as a guide in kindred speculations, and rise to the grand conception of a common origin ! If we search for an answer to the question, whence came these numberless petty states, or whence did the Italian peninsula, or Greece, or Spain, or Gaul, or other parts of Europe, receive their population ? we find ourselves passing away from the study of minute details, and petty subdivisions confusing us with numberless anomalies and intricacies in race and language, and coming within view of the fountain head, we obtain a glimpse of a unity of origin among the races which peopled Europe, races that are detached branches of one common stock, sprung from the same distant line- age : and we may cease to wonder at the event which happened at the battle of Marius against the Ambro-Teutons, when from the ranks of the army of the barbarians as well as from those of the Italian auxiliaries there burst forth, to the great astonishment of the combatants, the same war cry, " Ambra, Ambra ! " *

And with these dim and uncertain vestiges before us of a forgotten unity, which are to be met with everywhere amid the utmost diversity of human language, we begin to perceive the basis of a common origin of race.

We are indebted to M. Ampere for the commencement of a history of Rome,2 written at Rome itself, from the testimony of archaeological remains. These materials have been arranged and elaborated with much genius and taste, aided by a skilful application of the inventive faculty. In order to write his his- tory, this accomplished scholar and poet ascended successively every summit of the locality whence he might obtain a survey of the surrounding district. But we may ask whether, in thus localizing the point of vision, an author does not run a risk of restricting too much his field of observation? In order to in- vestigate fairly the history of the distribution of mankind in connection with the corresponding subdivisions of territory, should not the philosopher rather ascend to the summit of Mount Ararat, and thence endeavour to trace the course of those streams of the great human family which the vast Asiatic

1 Plutarque, Vie dc Marius. * Paris, 1862. Two vols. in 8vo.

THE HISTORY OF ROMAN LAW.

cradle of our race has, amid the dim and uncertain haze of past ages, successively sent forth to people the continent of Europe ?

Feeble as the glimpse may be which we get of the progress of different tribes towards the west, the comparative study of fragmentary traditions, customs and national beliefs, aided by the light which modern researches in philology have thrown upon the subject, enables us to arrive with certainty at some grand results. We are in a position to assert, that certain powerful races belonging to the Japhetic family, the Iberians, the still more powerful and extended race of Kelts (Gaels), and their kindred race, the Cimbri, have given to the Italian peninsula, as well as to Spain and Gaul, and other parts of Europe, their population. So that, although these countries were peopled at different times by races who immigrated into them in different proportions by separate routes, and by succes- sive invasions or immigrations, they are inhabited by men origi- nally of the same race. The Ligures, the Siculi and the Sicani are, according to the most commonly received opinion, branches from the same Iberian stock. The Umbrians, according to traditions to which the learned Roman was not a stranger, were regarded as the progenitors of the Kelts or Gaels who had crossed the mountains into Upper Italy.1

The mysterious Pelasgi were but tribes of Cimbri, who, emanating from Thrace, spread themselves over certain parts of Asia Minor and the Grecian Archipelago, and reached even the almost sea-girt land of Italy. The fact of their being established in Greece led to the belief in their Hellenic origin, notwithstanding that they preceded by a long time the races who at a later period replaced them, and even borrowed from them the appellation of Greeks and Hellenes. From the same stock of Cimbri sprung the Etruscans or Tyrrhenians (although to trace their derivation from the common stem we must look further back), who were offshoots of another branch of the

1 " Sane Unibros Gallorum vetcrum DC memorabillbux mundi, ch. 8). This

propaginem essc M. Antonius refert" Cornelius Bochus was enfranchised by

(Cervius, ch. 12, JKneid.). This M. Sylla, and renowned for his erudition.

Antonius Guipho was a preceptor of " Umbri Italiaj gens est, sed Gallorum

Julius Caesar, arid came from Cisalpine veterum propago " (Isidore de Seville,

Gaul. "Bochus absolvit Gallorum veto- Dvs oriyincs, lib. ix. c. 2). rum propaginem Unibros esse" (Solin,

10 THE HISTORY OF ROMAN LAW.

Pelasgi, and at a subsequent period made their way to Italy.1

Lastly, a third race also sprung from the " Asiatic cradle," and, tracing its lineage to the source personified under the name of Japhet, must be reckoned among the ancestors of the Italian nation. This is the Ionic race, whose descendants, in after ages and in another land, threw such lustre on the Pelasgic names of Greek and Hellenes.2 This race, at its first appear- ance in Europe, settled some offshoots on the coast of Sicily and Italy, and with difficulty established itself in Greece by expel- ling or intermingling with the Pelasgi, and at that time gave no promise of the renown that was destined in after ages to be attained by its descendants.

Care must be taken not to confound with this primitive Ionian element in Italy the colonies which the Greeks, at a much later period and in the height of their prosperity, founded in that country, and from which the name of Magna Grascia came to be given to a portion of the Italian shores.

Of these events, whose history is traced with difficulty amid the obscurity that overhangs the origin of the human race, the most recent dates back as far as fifteen or sixteen centuries prior to our era, and seven or eight hundred years before the foundation of Koine. In effect, they show that there were three principal races by which Italy was peopled, the Iberians, the Kelts or Gaels, with their kindred Cimbri, and the lones. And the early population of Gaul had without doubt a similar origin. From these sources emanated the ancient races now known as the aboriginal inhabitants of Italy, not in a single stream pure and unmixed, but in many different channels, some- times uniting, sometimes crossing each other, according as the accidents of locality and surrounding circumstances affected their course. Amongst some of these, as was the case with the Ligures and the Siculi, with the Ausones and their offshoots, the Volsci or Opici, with the TJmbrians and their numerous

1 " Hyginus dixit, Pelasgos esse qui pies primitifs de la race de Jafete :

Tyrrheni snnt : hoc etiam Varro com- Colmar, 1853, p. 42 ct scq.

niemorat" (Servius, c. 8, JKncld^}. See 2 Vide the same work 1>y M. Bcrg-

the concise but instructive work by mann, p. 51 et scq. M. Bergmann, of Strasburg, Les pen-

THE HISTORY OF ROMAN LAW. 1 1

colonies, with the Sabines and their branches, with the Piccni and the various Sabellic tribes, with the Marsi, the Hernici and the Etruscans, the race of the Iberians, or Gaels or Cimbri, acquired preeminence, whereas among others, as in certain parts of Latium and of the Italian or Sicilian coasts, the lones were in the ascendant.

But as we approach the period when the history of Rome commences, we find that all connection with the past and all traces of unity of origin had been forgotten. At the present day we should regard the internal affairs of petty communities, mere fragments and infinitesimal sections of a population, how- ever important they might appear in their own annals, as matters of very little significance. , Doubtless these petty states had their own history — their growth, their divisions, their international wars, their politics, coloured by the accidents of the time and local influences — but the end of all of them was Rome, and they were absorbed in a destiny which was fated to embrace the world.

Notwithstanding, however, the great extent to which the principle of dispersion had been carried out, there are many indications to be observed of the existence on a larger scale of previous nationalities which had gone through a course of prosperity and subsequent decline ; such, for instance, as affinities in language and custom, symptoms of unity in their systems of confederation and colonization, political alliances and co-operations in military ventures. But among the subordinate nationalities which existed up to the time of Rome, and were taken up and finally absorbed by her, three, viz., the Latins, the Sabines and the Etruscans, occupy a prominent position. In fact, it was in the midst of these, and by the union of de- tached sections from each of them, that the new political organization was formed. And in whatever proportions this combination was effected, there is no doubt that it was the basis upon which Rome was founded.

The Latin element had the double advantage of territory and antiquity, the Sabine that of power and independence, the Etruscan that of civilization and religious and political in- stitutions alreadv established and defined.

12 THE HISTORY OF ROMAN LAW.

9. The method by which the union between a certain section of the Sabines and the Romans was effected is related in detail by tradition, and is celebrated in the national poems. The appellation " Quirites " was the sacred name of these Sabines, and was derived according to Festus from the goddess Ceres, to whom they offered the sacrifice of water and wine, whence also Cures the name of their chief city, and Curis or Quiris the Sabine lance, the emblem and instrument of power.1 The Quirinal Hill was so styled, according to Varro, because it was upon its summit that the Sabines encamped when they came with Tatius from Cures to Rome.2 The twofold origin of the Romans is also indicated in their sacrifices, their prayers and their religious formulas. And the phrase " Populo Romano Quiritibusque " — subsequently altered to " Populus Romanus Quiritium" — would seem to indicate that it was the custom at one time to invoke the gods on behalf both of the Romans and the Quirites.3 Moreover, it was from the Sabines that the Romans themselves took the name of Quirites,4 and Romulus was called by the sacred name Quirinus.5 Thence also came their goddess Cures and the god Quirinus, the deity of the lance, identified with Romulus and to whose honour a temple was erected on the Quirinal mount.6 This lance long continued to play an

1 Festus, on the word Quirites : people, Quirites.

" Quirites, dicti Sabiiii a Curi dea, cui 4 Livy, lib. i. § 13 : " Ita geminata

aqua ctvino sacra facere soliti erant . . urbe, ut Sabinis tamen aliquid daretur,

Ab ejusdem autem dcae nomine viden- Quirites a Curibus appellati."

tur item cures Sabinas hastas appellate, 5 Ovid, Fasti, lib. ii. line 477 et seq.,

quibus ea gens armis erat potens." where the three grounds are given upon

2 Varro, De lingua lati/ia, lib. v. either of which Romulus may have § 51 : " Collis Quirinalis, ob Quirini been called Quirlmts : —

fanum ; sunt qui a Quiritibus, qui cum sive quod hasta curis priscis est dicta Sabinis,

Tatio Curibus venerunt Romam, quod Bcllicus a telo venit in astra Deus ;

ilii Vinhriprint pa«h-n " SPP nlsn TnVstus Sire suum rej?l nomcn posuere Quiritcs ;

tUS> Seu quia Komanis junxcrat ilie Cures.

on the term (Jmnnalis colLis. ^ , ,, , „ . . .. „ .

' Festus, on the word Did: " Bid r.estus' on, thc ^rdQmrmus : Qui-

mos erat Romanis in omnibus sacrificiis "nus ex h.aC ^t RT,ulufS °stf apf

prccibusque, POPULO ROMANO QUIRI- latus' qnod c?n> ld <*.' *»**• uteretur,

TIBUSQUE, quod cst Curensibus, qu» ci- a ^ Roma°1 eo nomme Romulum ap-

vitas Sabinorum potentissima fuit." See ^e, 'J^6™11 ' ... .. ,. this religious formula altered in Aulus °vld> Fastt> llb' »• hne 51 1 :~

Gellius, lib. x. cap. 24, a formula of Templa Deo flunt, collis quoque dictus ab illo.

the Praetor announcing the fetes called It was the latter of these two which

Compitalia for the Roman people, Qui- gave to the mountain its name Quirinal,

rites; and Livy, lib. viii. cap. 9, a for- on account of the temple there erected

mala by which the Consul Decius de- to Quirinus. voted himself on behalf of the Roman

THE HISTORY OF ROMAN LAM'. 13

important part in their symbolic ceremonies, their formula} and the technical language of Roman Law.

10. The Etruscan element is less clearly traced in popular tradition ; but its existence can be satisfactorily established from the testimony of the historians, supplementing that of tra- dition. Varro, Festus, Tacitus and Dionysius of Halicarnassus tell us that Mons Caslius was so named from one Caelius or Vibenna Cseles, a noble Etruscan, who had come with his retinue (cum sud manu) to the succour some say of Romulus, others of Tarquinius Priscus, and established his residence upon this hill, which in after times their descendants were required to abandon, when they were forced to take up their residence in the plain country, because the position upon the heights when fortified gave them an advantage and enabled them to domineer over and disturb at will the surrounding territory. Antiquarians are not agreed as to the name of their king, but this much is certain, that they formed in the plains, not far from the Forum, a settlement which received from them the name of the Etrus- can Quarter ( Vicus Tuscus], where was to be seen the statue of Vertumnus, the principal deity of Etruria. The Mons Caelius was, before the arrival of the Etruscans, called Quer- quetulanus on account of its being thickly covered with oak trees. And in like manner Mons Quirinalis was called, before the arrival of the Sabines, Agonius or .ZEgonus.1

1 Varro, De lingua latina, lib. v. erat ; mox Caelium appellitatum a Cselc § 46: " Cselius mons, a Gaelic Vibenno, Vibenna, qui dux gcntis Etruscae, qnum Tusco duce nobili, qui cum sua manu auxilium appellatutn ductavisset, sedem dicitur Romulo venisse auxilio contra earn acceperat a Tarquinio Frisco, seu Tatium regem : hinc post Cselii mor- quis alius regum dedit : nam scriptores tern, quod minis munita loca tenerent in eo dissentiunt ; crctera non ambigua neque sine suspicione essent, dcducti sunt, magnas eas copias per plana etiam dicuntur in planum. Ab eis dictus ac foro propinqua habitasse, nnde Tus- vicus Tuscus, et ideo ibi Vortumnum cum vicuna e vocabulo advenarum die- stare, quod is Deus Etrurise princeps." turn." The version current among the Festus, on the word Caillus : " Cajlius Etruscan writers was somewhat diffe- mons dictus est a Caele quodam ex rent. According to them it was Scrvius Etruria qui Romulo auxilium advcrsus Tullius, the faithful companion of Cables Sabinos pnebuit, eo quod in eo domi- Vibenna, who, after his reverse, quitted cilium habuit." Dion. Halic., lib. ii. Etruria with the wreck of his armv and § 38. Tacitus, Annales, lib. iv. §45: occupied the mount, which he called "... Montem eum antiquitus Coelius in honour of his chief. He also Querquetulanum cognomento fuisse, changed his own Etruscan name from quod talis silvae frequens fccundusque Mastarna to Scrvius Tullius. We de-

14 THE HISTORY OF ROMAN LAW.

The existence of the Etruscan element also appears, though somewhat obscurely, in the account given us of the Luceres, the third section of the Roman people (pars tertia populi Romani), which was constituted a tribe (distributa) by Tatius, or, accord- ing to Festus> by Romulus.1 The origin of the name Luceres was explained by the Romans in different ways : Livy tells us that it was uncertain ; 2 Festus derives it, in the passage just cited, from a certain Lucerus, King of Ardea, a town on the coast of Latium, who also came to the succour of Romulus. But from Varro we learn that the term Luceres was Etruscan, and Festus himself, in another passage, derives it from a Lucumon, the chief of this band. Cicero tells us of the death of this Lucumon while fighting with the Romans against the Sabines.3 This Lucumon, then, is evidently no other than the Etruscan leader Vibenna Casles. All doubt as to the correct- ness of this conclusion is dispelled when we recollect with Mebuhr that " lucumo " is merely a term descriptive of dignity among the Etruscans, and the error has clearly arisen from the habit of regarding it as a proper name.4

A further trace of the existence of the Etruscan element is to

rive this Etruscan version from what tertia Populi Romani est distributa a are termed the Claudian Tables, which Tatio et Romulo, appellati sunt a are bronze tables discovered in 1528 at Lucero Ardeaj rege, qui auxilio fuit Lyons, where they are preserved, and Romulo adversns Tatium bellanti." on which is engraved a speech of the 2 Livy, lib. i. § 13 : Lucerum nominis Emperor Claudius on the concession of et originis causa incerta est. the jus senator-turn to the Gauls, or 3 Varro, De lingua latina, lib. v. their right to be called senators. Pre- § 55 : " Tatlenses a Tatio, Ramnenses viously the Annals of Tacitus, lib. ii. a Romulo, Luceres, ut Junius, a Lucu- § 24, presented an analysis of this ora- mone. Sed omnia hajc vocabula Tusca, tlon, the text of which has been thus ut Volnius, qui tragcedias Tuscas scrip- preserved. A fac-stmile of the text sit, dicebat." Festus, on the word has been printed by M. Monfalcon, Lucomedi : " Lucomedi a duce suo librarian to the municipality of Lyons, Lucumone died, qui postea Lucerenses with its consent ( 1851, fol.) It is also appellati sunt." Cicero, De republica, to be found in the greater number of lib. ii. § 8 : " . . . Et suo et Tatii the editions of Tacitus. That the Em- nomine et Lucumonis, qui Romuli peror Claudius wrote an Etruscan ver- socius in Sabino prajlio occiderat." sion may be believed, inasmuch as we 4 Servius, ad JEncid., lib. ii. line find from Suetonius that he wrote a 2G8 : " Duodecim enim lucumones, qui Greek history of the Etruscans in reges sunt lingua Tuscorum, habebant." twenty volumes, which are lost. Et lib. viii. line 475 : " Tuscia duode-

As to the primitive name of the cim lucumones habuit, id est reges,

Quirinal mount, vide Festus, on the quibus unus praserat." Also, lib. x.

words Quirinalis collis et JEgoniuin. line 202, et lib. xi. line 10. Censorinus,

1 Festus, on the word Lucerenses : De die natali, c. 4 : " Lucumones, turn

" Lucerenses, et Luceres, qua? pars Etruriae potentes."

THE HISTORY OF ROMAN LATV. 15

be found in the account given by tradition of the arrival at Rome of Tarquin, with his people, from Tarquinii, one of the principal towns of Etruria. Thus each of the three elementary races which collectively founded Home, supplied it with a king, the Latins, Sabines and Etruscans.

11. It must not be supposed that this Sabine element com- prised the whole of the Sabine people, much less that the Etruscan element composed the whole of the powerful Etruscan nation; but they were clearly sections of these people — so clearly that we may concur with Floras, who observes in con- nection with the period subsequent to the " social war," that the Roman people was a composite of Etruscan, Latin and Sabine, which had united the blood flowing from different sources and incorporated into one body its various members.1

12. These considerations will enable us to grasp the prin- ciples of the customs and institutions of Rome from the view they give us of pre-existing nationalities, whence it derived its origin. Upon this broad basis we may take our stand, without carrying our researches into minute details. We learn from Censorinus that Varro divided the historic period into three epochs. The first he called aS^Xov or unknown, because it is wrapt in the obscurity of ignorance ; the second /*u0jxo'y, be- cause it abounds in fables ; and the third, urropjxov, derives its materials from the record of events contained in annals that may be relied upon.2 Vico in a similar manner, but with more depth of view, divides the historic epoch into the divine, the heroic and the human.3 Niebuhr still more closely follows Varro, and while adopting a tripartite system of division with reference to Roman history, in his first edition styles the primitive period the mythic or purely fabulous, the second mytho-historic or a mixture of facts and fables, and the third historic. His work will be read with interest, but caution must be exercised in following him through the imaginary

1 Floras, lib. iii. § 19: " Quum membris, et ex omnibus unus est."

Populus Romanus Etruscos, Latinos, a Censorinus, De die natali, § 24.

Sabinosque miscuerit, et unum ex om- 3 Vico, Principj di scienza niiova,

nibus sanguincm ducat, corpus fecit ex lib. iy. Del corso chef anno le nazicmi.

1 6 THE HISTORY OF ROMAN LAW.

recitals which he substitutes with the assurance of certainty for the fables of the two earlier periods. Legend may be sub- stituted for legend, and conjecture for conjecture, but ideas that live in the traditions and literature of an entire nation, form themselves part of its history if only as representing the national faith. This is the principle we wish to follow. In his first edition, Niebuhr presents us with a Rome, a mere Etruscan colony, a little fortified town built on the Mons Pala- tinus and tracing its origin back to the era of the Pelasgi, and embodying in the course of time the villages on the neigh- bouring hills by which it was surrounded. Next he presents us with a Sabine town on Mons Quirinalis, and then an Etruscan town on Mons Cselius, thus reproducing under the shape of conjectures transformed into assertions the theory of the three national elements attested by antiquity, the Latin, the Sabine and Etruscan. Of the towns or villages of Remuria, Vaticum, Quirium and Lucerum, the ancients have made no mention.

13. Bearing in mind this idea of the component element of the Roman people, at a period when their history commences, we are in a position to approach the study of their institutions. And as we shall here, even more than in the study of historic events, come in contact with the brilliant works of Vico and Niebuhr, which may not be ignored, although we are not able to accept their fundamental data, it appears necessary, before we proceed further, to place on record our view of the writings of these eminent authors.

The tendency of Vico is to generalize. His aim is to dis- cover the general principles of law, as the laws are necessarily interwoven with the history of the human race. The history and the law of Rome are only introduced as examples, of great importance, it is true, on account of the attention they have received in modern times, but nevertheless as mere examples which the writer, not without using some constraint to mould them to suit his views, has adduced to illustrate certain philo- sophic dogmas of his own. The author's fertility of idea, his depth of view, the glimmering light of certain fundamental

THE HISTORY OF ROMAN LAW. 1 7

principles which he imagines he has discovered, are charac- terized by that vagueness, incoherence, caprice and sometimes even the absence of sound reasoning, which are peculiar to writers of great genius. In connection with the study of the institutions now occupying our attention he has laid down general principles which ought to be accepted as indisputable, and others which ought to be as definitely rejected. And as to his details, they are in many respects unnecessary to a thorough acquaintance with Roman law, and a jurist, guided in his study of the subject by the document before him, would be justified in rejecting them as fanciful.

The special subject of Niebuhr's work is the history of Rome, in which considerable attention is bestowed upon the institutions. It is a work of much learned research, and the author, who delights in the minutest details of archaeological investigation, has freely consulted and made use of the evi- dence afforded by relics of antiquity. Though he does not profess to be a jurist, still the student is indebted to him for the greatest service rendered to the study of Roman law in modern times — the production of the Institutes of Gaius, of which he was the first to discover the palimpsest. For this we owe him a deep debt of gratitude. As a critic he was subtle and in- genious ; as a writer he could call to his aid a brilliant imagina- tion and the conceptions of a poet. But like many archaeologists he is prone to self-deception, at one time being too visionary, at another under a conviction which he will not allow to be dis- putable, he relates as fact that which is mere fancy, without affording the slightest indication of the licence he has taken. Consequently his work is in places a collection of antiquarian dissertations, which as intercalations are always instructive, though long and tedious ; in others his style is most attractive, and his delineations full of life. It is no matter of surprise, therefore, that upon a great number of points his labours have thrown much light and have materially assisted the jurist in his study of Roman law, more particularly with reference to the period when the history of this law begins to emerge from the obscurity of its early origin. But in his treatment of the Roman constitution and the divisions and social relations of the different

VOL. i. c

18 THE HISTORY OF ROMAN LAW.

classes of the population at this epoch, in the absence of docu- mentary evidence he has trusted too much to imagination. It is, therefore, only with the utmost caution that many of his ideas in this particular branch of the subject can be introduced into a history of the law. He appears to us to start from an erroneous basis, and we consider it hazardous to admit theories, constructed with no attention to critical accuracy, into an elementary work in which nothing should find a place except established truths. Preoccupied with examples derived from the history of society in the middle ages, and especially of the petty states of Germany, Niebuhr, even in the terminology adopted by him on a principle completely at variance with the language of the Romans, has occasionally produced the same effect — if I may be permitted to use such an illustration in a subject of this nature — as would be produced by a painter who should represent Abraham as about to accomplish the sacrifice

of his son with firearms.

•

14. Whatever licence may be allowed a writer treating of ordinary history, in that of jurisprudence there should be no room for the play of the imagination, for it is a subject that re- quires to be handled with the most severe and scrupulous exact- ness. We have accordingly, so far as is possible, derived our materials solely from written sources left us by the Romans themselves. We are about to follow the history of this people throughout their career of development, and in doing so, we shall have our attention directed to the public, the sacred, the private law, and the customs of the people successively. The first — public law — comprises the constitution, the machinery of legislation, the administration of justice, the appointments to office, the right of contracting peace or making war. The sacred law, which among the Romans was intimately connected with and formed a branch of political law, regulated the cere- monies of religion, and their observance in public and private life, and the election and authority of the pontiffs. Private law is that which concerned the interest of individuals in their mutual relations with each other, and regulated their marriages, their contracts, their property and their inheritance. And, lastly, we

THE HISTORY OF ROMAN LAW. 19

shall consider custom, the influence of which was equally great over public, sacred and private law.

The divisions of the population into patricians and plebeians, into patrons and clients, whence the patrician "gens," the whole forming collectively the Populus Romanus ; its distribu- tion into three tribes and thirty curies ; the assembly of the curies ; the senate ; the kingly office, are the political institu- tions whose origin was attributed by Roman tradition to the time of Romulus, and all of which, by the common consent of historians, poets, statesmen and jurists, are ascribed to the first king.1 The existence of these institutions, which either in their entirety or in fragmentary portions, have been carried on from age to age, through gradual modifications and trans- formations, cannot be called in question, but it is impossible to give, with any certainty, a detailed account of their origin or organization in early times, because the only writings worthy of reliance that refer to the subject are Avanting in these details. But this much may be asserted with confidence, that these institutions were but imitations of similar institutions in vogue at the same time among other Italian nations.

SECTION II.

PATRICIANS AND PLEBEIANS (Patres, Patridi; Plebs,

Plebeii).

PATRONS AND CLIENTS (Patroni, Clientes}. PATRICIAN " GENTES " (Populus Romanus}.

1 5. The commencement of civilization was not, as poets tell us, a golden age, or an age of wisdom, equality and liberty, for the march of human progress is in an opposite direction. And we may accept, as an undisputed fact, the axiom laid down by Vico, that nature everywhere commences with the gross and unrefined. The birth of nations is in slavery, inequality, and ignorance ; and the Italian nations, among which Rome was founded, were no exceptions to the rule. Their people were

1 See Cicero, Dr re.piiblica, lib. ii. § 8.

c 2

20 THE HISTORY OP ROMAN LAW.

either slaves or aristocrats. We must not, therefore, be sur- prised to find the people in the earliest times divided into classes differing widely in their condition, a superior and dominant caste having the right of intermarriage, equal privileges, a monopoly of sacerdotal, political and judicial functions — the patricians (patres, patricii); and an inferior and subject class, prohibited from alliance with the former, neither admitted to its rights or its laws, distributed among the different families of the patricians, from whom they received protection as an incident of clientage, and excluded from public functions — these were the plebeians, or plebs {plebs, pleleii ) ; and, finally, a third class, which in no degree formed part of the State, with- out civil rights, and living the life of animals, being regarded by the head of the family in no other light than as mere property — a chattel. These were the slaves (servi, mancipia). The explanation of this classification is to be sought for in the diversified origin of the Roman population, in the distinct elements of which it was composed, in the fact of there being an asylum among them ever open to the stranger or the fugitive slave, in the then existing customs of war, and the fate which awaited the inhabitants of towns and districts either in the character of captives or conquered people. This is a field of study long since explored. And it must be borne in mind that these social characteristics were those of all the Italian nations of the period, among which Rome subsequently attained pre- eminence. Each of the Italian towns "and petty states had its superior and governing, and its inferior and governed class. Clientage, slavery and enfranchisement were in vogue, and produced everywhere analogous results. " The nations by which we are surrounded," said Appius Claudius, in his vehe- ment harangue against the plebeians, " are governed by the great, and there is not one of them which presents an instance of equal legal rights being shared by the governing and the governed classes."1 Censorinus, speaking of the miraculous birth of men, relates a story found in the books of the Etrus- cans, that in a field forming part of the territory of Tarquinii,

1 Dion. lib. vi. § 54.

THE HISTORY OF ROMAN LAW. 21

the plough turned up from the furrows an infant, Tagcs, who commenced teaching the art of divination, which was com- mitted to writing by the " lucumons." This was at the time the governing class in Etruria, and held the same position as the patricians at Rome,1 which in this respect resembled the other Italian cities, although it placed its peculiar complexion and stamp upon its institutions. And it is by attention to this division of the Roman people that the study of their public or private laws is to be commenced. The two castes, the patrician and plebeian, present a clearly defined line of demar- cation between the two elements, whose disputes and struggles ultimately result in a perfect equality of social status, legal rights and customs.

1 6. Another of the ancient Italian institutions is the bond of clientage : and the history of Rome itself furnishes us with proof of its existence in the other nations of Italy. Thus we find Attus Clausus, a noble Sabine, afterwards known at Rome as Appius Claudius, flying from Regillum to seek refuge in Rome accompanied by a large number of his clients (magna clientum comitatus manu). Dionysius goes so far as to assert that five thousand was about the number of relations and clients, fit to bear arms, who accompanied him.2 Again, at the siege of Veii, we find nobles from all parts of Etruria flocking, with their clients, to the succour of the city.3 An exact and detailed acquaintance with this institution, if in our possession, would throw great light upon the social condition of the Romans, upon the composition of the great patrician houses, and upon many important points connected with public and private law.

This bond of clientage between the patricians and those who attached themselves to them in the capacity of clients, gave rise to a new distinction in the relative position of persons, that of patrons (patroni) and of clients (clientes). The classic authority

1 Ccnsorinns, § 4, in fine: " Nee non § 23, and Amminn. Murccllin. lib. xxi.

in agro Tarquinicnsi puev dieitnr exa- § 1.

ratus, nomine Tagcs, qui disciplinam 2 T^ivy, lib. ii, § If.; Dion. lib. v.

cecinorit extispicii : quam luciunones, § fli). turn Etrnriii! potcntes, exscripsernnt." 3 Dion. lib. ix. § 5.

See also Ciceio, Dedh'inutione, lib. ii.

22 THE HISTOKY OF ROMAN LAW.

on this subject is Dionysius,1 who shows that reciprocal rights and duties, though differing in kind, existed between the patron and the client. On the part of the patron towards the clients there was the duty of protection, assistance and instruction in the law, a general regard for their interests and oversight of their affairs during their presence or absence, and the obligation of commencing or defending all actions necessary for their pro- tection. This writer here confines himself to obligations con- nected with legal rights, the management of pecuniary matters and litigation, which, from the earliest times, were regarded as affairs of the utmost importance among the Romans. The picture is correct so far as it is confined to the period when Dionysius of Halicarnassus wrote ; but in other respects it requires to be supplemented. The pecuniary burdens to be borne by the clients for the benefit of their patrons were marriage portions for the daughters of the latter, the ransom of the patron or his sons from captivity, cesses for roads, cost of unsuccessful litigation, the payment of fines, expenses connected with the magisterial offices and all other public charges. On the part of both, such was the reciprocity of obligation, it was forbidden for one to be the accuser or a witness against the other, or to lend assistance to or join the ranks of his enemy. Who- ever was guilty of any of these acts became liable to the law against traitors and to be sacrificed to the gods {sacer esto}. And it is a proof of the great antiquity of this institution among the Italian nations, that it belonged to a period when human sacrifices were in vogue, and when the guilty were immolated at religious festivals upon the altar of the deity to whom they had been dedicated. Dionysius of Halicarnassus, speaking of the time of which he wrote, tells us that it was lawful for every one to kill them with impunity ; and this is confirmed by Festus, on the meaning of the word " sacer."

It is impossible not to recognize a great similarity, though under very different aspects, between the relations that existed between the patron and his client and those established in our feudal period between the lord and his vassal. In the case of

1 Dion. lib. ii. § 9 et seq.

THE HISTOKY OF ROMAN LAW. 23

subsidies the connection was exactly similar, viz. the marriage portion of the eldest daughter and the ransom from captivity.

The tradition of this bond of union between the patron and his client was long retained as a Roman maxim in times when the primitive character of the institution was almost entirely forgotten. Virgil, in his description of the infernal regions, subjects to the same punishment the man who has struck his father and the patron who has practised fraud upon his client —

" Pulsatusve parens, et f raus innexa client!." '

Aulus Gellius represents a conversation as taking place be- tween certain sages and some noble Romans concerning the relative importance attributed by ancient custom to family and to social obligations (officia). Here it is at once admitted that immediately after the observance of duty to parents (parentes} comes that of a guardian to his ward, and in the second place that towards the client, " qui sese itidem in fidem patrocinium- que nostrum dediderunt." In the third place are ranked duties towards a guest, and after these duties towards cognati and allies. And Aulus Gellius is confirmed by the discourses of M. Cato, of the Pontifex Maximus, C. Cassar, and the writings of the jurist Massurius Sabinus. Cato says, " testimony may be given in favour of a client, against cognati, by a patron ; but none can be given against a client. Next to the name of father that of patron stands highest."2

One of the illusions of Niebuhr, which we reject, is his theory that the clients were an order of the people entirely distinct from the plebeians. He gives them a distinct origin and an independent position in order to bear out his conclusion, which after all is immaterial, that the plebeians in their struggle

1 Virgil, JEn., lib. vi. line 609. " Nam neque hominum morte memoria

2 Aul. Gell. lib. v. ch. 13. The deleri debet, quin aproximisretineatur; speech of Cato, quoted by him : " Ad- neque clientes sine summa infamia de- versus cognates pro cliente testatur ; seri possunt ; quibus etiam a propinquis testimonium adversus clicntem nemo nostris opem ferre instituimus." So dicit : patrem primum,postea patronum Aul. Gell. lib. xx. ch. 1, in his com- proximum nomen habere." Of Mas- mentary on the law of the Twelve surius Sabinus : " In officiis apud ma- Tables : " Sic (Populus Romanus) cli- j ores ita observatum est, primum tutelar, entem in fidem acceptum cariorem ha- deinde hospiti, deinde clienti, turn cog- beri quam propinquos, tuendumque esse nato, postea affini." Of C. Caesar: contra cognates censuit."

24 THE HISTORY OF ROMAN LAW.

against the patricians were not revolted clients, but that they were an oppressed section of the population rising against their oppressors. Clientage, whatever may have been its advantages, was a species of service — the subjection of an inferior to a superior caste. Clients or no clients, they were governed by the patricians, the privileged race monopolizing the spiritual and secular government of the state. There is no necessity to seek for any other explanation or apology for the struggle. The entire testimony of antiquity convinces us that the clients formed part of an inferior class. It is almost capable of demon- stration that, in the first ages of Rome, all the plebeians were distributed among and attached to the several patrician houses by the bond of clientage, if not already enfranchised. This is supported by the popular tradition of Romulus. Cicero makes this remark in his treatise on the Republic,1 and M. Manlius, in his oration to the plebeians against the patricians, bids them calculate their own numbers and that of their adversaries. " So many clients as you were formerly, when subservient to one patron, so many will you now be against one enemy."2

This much is certain, that as a result of the continuous in- crease of the plebeians in proportion to the growth of power in Rome and the increase of population, a time arrived when the number of plebeians attached as clients to the patrician houses was exceedingly small in comparison with the great body of plebeians not so attached. And the bond by which they were united to their patrons, the duties imposed by virtue of their position as clients, their enrolment in the first organization of the comitia in the families of their patrons (although we have no certain knoAvledge how that enrolment was effected), the prohibition against lending aid to the enemies of their patrons under pain of being adjudged traitors, all contributed to place them in the situation of apparent supporters of the patricians in the struggle with the plebeians, and caused them to be regarded as forming a part of the patrician force, and sometimes as me- diators and intercessors between the contending parties.

1 Cicero, De rcpnlilica, lib. ii. § 9: " Livy, lib. vi. § 18: " Quot cnim

"Et babuit (Romulus) plcbcm in oli- clientes circa singulos fm'stis patronos,

en tolas principnm descriptam ; quod tot mine ad versus unum hostcrn critis." quanta: fucrit utilitati, post vidcro,"

THE HISTORY OF ROMAN LAW. 25

And it is equally certain that in the deliberations of the plebeian tribes, where they were numerically insignificant, their influence ceased to be the same as in the other assemblies. From all the texts collected by Niebuhr in support of his pecu- liar views, there is not one that militates against the truth of these conclusions.

But the picture which Dionysius of Halicarnassus supplies regarding the institution of clientage is deficient in many fea- tures which are necessary to convey a clear idea of the social condition of the people at this early period of their history. Some of these features, which have no doubt been effaced by time, we may discover in the study of what are known as the patrician " gens" or " gentes."

17. Here again, notwithstanding the credit accorded to Niebuhr by other writers, we place no reliance on the theory he has invented, nor can we accept the figure three hundred, which, according to him, was the number of the patrician "gentes." Such a limit, ingenious as may appear the combi- nation of numbers by which it is determined, is inadmissible in connection with a matter so variable as that of the number of " gentes," which of necessity was ever fluctuating — a fact ad- mitted by Niebuhr himself in other matters not involving these symmetrical rules. Notwithstanding the absence of written authorities on this point, we still have sufficient data to enable us to form an estimate of the Roman " gens," accurate enough for the jurist, preferable to that of Niebuhr and far more simple, and one which possesses the requisite precision for the applica- tion of the law regarding it. As we shall enter at length into this discussion in treating of the succession of the " gens," it will be sufficient to give in this place a summary of the results at which we have arrived.1

The first requisite to constitute a gens, that is to say, an en- tirety, a genealogical aggregation, was the fact that in retracing the descent to the ultimate stock, no instance could be found of an ancestor having ever been in a state of slavery, or any kind of vassalage whatever. This is the definition given by the

1 See Ortolan's Institutes, vol. iii. end of title 2

26 THE HISTORY OF ROMAN LAW.

Pontiff Scsevola and quoted verbatim by Cicero.1 For in early times, as we shall shortly see, not only were the patricians alone in such a position, but the very idea could not enter into the mind of a plebeian of ever attaining to such a position. In fact, by combining the results of these two ancient institutions of the Italian nations — on the one hand, slavery and enfran- chisement; on the other, clientage— if we go back to the period when every plebeian who was not either an enfranchised man or the descendant of one, was a client, we see clearly that no one of plebeian origin either in his own person or that of his an- cestor was free from the taint of slavery or some form of vas- salage. The patricians alone could claim such an origin — a pure blood: they alone were able to form by the reunion of different branches, sprung from a common stock, and united by the ties of agnation, a gens ; they alone could possess the qualification of gentiles, that qualification which, stripped of a portion of its ancient signification, has been handed down to us by tradition, and which is expressed in the languages of modern Europe by the terms " gentilhomme," " gentilhuomo," "gentil- hombre " and "gentleman."

The most prominently marked feature of the period to which we refer — a feature which the more readily escapes the memory because, as time passes, or society becomes renewed, or laws changed, the reality of the past disappears — was that at the foundation of Rome all of the population who were not patri- cians were distributed among that order.

In fact, to each patrician "gens" there were attached two accessory subordinate classes, the clients of the patrician of the yen s with their descendants, and the descendants of then- enfranchised.

The clients, as well as the enfranchised, adopted, with a peculiar termination, the name of the gens to which they were attached in a kind of civil relationship ; and the title of "patron," diminutive of " pater," indicated both this species of relationship and the powers which resulted from it.

They were attached consequently, with their descendants, to

1 " Quorum majorum nemo servitutem scrvivit." (Cic. Top. § G.)

THE HISTORY OF ROMAN LAW. 27

the religious rites and sacrifices peculiar to their "gens" (sacra gentilitia) ; they had as their "gentiles" the members of the gens to which they belonged, in the order of their respective degrees of agnation ; for, as in tracing their pedigree, they in each case arrived at an ancestor who had been tainted by slavery or clientage, they could not point to any individual as their personal gentile, but were, so to say, placed derivatively in the genealogy of another. " Have you ever heard who constituted the first Roman patricians ? Certainly not men who fell from heaven, but those only who were able to specify their ancestors ; in other words, none but the * ingenui.' " 1

" Ingenuus," a word whose legal signification has changed with the modification of the social condition of those to whom it has been applied, indicated, in primitive Roman history, one who was born in a gens, one who had a genealogy, one who could show a line of descent free to its fountain source from every taint of vassalage. In short, if the patricians did not de- clare themselves actually descended from heaven, they, at least, not unfrequently laid claim to have been instructed by those who had thence descended — such were, for example, the lucu- mons of Etruria, receiving from the mouth of the divine Tages the secrets of the art of divination.2

The notion of the gens is completed by another feature, the right of tutelage and inheritance enjoyed by the patron as to his clients and their descendants — rights which in default of tutors and legitimate heirs finally devolved upon the patricians of the gens of which these families were dependent.

All who have carefully studied Roman antiquities have been satisfied of the existence of these rights of tutelage and succes- sion to the client and his descendants and to the enfranchised, although they may not have been able to find it anywhere spe- cifically mentioned, because this constitutes the basis, so to

1 " Semper ista audita sunt eadem, Publius Decius Mus, Livy, lib. x. § 8. penes vos auspicia esse, vos solos gen- We shall give shortly the exact mean- tern habei'e, vos solos justum imperium ing of the words "j>atrcm cicre jws- et auspicia domi militiiuque. . . . En sent.") " Patricios, Cincius ait in libro unquain fando audistis, patricios primo de Comitiis, eos appellari solitos, qui esse factos, non de coelo dimissos, sed nunc ingenui vocantur." (Aul. Gell. qui patrem ciere possent, id est, nihil on the word Patricios.) ultra quam ingenues." (Oration of 2 Vide supra, § 15.

28 THE HISTORY OF ROMAN LAW.

speak, of all that is written concerning the tutelage or succes- sion of the gentiles.1

Notwithstanding the complication produced by the intermix- ture of different groups of families, the degrees of gentility were measured and could be legally computed for each individual from their respective degrees of agnation.

1 8. The client and all belonging to him, dependents of the gens of his patrician patron, was a familiar (familiaris} of his patron, that is to say, was comprised within his family, the word familia being taken in its widest signification, extending to and including property, slaves enfranchised, clients and all other persons in whatever capacity, if under the power of the chief. Some of these clients resided in the house of their patron ; others received from him plots of land to cultivate. This distribution of land by the patricians amongst the plebeians, their clients, is mentioned by several writers. Lydus, in his treatise on the Magistracies of the Roman Republic,2 says that the patricians have given to their familiares the name of clients, from clientes, a contraction of colientes, on account of the respect and the devotion due from the familiar to them. Was it not rather on account of their cultivating their lands, and would not the word clientes correspond in origin to coloni?

19. Roman etymologists have differed as to the origin of the words patres, patricii, applied to senators and to members of the superior and dominant class. The patres were the senators, the patricii their descendants. The name patres was most probably given to the senators, cither on account of their age, of their paternal solicitude, or because it was the duty of the senate to divide the lands amongst the plebeians, as fathers to their children.3 The name of patricii was given to those

1 AVc may see here some trace of ter caritatem Patres." And § 12 :

clientage among foreigners where there " Quibus ipse rex tantnm tribuisset, ut

can be no question about the succession eos patres vellct nominari, patriciosque

of the Gentiles. eorum liberos." Sallust, Catilina, § 6:

- Lib. i. § 20. " Hi vel setate, vel cur.-e similitudine,

3 Cicero, DC reputliea, lib. ii. § 8 : Patres appellabantur." Festus, on the

" In rcgium consilium (Rornnlus) dele- word Patres: "Patres appcllantnr, ex

gcrat principes, qui appellati sunt prop- quibus senatus constat, qnos initio urbis

THE HISTORY OF ROMAN LAW. 29

who were able to trace their descent, that is to say, who were derived from a stock that had always been free from any form of vassalage.1 The fact is, the word pater, both as a legal and common term, essentially implies, in connection with primitive times, the idea of power, and with the early Romans that of almost absolute power. Thus the head of the family is termed by the Romans paterfamilias, whether he had children or not, whether married or single, or even if an infant in his cradle, his family consisting of his chattels, his slaves, his enfranchised or his clients. Thus, to express the position of a married woman, and the power of her husband over her, the Romans said that she was loco jilice, i. e. in the situation of a daughter ; again, to express the degree of power exercisable over the enfranchised and the clients, which was not so great as that over a child or slave, the word "patronus," the diminutive of pater, was employed. The terms patres and patricii, applied to the dominant class at a period when it had under its control, either by enfranchisement or clientage, the entire plebeian population, involved no other idea than that of power. The idea, indeed, conveyed by these terms in ancient times was not one of tenderness, but solely that of " might." Florus was not far from the truth when he said, speaking of the senate, " ex auctoritate patres ;" and Festus is strictly accurate in saying, " It is manifest that the patricians were by the ancients called patrons, because they were, according to the custom of the period, as much the masters of their clients as the father is that of his children."2

The term "patres" is the more ancient of the two; the word " patricii" is derived from it, and is generally synonymous with it, though it may be possible to point out some slight shades of difference ; and the patres were the heads of the families of the upper class, having subject to and distributed among them the

conditas Romulus C. delegit, et sic ap- publican penes senes esset, qui ex aucto-

pellavit, quorum consilio atque prudcn- ritatc Patres, ob a;tatem Senatus voca-

tia respublica administraretur atque bantur." Festus, on the word Patro-

gubernaretur ; quique agrorum partes nus : " Patronus ab antiquis cur dictns

adtribnerent tenuioribus perinde ac li- sit, manifestum; quia ut patres filiorum,

beris, ac pecunias dividerent." sic hi numerari inter dominos clicntuiu

1 Vide supra, § 17, note. consucverunt."

2 Florus, lib. i. § 1 : " Consilium rci-

30 THE HISTORY OF ROMATST LAW.

entire plebeian population. The " patricii " are all members of this class, whether heads of families or not. The term patres was by no means synonymous with senatores, nor was it exclu- sively applied to senators, nor were the patricians necessarily descendants of senators : for the superior and dominant class did not spring from the senate, but, on the other hand, the senate was composed of members of that class, and this was the case throughout all the Italian cities. The permanent broad line of contrast is between patrician and plebeian.

From what has been already said, we are now in a position to appreciate the ancient definition of patrician — " qui patrem ciere possent, id est, nihil ultra quam ingenuos." The true an- cient meaning was this : " Those who could trace their descent to a pater, who were born in a gens."1 The counterpart is to be found in the definition of the plebeian given by the jurist Capito, "Plebes, in qua gentes civium patricise non insunt," that portion of the people in which the patrician gentes are not included.2

And it is clear that Publius Decius Mus, in the way in which he represents the ancient definition of the word patrician, plays upon the words and the change that had come o^er public spirit even in his time. However, he touches upon the an- cient signification when he afterwards said, " As soon as I can mention a consul as being my father, so soon can my son speak of him as his grandfather."

20. Nor can we any more accept the opinion of Niebuhr, who follows Vico in this respect, that the plebeians at the com- mencement did not form a part of the Roman populus. From the beginning and at all times the " Populus Romanus " was the united body of patricians and plebeians. Such is the defini- tion given by Roman jurists and writers of every age.

The numerous passages quoted by Niebuhr,3 in which the two

1 We do not adopt the common trans- populo omnis pars civitatis omnesqne lation, "Those who can name their ejus ordines contineantur ; plebes vero father," which is absurd ; Pater here ea dicitur in qua gentes civium patri- expresses the old Roman chief. cia3 non insunt."

2 Aul. Gell. lib. x. § 20 : " Plebem 3 Vide Yol. ii. p. 163 et seq. of the autem Capito in eadem definitione se- l^rench translation.

orsum a populo divisit : qnoninm in

THE HISTORY OF ROMAN LAW. 31

words "populus plebsque Romana" appear united, no more authorizes the conclusion Niebuhr draws from this fact than it warrants our arguing from the well-known phrase, " Senatus populusque Romanus," that the members of the senate did not form part of the "populus." The same turn of expression with the double pleonasm is to be found at a period when there is certainly no room for doubt. For example, in the subscrip- tion to a letter written by Lepidus, and preserved in the collec- tion of Epistolas Familiares, there occurs this expression : — " Lepidus Imperator iterum, Pontifex Maximus, salutem dicit Senatui, populo, plebique Romanae."

The same pleonasm occurs in the two significant passages of Festus, which, in the Farnese manuscript, follow and supple- ment each other : — " Populi commune est in legibus ferendis cum plebe sufrragium. — Patrum commune cum populo suftra- gium, quibus suffiragantibus fit populiscitum."1

SECTION III. TRIBES AND CURIES ( Tribus et Curia?).

21. The Roman people are represented as being divided from the earliest period into three tribes — the Ramnenses, Tatienses and Luceres.

We are told by Cicero, Yarro and Festus, who obtained their information from the earliest writers, that these appellations are respectively derived from Romulus, the chief of the Latins, Tatius, the chief of the Sabines, and from Lucumon, the chief of the Etruscans. We are warranted in regarding these three tribes as the three distinct nationalities which collectively laid the foundation of the Roman nation.5 Varro, however, tells us that all three denominations were Etruscan. This tripartite division was also territorial; the Roman territory, or ager Romanus, being divided into three parts ; the one assigned to the Ramnenses, another to the Tatienses, and the third to the

1 Festus, on the word Populi. 2 Vide supra, pars. 9 and 10.

32 THE HISTORY OP ROMAN LAW.

Luceres. So that these three primitive tribes were at once local and personal, each comprising at the same time a section of the people as well as retaining the territory of their respective nationalities.1 We find in Cicero that L. Tarquinius, among the alterations he suggested, desired to change these names Tatienses, Ramnenses and Luceres, but that he was prevented by the formidable opposition of the famous augur Attius Navius.2

22. In the first subdivision of each tribe into ten curies, we find the entire Roman people distributed into thirty curies. Popular tradition relates that each of these curies received the name of one of the Sabine women who, during the progress of the battle that followed the rape of the Sabines, threw them- selves between the combatants and became the mediators of peace between the Romans and their own people. Cicero does not hesitate to relate this tradition, which is also to be found in Livy, Festus and elsewhere,3 though some Roman writers refuse to accept it, and assign a different origin to the names of the curies.

Dionysius of Halicarnassus refers 4 to a second subdivision of each curia into ten decurice. This subdivision, however, is less known, and is of comparatively little importance to the constitutional or legal historian. Whereas, in both cases, the

1 Cicero, De rcpuMica, lib. ii. § 8 : 2 Cicero, De republics,, lib. ii. § 20 :

"Populumque et suo et Tatii nomine, "Nee potuit (L. Tarquinius) Titiensi-

et Lucumonis qui Romuli socius in um et Ramnensium et Lucerum mutare

Sabino prrelio occiderat, in tribns tres, quum cuperet nomina, quod auctor ei

curiasque triginta descripsei'at (Romu- summa augur gloria Attius Navius non

lus)." Varro, De lingua latina,]ib. v. erat."

§ 55: " Agcr Romanusprimum divisus 3 Cicero, De repulUca, lib. ii. § 8 :

in paries tres, a quo tribns appellata " Populum . . . in tribus trcs, curias-

Tatiensium, Ramnium, Lucerum : no- que triginta descripserat (Romulus),

minatae, ut ait Ennius, Tat lenses a quas curias earnm nominibus nuncupa-

Tatio, Ramnenses a Romulo, Lvccres, vit, quse ex Sabinis virgines raptai,

ut Junius, a Lucumone. Sed omiiia postea fuerant oratrices pacis et fccde-

hsec yocabula Tusca, ut Volnius, qui ris." Livy, lib. i. § 13 : " Ex bello tarn

tragcedias Tuscas scripsit, diccbat." tristi, laita repente pax cariores Sabinas

Festus, on the word Titiensis: " Titi- viris ac parentibus, et ante oinnes

ensis tribus a prajnomine Tatii rcgis Rormilo ipsi, fecit. Itaque, quum popu-

appellata videtur. Titia quoque curia lum in curias triginta dividerct, nomina

ab eodem rege est dicta." On the word earum curiis imposuit."

Lucent edi, cited supra, § 10, note 3. 4 Lib. ii. § 7.

THE HISTORY OF ROMAN LAW. 33

division into thirty curies is a matter of considerable importance and merits particular attention from the very first.

23. The members of the same tribe and those of the same curia, besides the bond of a common national origin — Latin, Sabine, or Etruscan, which would gradually become weaker as the fusion of the several races became more complete — were united by ties of a different character. There was first the bond of religious unity. In addition to the faith and rites common to the entire tribe, each curia had its tutelary deity, its peculiar creed and its characteristic sacrifices (curionia sacra), its priests (curiones, curiales flamines, curiarum sacerdotei), its fetes, and its annual festivals. There was, secondly, the bond of military service ; for it was the duty of each tribe to furnish for each legion, recruited from its own curies, a thousand men.1 Thirdly, there was the political bond ; for the voters could only exercise the right of vote in conjunction with the other members of their curia. And, lastly, there was a bond of union in the details of administration and internal organization peculiar to each curia.

The members of the tribe designated each other " tribules ;" those of the curia "curiales."2

24. There can be no doubt that this ancient organization by curies had an aristocratic origin. The details of the system, it is true, are unknown to us ; but whatever they may have been, it is sufficient to refer to what has gone before to enable us to understand how in these primitive times, when every plebeian was attached, either by the ties of clientage or enfranchisement, to some patrician, it happened that each patrician gens formed a species of group, encircling and absorbing in itself its plebeian subordinates. This does not imply that it did not embrace the plebeians, or that the curies consisted solely of patricians. Assuredly Plautus's miser, who hurried off to take his share of

1 Varro, De ling, lat., lib. v. c. 89. um as dicebatur, quod dabatur curioni

1 Festus : " Curiales ejasdem curias, ob sacerdotium curionatus." Varro,

ut tribules, et municipes.— Curiales fla- lib. v. § 83: " Curiones dicti a curiis,

mines, curiarum sacerdotes. — Curionia qui fiunt ut in his sacra faciant." sacra, quae in curiis fiebant.— Curioni-

D

34 THE HISTORY OF ROMAN LAW.

the money that was to be distributed by the chief of his curia (nostrce magister curice), lest his treason should be suspected, was not a patrician.1

25. The term curia had several significations other than that just given. It was applied, for instance, to the place where the priests of the curies met together to perform their religious functions, to the place where the senate assembled for the discharge of public business, and to the local senate of the respective towns. Care is therefore necessary not to confound these different objects expressed by the same term. It may be observed that the majority of Roman etymologists assign the same root to the word when used in either sense, viz., curare, to take care (of).2

26. The word tribus had in like manner its various signifi- cations and derivations. In proportion as the fusion of races was completed and unity accomplished, the ancient division into the three primitive tribes, each representing its individual nationality, disappeared. And in time a new classification by tribes, with entirely different characteristics, was made, to which we shall shortly turn our attention. The growth of the popu- lation and the corresponding extension of the city led to a like increase in the number of the tribes, which ultimately reached thirty-five. It is thus most necessary to avoid confounding these new tribes, totally different in origin, and destined to

1 Plautus, Aulularia, act i. sc. 4 : — gerebatur. Curiae etiam nominantur, Nam noster nostr* qui est magister curias, in quibus uniuscuj usque partis populi Dividere argenti dixit numos in viros. Romani quid geritur ; quales sunt eas,

This dividere argenti numos recalls to in quas Romulus populum distribuit

our memory the tenuioribus pecunias numero triginta (quibus postea additas

dividerent, in the definition of the sunt quinque) ut in sua quisque curia

patricians, by Festus. (See above, § 19, sacra publica faceret, feriasque observa-

note 3. ) ret. Hisque curiis singulis nomina Cu-

2 VaiTO, De lingua latina, lib. v. riarum virginum imposita esse dicnntur, § 155 : " Curia; duorum generum ; nam quas virgines quondam Romani de Sabi- et ubi curarent sacerdotes res divinas, nis rapuerunt." The parenthesis (qui- ut Curise Veteres, et ubi senatus huma- Ims postea additcc sunt quinque) con- nas, ut Curia Hostilia, quod prirnum tains a confusion between the curies sedificavit Hostilius rex." Festus, on and the thirty-five tribes which subse- the word Curia: " Curia, locus est ubi quently came into existence— a confu- publicas curas gerebant. Calabra curia sion which is repeated in Festus on the dicebatur, ubi tantum ratio sacrorum word Centummralia.

THE HISTORY OF ROMAN LAW. 35

occupy a most important position in the affairs of the republic, with the three primitive tribes just described.

SECTION IV. ASSEMBLY BY CURIES ( Comitia curiata).

27. The meeting of the thirty curies for deliberation upon public business constitutes the most ancient Roman assembly.

These were the religious and aristocratic gatherings convoked by the lictors, held in the centre of the city, in that part of the forum at the foot of the Capitol known as the Comitium, under the sanction of sacerdotal rites, and where patrician influence was preeminently conspicuous.1

It was here that the election took place for those sacerdotal offices which were within the gift of the " populus," where magistrates were appointed, and the king selected. Here also that famous law, the " lex curiata," was passed, the true nature of which remained a mystery till the discovery of Cicero's work upon the Republic. This left no doubt that it was the law of investiture, without which no magistrate, not even the king himself, though duly elected, could have conferred upon him the " imperium," or right to command. Here the composition of families was determined, and testamentary successions regu- lated— two matters of the utmost importance to the mainte- nance of an aristocracy, more especially when they involved admission to the peculiar privileges (sacraprivatd) of a religious caste.

The jurist will recognize this assembly of the curies as the first Roman legislative assembly.

28. The extent of its power, however, must not be exagge- rated, for this power was limited in many directions. The curies could only assemble when convoked. They could only

1 Varro, De lingua latina, lib. v. comitio conveniebant ; qui locus a coe-

§ 155 : " Comitium, ab eo quod coibant undo, id est simul veniendo, dictus est."

eo comitiis curiatis et litium causa." Aul. Gell. lib. xv. ch. 27 : " Curiata

Festus, on the word Comitiales: " Co- (comitia) per lictorem curiatum calari,

mitiales dies appellabant, quum in id est convocari."

D 2

36 THE HISTORY OP ROMAN LAW.

meet to transact one matter. The magistrates who had the right to convoke were patricians, acting under the order of the senate. The augurs, whose presence was absolutely necessary, were patricians. A favourable auspice must have preceded a convocation. The will of the assembly must be expressed by the simple affirmative or negative ; and should the vote take an unlooked-for turn, it was competent for any augur or magistrate having the auspice at any moment to declare the assembly dis- solved by the mere utterance of the formula olio die, indicating that the auspice was unfavourable. If Jupiter thundered, that is, to the right — or, what was the same thing, if the augur or the magistrate declared that he did, — the assembly was dissolved ; all which, says Cicero, was to secure to certain nobles the de- termination of all matters,1 and even when the decision was given, in order to render it effective the confirmation of the senate was requisite (auctor Jieri}.z This necessary action of both bodies is concisely expressed by Cicero in the sentence, " Potestas in populo, auctoritas in senatu sit."3 The jurist will understand the force of the word " auctoritas " here, as used by a Roman.

29. It was not the function of the Romans, in their elective assemblies, to take the votes of individual members, as is the practice in modern times ; but the electors were arranged in groups, each group having one vote. In this instance they were grouped by Curies, each Curia having consequently one vote. The order in which the votes of the curies should be taken was determined by lot without reference to the tribe to which they belonged, whether Ramnenses, Tatienses, or Lu- ceres. Livy says, that those upon whom the lot fell to vote first were called "principium."4 As soon as sixteen curies

1 Cicero, De divinationc, lib. ii. § 35: jussisset, id sic ratum esset, si patres " Fulmen sinistrum, auspicium opti- auctores fierent. Turn interrex, con- mum habemus ad omnes res, praeter- clone advocata: 'Quod bonum, faustum, quam ad comitia : quod quidem insti- felixque sit, inquit, Quirites, regem tutum reipublicse causa est, ut comitio- create ; ita Patribus visum est. Patres rum, vel in judiciis populi, vel in jure deinde, si dignum, qui secundus ab legum, vel in creandis magistratibus, llomulo numcretur, crearitis, auctores principes civitatis essent interpretes." fient.' "

4 Livy, lib. i. § 17 : " Decreverunt 3 Cic. De legibus, lib. iii. § 12.

enim (patres) ut, quum populus regcm 4 Livy, lib. ix. § 38 : " Faucia curia

THE HISTORY OF ROMAN LAW. 37

had voted the same way, the majority being ascertained, the decision was declared, and the others did not vote.

30. It is matter of question how the modes in which the curies should vote was determined— whether or not each indi- vidual opinion was taken (viritini), and that of the majority adopted. This view rests upon a passage in Livy.1 Niebuhr is of opinion — and there is much reason in what he says, judg- ing from an expression in Aulus Gellius, — that the members of each curia were arranged in their respective gentes, and that each gens had a vote, the majority of which determined that of the curia. This interpretation would be in harmony with the social condition of the period, as already explained, and would present us with the picture of the patricians of each gens march- ing forward, followed by the long train of their dependants, solemnly to register their vote. But we are convinced, that the expression of Aulus Gellius simply indicates that the curies were a division of citizens based upon the original nationalities (ex generibus hominum], the three tribes of Ramnenses, Tati- enses, and Luceres, having each been divided into ten curies ; whereas in assemblies formed at a more recent period the prin- ciple of classification was entirely different. This construc- tion is more in harmony with the concluding words of Aulus Gellius.2

Be the correct interpretation what it may, the passage is none the less characteristic, and should be retained as the an- cient formula for the assembly of curies. " Cum ex generibus hominum sujfragium feratur, curiata comitia esse." Whether

fuit principium," or rather Faucice bly was dissolved and adjourned to

curice fuit principium,, according to another day.

the formula which we find in the text ' Lib. i. § 43.

of a plebiscitum given by Fronto (De 2 Aul. Gell. lib. xv. ch. 27: "Item aqvceductis, § 129). The lot had fallen in eodem libro (Lrelii Felicis) hoc scrip- to this Faucian curia to be first in two turn est : ' Cum ex generibus hominum calamitous years, that of the capture of suff ragium feratur, curiata comitia Home and of the Claudine forts (utro- esse ; cum ex censu et astate, centuri- que anno eadem curia fuerat princi- ata; cum ex regionibus et locis, tri- p-turn). And so it was considered a buta.' " We do not render ex yeneri- bad omen, and when, in the circum- bus as if \ivfQrcexgentibus; we trans- stance of which Livy speaks, the name late it in its literal sense ; when the of the curia twice came first the assem- votes were taken according to race or

origin.

38 THE HISTORY OF KOMAN LAW.

the electors were grouped in gens, or whether they voted sepa- rately (viritirn), this much is clear, that the patricians controlled the plebeians by whom they were surrounded, and who by the ties of clientage were bound to give them their support.

31. It is precisely because the thirty curies were constituted upon a principle based upon the threefold origin of the ancient nationalities, the Latins, Sabines and Etruscans (ex generibus hominum), that it was destined to prove insufficient, and even an absurdity, the moment that so many other nationalities were admitted to and amalgamated with the Roman populus. The curies were thus soon to disappear in order to make room for other organizations more conformable to the exigencies of the period. However, long after they had ceased to exist in their original constitution, they were maintained for the administra- tion of affairs of religion and for the investiture of the imperium by the lex curiata, when thirty lictors, symbolizing the thirty curies by a legal fiction, confirmed their authority.1

SECTION V. THE SENATE (Senatus).

32. The senate was an institution common to the cities of antiquity, whether Greek or Italian. The chiefs of the patri- cian caste constituted the senators. This title, an indication of the matured experience of age, was adopted by the Romans, according to Cicero, in imitation of the Greeks, who designated the members of the civic council, elders (ys^ovrcj).2 We have already seen that they were also styled patres, as expressing their patrician privileges ; and Florus says of them, " Qui ex auctoritate Patres, ob getatem Senatus vocabantur.3

1 Cicero, Agrar. ii. §§ 11 and 12: " Lycurgus ^Ipovra? Laccdaemone appel- " Curiata (comitia) tantum auspiciorum lavit . . . quos penes summam con- causa remanserunt." " Illis fcomitiis), silii voluit esse, quum imperil summam ad speciem atque ad usurpationem ve- rex teneret : ex quo nostri idem illud tustatis, per XXX lictores, auspiciorum secuti atque interpretati, quos senes ille causa, adumbratis." appellavit, nominarunt senatum."

2 Cicero, De repnUica, lib. ii. §28: 4 Vide supra, § 19.

THE HISTORY OF ROMAN LAW. 39

33. Roman tradition differs as to the number of the senators in primitive times. Nor are the historians Livy, Cicero, Dionysius of Halicarnassus, Plutarch and others agreed as to the original number or subsequent additions. All, however, concur in this, that at the close of the reign of Tarquinius Priscus the strength was three hundred. This number re- mained unaltered till the latter end of the republic, when it was doubled or tripled according to the turbulent character of the times and the rivalry of ambitious partisans.

The peculiarity of the number three hundred suggests the supposition that in early times each of the three distinct na- tionalities, forming the three tribes, was represented in the senate by an equal number of senators, namely, one hundred. One of the popular traditions adopted by Plutarch and Dio- nysius supports this theory, that is to say, in connection with the Sabines, while Cicero tells us that each of the three nationalities was represented by fifty senators till the time of L. Tarquinius (Priscus), who doubled their number, thus making the total three hundred ; and that the original senators and their successors were styled Patres mojorum gentium, while those created by Tarquin and their successors were known as Patres minorum gentium.*

When at a later period the plebeians were admitted to the senate, they did not receive the rank of Patres, which was con- fined to the patrician race, but were called Conscripti or Adlecti, i. e., inscribed in the number of senators, whence the expression "Patres et conscripti" or in its contracted form Patres conscripti.2

1 Cicero, De republica, lib. ii. § 20 : adsumpti : nam Patres dicuntur qui ". Principio duplicavit (L. Tarquinius) sunt patricii generis ; Conscripti, qui in ilium pristinum patrum numerum ; et senatu sunt scriptis adnotati." And on antiques patres majorum gentium ap- the word Conscripti : " Conscripti dice- pellavit, qnos priores sententiam roga- bantur qui ex equestri ordine patribus bat; a se adscitos, minorum." Livy, adscribebantur, ut numerus senatorum lib. iv. § 35, says the same in fixing on expleretur." And on the words Qui one hundred, the number of the new Patres; " Qui Patres, qui Conscripti senators made by L. Tarquin : " Cen- vocati sunt in curiam, quo tempore re- turn in patres legit ; qui deinde mino- gibus urbe expulsis, P. Valerius consul rum gentium sunt appellati." ( Publicola, in concert with his colleague

2 Uestus, on the -word Adlecti: "Ad- Brutus), propter inopiam patriciorum lecti dicebantur apud Romanes, qui ex plebe adlegit in numerum senatorum propter inopiam (patriciorum) ex eques- centum et sexaginta et quatuor, ut ex- tri ordine in senatorum sunt numero pleret numerum senatorum trecento-

40 THE HISTORY OF ROMAN LAW.

The three hundred senators were divided into decuries, that is, were divided by tens ; consequently there were thirty sena- torial decuries, or the same number as there were of curies, which gives rise to the conjecture that each curia furnished a senatorial decuria. However, these numerical coincidences are not to be relied iipon.

34. Setting aside Romulus and his immediate successors, together with the transactions imputed to them, it has long been a subject of discussion whether under the principles of the constitution the senators were present at the nomination of the kings, or at the election of curies. With the exception of a passage from Dionysius, Roman historians concur in believing that they were present at the election of kings, which is con- firmed by the practice under the republic after the expulsion of the kings.1

35. The senate is styled by Cicero the Royal Council (regium consilium\z It deliberated upon public matters, and upon propositions to be submitted to the people in the curies. Being an aristocratic assembly, its tendency was to make tools of those entrusted with the government. As the ward can only act with the authority of his guardian, so the king reigned only by the counsel and with the authority of the senate. Cicero says, even of Romulus himself, the traditional founder of Rome, " Multo etiam magis Romulus Patrum auctoritate consilioque regnavit"3

rum, et duo genera appellata sunt." cos, consules quoqne, et tribuni railitum

Livy, lib. ii. § 1 : " Csedibus regis de- consular! potestate, conjunctissimos sibi

minutum patrum numernm, primoribus quosque patriciorum et deinde plebeio-

equestris gradus lectis, ad trecentorum rum Icgebant ; donee Ovinia tribunitia

snmmam explevit (Brutus) ; traditum- intervenit, qua sanctum est, ut censorcs

que inde fertur, ut in Senatuni vocaren- ex omni ordine optimum quemque curi-

tur, qui Patres, quique Conscripti es- atim senatu legerent. Quo factum est,

sent. Conscriptos videlicet in novum ut qui prasteriti essent, et loco moti,

senatum appellabant lectos." haberentur ignominiosi."

1 Festus, on the word Preeteritl: 2 Cicero, De republlca, lib. ii. § 8.

" Prsetcriti senatores quondam in op- . 3 Cicero, De rcpublica, lib. ii. § 8 :

probrio non erant, quod, nt reges sibi " Multo etiam magis Romulus Patrum

Icgebant sublegebantque quos in consi- auctoritate consilioque regnavit." lio publico haberent, ita, post exactos

THE HISTORY OF ROMAN LAW. 41

SECTION VI. THE KING (Rex).

36. The king is the ruler (rex), the administrator of an aristocratic republic. The curies subordinate to the patrician caste nominate him, and after the confirmation of the election by the aucloritas of the senate, confer upon him by the lex curiata the investiture of power. The senate counsels, assists and supports him ; his functions are military, sacred and judicial ; he is at once commander in chief, high priest and superior magistrate ; his lot must be cast with the patricians or with the plebeians ; he must either submit himself to the patrician and senatorial will, or he must seek in popular favour and plebeian support the means to resist their influence. The regal annals, however, present us with a brighter picture, and invest the king with a much larger share of authority, making him the founder of institutions, the creator of senators, the dispenser of landed estates and the spoils of war, and the great lawgiver. And doubtless he was such in the manner described in the quotation from Pomponius, and referred to in the next paragraph, inasmuch as he proposed laws to the senate.

SECTION VII. THE ORIGINAL ELEMENTS OF PRIVATE CIVIL LAW.

37. It is to Romulus himself that the Roman historian and jurist attributes the publication of positive law upon marital and paternal power ; that is to say, upon the composition of the Roman family.1 Without reference to laws that are said to have been written, but which are unknown to us and are pos- sibly as fabulous as the times to which they relate, we may

1 Dion. lib. ii. §§ 26 and 27. Digest, atas ad populum tulit," This lex Re-

1, 2, De origine juris, 2, § 2, fragment gin-, of which Papinian speaks in the

of Pomponius : " Ipsum Romnlum tra- following terms, is cited as a law of

ditur populum in triginta partes di- Romulus: " Quum patri lex Regia de-

visisse, quas partes Curias appellavit : dcrit in filinm vita? necisque potcsta-

propterea quod tune reipublicas curam tern." (Collatio legvm Alosa'icanon

per sententiam partium earum expedie- ct Romanarum, tit. 4, § 8.) bat ; et ita Leges quasdam et ipse c uri-

42 THE HISTORY OF KOMAN LAW.

perhaps find in the military tendencies and the rude manners of the age, and particularly in the city of Rome itself, sufficient to afford a fair idea of the primitive elements of Quiritarian private law.1 The family, like the state, began with slavery. The Romans were the " Quirites," the men of the lance. By the lance they acquired their territory, their property, their com- panions, and, if we may credit their poets, even their wives. With them the lance became the symbol of property, and even had a place in their judicial procedure. Their slaves were booty, their wives were booty, and their children, begotten of them, the fruit of their possession. Such being the case, we are prepared to find, running all through the popular traditions of their origin, the rule that the head of the family, the pater familias, had over his slaves, his wife and his children, not a power such as is known to us, but the most full and complete rights of property ; the power of life and death over slaves, the power of condemnation over wife and children, and the right to sell the latter or to abandon and expose them, more particularly Avhen deformed. As a historical fact, this right of property and licence to abandon children was common to almost all the nations of Italy, if not to the full extent possessed by the Romans, at least it existed in principle.

Though it may appear that the existence of such institutions at the birth of Rome is of but little importance to us, it must not be forgotten that they formed the basis of the civil law both public and private, nor should we fail to find traces of their im- press throughout the entire extent of their legislation. These are, however, but the germs, and to attribute to them at this epoch the development of their riper growth would be an anachronism.

38. B.C. 715. The poetic traditions of the Romans, after having related the fate of Romulus, how he was borne to heaven and placed in the rank of the gods, go on to tell us how, after an interregnum of a year, during which certain senators, for a period of five days each, alternately exercised the regal power,

1 Also Ulpian, " Nam quum jus potcstatis moribus sit receptum." (Dig. 1, C>, De "his qui sui, etc., 8, f. Ulp.)

TUE HISTORY OF ROMAN LAW. 43

the people assembled by curies and called a Sabine of the name of Numa Pompilius to the throne. They represent this king as pacific as his predecessor was warlike, devoting his attention to humanizing the barbarous manners of the Romans, favouring the cultivation of land, and developing the principles of sacred law. For it is to him that the greater part of the religious institutions of Rome are ascribed.

SECTION VIII. RELIGIOUS INSTITUTIONS {Sacra publica, Sacra privata).

39. It is of more importance than is generally supposed to examine the character assumed by the state religion of the Romans, even from its birth, for religion was closely bound up with public law and all state matters.

The indigenous deities of the Italian nation are to a great extent blended with the Greek divinities, and not unfrequently assume their names. The practice of human sacrifice, common to these nations, existed from the earliest ages of Rome, and continued till after the expulsion of the kings, leaving for a long time traces in the shape of a sacred formula impressed upon its legal system: sacer esto.1 We are able to gather from certain jeux des mots, that tradition both attributes to Hercules in the fabulous ages, and to the Consul Junius Brutus at the time of the Roman republic, the credit of having dissuaded or prohibited the Romans from the practice of human sacrifices. Hercules is said to have induced the Italian nations to offer to Saturn the sacrifice of lighted torches in lieu of that of human beings, the word <£a>ra of the oracle signifying at the same time men and torches ; Junius Brutus, who put an end to the prac- tice of immolating infants to the gods Lares and Manes, still practised at the (compitalia] fetes, ordered in their stead an offering of garlic or poppy heads, because the oracle had said, " Intercede for heads with heads.2 Nevertheless certain human

1 Vide supra, § 16. pro capitihus, capitibus snpplicaretnr."

2 Macrobius, Saturnalia, ch. 7 : " Ut This jeu dc mots is attributed to Her-

44 THE HISTORY OF ROMAN LAW.

sacrifices, upon the occasion of great national calamities, more than once occur in Roman history even in much later times.1

It was chiefly from an Etruscan source that the Romans derived their science and the greater part of their religious practices. The Etruscans no doubt possessed a ritual, the same probably as that which the lucumons pretended to have written down from the dictation of the miraculous Tages. And we can gather from an enumeration of rites and practices made by Festus, and adapted to the Roman institutions, all that the ritual contained relative to public law.2 The jurist Labeo wrote a commentary upon it in fifteen volumes, which is now lost.

The sacerdotal functions were for the most part considered by the Romans, the Etruscans, and the other Italian nations, as civil charges and a privilege of the patrician caste. Under no obligation to lay aside the ordinary habits of society, the priest, like any other citizen, was free to marry, and in general at liberty to aspire to any dignity in the state, being at the same time bound by almost all public obligations. These priests formed colleges, of which the king was chief. No important enterprise was ever undertaken without first offering up a sacri- fice to the gods and without consulting the oracles; and not unfrequently the validity of a public act, its continuance or its repeal, was made to depend on a sacerdotal determination. The especial province of the augurs, whose history it will be our duty to trace, consisted in presaging the result of a sug- gested enterprise by the means of celestial phenomena, observa- tions upon the entrails of the sacrificial victims, attention to the flight, the song or the appetite of birds. Divers Italian com- munities were renowned for their skill in one or more of these modes of divination, and it was from them that the Romans acquired their knowledge. The Umbrians, for example, were

cules, and from the offerings made to " Rituales nominantur Etruscorum li-

Saturn in place of human sacrifices bri, in quibus prsescriptum est, quo ritu

came the custom of sending wax tapers condantur urbes, arse, tedes sacrentur,

at the Saturnalia. We see that our qua sanctitate muri, quo jure porta%

custom of presenting tapers, before the quomodo tribus, curise, centurise distri-

Eevolution, among certain classes, had buantur, exercitus constituantur, ordi-

an ancient origin. nentur, cteteraque ejus modi ad bellum

1 Livy, lib. xxii. § 57. ac pacem pertinentia."

2 Festus, on the word Rituales:

THE HISTORY OF ROMAN LAW. 45

famed for their prophecies based upon the motions of birds; while the Etruscans paid especial attention to omens from lightning, celestial phenomena and prodigies; and such was the importance attached to the acquisition of this knowledge that the Roman senate decreed that six children belonging to the first patrician families should be confided one to each of the different communities of Etruria, that they might be brought up in the mysteries of this art.1

The sacra publica were those sacrifices and rites which were performed in the name and at the expense of the city, and which were religious ceremonies, varying with the occasion, the divinity, and the time.2

40. Every important act of a Roman, whether public or private, assumed a religious character : hence their implicit reliance on an oath, their respect for things sacred, their vene- ration for the tomb, the worship of their lares and domestic deities : a worship which, together with the religious obligations it entailed (sacra privata], was, according to the account given by Cicero in his treatise on the laws, transmitted from genera- tion to generation as an indestructible and necessary part of the inheritance. " Ritus families patrumque servanto ; sacra privata perpetuo monento."3

We not unfrequently find in the Roman writers mention made of certain vestiges of sacra privata peculiar to the gentcs

1 Cicero, De dicinatione, lib. i. § 41. pilius et auspiciis tnajoribus inventis, a Festus, on the word Publica: ad pristinum numerum duo augures " Publica sacra, qure publico sumptu, addidit ; et sacris e principum numero pro populo fiunt, quseque pro montibus, pontifices quinque prrefecit; etanirnos, pagis, curiis, sacellis; at privata, quse propositis legibus his quas in monu- pro singulis hominibus, familiis, genti- mentis habemus, ardentes consuetudine bus fiunt." And on the word Popn- et cupiditate bellandi, religionurn casrc- laria: " Popularia sacra sunt, ut ait moniismitigavit; adjunxitqueprajterea Labeo, quae omnes cives faciunt, ncc flamines, salios, virginesque vestales ; certis familiis adtributa sunt : Forna- omnesque partes religionis statuit sanc- calia, Parilia, Laralia, Porca praxii- tissime. Sacrorum autem ipsorum dili- dauia." gentiam difficilem, apparatum perfaci- 3 Cicero, De legit), lib. ii. § 9. See lem esse voluit. Nam qnoe perdiscenda, how, in his treatise on the Republic, he quaeque observanda essent multa con- speaks of the religious laws of Numa, stituit, sed ea sine impensa. Sic reli- adding that they still preserved them in gionibus colendis operam addidit, sump- existing monuments, and giving them turn removit." (De rfijmbliea, lib. ii. the credit of originating sacrifices of an § 14.) inexpensive character: " Idemque Porn-

46 THE HISTORY OF ROMAN LAW.

of an illustrious house, for example, that of Claudia, Horatia, Fabia, Nautia, and others."1

SECTION IX. THE CALENDAR : DAYS — Fasti OR Nefasti.

41 . It was the duty of the pontiffs to regulate the calendar. In order to obviate inconvenience it is necessary that the year should involve the same time precisely that is occupied by the earth in its circuit round the sun. Such being the case, times and seasons correspond ; the earth and the year run and termi- nate their course together. The early Italian year was far from presenting this harmony. We are told by Censorinus that it was no uncommon thing for the different Italian nations, and especially the Ferentini, the Lavinians and the Albans, to have years peculiar to themselves and differing from each other. Under these circumstances it is obvious that irregularities were of constant occurrence. These they adjusted, however, as best they could, relying upon their familiarity with the courses of the heavenly bodies, by the intercalation from time to time of the period necessary to equalize their artificial with the solar year.2 The Romans, according to the authorities cited by Censorinus, amongst whom is Yarro, at first adopted the year in use with the Albans.3 This year was based upon lunar revo- lutions, and consisted of ten months, the first being March, the last December. These ten months only contained three hundred and four days, and as the time occupied by the earth in its revolution round the sun is three hundred and sixty-five days and a quarter, the month of March, with which the year commenced, recurred before the earth had accomplished its

1 See specially Festus, on the words sibus, ad unum verum ilium naturalem- ProjniditinHS, J'orci/s and Saturno. quo corrio-ere."

Livy. lib. i. § 26, and lib. v. § 4(5. a Censorinus, DC die natali, § 20:

2 Censorinus, Di- die natali, § 20 : " Sed niagis Junio Gracchano, et Ful- 'Nam, ut ahum Ferentini, ahum La- vio, et Varroni, et Suetonio, aliisque

vinii, itemque Albani vel Rpmani ha- crcdendum, qui decem mensium puta-

bnerant annum: ita et alia; gentcs. venmt fuisse : ut tune Albania erat,

Omnibus tamen fuit propositnm suns undc orti Romani." civilcs annos, varic intercalandis men-

THE HISTORY OF ROMAN LAW. 47

revolution, or the four seasons had marked their course. Con- sequently at one time it was in winter, at another in the summer, each month being correspondingly displaced. This want of harmony between the months and the seasons could not fail to bring about visible confusion, and consequently the Romans, like the other Italian nations, had from time to time recourse to intercalation.

The first correction is attributed to Numa, who is said to have added to the ten months, then existing, two others, January and February, the one at the commencement, the other at the end of the year. These twelve months, however, only contain 354 days, or, according to some, 355. The difference then still existing between the Roman and Solar year was from ten to eleven days, and it was the duty of the pontiffs to keep this discrepancy obviated by periodic intercalation. But upon what principle this was done is far from clear. Plutarch says that Numa decreed that a month, consisting of twenty-two or twenty-three days, should be alternately intercalated every second year ; but as this method did not exactly meet the diffi- culty, it appears to have been abandoned by the pontiffs, who made what arbitrary additions they thought fit.1 The uncer- tainty and irregularity occasioned by these arbitrary intercala- tions, made at the caprice of the pontiffs, is a constant source of bitter complaint on the part of the historian.2

42. These calculations were intimately connected both with

public and private law ; the duration of magistracies, the classi-

fication of feast days, the celebration of public or private cere-

mtnmsc^Jionour of the domestic deities, fixed and moveable

holy days, Sie*^ -~^~J™ "^on which the comitia could be

held,3 and those upon whi^n bt&L" >: nll that

* Censorinus, De die natali, § 20: a gi licet. " Sed horum plcrique, ob odium vel

48 THE HISTORY OF ROMAN LAW.

which was all important to the jurist, the days upon which the magistrate could exercise his functions, when he was permitted to pronounce the sacred words " DO, DICO, ADDICO ; " in which are summed up the various acts of his jurisdiction, and from which came the expression dies fastus (de fari licet) and dies nefastus (de fari non licet).1 All these depended upon the termination of the year, and were regulated by the calendar. The result of this was, to place all these functions within tho direction and under the control of the pontiff, whence they and the patrician class, of which they were members, acquired im- mense influence, both in public and private matters.

The fact of a day being " fastus " or " nefastus " was a matter of the utmost importance to the Romans in relation to their private affairs.

The solemn procedure, consisting of what were styled the legis actiones, was confined to the " dies fasti," not merely as to the conduct of law suits, but also as to a number of voluntary transactions of a private nature between consenting parties ; as, for example, alienations, the commencement or termination of servitudes, enfranchisement, emancipation and adoption, which were accomplished by means of feigned actions. Certain days were "nefasti" in the morning and evening, while during the day time, that is, between the immolation of the victim and the sacrifice, they were "fasti;" such days were termed "intercisi." " Books giving a list of the days in the year, showing which were " fasti," were termed " Fastorum libri." 3 Ovid has devoted a poem to the subject, in which he says, addressing Germanicus, " You Avill find the public feast days and those dedicated to your domestic worship," viz., the day upon whick j''l;_;t-a,s"~not

~«-.«- **j\JL clTJU-

1 Varro De 7i««.^, tue month of March,- J*/^*", .

v' ^^^_ ^-*+*r- T>,, lingua latma, lib. vi.

uimimenced, recurj^d--^ttctonhus § 31 : " Intert-isi dies sunt per quos

^-rrrTnaculo licet fari." inane et vespcri est nefas medio torn pore

_ j_-rrrr~'"Tr~r)ie s nefasti, per quos dies inter hostiam cassam et exta porrecta

nefas fari priutorem: DO, DICO, ADD] CO; fas." Reference must be made to

itaque non potest agi ; neccsse enim Macrobius, Saturnalia, Mb. i. ch. 1C,

aliquo corum nti verbo, cum lego quid for a definition of tbe different days ami

peragitur." And further, § 53 : " Ilinc of several other matters, and also for an

fasti dies quibus vcrha certa legitima account of the relation which these days

sine piacnlo prcctoribus licet fari. Ab bore to the dies fcstl and jtrofesti; hoc ncftiiiti qiiibus diebus ea fari jus 3 Festus, on the word Fastorum :

non cst, et si fati sunt, piacnlum fari- "Fastorum libri appellantur, in quibus

unt." tot ins auni fit descriptio."

THE HISTORY OF ROMAN LAW. 49

lawful to pronounce the three words, and those upon which it was lawful to take legal proceedings.1 In the time of Ovid, the arrangement and the character assigned to each day of the year had been in vogue for almost three centuries, and were uni- versally known ; but in the commencement and for a very con- siderable period of the republic, the knowledge was confined to the pontiffs and the patricians.

43. With the view of having a visible symbol of the calcula- tion of time, a custom which had long existed among the Etruscans and had been adopted by the Romans was confirmed by an ancient law. This custom was that the chief magistrate should, upon a certain day in each year, drive a large nail into the wall of the Temple of Jupiter at Rome. This was also held, in the superstition of the people, to be an expiatory solemnity for epidemics, public calamities and great crimes.2

44. After Numa an interval of more than ninety years is occupied, according to the Roman narrative, by the three reigns of Tullus Hostilius, B.C. 673 ; Ancus Martius, B.C. 641 ; and Tarquinius Priscus, B.C. 616.

SECTION X.

THE ELECTION OF KINGS, FROM CICERO'S DE REPUBLIC A —

"Lex regia."

45. In his treatise on the Republic Cicero brings to our notice several points of interest, in connection with the election of kings, well worth attention. He never fails to repeat, con- cerning Tatius, Ancus, Tarquin, and Servius, what he says

1 Ovid, Fasti, lib. i. line 7 et seq. : — Line 53 : —

Sacra recognosces Annalibus eruta priscls ; Est quoque, quo populum jus est includere

Et quo sit merito quseque notata dies. septls.

Invenies illic et festa domestica vobls. 2 Festus, on the word Claws : " Cla-

Lines 47 and 48 : vus annalis appellabatur, qui figebatur

in parietibus sacrarum oedium per annos

me nefastus erit per quern Ma verba silen- singulos> ut per eos numerus collige-

Fastus erit, per quern lege licebit agi. retur annorum." See Livy, lib. vii.

§ 3, and lib. vii. § 18.

50 THE HISTORY OF ROMAN LAW.

about Numa, "quamquam populus curiatis eum comitiis regem esse jusserat, tamen ipse de suo imperio curiatam legem tulit."1 The sentence recurs in each new reign with such regularity and identity of expression that it may be reasonably concluded that he was deriving his information from some public legal docu- ment. This explains the origin and nature of that " lex curiata " which continued in force to the latest days of the republic, in order to give the magistrates, after their election, the investiture of the " imperium" This practice commenced with the age of the kings. When the curies had elected the king, when the senate had given its " auctoritas " to their election, the " lex curiata " was then passed in order that the king might be in- vested with the " imperium"*

Such was, we think, without doubt, the " lex regia" the term applied to the investiture of the emperor — a name which sur- vived republican hatred to royalty and which was preserved during the empire.

SECTION XI. INTERNATIONAL LAW — COLLEGE OF THE FECIALES.

46. During the three reigns to which we have just referred the spirit of conquest recovered its original energy, and the territory and inhabitants of Rome were augmented from the territories and inhabitants of neighbouring states. The Roman historians ascribe some to Numa, others to Tullus Hostilius or Ancus Martius, an institution connected with international law, the college of the Feciales. The fact is that this was an insti- tution common to the different Italian nations, and that the Romans only followed the prevailing custom. Various writers inform us that it existed with the Albans, the Samnites, the Ardeans, the Falisci of Etruria and the Equicoli.3 Varro and Festus assign very equivocal etymologies to the word Feciales.* Cicero, in his treatise " De legibus," summarises

1 Cicero, De republ., lib. ii. §§ 13,17, §39. Dion. lib. ii. § 73. Servius,^<Z 18, 20 and 21. JEneiA., lib. x. 1. 14.

2 Vide supra, § 27. * Varro, De lingua latina, lib. 5,

3 Livy, lib. i. §§ 24, 32; lib. viii. § 86: "Feciales quod fidei publics;

THE HISTORY OF ROMAN LAW. 51

the attributes of these priests in the following terms : " That the Feciales were the judges of treaties, peace, war, truces, embassies, and that they declared war." 1

So likewise these priests, of which the college was composed, twenty-one in number, who were sprung from patrician families of the highest rank, were consulted upon all points of inter- national law ; they were engaged in the formation of treaties of alliance and were bound to swear to their observation, and they were charged with the declaration of war.

A religious rite and certain solemn formulas were prescribed for each phase of these transactions. In those observed upon the conclusion of a treaty of peace, a pig was the appropriate sacrifice ; Virgil says,2 " et cassa jungebant foedera porca," and Livy gives us the formula of imprecation pronounced by the Feciales against the Roman people should they violate a treaty : " In illo die, Jupiter, Populum Romanum sic ferito, ut ego hunc porcum hie hodie feriam."3 The figure of a pig was also one of the military insignia.4 Livy describes the ceremony accompanying the declaration of war, and the various utterances of the fecialis as he successively crosses the enemy's frontier, as he advances through their country, as he demands reparation for the wrongs, real or imaginary, which constitute the motive or pretext for the attack. If the satisfaction demanded was not given within the thirty-three days, he referred the matter to the senate, and finally, after war had been resolved upon, he returned to the hostile frontier, and thrusting his lance into its soil, thus solemnly made his declaration of war : " Since this nation has permitted unjust aggressions to be made upon the Roman people, since the Roman people have ordered war to be waged against it, and as the senate has proposed, decreed and determined on this war, I, in the name of the Roman people, declare and thus commence hostilities."5

inter populos praerant ; nam per hos 3 Livy, lib. i. 24.

fiebat ut justum conciperetur bellum, 4 Festus, on the word Porci : "Porci

et inde desitum ut fcedere fides pacis effigies inter militaria signa quintum

constitueretur." Festus, on the word locum obtinebat, quia confecto bello,

Fctiales : " Fetiales a feriendo dicti, inter quos pax fiebat, ex csesa porca

apnd hos enim belli pacisque faciendae fcedere firmari solet."

jus est." 5 Li 77, lib. i. § 32. Aul. Cell. lib.

1 Cic., De leyibus, lib. ii. § 9. xvi. ch. 4, gives us the same formula

8 JEneid., lib. viii. 641. with some variations.

E 2

52 THE HISTOEY OF ROMAN LAW.

In the course of time, it is true, although the outward form remained the substance had disappeared. A small field near the temple of Bellona, within sight of the extremity of the Circus, was consecrated as the campus hostis. It is here that the fecialis, to avoid the loss of valuable time made by under- taking a long journey, went to announce his declaration of war, and at the foot of a little column, of which Ovid speaks in his Fasti, he hurled his javelin to the ground.1

47. It is to the time of Ancus Martins that Niebuhr ascribes the origin of the plebeians ; and upon the faith of a correction in a manuscript verse of Catullus, which has evidently been altered,2 he concludes that the plebeians were the followers of Ancus, while the patricians, with their clients, were those of Romulus. It is true that the history recognized by the Romans describes Ancus Martius as greatly swelling the population of Rome, by transporting thither after their defeat several thousand Latins to whom the right of citizenship was awarded. But Ancus, in so doing, only followed the example of others be- sides the Romans, whose invariable policy during their early history, as we see in Dionysius of Halicarnassus,3 was, that these strangers, upon whom the rights of citizenship were conferred, were distributed among the various curies. It is, however, true that these new citizens, by whom the Roman population was from time to time augmented, not being all, as were the primi- tive inhabitants, attached to patrician gentes by the ties of clientage, occupied a somewhat different position, as has already been explained.4 The observations of Niebuhr must be con- fined to this point.

48. According to tradition, Ancus enlarged the city, which he fortified by an entrenchment on the Janiculum, and by the

1 Ovid, Fasti, lib. 6, 1. 205 et seq. : — Antiquam, ut solita es, boua

Sosnitcs ope gentem. Prospicit a templo summum brevis area circum

Est ibi non parvae parva columna notfc. The MS. has A ntlqilC. Niebllhr adopts

Hinc soiet hasta manu, belli pncnuntia, mitti, the reading indicated by Scalier, 2f.o-

In regem ct gentes quum placet arma capi. muuqve Ancique, the race of Komnlus

2 Catullus, Ode 34 to Diana. The and Ancus. Admitting this, we are generally received reading is — far from the deduction derived from it.

Sis quocunque placet tibi ' ^h- "*• § 50-

Sancta nomiua Koinulique * Vide supra, § 16.

THE HISTORY OF ROMAN LAW. 53

fossa Quiritium, a Quiritian ditch between Mons Cselius and Mons Aventinus. In order to unite the Aventine and the Janiculum banks of the river, he threw a bridge across the Tiber, the first bridge that had been constructed over it. This bridge was built of wood, and it was called the " Pons Sublicius," from a Volscian word signifying the beams of which it was con- structed.1 This being from time to time repaired, still remained a wooden bridge in the time of Augustus, B.C. 23, when it was carried away by a flood, and, having been rebuilt of stone, was called the " Pons ^Emilianus," from the name of the censor under whose directions the reconstruction was effected.

At this day the traveller in Rome is shown on the declivity of the Capitol below the forum the Mamertine prison, a small dungeon constructed of large masses of stone, united without the aid of cement after the manner of the Etruscans. The con- struction of this prison is attributed to Ancus Martius, from whom it took its name.2 Ostia, also a Roman colony at the mouth of the Tiber, is said to have been founded by Ancus Martius, who had occupied both sides of the river to its mouth.3

49. As it was during the reign of Ancus Martius that Lucius Tarquinius, who is said, either in his own person or in that of his father, to have been of Corinthian origin, accompanied by a numerous retinue, and bringing with him immense treasures, came to settle at Rome, Cicero takes occasion to say that the arts and sciences of Greece flowed into Rome, not in a narrow stream but in a mighty river.4 But this is an anticipation, for the monuments and buildings of that period attest Etruscan and not Grecian art.

50. This Lucius Tarquinius, a lucumon of Tarquinii, who

1 Festus, on the word Sullicinm : Mamertinus. Vide Fcstus on these " Sublicium pontem quidam putant ap- words.

pellatum esse a sullicilms, peculiar! 3 For each of these points, see Livy,

vocabulo Volscoruin, qua; sunt tigna in lib. i. §§ 32 and 33 ; Cicero, De rcpub-

latitudinem extensa." lica, lib. ii. §§18 and 19.

2 Mamers, in the Osque language 4 Cicero, De republica, lib. ii. § 19 : according to Fcstus, in the Sabine Ian- " Influxit enim non tenuis quidam e guage according to Varro, both of Gnccia rivulus in hanc urbem, sed whom may be right, was the name of abundantissimus amnis illarum disci- the god Mars. Whence the names plinarum et artium."

Mamercus or Martius, and the epithet

54 THE HISTORY OF ROMAN LAW.

assumed at Rome the name of Tarquinius Priseus,1 appears to have commenced an attack upon the primitive institutions based upon the distinctions of the original nationalities, Ramnenses, Tatienses, Luceres, and against the narrow oligarchy of the ancient patrician families ; an attack which his successor Servius Tullius pushed still further, and which, at a later period, was taken up and driven to very different results by the plebeians. The moment had come when the primitive frame in which the citizens were divided into tribes and curies according to their origin, Ramnenses, Tatienses, or Luceres, no longer sufficed for the wants of the new citizens who belonged to neither of these, but by whom Rome had been successively recruited, and who now formed a rapidly increasing population.

Many of these new comers had, in their own cities, been members of the dominant class ; but when they arrived in Rome they had been — with the exception of a very few who, with the rights of citizenship, received those of the patriciate — placed in the ranks of plebeians. Here, owing to their hereditary fran- chise, they were in a position to form the stock of the plebeian " gentes" in opposition to the original principle on which the patricians alone could form a "gens." Tarquin himself belonged to the number of the new citizens, and many of his friends and partisans who had accompanied him, and who had been ad- mitted with him to the rights of citizenship, and had been dis- tributed amongst the tribes and the curies,2 found themselves in the position we have just described.

51. Lucius Tarquinius was unable to accomplish all that he desired by way of reformation. When he attempted to abolish the names of the tribes, Ramnenses, Tatienses and Luceres, as being inconsistent with the new elements of the population, he encountered a formidable opposition, under the colour of religion, in the person of Attius Navius the augur, and he was compelled

1 The true meaning of the word epithet: "Priscus Tarquinius estdictus, Priscus applied to Tarquin has long quia prius fuit quam superbus Tar- been questioned. Livy makes it a sur- quinius" (onthewordPn'sc?/s). Diony- name : " Urbem ingressi sunt domici- sius of Halicarnassus is of the same lioque ibi comparato, L. Tarquiniurn opinion, lib. iv. § 48. Priscnm edidere nomen." Livy, i. §34. 3 Dion. lib. iii. § 71. Paul, following Festus, considers it an

THE HISTORY OF HOMAN LAW. 55

to renounce his design.1 It was reserved to his successor to succeed in this object in another way. Nevertheless, he elevated about a hundred or a hundred and fifty persons to the patriciate (historians differ as to the number), and gave them a place in the senate ; and as the pride of the ancient patricians refused to admit them upon terms of perfect equality, they became the foundation of those "minores gentes" who, from generation to generation, remained distinct from the " gentes major es" whose stock and nobility were coeval with the foundation of Rome.2

62. Among the numerous monuments and works of art con- structed in the time of L. Tarquin, when the future grandeur of the eternal city began to dawn upon the world, which is still shown at Rome, was the " Cloaca Maxima." This great and useful work, by which the marshes were drained, the atmo- sphere purified, and large tracts of land reclaimed for the city, was commenced by L. Tarquinius and completed by Tar- quinius Superbus. It is in the Etruscan style of architecture, and has withstood the destructive influence of time and neglect. There the imagination of the poet can contemplate, in the creation of a Cyclopean or Pelasgic age, the mysterious vestiges of an unknown civilization.

53. B.C. 578. Servius Tullius was indebted to a subterfuge for his elevation to the throne. This prize he secured without pledging himself to the patrician party (non commisit se patri- bus\ and was the first who became king without the pre- liminary election by the senate or the sanction of the curies, although after he had mounted the throne he solicited nomina- tion and the investiture of the " imperium " by the lex curiata.* In doing this, he aimed a fatal blow at the ancient system of distribution into tribes, based upon their primitive origin. This distribution had become utterly inconsistent with the new and now considerable population of Rome. And if he suffered the " comitia curiata," which was constructed upon that narrow principle, still to exist, it was merely from respect to the

1 Vide supra, § 21. 3 Cic., De republica, lib. ii. § 21.

3 Vide supra, § 33.

56 THE HISTORY OF ROMAN LAW.

auspices and certain old forms of primitive law. The assem- blies he created were for the discharge of real business, and were framed upon a different system, every citizen being eligible.

According to the first census taken by Servius Tullius, the population of Rome at that time consisted of upwards of 80,000, and this shows the extent to which the representatives of the three original tribes, the Ramnenses, Tatienses and Luceres, must have found themselves outnumbered. Servius himself, whether we accept the fables about his extraction, or adopt the Etruscan annals which represent him as the chief of an Etruscan band, belonged, together with ah1 his followers, to the new comers.

The friend and counsellor of Tarquin, his predecessor, he carried out his labours to completion. The radical reform which he introduced in the political constitution of Rome was to place side by side with an aristocracy of race the superior caste of the ancient patrician order, an aristocracy of wealth, whose ranks were open to all. Thus it was that many of the new citizens attained a position of influence, in spite of the rank they or their ancestors had enjoyed in their native country, and who, whatever might have been their wealth, had hitherto at Rome been denied admission into the patrician order, and had been ranked with the plebeians.

54. Heretofore the revenue had been raised by means of a poll tax (viritirn), arbitrarily imposed without any fixed prin- ciple or any adequate proportion between the rich and poor. The division of the people into tribes and curies had been, as we have seen, based upon their origin, and the assembly so founded (comitia curiata) voted "ex generibus" And, not- withstanding our ignorance of details, we know that the supre- macy remained in the hands of the ancient patrician order. It was for Servius to substitute for this division and consequent vote, depending upon caste, a distribution of the people and a system of voting regulated by wealth ; in short, he proportioned the taxation and the suffrage of each citizen to the amount of his property.

THE HISTORY OF ROMAN LAW. 57

The institution of the census, the distribution of the people into classes and centuries, the assembly of the centuries, the origin and progress of the order of knights, and the organiza- tion of tribes according to locality, here demand our attention.

SECTION XII.

THE CENSUS.

65. The head of each family was obliged to make a written statement, upon oath, of the number of persons composing his family, of his property of every description, and its fair estimated value, under penalty of confiscation of any article omitted.1 As soon as this was finished the entire populus passed in review through the Campus Martius and underwent the ceremony of purification (jpopulum lustrare]. This ceremony was repeated every fifth year ; hence the term lustrum was used to signify a period of five years. This table or register was called the " census," and, as a new chapter (caput) was opened for each head of a family, the condition of the population and the respec- tive fortunes of families could be periodically ascertained.

Enrolment by name in the census was a privilege confined to citizens ; the names of sons were doubtless inscribed in the chapter dedicated to their father; women, and males under sixteen years of age, who had not exchanged the prcstexta for the toga, were only enumerated ; slaves were indicated simply by numbers amongst the chattels of their masters, and in the course of time the ceremony of enfranchisement consisted simply in inscribing their name in this table.

SECTION XIII. THE CLASSES ( Classes} AND THE CENTURIES ( Centuries).

66. From the institution of the census, which had determined the amount of the fortune of each citizen, was derived the dis- tribution of the people into classes and centuries, based mainly

1 Dion. lib. 4, § 16.

58 THE HISTORY OF ROMAN LAAV.

upon the amount of their wealth. This distribution was regu- lated so as to provide for the three social necessities, taxation, military service, and the franchise. The classes and the cen- turies therefore formed an organization for the purposes of revenue, war, and legislation. This assimilation must not, how- ever, be pushed too far, and certain clearly defined lines of demarcation must be preserved between these three distinct objects. Sons, who at this period could not hold property, were only placed in the classes under the census of their father, and consequently only contributed to the revenue in the person of their father. Although, in military matters, their individu- ality was recognized, and they had the right of personal voting in the comitia.

57. The division of classes as to matters of taxation was exclusively regulated by the amount of property. These classes were five in number, for those whose income was below a cer- tain sum, not being liable to taxation under the rule laid down by Servius, were not considered as belonging to any class.1 Historians differ as to the pecuniary qualification necessary for each class, and it is exceedingly difficult for us to form a correct estimate relatively with our own times.2 These classes were taxed differently, and state burdens must therefore have fallen upon each in a manner proportioned to his means. It is not difficult to understand with what feelings the exemption accorded to them by Servius was received by the numerous class of poor plebeians. So dear was his memory to them, that for long after the expulsion of the kings, tradition having fixed his birth in the " nones," without specifying which, the plebeians celebrated them all ; and fearing lest if these fetes should happen to fall on a market-day, when the concourse of people being great, some revolutionary measures might be taken in memory of this king,

1 This is as the matter was under- 2nd class . . . . 75,000 asses.

stood by the Komans, and stated by 3rd „ . . . . , . 50,000 „

Cicero and Livy. Pionysius makes six, 4th „ . . . . . . 25,000 „

because he reckons as a class all those 5th class .. .. 11,000 „

who were exempt from taxation. Or, according to Dionysius, 12,500, the

8 According to Livy, lib. i. § 43, the half of the amount required for the class

property qualification was as follows : — No. 4. Those whose income did not

1st class consisted of citizens who reach this amount were not classified

possessed . . 100,000 asses. and were free from taxation.

THE IIISTOKY OF ROMAN LAW. 59

the pontiffs carefully prevented the market-days from falling upon the nones, by such arbitrary intercalations as were neces- sary to effect that object.1

68. In addition to the taxation proportioned to the wealth of the citizen according to his class, was his obligation to render fully-equipped military service free of cost to the state, the ex- pense of his uniform and arms being regulated by the regiment to which he belonged. Livy2 gives the details of the necessary equipment for each class. Those whose income did not reach the requisite sum to place them in the fifth class were bound to render military service, but it was at the charge of the state. There is, however, some disagreement upon this point amongst ancient writers, and it seems that, even in this residuum, certain shades of distinction, likewise based upon property, were drawn, and that those who had more than 1,500 asses formed a first class under the name of " adcensi" and " velati," a species of supplementary soldier attached to the censitares as accessories (ad-censi), who were compelled to follow the army without arms in ordinary private costume, and to take the arms and place of those who should fall in the battle.3 Livy mentions them as being distributed amongst the fifth class, probably because they were placed at the end in the same way as were the horns and the trumpets, though forming no part of the census.

69. The citizens, according to their status in the census, had distinguishing appellations. Those whose names were registered in the census as liable to revenue taxation of whatever class were called " assidui" (from assem duere or dare) ; those not liable to taxation were called " proletarii," the state not demanding

1 Macrobins, Satnr., lib. i. ch. 13 : quod ad legionum censum essent ad-

" Veritos ergo qui diebus prseerant, ne script! ; quidam relates, quod restiti

quid nundinis collecta universitas ob inermes sequerentur exercitum." And

regis desiderium novnret, cavisse, ut on the word Velati: "Velati appella-

nonae a nundinis segregarentur. See bantur vestiti et inermes, qui exercitnm

above, § 47, and note. sequebantur, quique in mortuorum mili-

* Lib. i. § 42. turn loco substituebantur." Varro, DC

3 Festus, on the word Adscripticii : lingua latino,, lib. vii. § 56 : " Adscrip-

" Adscripticii velati quidam script! di- tivi dicti, quod olim adscribebantur

cebantur qui supplendis legionibus ad- inermes, armatis militibus qui succede-

scribebautur. Hos et aclccnsos dicebant, rent, si quis eorum deperisset."

60 THE HISTORY OF ROMAN LAW.

from them any contingent other than that of their children. However, upon closer examination, we find certain limitations ; those citizens, for example, whose fortune was below the amount necessary to place them in the fifth class, yet possessed more than 1,500 asses, would be the "accensi" or "velati;" those whose fortune ranged between 1,500 and 375 asses were the " proletarii " properly so called ; the remainder simply appearing upon the census by name were termed " capite censi."1 In cases of extreme urgency, the proletarii might be armed and equipped at the public expense ; but it was not till the time of Marius, in the wars against the Cimbri and against Jugurtha, that we find the " capite censi" admitted into the army.

60. In order clearly to understand the division into centuries, its double object, military and electoral, must be kept in view.

The word " centuria" has a military origin, and most pro- bably originally signified a troop of 100 men, though at a later period it had no reference to number.2 In the military aspect centuries existed amongst the old Italian nations ; thus the Etruscan rituals indicate the ceremony attending the distri- bution into the centuries of which the army was composed,3 and centuries existed at Rome before those introduced by Ser- vius Tullius. Thus the tribes, the Ramnenses, Tatienses and Luceres, each originally furnished a hundred cavalry, in all three hundred, recruited from amongst the patricians. The creation of these centuries is attributed to Romulus, and L.

1 Cicero, De repitblica, ii. § 22: censorum jcris fuit trccenti septuaginta

" Quum locupletes assld-uos appellasset quinque." Festus, on the word Adsi-

ab iere dando; eos qui aut non pins duns: ". . .Alii eum (adsiduum)

mille quingentum ajris ant omnino nihil qui sumptu proprio militabat, ab asse

in suum censum prater caput attulis- dando vocatum existimarunt." And

sent, proletaries nominavit ; ut ex iis on the word Proletarium : "Proleta-

quasi proles, id est quasi progenies rium capite censum dictum quod ex his

civitatis exspectari videretur." Aul. civitas constet, quasi proles progenie.

Gell. lib. xvi. c. 10, who enters mi- Idem et prolctanei."

nutcly into the distinction to be drawn 2 Festus, on the word Centurla:

between proletarii, capite cvtisi and " Centuria in agris significat centa

assidvi: "Qui in plebe, inquit, llomana, jugera; in re militari centum homines."

tenuissimi pauperrimique erant, ncque Varro, De lingua latina, lib. y. § 35 ;

amplius quam mille quingentum juris § 88 : " Manipulos, exercitus minimas

in censum fatcrob&nt,, proletarii appel- inanus qua? unura secuntur signum.

lati sunt; qui vero nnllo aut perquam Centuria, qui sub uno centurione sunt,

parvo jure censebantur, capite censi vo- quorum centenarius Justus numerus."

cabantur; extremus autem census capite 3 Vide supra.

THE HISTORY OF ROMAN LAW. 61

Tarquin is said twice to have increased their number, which probably, upon the second occasion, was doubled and reached six j1 but these must not be confused with the institution of Servius Tullius, though they retained their position and formed a part of his system.

61. From a military point of view, three important observa- tions must be made : First, this division into classes was con- fined to the infantry. At the head of the army, in the place of honour and independent of the classes, was the cavalry. As the system of Servius Tullius was a compromise between the organization based upon the three original nationalities and the numerous new population, as Servius had not destroyed the curies nor their assemblies, so in the construction of the cavalry he left intact the three centuries, Ramnenses, Tatienses and Luceres, to be recruited as before from the old patriciate ; nor did he interfere with the additions made by his predecessors. These centuries of patrician knights were then six in number, and had been raised to that number either by Servius Tullius himself, according to Livy, or rather, as Cicero indicates, by TJ. Tarquin, who to the three centuries of knights " majorum gentium " added three others, " minorum gentium. But be this as it may, under the name of the six centuries (sex cen- turies], or that of the six suffrages (sex suffragid], these six centuries of patrician knights took the lead of the cavalry in the system of Servius Tullius, to which were added twelve new centuries recruited from the first and most wealthy families of the city (ex primoribus civitatis according to Livy; censu maximo according to Cicero) ; thus making in all eighteen centuries of cavalry.2

63. The second observation is, that, in addition to the cavalry, there were several services in the army that neces-

1 Cicero, De republics,, lib. ii. § 20. quibus inaugurate erant nominibus,

Compare with Livy, lib. i. § 36. fecit." Cicero, De repnlllca, lib. ii.

3 Livy, lib. i. § 43 : " Ita peclestri § 2 : " Equitum magno numero ex

exercitu ornato distributoque, equitum omni populi surnma separate, reliquum

ex primoribus civitatis duodecim scrip- populuin distribuit in quinque classes."

sit centurias, sex item alias centurias, " . . . Equitum centuriae cum sex

tribus ab llomulo institutis, sub iisdem suffragiis."

62 THE HISTOEY OF EOMAN LAW.

sitated special men, selected without regard to the census. These formed special or extraordinary centuries annexed to one of the classes, though not forming part of it, under a property classification. Such were the engineers or carpenters, who formed two centuries attached, according to Livy, to the first class ; the hornblowers and trumpeters forming two centuries, attached, according to the same historian, to the last class.

In a similar situation were the supplementary soldiers, "accensi velati," also inscribed and marching in the rear of the centuries of the last class, though of an