Full text of "A history of Roman law with a commentary on the Institutes of Gaius and Justinian"

See other formats

Google

This is a digital copy of a book lhal w;ls preserved for general ions on library shelves before il was carefully scanned by Google as pari of a project

to make the world's books discoverable online.

Il has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one thai was never subject

to copy right or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books

are our gateways to the past, representing a wealth of history, culture and knowledge that's often dillicull lo discover.

Marks, notations and other marginalia present in the original volume will appear in this file - a reminder of this book's long journey from the

publisher lo a library and linally lo you.

Usage guidelines

Google is proud lo partner with libraries lo digili/e public domain materials and make them widely accessible. Public domain books belong to the
public and we are merely their custodians. Nevertheless, this work is expensive, so in order lo keep providing this resource, we have taken steps to
prevent abuse by commercial panics, including placing Icchnical restrictions on automated querying.
We also ask that you:

+ Make n on -commercial use of the files We designed Google Book Search for use by individuals, and we request thai you use these files for
personal, non -commercial purposes.

+ Refrain from automated querying Do not send automated queries of any sort lo Google's system: If you are conducting research on machine
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the
use of public domain materials for these purposes and may be able to help.

+ Maintain attribution The Google "watermark" you see on each lile is essential for informing people about this project and helping them find
additional materials through Google Book Search. Please do not remove it.

+ Keep it legal Whatever your use. remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other

countries. Whether a book is slill in copyright varies from country lo country, and we can'l offer guidance on whether any specific use of
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner
anywhere in the world. Copyright infringement liability can be quite severe.

About Google Book Search

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers
discover the world's books while helping authors and publishers reach new audiences. You can search through I lie lull lexl of 1 1 us book on I lie web
al|_-.:. :.-.-:: / / books . qooqle . com/|

&B.Bush JK.HISICHM50N HMMTmean wc Snore*

CCOMAN HRKtRKWOOD HH£((MW JR. W. Suck

LCiAven LM.Lancy. H L.Pmcr U.S»uuM«e

RLRmtMU) PS.Lincoln B.B.Rankin W.C.Theilc

RG.HUL WH.MasiTO 6.HBKHMDfDN R.W.WUUCC

C M .;

A HISTORY OF
ROMAN LAW \

A HISTORY

ROMAN LAW

WITH A COMMENTARY ON THE

INSTITUTES OF GAIUS AND JUSTINIAN

ANDREW STEPHENSON, Ph.D.

PROFR08OR OF HISTORY IN DR PAUW UNITRR81TT

• • • • •<

• • •

" * *

BOSTON
LITTLE, BROWN, AND COMPANY

1912

177353

• . •

• • •

• •

• ••

• •

•• •

• •

.• •

•••

• • <

• • •

••••

fWtttttfl
8. J. Paskhill 6 Co., Boston, U.S.A.

PEEFACE

This volume is the outcome of a series of lectures given
to advanced college students who were specializing in his-
tory. It is, therefore, an institutional study and aims to
give, in a clear, analytical manner, the origin and develop-
ment of Roman law in such compass as can be mastered
by well trained students in a two-hour course running
throughout the year.

The arrangement facilitates collateral reading and criti-
cism and the use of standard authorities as well as the
sources of information. Texts of the Institutes of Gaius
and Justinian are plentiful and cheap, both in Latin and
English.

Such a work as this, giving in one volume of moderate
size the main features of the history of Roman law, with-
out being too brief, together with an interpretation of the
more important laws as found in Gaius and Justinian,
seemed to be necessary. The writer trusts that this book

will be found helpful to many.

ANDREW STEPHENSON.
Greencastle, Indiana,
August 7, 1912.

TABLE OF CONTENTS

Preface v

List of Authors Cited and Consulted xv

PART ONE
CHAPTER I. INTRODUCTION

PAGB

| 1. Value of the Study of

Roman History . 1
\ 2. Beginnings of Rome . 2
§ 3. Extent of Early Rome ] 5
§ 4. Sources of Roman His-
tory .... 6
§ 5. The Beginnings of Ro-
man Law ... 6
f 6. Sources of Law during

the Regal Period . 9

PAGB

| 7. Regulations of Public

and Private Order . 10

§ 8. Religious Institutions . 12

§ 9. The Calendar . 15

§ 10. Divisions of the People 16
§11. Divisions of Roman

Law .... 20

§12. Kinds of Law . . 23

Book I. From the Founding of Rome to the Twelve

Tables — 451 b.c.

Title 1. Regal Period: From the Founding of Rome to the

Republic, 734-609 B.C.

CHAPTER n. INSTITUTIONS OP THE PRIVATE LAW

§13.

Family .

. 26

§25.

Ager Publicus

§14.

Patria Potestas

. . 28

§26.

Roman Colonies .

§15.

Agnati .

. 29

§27.

Joint Cultivation, etc.

§16.

Gens

. 30

§28.

Method of Survey

§17.

Marriage

. 31

§29.

Order of Succession .

§18.

Guilds .

. 33

§30.

Early Contracts .

§19.

Curia .

. 34

§31.

Breach of Contract

§20.

Comitia Cur lata ,

. 34

§32.

Early Criminal Law .

§21.

The Senate .

. 36

§33.

Damage

§22.

The King .

. 41

§34.

Loan ....

§23.

Landed Property

. 42

§35.

Theft ....

§24.

Quiritarian Owne

rship 48

§36.

Crimes . . .

TABLE OP CONTENTS

CHAPTER III. THE REFORMS OF SERVIUS

PAGE

79
80
83

84
86

§ 37. Census .

§ 38. Classes ....

§ 39. Comitia Centuriata .

§40. Tribes .

§ 41. Comitia Tributa .

§42. Effect of the Reforms on

the Law of Property 86

§43. Incidental Effects of
the Reforms on the
Law of the Family . 89

PAO*

§44. Incidental Effects of the
Reforms on the Law
of Succession . . 91

§ 45. Incidental Effects of the

Reform on Contract 92

§46. Servian Amendments
on the Course of Jus-

tice

Tide 2. Early Republican Period : From the Beginning of
the Republic to the Twelve Tables, 509-451 B.C.

CHAPTER IV. EARLY REPUBLICAN INSTITUTIONS TO
THE TWELVE TABLES, 509-451 B.C.

CHAPTER V. THE TWELVE TABLES

§ 59. Origin . . . .120
§60. Sources . . .123
§ 61. Remains and Recon-
struction . . .124
§ 62. The Tables . . .126

§63. Character of the

Twelve Tables . 137
§ 64. Roman Magistrates . 140
§65. Statute-process (Legis

Actiones) . . . .144

Book II. From the Twelve Tables to the Empire —

451-30 b.c.

Title 1. From the Twelve Tables to the submission of all

Italy (Jus Civile), 451-269 B.C.

CHAPTER VI. THE PASSING OF THE PATRICIATE

§66. The Development of

the Comitia Tributa 149

§ 67. The Evolution of Ple-
beian Equality . 153

• • •

§47.

The Political Revolu-
tion . ... 96

§55.

Struggle between the
Patricians and Ple-

§48.

The Consuls . . 97

beians . . .107

§49.

Comitia Centuriata . 98

§56.

Lex Cassia . . .110

§50.

The Senate . . . 102

§57.

Agrarian Movements

§51.

Leges Valerie . .103

between 486 and 367

§52.

Quffistors of Homicide 105

B.C .... \.\. £

§53.

The Dictator . 105

§58.

Lex Icilia . . .117

§54.

Magister Equitum . 106

TABLE OF CONTENTS

PAGE

§68. Jus Flavianum . . 163
§69. Stipulation . . .165
§ 70. Capitis Deminutio . 168
§ 71. The Law of Succession 170

§ 72. Lex Licinia .
§73. Foreign Policy
Rome

PAOB

. 175
of
. 186

Title 2. From the Submission of all Italy to the Empire

(Jus Gentium), 269-80 B.C.

CHAPTER VII. COMMERCIAL EXPANSION AND ITS

INFLUENCE ON ROMAN LAW

§ 74. Introduction . . 195
§ 75. The Institution of the

Peregrin Protorship 198
§ 76. The Establishment of

Provinces . . . 203
§77. Public Consultations of

theJurists . . 207
§ 78. The Lex jEbutia . . 208

§79. Procedure Extra Ordi-

nem .... 210

§ 80. Decline of Religion

and Morals .211

§ 81. Agrarian Legislation . 213

§ 82. Lex Sempronia Tiberi-

ana .... 229

CHAPTER VIII. FACTORS OF THE LAW

§ 83. Legislation . .243

§ 84. Senatus Consulta . 243

§85. Edicts of the Magis-
trates . . . 244
§ 86. Consuetude . . .246

CHAPTER IX. SUBSTANTIVE CHANGES IN THE LAW

§ 87. Criminal Law . 248

§ 88. Law of Property and

the Publician Edict 250

§ 89. Development of the

Law of Contract . 253

§ 90. Amendments on the

Law of Succession . 261

Book III. From the Beginning of the Empire to the
Death of Justinian. (30 b.c.-a.d. 565)

CHAPTER X. CHARACTERISTICS OF THE LAW

DURING THE PERIOD

§ 91. Introduction . 264

§ 92. Legislation of Comitia

and Senate . . 269
§93. Constitutions of the

Emperor . . . 272

§94. The Consolidated

E dictum Perpetuum 273

§ 95. The Responsa Pru-

dentum . . . 275

TABLE OF CONTENTS

CHAPTER XI. ROMAN JURISPRUDENCE

PAGH

§ 96. Introduction . . 278

§ 97. Labeo and Capito and

the Schools of Pro-

culians and Sabin-

ians . . . . 281

§ 98. Julian, Gaius, and the

Antoninian Jurists . 284

PAOB

§ 99. Papinian, Ulpian, and

Paul .... 287

(100. Remains of the Juris-
prudence of the Pe-
riod .... 289

CHAPTER XII. THE PERIOD OF CODIFICATION

101. The Stages Prelimi-
nary to Codification 291

§102. The Corpus Juris

Civilis of Justinian 293

CHAPTER XIII. THE TEACHING OF ROMAN LAW
BEFORE AND AFTER JUSTINIAN

§ 103. Teaching of Law be-
fore Justinian's
Time . . . 299

§ 104. Teaching of Law after

Justinian's Time . 301

CHAPTER XIV. FATE OF THE ROMAN LAW AFTER
JU8TINIAN AND REVIVAL OF THE STUDY IN
EUROPE

{ 105. Fate in the East . 305
§ 106. Fate in the West . 306

§ 107. Roman Law never

Wholly Unknown . 307

PART TWO

COMMENTARY ON THE INSTITUTES OF GAIUS AND

JUSTINIAN

CHAPTER I. FUNDAMENTAL CONCEPTS AND DIVI-
SIONS OF THE LAW AS FOUND IN GAIUS AND
JUSTINIAN

§ 108. Introduction . . 310
§ 109. Jurisprudence . .311
§ 110. Justice and Law . 312
§111. Natural and Positive

Law . . .313
§ 112. Written and Un-
written Law . .315

§ 1 13. Public and Private

Law . .316

§ 114. The Law as to Per-
sons, Things, and
Actions . . .316

§ 115. Classification given

by Gaius . 317

TABLE OF CONTENTS

Book I. The Law of Persons

CHAPTER II. PERSONS AND THEIR CIVIL CAPACITY

PAGE

f 116. ,§ Person" Defined . 319

1 117. Persons Classified . 320

1 118. Status . . .321

PAGE

§ 119. Modes of Suffering

Capitis Deminutio 323

CHAPTER III. CAPUT (STATUS) LIBERTATIS

§ 120. Freemen . . .327
§ 121. Slaves . . .327
1 122. Origin of Slavery . 328

| 123. Condition of Slaves

at Rome . . 328

§ 124. Coloni or Serfs . . 330
§ 125. Manumission . . 330

CHAPTER IV. CAPUT (STATUS) CIVITATIS
§ 126. Citizens 336

CHAPTER V. CAPUT (STATUS) FAMILLE

§ 127. Potestas . . .341
1 128. Manus (in hand) . 348
§ 129. Marriage . .349

§ 130. Mancipium (A Per-
son in Hand take) . 358

CHAPTER VI. GUARDIAN AND WARD

-§131. Tutela

. 360 | § 132. Curatela .

. 368

CHAPTER VII. CORPORATIONS
§ 133. Definitions and Distinctions 371

Book II. The Law of Things (Jus de Rebus)
Tide 1. The Law of Property or Ownership (Jus in Rem)

CHAPTER .VIII. OWNERSHIP IN GENERAL (JURA IN

RE PROPRIA)

§ 134. The Legal Idea of Res

or Thing. . .376

§135. Classification of

Things . . .377

§ 136. The General Right of
Ownership (Domi-
nium) . . . 380

TABLE OF CONTENTS

CHAPTER IX. THE ACQUISITION OF OWNERSHIP IN

SINGLE THINGS

PAGE

§ 137. Definition . . .384
§ 138. Modes of Acquisition
Recognized by Jus
Gentium. . . 385

FAQB

§ 139. Modes of Acquisition
Recognized by Jus
Civile . . .390

§140. Acquisition of Prop-
erty through Others 396

§ 141. Alienation . . .399

CHAPTER X. JURA IN RE ALIENA

§ 142. Jura in Re Aliena in

General . . .401
§ 143. Servitudes . . 402

§ 144. Emphyteusis
§ 145. Superficies .
§ 146. Pledge

. 409
. 410
. 411

Title 2. Hereditas or Inheritance
CHAPTER XI. HEREDITARY SUCCESSION

§ 147. Kinds of Succession . 415
§ 148. Foundation and Con-
ception . . .415
§ 149. Universal Succession 417
§150. Chronological Order
in the Development
of Testamentum .418

§ 151. Formal Validity of

Testaments . . 422

§ 152. Necessary Contents

of the Testament . 423

§153. Modes in which Tes-
taments are Voided 429

CHAPTER XII. INHERITANCE AB INTESTATO
§ 154. Definitions and Distinctions 434

CHAPTER XIII. LEGACIES

§ 155. Legacies Defined and

Classified . . 437

§156. Fideicommissa .
§157. Codicils .

. 440
. 440

Title S. Obligations : Rights in Personam

CHAPTER XIV. GENERAL CHARACTER OF

OBLIGATIONS

§ 158. Introduction . .441
§ 159. Nature of Obligation

as a Personal Right 442
§ 160. The Subject Matter

of Obligations . 444

§161. Accessory Liability in

Obligations . . 447

§ 162. Classification of Ob-
ligations . . . 450

TABLE OF CONTENTS

CHAPTER XV. OBLIGATIONS ARISING PROM

CONTRACTS

PAGE

§ 163. Contracts Defined . 452
§164. Essential Features of

the Contract . . 452
§ 165. Nominate Contracts 454

PAGE

§ 166. Innominate Con-
tracts . • . 468

§ 167. Obligations Quasi ex

Contractu . 46S

Title 4- Civil Procedure
CHAPTER XVI. PROCEEDINGS IN A CIVIL ACTION

§ 168. The Summons (in Jus

Vocatis) . . . 470
§ 169. Proceedings in Jure . 474
§ 170. Proceedings in Judioio 479

Index

§ 171. New Trials . . . 481
§172. Execution of Judg-
ment. . . . 483
§173. Appeals . • .485

489

LIST OF AUTHORS CITED AND CONSULTED

Abbott (F. F.). A History and Description of Roman Political
Institutions. Boston, 1901.

Appian. De Bello Civile. Translated by White. 2 vols. Mac-
millan.

Aristotle. Politics.

Arnold (Thomas). History of Rome. Eighth edition. London,
1875.

Arnold (W. T.), The Roman System of Provincial Administra-
tion. New edition. Oxford, 1906.

Aulus Gellius. Noctes Attics.

Aureuus Victor. De Viris Illustribus.

Austin (John, Barrister-at-Law). The Province of Jurisprudence
Determined. 8vo. Second edition. London, 1860.

Botsford (G. W.). The Roman Assemblies from their Origin to
the End of the Republic. New York, The Macmillan
Company, 1909.

Bouchaud (M. A.). Dissertation sur les colonies Romaines, en
M&noires de l'Institut Sciences, Morals et Politique, III.

Bowter (Sir George). Commentaries on the Modern Civil Law.
Royal 8vo. London, 1848.

Cesar. De Bello Civile.

Cato. De Re Rustica.

Cicero. De Officiis; in Verrem; de Legibus; de Amicitia.

Clark (E. C, Prof, in Cambridge). Early Roman Law. Lon-
don, 1872.

Codex Justiniani Auousti.

Digbt (K E., Barrister-at-Law). The History of the Law of Real
Property. 8vo. Third edition. Oxford, 1884.

Diodorus Siculus. Bibliotheca. Ed. Dindorf. Leipsic, 1831.

Dion Cassitjb. A History of Rome. Ed. Stuns. Leipsic, 1843.

Diontsiu8 of Haucarnassus. Archseologia. Ed. Westermann.

Dureau de la Malle. M&noire sur les pop. de FItalie. Paris,

1840.

LIST OF AUTHORS CITED AND CONSULTED

Duruy (Victor). Histoire des Romains, depuis les temps les plus

recules jusqu'a Diocletien. 7 vols. Paris, 1890.
Festus (Sextus Pompeius). De Verborum Significatione.
Forcellini. Lexicon.
Freeman (E. A., Prof, in Oxford). Lucius Cornelius Sulla, (in)

Historical Essays, II. London, 1873.
Fxjstel de Coulanges. The Ancient City. Translated from the

French. Boston and New York, 1889.
Gaius. Institutionum Commentarii Quattuor. Ed. Muirhead.

Edinburgh, 1880.
Gibbon (Edward). History of the Decline and Fall of the Roman

Empire.
Giraud (C. H.). Recherches sur le Droit de Propri^tS. Paris,

1876.
Greenidge (A. H. J.). The Lex Sempronia and the Banishment

of Cicero. Classical Review, VII. (1893).
. A History of Rome during the Later Republic and the Early

Principate. New York, 1903.
Harper. Latin Lexicon.
Horace. Satires.

Hume (David). The History of England. 5 vols.
Hunter (W. A., Barrister-atrLaw). A Systematic and Historical

Exposition of Roman Law. Second edition. London,

1875.
Huschke (Ph. E.). Jurisprudentiffi Antejustinianse quae supersunt.

8vo. Leipsic, 1861.
Hyginus. De condicionibus agrorum. De limitibus constituendis,

apud Goes. Rei Agr. Script.
Ihering (Dr. Rudolph von). Geist d. rom. Rechts auf d.

verschiedenen Stufen seiner Entwickelung.
Ihne (W.). History of Rome. 5 vols. London, 1882.

. Early Rome. New York, 1890.

Justinian. Digesta (or Pandects) Justiniani Augusti.

Kruger (H.). Geschichte der Capitis Deminutio. Breslau,

1887.
Kruger (P. ) . Geschichte der Quellen und Litteratur des romischen

Rechts. Berlin, 1888.
Lange (Dr. Ludwig). Romische Alterthumer. 3 vols. Berlin,

1871.
Lenel (Dr. Otto). Das Edictum Perpetuum. Leipsic, 1883.
Livy. History of Rome. Translated by Spillan. 4 vols. Bohn.

xvi

LIST OF AUTHORS CITED AND CONSULTED

Long (G.). The Decline of the Roman Republic. 5 vols. Loo*

don, 1874.
Mackenzie (Lord). Studies in Roman Law. Sixth edition.

Edinburgh and London, 1886.
Madvig (J. N;). Die Verfassung und Verwaltung des rdmischen

Staates. 2 vols. Leipsic, 1882.
Maine (Henry Sumner). Ancient Law. 8vo. London, 1876.
Marquardt und Mommben. Handbuch des rdm. Alterthumer.

Leipsic, 1875.
Mommsbn (Dr. Theodor). History of Rome. Translated by

W. P. Dickson. 4 vols. New York, 1889.
Montesquieu. Considerations sur les Causes de la Grandeur des

Romains et de leur Decadence. 8vo. Paris, 1755.
Moret. Outlines of Roman History. New York, 1890.
Motle (J. B., Barrister-at-Law). Imperatoris Justiniani Insti*

tutionum Libri Quattuor. Oxford, 1883.
Muirhead (James, Prof, in the University of Edinburgh). His-
torical Introduction to the Private Law of Rome. Second

edition. London, 1899.
. The Institutes of Gaius and Rules of Ulpian. Edinburgh,

1880.
Niebuhr (B. G.). Romische Geschichte. 3 vols. Fourth edition.

Translated by Hare and Thirlwall. Philadelphia, 1844.
Nitzsch (K. W.). Die Gracchen und ihre nachsten Vorganger.

Berlin, 1847.
Ortolan (M., Prof, of Law at Paris). Explication Historique des

Instituts de PEmpereur Justinien; pr£c6dee de FHistoire

de la Legislation Romaine, et d'une Generalization du Droit

Romain. Twelfth edition. Paris, 1884.
Pbtronius (Arbiter). Trimalchio.
Phillimore (J. G.). Introduction to the Study and History of the

Roman Law. 8vo. London, 1848.
Pliny (Caius Plinius Secundus, the Elder). Naturalis Historia.
Plutarch. Parallel Lives.
Poste (M. A., Barrister-at-Law). Gaii Institutionum Juris Civilis

Commentarii Quattuor. Third edition. Oxford, 1890.
Robt (H. J.). Roman Private Law in the Times of Cicero and of

the Antonines. 2 vols. Cambridge, 1902.
Rudorff. Ackergesetz des Spurius Thorius; (in) Zeitschrift fur

geschichtliche Rechtswissenschaft, Band X.
Sallust (Caius Sallustius Crispus). War with Jugurtha.

xvii

LIST OP AUTHORS CITED AND CONSULTED

Schwegler (A.). Rdmische Geschichte. 3 vols. Freiburg, 1884.

Seneca (Lucius AnnjEus). NaturalesQusestiones; Epistles.

Siculub Flaccub. De Conditione Agrorum.

Sigonius. De Antiq. Juris Civ. Rom.

Sismondi. Etudes sur l'6conomie politique.

Sohm (Rudolph, Prof, in the Univ. of Leipsic). The Institutes of

Roman Law. Translated from the fourth edition of the

German by J. C. Ledlie. Oxford, 1892.
Suetonius (Caius Suetonius Tranquillub). Lives of the

Cfiesars.
Taylor (Hannib). The Science of Jurisprudence. New York,

1908.
Ulpiani. Fragmenta ex libro singulari Regularum.
Vabro. De Lingua Latina.

Voigt (Dr. Moritz). Die XII. Tafeln. 2 vols. Leipsic, 1883.
Wallon (H.). L'Histoire de l'Esciavage dans l'Antiquitl. 3 vols.

Paris, 1847.

xvin

.0' *

. " ■»

A HISTORY OF ROMAN LAW

Part One

THE HISTORY OF ROMAN LAW FROM ITS
BEGINNING TO ITS CODIFICATION IN
THE REIGN OF JUSTINIAN

CHAPTER I

INTRODUCTION

The superior value as a study, of the history of the institu-
tions and laws of Rome to the historian, the lawyer, and the
politician, would appear to consist in the fact that . Valija
the Roman nation presents to the modern stu- of the study
dent the most perfect and complete specimen we * RMMn
have of national growth, development, and de-
cay. The great influence which the Roman language, litera-
ture, and institutions have had upon modern nations is,
unquestionably, in itself sufficient to justify the time and
research which have been spent in their study. Apart from
this, however, there is no period of ancient history which
contains in so complete and so compact a form, although
extending over a thousand years, a purview of a nation's
career from its cradle to its grave. Roman civilization may
justly be considered the crown of antiquity. It had taken
unto itself the civil and artistic life of the Orient ; the poetry
of Homer and Sappho ; the philosophy of Plato and Aristotle,

..- •>

• •

•••

• *

'.:•

• •

flfr. A HISTORY OP ROMAN LAW [Pabt I

•••••'

/•/tod the religion of the Jew ; the sum total, in fact, of all that
*• remained of the religions, laws, customs, languages, letters,

V arts, and sciences of all the nations of antiquity that had
successively arisen, held sway for a season, and passed away.
It seemed to be the appointed task of the Romans to collect
the product of all this mass of varied national labor as a com-
mon treasure, to preserve it from destruction at the hands of
ignorant and barbarous peoples, and to deliver it over to the
future ages for their instruction, enlightenment, and inspira-
tion.

In the early ages of the Christian era the Roman empire
embraced all the countries around the Mediterranean Sea,
together with vast tracts north of the Alps, and stretching
in an unbroken line eastward along the Danube to its mouth,
and westward and northward to the Atlantic Ocean, St.
George's Channel, the Solway Frith, and the North Sea.
Or, as Gibbor^ has it, "The empire was about two thousand
miles in breadth, from the wall of Antoninus and the north-
ern limits of Dacia to Mt. Atlas and the tropic of Cancer ;
it extended in length more than three thousand miles, from
the western ocean to the Euphrates ; it was situated in the
finest part of the temperate zone, between the twenty-fourth
and fifty-sixth degrees of northern latitude ; it was supposed
to contain about 1,600,000 square miles, for the most part
of fertile and well cultivated land."
The marvelous growth of the Roman empire, indicated

I a. The no* onfr ^ *** gcog^P^cal limits, but also by
Beginnings its preeminence in all the arts of war and peace,
of Rome. ^^ ^e g^^ty 0f fts structure which enabled

it to last throughout so many centuries, was due, no doubt,
to mixed causes, but chiefly to the conservative insight of her
people which led them along the toilsome but safe track of

Chap. I] INTRODUCTION [§2

political experience, shunning alike philosophical theories
and revolutions, and clinging with a desperate tenacity to
the things that appealed to their sterling common sense.

With a cluster of hills rising upon either bank of the river
Tiber about fourteen miles from its mouth has been associated
for more than twenty-six centuries the name of the Romans.
This name is of uncertain origin, but is usually made to stand
for a confederacy of three independent tribes of different,
but common, Indo-Germanic stock, — Latins, Sabines, and
Etruscans, or, as Cicero subsequently calls them, Ramnians,
Tities, and Luceres ; subdivisions merely of that Latin race
that came from the table-lands of Iran and settled through-
out the peninsula of Italy. It was not known how or when
these three peoples were united or merged into one nation,
but in the earliest divisions of the citizens of Rome a trace
of this separate origin is discernible, and each seems to have
contributed certain characteristics and institutions toward
the formation of the spirit and government of the new
State.

It is quite certain that the Ramnians were the oldest of the
settlers within the hills of Rome, and that they fortified and
held some of the hills and occupied the surrounding territory.
They thus had property and antiquity on their side in the
confederate State that subsequently arose. They further
had a rare sense of discipline and a respect that came near
to worship for power and might. Latin origin can be seen
in the idea that a man can call his own that which his strong
hand has taken ; in the right which the creditor had of lay-
ing hands upon his debtor and reducing him to slavery ; in
the patria potestas, jus vite necisque, and manus, and the
power that the husband had over his wife.

After the Romans were settled and well in possession,

§2] A HISTORY OF ROMAN LAW [Part I

came the Sabines from their old home farther up the river.
They seem to have seized and fortified some of the hills in
close proximity to the Ramnians, and engaged for a time in
a struggle with these people for mastery and possession. In
this struggle neither one proved supreme and, as a conse-
quence, a national alliance was entered into for mutual safety
and protection. This alliance subsequently developed into
a federal State, a closer political union, a consolidation of
interests, social, political, and religious. To this the Sabines
contributed the religious marriage ceremony known as con-
farreatio and the recognition of the wife and her part in the
administration of household affairs. This influence is also
seen in the council of kinsmen who advised the pater familias
with respect to the administration of family affairs and the
adoption of children in order that the gens might not die out
and they thus be deprived of the prayers of their descendants.
The Etruscans differed very widely from the two peoples
mentioned above that went to form the Roman State. They
spoke a different language and were far in advance of the
Ramnians and Sabines in civilization, in architecture, and
other arts, in trade, and in commerce. Before coming into
conflict with the confederation of Ramnians and Sabines the
Etruscans had established settlements from the Alps to
Campania. They were thus much more powerful than their
rivals, and the struggle seems to have resulted in an Etrus-
can conquest and absorption of the growing confederacy.
But this Etruscan supremacy only resulted in adding a third
party to the dual confederation. They came too late to
bring about much change in institutions now hardening into
fixed form. They are perhaps responsible for the strict re-
gard that came to be required and enforced in the ceremonial
law. The Etruscan language contributed the words used

Chap. I] INTRODUCTION [§3

in these ceremonies. Indeed, it was chiefly from an Etruscan
source that the Romans derived their science as well as the
greater part of their religious practices. All the religious
institutions and rites contained in the public law of the Ro-
mans were no doubt from this source.

Early Rome was, geographically speaking, a very small
affair. That which was properly called Ager Romanus at
first only occupied the surface of a slightly ex- . «wtent
panded arc whose chord was the river Tiber. of Early
Primitive Rome did not extend beyond the Tiber Rome,

into Etruria, and toward Latium her possessions did not
extend beyond the limits of some five or six miles, reckoning
from the Palatine. Toward the east the towns of Antemroe,
Fidenae, Csenina, Callatia, and Gabia lay in the immediate
neighborhood, thus limiting the extension of the city in that
direction within a radius of five or six miles ; and northward
the Anio formed the limit. Southwest, as you approach
Labinium, the sixth milestone marked the boundary of Rome.
Thus it appears that in every direction save one the territory
of Rome was limited to a radius of from six to ten miles.
Strabo makes' the statement that it could be traveled around
in a single day. The one unlimited outlet was toward the
sea. Between Rome and the coast there seems to have been
no settlement to obstruct the free passage of her peoples,
thus making an easy outlet for trade and commerce and point-
ing the way for her subsequent supremacy. There could not
easily be found anywhere a place better fitted by nature to
be the center of a river and sea traffic than Rome. Cer-
tainly nothing equal to it could be found along the southern
coast of Italy. It combined the advantages of an impreg-
nable position with easy access to the sea. It commanded
both banks of the stream to its mouth and thus offered greater

§§ 4, 51 A HISTORY OF ROMAN LAW [Part I

protection from pirates than places situated directly upon
the coast, as the river furnished safe harborage.

The infancy of all ancient nations is wrapped in obscurity,
and their earliest history is clouded by a mass of doubtful

1 4. Source* traditions and incredible fables. While this
of Roman statement is generally true, it is especially appli-

Uw3r- cable to Rome, whose origin, though not of very
great antiquity, was veiled even from the eyes of the Romans
themselves. Popular stories, heroic ballads, the Pontifical
annals containing the records of prodigies and supernatural
events, formed the basis for its history. These were supple-
mented by a species of tradition adopted by poets, historians,
publicists, and jurists. This tradition was at first vaguely
set forth, but it gathered assurance by repetition until it
came to be regarded as an historical record to be accepted at
its face value. It became the national belief and can be
traced in every branch of Roman literature. But the skeptic
of modern times has ruthlessly assailed these traditions of
Roman origin and has ranked them with the fables of mythol-
ogy. Very little of the history of Regal Rome is left after
the critic has completed his task. The picturesque myths
and heroic stories of the brave deeds of old have long since
passed into the literary junk heap, but Roman history has
been largely reconstructed upon scientific lines, and it is
not going too far to say that the modern scholar knows much
more about the history of Rome than did Cicero or Livy.

In various departments of intellectual exertion the Greeks
have never been surpassed. Here was the cradle of philos-

1 5. The ophy, poetry, oratory, music, and the fine arts ;
of »"— - anc^ mo^ern nations have never been able to get
Law. very much beyond what they accomplished in
these lines. The Jews have been preeminent in the de-

Chap. I] INTRODUCTION [§5

velopment of religion, and Christianity, which bids fair
to conquer the earth, finds its birthplace and literature
among these people, being but the blossom end of Judaism.
But the Greeks contributed nothing to the science of jurispru-
dence. The laws of Lycurgus were never put in writing, and
those of the Athenians, although placed in written form, were
crude and insignificant. While the Jews developed religion
to its most perfect form, they were never politically wise,
and were, consequently, almost constantly subject to some
other nation. Under these conditions it would be useless
to look for the development of a broad and sound jurispru-
dence. Speculation found little favor among the Romans.
They had little or no imagination, and were preeminently a
practical people. They never produced a system of philos-
ophy; what they had was copied from the Greeks, but we
owe to them the first successful cultivation of law as a science.
In fact, they contributed to universal history the most pro-
found system of jurisprudence that the world has ever seen.'
Says Professor Ihne ; "The Roman law possesses an intrinsic
excellence which has made it the foundation of all legal study
in Europe, and the model of almost all codes of civil law now
in force. Every one of us is benefited directly or indirectly
by this legacy of the Roman people, a legacy as valuable as
the literary and artistic models which we owe to the great
writers and sculptors of Greece."

Although we cannot speak positively of the subject mat-
ter of early Roman law, we do know that during the three
centuries which lie between the mythical foundation of the
city and the Twelve Tables, the law by which the Romans
were governed was unwritten. It was purely traditional,
handed down by the elders, and was identical with the usage
of the Aryan peoples. Modern investigation has discovered

$5] A HISTORY OF ROMAN LAW [Pabt I

resemblances so striking between the institutions of Rome,
the primitive Irish, and Asiatic Aryan peoples that have
been open to observation and study, that it is safe to conclude
that the legal institutions of Rome go back to a far antiquity.
The^e existed here, as in many other places, rules of conduct
dependent upon custom long prior to any enactment. In-
dividual legislators have been assigned for the oldest laws
that have come down to us. Thus Dionysius makes Romu-
lus institute the patria potestas, while many of the legal
fragments preserved by Flaccus have been attributed by
him to Romulus, Tatius, and Numa Pompilius. As a matter
of fact, we cannot discover any legislation establishing the
patria potestas, or regulating the law of descent of property
upon the death of its owner. Early Roman law was merely a
body of customs or quasi-religious regulations preserved by
the college of pontiffs who acquired the title of custodes legis.
Our picture of the earliest Roman law must, therefore, be
entirely colored by the sources from which it was derived.
Mommsen seems to think that the pontiffs would only record
such laws as affected their own offices and in which they were
specially interested. In this way he accounts for the quasi-
religious nature of the law. Professor Clark, who is an
acknowledged legal authority, differs from Mommsen. 'He
suggests; "(1) Priority of rule of conduct, not law, is in
analogy with all we know of the laws of other nations.
(2) The college of pontiffs having charge of these codes is not
likely to have excluded any laws from their books, as they
were continually called upon to verify them. (3) Some of
the best of Roman laws can be traced to a religious source."
It would be foolish to expect at this early age a clear line
of cleavage between religious and secular laws. The Roman
priesthood was chosen from among the leading citizens and

■ .<

Chap. I] INTRODUCTION [§ 6

was always intimately associated with the political life of the
State. The civil law must, therefore, needs be permeated
with the religious spirit. It may be well here to add that
many of the imperative sayings attributed to the religious
guilds, which were believed to have been extracted from the
pontifical books, were merely axioms pertinent to the mat-
ter to which they belonged or referred, and were sanctioned,
not by law, but by fear of divine displeasure and reluctance
to lose the religious fellowship of those to whom they were
addressed. It is reasonable to suppose that some of these
came to do duty as laws, some sumptuary, some sanitary,
and some for the enforcement of public order and decency.
This was surely the case .with the burial laws of the Twelve
Tables. They had in them little of the nature of true law,
but were the regulation of a religious custom which was far
older.

It is necessary here to note that no original documents
of Roman law have come down to us. Dionysius of Hali-
carnassus tells us that the early laws of Rome were i 6. Source*
engraved upon tablets of oak and perished in one * ***

during tho

of the temples of Rome. We could scarcely ex- Regal

pect that these would survive the great fires which Period,
swept the sacred city at various times in its history.
Livy states that all the laws and treaties which were in
existence at that time were ordered sought out and copied by
Marcus Tullius, and he further testifies that this copy contained
not only the laws of the kings but also the Twelve Tables.
However this may be, it is certain that no copies in
regular and authentic form survive. What seems to have
been the only collection known to the Romans was mythical
in origin and wholly untrustworthy. The celebrated jurist
Pomponius, in the first book of the Digest (written a.d.

J 7] A HISTORY OF ROMAN LAW [Pabt I

117-138), asserts that all the laws enacted by the kings
were in existence at the time he wrote and were contained
in a compilation made by the pontiff, Sextus Papirius, hav-
ing the title " jus civile Papirianum." It is with the men-
tion of this work that Pomponius begins his account of the
sources of Roman law, and mentions Papirius as the first
of Roman jurists. This work of Papirius seems to have
been prepared about the close of the Republic and was merely
a private collection. The so-called leges regis were loose
statements of law concerned for the most part with sacred
matters. They probably dated back to the time of the kings
and bear testimony to the closeness of the original connection
between law and religion.

The question as to the origin and authenticity of these
leges regis was often discussed by the ancient writers
themselves. Livy says that the pontifical writings and other
records, both public and private, were destroyed by the
Gauls in 390 B.C. and that subsequently the chief task of the
magistrates was to collect all the treaties and laws that could
be found. In this task memory was, no doubt, resorted to,
and the more common religious laws together with the Twelve
Tables may have been reproduced with accuracy. But even
the records made in this manner have been completely lost,
together with the compilation made by Papirius, and we
know little more of the leges regis than their name.

We glean from the writings of Pomponius that originally
the law was far from definite, and much of it which existed
17- R«cb- fell short of the conditions which philosophical
l*^"101 jurists hold essential to the conceptions of law.
Private There was no single sovereign authority that
°fder* established it; its quality was not always the

same, and the enforcement was ofttimes left to the in-

Chap. I] INTRODUCTION [§ 7

dividual rather than the State. There were, however, many
rules established for defining men's rights and preventing
their infringement, regulators of public and private order,
out of which was to be evolved in the course of centuries the
matured jurisprudence of the Corpus Juris Civilis. Such
rules took shape under (1) Fas, (2) Jus, and the principles
of (3) Boni Mores.

(1) Fas was the expression of the divine will. Some of the
laws of Fas were directed, not against individuals of the
nation, but against all men and all nations. It was merely
the recognition of innate right and was not governed by any
law. It was its province to come in and correct the abuses
of Jus. Fas sometimes allowed what Jus forbade. "Tran-
sire per alienum fas est, jus non est/' Indeed, it occupied a
higher plane and had a fuller scope and wider range than any
human law. It forbade that a war should be undertaken
without the prescribed fetial ceremonies ; i.e., it required
the sanction of the divine will before anything should be
undertaken of national importance. Nothing was so impious
as a "bellum noh pium et purum." It required that faith
should be kept with an enemy when the promise had been
sanctioned by an oath. It enjoined hospitality to foreigners
because the stranger was also under the protection of the gods.
It punished murder as an offense against the gods who be-
stowed the life that had been taken away. It forbade the
sale of a wife by her husband, as she was the partner with
him of the sacra. It forbade violence to a parent, as this was
deemed subversive of society and religion. It forbade inces-
tuous connections, for such defiled the altar. It punished
the displacement of boundary stones, for boundary stones
were under the protection of the gods. Here there must
arise an interesting question. How were rules of Fas en-

58] A HISTORY OP ROMAN LAW [Pabt I

forced ? This is difficult to answer. The breach of any rule
of Fas rendered the offender impious, but his sin might be
expiable. This required a peace offering to the offended
deity as well as satisfaction to the injured party. An offense
which was not expiable was probably dealt with by the pon-
tiff, the person being declared sacer and left to the mercy
of the offended deity who was supposed to inflict punishment
consonant with the crime committed.

(2) Jus was the established law. It was the code of legal
authority which was accepted and obeyed by the people. It
was solely the product of human agency, while Fas was
deemed inspired. Jus might be the result of tradition, as " jus
moribus constitutum." Custom rather than statute seems
to have been the law of the regal period. We see this in the
patria potestas. Indeed, this fact is universally admitted.
The legis regiae mentioned by Pomponius must for the most
part have been rules of Fas which were of interest to the
public as well as to the pontiffs.

(3) Boni Mores were customary laws or rules of action
sustained by good usage, but not enforced in Jus and not
mentioned in Fas. There was a twofold change continually
going on in these three fields, but most especially in Fas.
Fas by recognition became Jus, and Jus by abeyance became
Boni Mores.

The customs of different races and gentes, which at first
were widely different, underwent a gradual change and
approximation. In course of time there was thus formed
one common body of laws.

It is of great importance to us in our beginning of the
5 8. Reii- study of Roman law to understand something of
glow insti- the character assumed by the State religion of the
ttttkms. Romans, as their religion was closely bound up

Chap. I] INTRODUCTION [J 8

with public law and all State matters. The Romans never
worked out a philosophical system of religion ; in fact, they
had no theology and no sacred books upon which to base a
system of theology. Their mythology was exceedingly crude
and rudimentary, and consequently there are no myths of
genuine Roman growth. The deities of the Italian nation
are to a very large extent blended with the Greek divinities,
and not infrequently the names are the same. It would seem
that the Romans simply naturalized the deities of Olympus
and transplanted the whole system of Greek mythology,
including their myths and sacred art. But in the practice of
religion which springs from feeling rather than from reflection
and fancy, the relation between God and man, "the senti-
ments with which the gods were approached, the duties
which they exacted, the worship prescribed for their service ;
in short, the law, or the practical as distinguished from the
theoretical part, were peculiarly Roman, and remained so
even when the whole host of the Greek Olympus had migrated
to Rome."

The religion of Rome became a fully and carefully elabo-
rated legal system. In it the duties of man were minutely
laid down and the fines incurred by each transgression
specified. "It regulated the intercourse between gods and
men, and showed how the good will and cooperation of the
gods could be obtained by a certain and infallible process."

It was chiefly from an Etruscan source that the Romans
derived their science of religion as well as the greater part of
their religious practices. These people possessed a ritual
which was very old, and all the religious institutions and rites
contained in the public law of Rome were no doubt from this
source. This whole complicated system of divine law was
placed in the keeping of the pontiffs, but they had no author-

§ 8] A HISTORY OF ROMAN LAW [Pabt I

ity to enforce it on their own word, as neither priests nor
pontiffs constituted an independent power in the State. The
priestly functions were considered by all the early Italian
nations as civil charges and were consequently a privilege of
the patrician cast. The Roman priest was under no obliga-
tions to law aside from the ordinary habits of society. He
was free to marry like any other citizen, and could aspire in
general to any dignity in the State which was open to a
citizen. These priests formed colleges or societies of which
the king was chief. No important enterprise was ever under-
taken without offering a sacrifice to the gods and without
consulting the oracles. The validity of a public act was made
to depend upon the determination of the divine will. It was
the province of the augurs, who presaged the result of any
enterprise by means of observations upon the entrails of the
sacrificial victims, attention to the flight, the song, or the
appetite of sacred birds, or the actions of the sacred serpents,
to discover this.

A conflict between the State and the priesthood was im-
possible, as the priesthood did not constitute a body distinct
from the rest of the community and had no independence
whatever. Priests were elected for life from among the body
of citizens and performed certain public functions that were
deemed necessary for the welfare of the State.

The sacra publics were those sacrifices and rites which
were performed by one or other of the sacred colleges of
priests in the name and at the expense of the city, and which
were religious ceremonies varying with the occasion, the divin-
ity, and the time. Every important act of a Roman, whether
public or private, assumed a religious character. For this
reason implicit reliance was placed on an oath, and their
respect for all things sacred knew no bounds. So long as this

Chap. I] INTRODUCTION [§9

religious faith remained honest and the priesthood really
believed in the ceremonies which they performed, the influ-
ence of religion must have been profound and the govern-
ment received from it a hierarchical character. The king
himself was but the high priest of the nation.

It was the supreme duty of the pontiffs to regulate the
calendar. In order to obviate inconvenience and attain to a
degree of accuracy in the calculation of time the {9. n*
year should involve the same time precisely that is Calendar,
occupied by the earth in its circuit round the sun. This
being the case, times and seasons correspond. We are told
by Censorinus that it was no uncommon thing for different
Italian nations to have years peculiar to themselves and
differing from each other so much that it was almost impos-
sible to compute the time of one nation in that of another.
The Romans at first adopted the year which was in use among
the Albans. This year was based upon the revolutions of
the moon and consisted of ten months, the first being March,
the last December. Of course these ten months contained
but three hundred and four days, while 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
was by this process of computing at one time in winter, and at
another in the summer, each month of the year being corre-
spondingly displaced. This want of harmony between the
months and the seasons could not fail to bring about a vast
amount of confusion. To obviate this, the Romans had
recourse to intercalation.

The early historians attribute the first correction of the
calendar to Numa, who is said to have added to the ten lunar
months two new ones, January and February. Of these
months January was placed at the first of the year and Febru-

§ 10] A HISTORY OF ROMAN LAW [Pabt I

ary at the last. But this correction still left an error of
something more than ten days to be accounted for. The
pontiffs distributed these days by periodic intercallation upon
a scheme to suit themselves. This left considerable uncer-
tainty and was a source of constant complaint on the part of
the historians of the period. These calculations were in-
timately connected with both the 'public and the private
law. The duration of magistracies, the classification of
feast days, the celebration of public or private ceremonies in
honor of the domestic deities, fixed and movable holidays,
the dies comitiales, upon which the comitia could be held,
and those upon which it could not, and, lastly, that which
was all important to the jurist, the days upon which the
magistrate could exercise his functions, when he was per-
mitted to pronounce judgment depended upon the decision
of the pontiff. The result of this was to place all func-
tions within the direction and under the control of the
priesthood.

In the time of Ovid the arrangement and the character

assigned to each day of the year had been in use for more than

three hundred years and were universally known; but in

the commencement and, for a period reaching far into the

republic, this knowledge was confined to pontiffs and the

patricians. The ordinary Roman could never tell what day

it was until he had heard the decision of the priests.

\ The entire population of Rome was divided into a ruling

* and a subject, or dependent, class. This division of the people

1 10. J}Mm can be clearly traced to the very beginning of the

riou of the State and points indisputably to a conquest of the

eo*6, lands and to the subjugation of the people that

formerly occupied it.

There was a part of the Roman law which was known in the

Chap. I] INTRODUCTION [§ 10

time of the empire as the jus quiritium ; i.e., the law of the
spearmen. The quirites were the members of the gentile
houses which were organized into curiae at an early date for
military and political purposes. These 'wielders

**f t r i iri rot i

of the spear' were the only persons who were
ranked as full Roman citizens of all the people that set-
tled about the 'urbs quadrata.' They alone could con-
sult the gods through the medium of the auspices and
participate in the services offered to the tutelary deities of
Rome. They alone could take part in the comitia, con-
tract a lawful marriage, or make a will. The quirites en-
joyed these prerogatives because they were members of the
gentile houses. The Roman State was based upon these
houses. The community of the Roman people rose out of
the junction of these ancient clanships, such as the Romilii,
Vaitinii, Fabii, and these clans in turn were but the aggregate
of families bearing a common name and, at least theoretically,
tracing their descent from a common ancestor. For this
reason the quirites, or burgesses, assumed the name of patricii,
or fathers' children. They alone in the eye of the law had a
father. Whether or not the traditional account of the
numerical proportion of families to clans and clans to curio:
has any substantial historical foundation, it is beyond all
reasonable doubt that the gentile organization was common to
all the races that contributed to the citizenship of Rome, and
that it was made the basis of the new arrangements of the
confederated State. As the clans resting upon a family basis
were the constituent elements of the State, so the form of
the body politic was modeled after the family, both generally
and in detail. The household was provided by nature with a
head in the person of a father with whom it originated and with
whom it perished. The State which was modeled after the

§ 10] A HISTORY OP ROMAN LAW [Pabt I

family had no natural head ; accordingly some one from the
ranks of the patriciate was chosen as leader (rex) and lord in
the household of the Roman community. The blazing hearth
and the store chamber of the community, which were in later
times always found in or near his residence, indicate with suffi-
cient exactness the nature of his position. ' The king had the
same powers in the State which the house father possessed
in the family.

The subject or dependent body was in the earliest times com-
posed of two classes : clients, or those dependent upon patrician
houses ; and plebeians, or those who were dependent
upon the whole body of patricians, i.e., the State.
To the family or household united under the control of the liv-
ing master and the clan which originated out of the breaking
up of such households, there further belonged the dependents
or clients. These were persons who, while they were not free
citizens of any commonwealth, yet lived within one in a con-
dition of protected freedonf . They had doubtless been dwell-
ers in small communities that had been deprived of their
independence, leaving their members alike bereft of their
religion, their territory, and their means of existence. These
were compelled to turn elsewhere for protection and, there-
fore, sought it from their conquerors in large numbers. To
this class also belonged those slaves whose masters had for
the time being waived the exercise of their rights and so be-
stowed upon them practical freedom. The relation in which
these clients stood was not properly in the character of a rela-
tion de jure, like the relation of a man to his guest or his slave :
the client remained non-free, although good faith and use and
want alleviated his condition of non-freedom. His patron

had to provide for his wants and those of his family, and it
was common for the patron to bestow upon his clients a plot of

Chap. I] INTRODUCTION [§ ltf

land to cultivate for themselves claiming in return a rent either
In produce or in money. This method was very similar to
that in vogue among the early English, save that the churl
could not be dispossessed so long as he paid his rent, while the
client's land was held wholly at the pleasure of his patron.
The patron had, moreover, to assist him in his transactions
with third parties, obtain redress for him for his injuries,
and represent him before the courts whenever he became
involved in litigation. The client on his part had to maintain
his patron's interest by every means in his power ; the prop-
erty which he accumulated was not his own, but belonged to
his patron, and as against his patron he had no rights and,
therefore, no protection from the law.

In its broader sense the term plebeian embraces the whole
non-free population, i.e., the clients and plebeians as the term
is here used. Upon the capture of a town it frequently
happened that instead of confiscating the whole territory and
selling the population into slavery or dispersing them to
become the clients of patrons, it seemed best to allow them the
continued possession of freedom de facto, so that in the capac-
ity of freed men of the State they entered into relations of
clientship to the king. This latter class had one advantage
over clients. They held their lands as private property,
paying to the State only such taxes as were levied upon citi-
zens. Whatever they accumulated was their own. At an
early date the floating population seems to have recognized
the advantage of placing themselves under the protection of
the State (i.e., the king) rather than of becoming clients of a
lord. This latter class grew rapidly at the expense of the
former. Rome liberally granted the privilege of settlement
to every child born of unequal parents, to every manumitted
slave, and to every stranger who, surrendering his rights in

Ill] A HISTORY OP ROMAN LAW [Pabt I

his native land, emigrated to Rome. The right of settlement
in Rome was granted to all the members of the Latin league.
Manumissions must have increased in number as the pros-
perity of the citizens increased, and these freed men had the
privilege, as time passed, of becoming clients of the State
rather than of a patron. This great body thus composed of
separate and distinct elements had always the right of acquir-
ing property in movables, and gradually obtained the right,
recognized by the Twelve Tables, of acquiring property in
immovables, i.e., in land. Thus they enjoyed many of the
privileges of citizens without having to share in the burdens.
The patricians, bearing the whole burden of warfare, were
scarcely more than holding their own, while these 'metoeci*
were increasing both by natural means, by conquest, and by
immigration. In this way there gradually grew up a second
community in Rome. Out of the clients and plebeians in the
restricted sense came the body of the 'independent plebs.'
This was a step in advance of clientship — as the feeling of
special dependence upon a privileged class was diminished
and there was born in its stead the determination to advance
to a condition of political equality with the privileged order of
citizens. The Servian Constitution was the first step toward
this political equality.

Roman law properly begins with the Twelve Tables and
S ii. dm- ends with the Code of Justinian. It thus cov-

afons of
Roman

Uw. by most legal historians into three periods : —

_ ers a period of one thousand years, and is divided

Roman

I. Prom the Founding of Rome to the Twelve Tables,
451 B.C.
;II. From the Twelve Tables to the Founding of the
Empire, 451-30 B.C.

Chap. I] INTRODUCTION [|11

III. From the Founding of the Empire to the Death of
Justinian, 30 b.c.-a.d. 565.

The imperial period is further subdivided by some
writers into : —

(a) 30 B.C. to the Reign of Alexander Severus, a.d. 222.

(b) a.d. 222 to the Death of Justinian, a.d. 565.

Hugo and Gibbon divide the entire field of Roman law
into four periods : —

I. Founding of Rome to the Twelve Tables, 451 B.C.

(Infancy.)
II. From the Twelve Tables to the Birth of Cicero, 104
b.c. (Youth.)

III. 104 b.c. to the Accession of Alexander Severus, a.d.

222. (Maturity.)

IV. a.d. 222 to the Death of Justinian, a.d. 565. (Old

Age.)

The German historian Puchta gives the following classi-
fication : —

I. From the Founding of Rome to the Twelve Tables,

451 b.c.
II. From the Twelve Tables to the Empire, 451 b.c-

30 b.c.
III. From the Empire to the Accession of Diocletian, 30

B.C.-A.D. 284.

IV. From Accession of Diocletian to the Death of Justin-
ian, a.d. 284-565.

In this work the following divisions are made : —

I. From the Founding of Rome to the Twelve Tables,

451 b.c (Infancy.)

5 11] A HISTORY OP ROMAN LAW [Part I

II. From the Twelve Tables to the Empire, 451-30 B.C.
(Youth.)

This period is further subdivided as follows : —

(a) 451 B.C. to the Submission of All Italy, 269 B.C.

(Jus civile).
(6) Submission of All Italy to the Empire, 269-230

b.c. (Jus gentium).

III. From the Empire to the Death of Justinian, 30 b.c.t-
a.d. 565. (Maturity and Old Age.)

The First Period of Roman law was characterized by a'
constant struggle on the part of the patricians and plebeians, >
the one for complete dominance, the other for complete
equality before the law. Out of this struggle came the
sources of the Roman law. In the Second Period, or Youth,
of Roman law, the civil wars took place, and, in order to ex-
tinguish them, the right of citizenship was bestowed upon
many of the Latins, while equality before the law was finally
obtained by the plebeians by means of gigantic revolutionary
efforts. This second effort may be subdivided into the jus
civile, or period of the dominance of the civil law of Rome, -
v to the subjugation of the entire Italian penisula, and the
jus gentium, or period in which the civil law was broadened
so as to embrace many fundamental legal principles which
were the common inheritance of all nations, to the Empire.
The latter division was distinguished by great development
in legal ideas, and some of the greatest of Roman jurists
lived and labored within this period. Among these were
Appius Claudius, iElius, and Cato.

In the Third Period arts and sciences flourished, and juris-
prudence developed as a philosophical science to a marvelous

Chap. I] INTRODUCTION l§ 12

degree. Four well-marked sources of law may be traced
during this time : —

1. Plebiscita.

2. Senatus Consulta.

3. Responsa Prudentium.

4. Principum Edicta.

sEach of these various sources had a marked degree of
influence and, combined, they developed a code which was
both logical and explicit. At the end of this third period the
inhabitants of provinces were assimilated into the body poli-
tic, and one law was enforced throughout the length and
breadth of the empire. Scsevola, Sulpicius, Paulus, Sabinus,
Julian, Papinian, Ulpian, and Modestinus all flourished dur-
\ ing these years. They must be ranked among the greatest
• jurists of all time and may be said to have completed the
science of jurisprudence. Subsequently it became the busi-
ness of lawyers, not to frame new laws, but to codify and
quote those that had already been enacted. With them
jurisprudence made no progress. Still their work was impor-
tant. By them three complete codes were compiled : —

I. The Gregorian Code, a.d. 290-300.
II. The Hermogenian Code, a.d. 365.
III. The Theodosian Code, a.d. 429.

The Gregorian and Hermogenian Codes were private
collections prepared by individuals and had no binding legal
authority, although they were considered of very great value.
The Theodosian Code, prepared under the direction of the
emperor Theodosius, received the sanction of the emperor
and became the binding law of the entire country.

The celebrated French historian, Ortolan, dis- { ia. Kind*
tinguishes four kinds of Roman law : — * Uw#

§ 12] A HISTORY OP ROMAN LAW [Pabt I

I. Public Law.
II. Sacred Law.

III. Private Law.

IV. Customs of the People.

Public law comprised the constitution, the machinery of
legal justice, and the right of enacting peace and war. Sacred
law regulated the ceremonies of religion both in public and
private and supervised the election of the pontiffs. Private
law was that which considered the interest of private asso-
ciation and regulated marriage, property, and inheritance.
The customs of the people had an influence equal to that of
all the others combined.

All these laws were semi-religious in character and were:
common to all infant States, but they never attained such
widespread influence among other peoples as they did in
Rome.

It was formerly customary for English lawyers, to hold
that Common Law was indigenous to all parts of England.
This, however, is not the case. An examination of the laws
of Henry III and Edward I reveals the fact that the jurists
that prepared the codifications of those reigns, and so crys-
tallized what we call the Common Law, copied in toto from
the Roman Code without any acknowledgment of the fact.
However, very little importance is to be given to this fact, as
everything of intellectual importance which has been im-
ported into England has been colored by the peculiarities
of the national characteristics. Roman law was one of the
most exact of sciences. It was a system distinguished above
all others for its logical and systematic development and ar-
rangement. It was almost revolutionized by the distortion
of one of its parts or the omission of a word. When this law

Chap. I] INTRODUCTION [|12

was interpreted by jurists who had not been educated in it,
it soon lost its distinctive characteristics and was merged in
the mass of English custom.

It is not, however, because Roman law was thus made use
of in the development of English jurisprudence and so made to
do duty as common law that we should study it to-day, but,
rather, because all laws, however dissimilar in use, tend to
resemble each other in maturity. The commentators upon
the English Common Law are accustoming themselves to
the same mode of legal thought and the recognition of fun-
damental legal principles to which the Roman prudentes
had attained by centuries of development. The business of
these prudentes consisted chiefly in the application of prin-
ciples and formulae which were supplied them both by canons
and examples, to the interpretation of the written law.
There is nothing in modern legal development which exactly
corresponds to this method of procedure. Sir Henry Maine
compares the power which the methods invented by these
Roman prudentes gave over their subject matter to that
which the geometrician obtains from his figures.

Book I. PROM THE FOUNDING OF ROME TO
THE TWELVE TABLES, 451 b.o.

Regal, Period : From the Founding of Rome to the

Republic, 734-509 b.c.

CHAPTER II

INSTITUTIONS OF THE PRIVATE LAW

In the discussion of the Roman family it is first neces-
sary for us to disabuse our minds of any preconceived con-
f 13. ceptions 'which the word gives rise to. The Roman

Family. family is not, as with us, a natural family.1 It is
the creation of the Quiritarian law. It would probably be
better for us to confine ourselves to the Roman word familia
instead of the English word family. Husband, wife, and
children did not necessarily constitute an independent family
among the Romans, nor were they all necessarily of the same
family. The Roman family is not based upon marriage, but
upon power. Those formed a familia who were all subject to
the right or power" (manus) of the same family head (pater
familias). He might have a whole host dependent upon
him, wife, and sons, and daughters, and daughters-in-law,
and grandchildren by his sons, and even remoter descendants
related through males. So long as these remained subject

1 Sohm, Institutes of Roman Law, pp. 356-359 ; Hunter, Roman
Law, pp. 203-204; Ortolan, Histoire de la legislation Romaine,
119; Muirhead, Historical 4 Introduction to the Private Law of
Rome, pp. 26 seq.

Chap. II] INSTITUTIONS OF THE PRIVATE LAW [§13

to him, they constituted but one f amilia. This was split up
only on his death or loss of citizenship. Thus it was that
the f amilia formed a unity; the man who had, upon his
father's death, become his own master, and the wife whom
the priest by the ceremony of the sacred salted cake (con-
f arreatio) had solemnly wedded to him to be a partner with
him of water and fire, with their sons and their lawful wives
and their unmarried daughters and sons' daughters, along
with all goods and substance pertaining to any of its members.
To the Roman citizen a house of his own with a wife and
children appeared not only a blessing, but the chief end and
essence of life. The death of the individual was not looked
upon as an evil, because the Roman saw in this a matter of
necessity, but the extinction of a household or of a clan was
a loss to the State which was to be guarded against in every
way possible.

Man alone could be the head of a family and as such was
recognized as a member of the community or State. The
woman necessarily belonged to the household and not the
community. In the household she was not a drudge to grind
the corn and make the bread, but the mistress who superin-
tended the labor of the servants and engaged in the lighter
task of spinning and weaving. The moral obligations of
parents were fully and deeply felt by the Roman nation.
Father and mother were held responsible for the careful
training and education of their children. To neglect them
or to squander the property to their disadvantage was looked
upon as the most heinous of offenses.

While the housewife was thus associated witji her husband
in the labor and care of the household, and looked up to and
honored, from a legal point of view the family was absolutely
guided and governed by the single all-powerful will of the

i 141 A HISTORY OF ROMAN LAW [Pabt I

'father-of-the-household.' In relation to him all other mem-
bers of the household were destitute of legal rights.

This power which the pater familias wielded in such an
arbitrary and unlimited manner was known in Roman law as
1 14. Pud* patria potestas.1 It was, in brief, that power
Potest**. which the pater familias enjoyed over children
born to him in juste nuptise. It is not improbable that to
some extent, at least, it was due to his being a participant of
sacra that he had this despotic power vested in him. This
patria potestas, though founded upon usage common to all
peoples, came to be so distinctly Roman that her jurists
boasted that it was an institution enjoyed by none save
Roman citizens. It is to be noted that the Latin munici-
palities of Spain and other western provinces, though their
burgesses were not Roman citizens, yet had patria potestas
modeled after %that of Rome. But this paternal power never
reached such intensity and all-pervading authority as it did'
in Rome. Here it would seem to have entitled the father,
or his pater familias if he were himself under domestic sub-
jection, to decide whether he would rear a child born to him.
He had the right and duty of exercising judicial authority
over the members of his household and, if need be, of pun-
ishing them as he deemed fit in life and limb. All property
gained by the labor or skill of any member of the household
belonged to the pater. He could even sell his son or daughter
as property to a third person. In fine, there was no legal
limit to the patria potestas. Romulus is said to have placed
boundaries to this authority, but only in a religious sense by
pronouncing a curse upon the pater who sold into slavery
his wife or son. Rome was centuries old before it became
possible either to destroy or mitigate this patria potestas,

1 Ortolan, 329; Muirhead, 113; Hunter, 188-223.

Chap. II] INSTITUTIONS OP THE PRIVATE LAW [|15

and then it could be accomplished only in a very roundabout
manner.

The death of the pater f amilias did not wholly destroy the
solidarity of the family. The immediate male descendants
were thereby made independent, and thus each
became the head of a separate family, but there .
still remained a bond of association which in some respects
preserved the old family unity. Roman law reveals the
institution, not wholly forgotten, of a certain association of
related families which still had something in common, and
which might have had a common life.1 There are marks
of this in both law and religion. Next above the family were
the agnati or agnated kindred. These were the connected
body of kinsmen on the male side that would have been mem-
bers of the same family had their common ancestor been liv-
ing. According to the older Roman view, a woman Was not
capable of having power either over others or herself. She
must be provided with a guardian upon the death of her
husband, or of her father, in case she was unmarried. This
guardianship remained with the house to which she belonged.
When the pater familias died, the nearest male members of
the family, usually sons, became the guardians of the female
members of the household. Sons thus had power over their
mother, and brothers over their sisters. In this legal sense
the family lived on until the male stock of its founder died
out. The bond of connection grew gradually weaker genera-
tion after generation, until it became no longer possible to
prove descent from the common male ancestor. At this
point agnation ceases, as the agnati were a group of actual
or adopted descendants from a known ancestor.

When we pass down the line of agnation until we reach the

1 Sohm, 124, 356, 358 ; Muirhead, 43 and n. 3, 117, 118.

i 16] A HISTORY OF ROMAN LAW [Part I

point where it is no longer possible to trace the descent from a
t _ _ known male ancestor, although the group claimed

I io. Gods*

such common descent, we arrive at the gens, or
clan.1 Sir Henry Maine says that the community of the
South Slavonians corresponds with the Roman gens and the
Teuton kings. He further claims that the gens answered
still more closely to the joint family of the Hindus. As
Sir Henry passed more than twenty years as a resident of
India and was a close and careful student of Hindu customs,
his word must have great weight.

Ortolan says that the first requisite to constitute a gens
was the tracing of the descent to the ultimate ground with-
out discovering an ancestor in a state of slavery. To this
Hunter adds that no one having suffered capitis deminutio
could ever be considered as a member of a gens.

The institution of gentes was of such a nature that we find
the members not only bearing the same name, but uniting
in politics, forming colonies, and even enduring exile together.
They were united by special religious ties that were cultivated
and fostered with the greatest care by the Roman govern-
ment. The notion of gens is associated with that of the
right of inheritance and the privileges enjoyed by the patron
in reference to clients and dependents. In the time of Gaius,
but apparently not in the time of Cicero, the claim of the
gens became extinct. The knowledge concerning this insti-
tution is so meager that it is no longer possible to construct
a satisfactory account of it. The gens, however, was not an
institution peculiar to Rome as it is found in the Greek
States in various parts of the world. One thing is certain ;
it was not a fortuitous institution. It had a common life ;

*Sohm, 359, 437-438; Muirhead, 38, 60, 210 ; Ortolan, 25, 130,
586.

Chap. II] INSTITUTIONS OP THE PRIVATE LAW [| 17

it had 8 common worship, and the object of that worship was
the deified ancestor of the gens. It had a common town or
village and possessed common property. It was answerable
for the debts of one of its members and was bound to ransom
any member who had been captured by the enemy. Each
gens had a common leader who was judge, priest, and mili-
tary commander. Lastly, the very name was said to be con-
nected with gignere and implies the theory of a common
descent, and this view is strengthened by that of a common
name. Dr. Canning argues that the gens is merely the patri-
archal family in a state of decay, and this reasoning seems to
be very hard to get away from.

With the early Romans, as with the Greeks and Hindus,
marriage was a religious duty, a duty which a man owed [alike
to his ancestors, to the State, and to himself. The § 17. Mar-
Roman believed that the happiness of the dead *****
in another world depended upon their proper burial and the
periodical renewal by their descendants of prayers and feasts
and offerings for the repose of their souls. It was, therefore,
incumbent on him above all other duties to perpetuate his
race and his family.1 When he took a wife he separated her
from her father's house and made her a partner of his family
mysteries. Henceforth she worshiped the gods of her hus-
band and was no longer bound to reverence those of her
father. In order that this change might be brought about, a
religious ceremony was performed by a priest with ten mem-
bers of the tribe of the bridegroom as witnesses. The nature
of this religious ceremony made it impossible for a man to
marry a woman with whom he had no connubium. She must
be a member of a gens connected by religious rites to that of
his own ; in other words, a citizen of Rome. This was a mat-

1 Sohm, 359, 360, 365-309 ; Muirhead, 26, 63, 84, 227.

1 17] A HISTORY OP ROMAN LAW [Part I

ter of State arrangement. A patrician citizen, therefore, was
compelled to wed either a fellow patrician or a woman who
was a member of an allied community to which this right had
been extended by treaty. This marriage ceremony was known
by the name of confarreatio (the breaking of the sacred cake
together). With this marriage ceremony the wife passed
into the complete control (in manu, into the hand) of her hus-
band, or, in case her husband was dependent, into that of her
husband's father. She was no longer a member of her father's
household. Any property which she might have passed to
her husband and whatever she earned during marriage fell
in like manner to her husband. On the death of her husband
she shared in the estate with her children as if she were a
daughter.

Romulus is reported by Plutarch to have enacted a law
that if a man divorced his wife for any other cause than
adultery he forfeited his estate, half to her, half to Ceres;1
if he sold her, he was to be accursed and given over to the
infernal gods. How this decree was to be enforced is a matter
of doubt. Surely the State had nothing to do with it. The
supposition seems to have been that the gods themselves would
inflict the prescribed punishment.

Upon the death of the pater familias all those who were
under his potestas either became independent (sui juris) or
fell into the power of another. Those under the age of pu-
berty were placed under guardians, and so became pupili.
With males this guardianship came to an end when puberty
was reached, but females remained under guardianship until
they married. This was doubtless to keep them from dis-
posing of any of the property to the prejudice of the heirs.
Muirhead does not believe that in the regal period a testa-

* Sohm, 381-384.
32

Chap. Ill INSTITUTIONS OF THE PRIVATE LAW [|18

mentary appointment of a guardian for wife and children
could be made. If this be true, then the office must have
devolved upon the agnati or gens, as I have previously stated,
and they delegated one of their number to act as guardian,
retaining the right of supervision in their own hands.

Plebeians were not citizens and, therefore, they did not
possess the necessary qualifications for legal marriage (juste
nuptise). They had certain forms of their own, however, in
accordance with which they married, but these were looked
upon with contempt by the patricians, who considered all
plebeian marriages null and children sprung from such unions
spurious.

Guilds are said by Plutarch to have been established by
Numa Pompilius, who organized the artisans and craftsmen
who had made their way into the city into eight § i&

or nine of these associations. Whether it was Oniidt.

actually Numa who first organized these trade-unions, it is
certain; that such associations are very ancient.1 It was the
creation of such associations among the plebeians that com-
pensated, to a certain extent at least, for the absence among
them of gentile organization. By means of these guilds the
plebeians obtained a common cult and possibly a common
burying place, with a master and his council to manage
their affairs, consolidate customs, and arrange disputes.
These guilds cannot be said to have had any political signifi-
cance in the first stages of their life. Their members were
bound together, not indeed by descent, either real or ficti-
tious, from a common ancestor, but by interdependence and
by similarity of tastes and occupations.

The next division of the populus Romanus above the
dan, and consisting of a certain though indefinite number of

1 Muirhead, 11.
33

§5 19, 201 A HISTORY OF ROMAN LAW [Part I

clans or gentes (the primitive division of ten households is not
historic), was the curia (from cura) or wardship. The curia
was a genuine ^corporate unity the members of
which held frequent assemblies for purposes of
worship and festal occasions. Each curia was under the
charge of a special warden known by the name of 'curio/
and each had a priest of its own (flamen curealis) to officiate
at religious ceremonies. The curia was the unit for military
levies and property valuations in the assessment of taxes.
Each of the three original tribes was supposed to be divided
into ten curiae, and the thirty curie by this arrangement made
up the 'ci vitas' or Roman State.

The comitia curiata1 was merely the assembly of the
curiae for the purpose of carrying on the business of the State.
I M. Comi- As the populus Romanus was at first merely the
tu Coriftta. body 0f citizens proper, the patricians, or those who
were members of the curice, none but patricians could take
an active part in the curiata. Plebeians might be admitted
to the meeting to hear what was being said, but they could
take no part in the proceedings, and certainly could not vote.

It is necessary to bear in mind at the outset that no
comitia could originate any measure, introduce amendments,
or discuss the merits or demerits of any subject whatsoever
that was brought before them. All the comitia curiata could
do was simply to vote yes or no to a proposition submitted
to them. Therefore all proposals coming up for their con-
sideration were rogations (bills from the senate) which they
passed by the formula 'uti rogas,' or rejected by the formula,
'antiquo.' That which was passed became law for the king
and senate as well as for the people. The main points upon

1 Ortolan, 22, 23, 27-31 ; Muirhead, 6, 48 n., 64 ; Sohm, 349,
386, 387; Botsford, The Roman Assemblies, I, 119-151, 152-167.

Chap. II] INSTITUTIONS OF THE PRIVATE LAW [§20

which the comitia curiata had to decide were : the election
of magistrates, the passing of laws, war and peace, the capital
punishment of Roman citizens, and the affairs of the curiae
and gentes.

In the regal period the only officer who was to be elected
by the curiae was the king. He appointed all the other magis-
trates. The candidate for king was first nominated by the
senate, and the curiata either elected or rejected this candi-
date.

The laws that were passed by the curiata were very few in
number and of little importance. Custom was almost the
only law. A few modifications were introduced by the senate
in the form of rogations. These were passed or rejected by
the comitia curiata.

The curiata decided upon questions of war and peace ; but
here again the proposal came from the king, all discussion
having been previously gone through in the senate. The
curiata simply gave formal sanction or refusal. There is no
existing evidence that the curiata ever made peace, but the
logical conclusion is that they sanctioned the agreement pre-
viously entered into by the king and senate.

The right of finally deciding upon the life of any Roman
citizen was vested from the earliest times in the populus as the
judiciary. Of course this confined the decision to the patri-
cians, as plebeians were not citizens. The organ of the
patriciate was the curiata. After the reforms of Servius this
right of passing judgment where a question of life was in-
volved passed to the centuriata.

All the priestly officers such as the curiones, flamenes cu-
riales, and pontiffs were either elected or inaugurated by the
curiata.

A subcommittee of the curiata, known by the name of

§21] A HISTORY OF ROMAN LAW [Part I

comitia calata, existed to carry on the necessary business
when the curiata was not in session. It was held under the
presidency of the college of pontiffs and settled questions of
arrogation, witnessed wills, elected the pontif ex maximus, and
conferred the magistracy. This was the formal bestowal of
the insignia of office upon the person vested with it by elec-
tion. When the comitia calata had ceased to exist, its old-time
function was performed by a representative body of thirty
lictors who were appointed for the purpose.

The place of meeting for the comitia curiata and also the
comitia calata was the capital, hard by the curia Calabra.1
Both assemblies were opened by prayer and sacrifice. The
curiata held its meetings after the senate upon certain days
only, having three market days intervening. It was to the
comitia calata that were announced the nones and ides of
new months, dies fasti, dies non fasti, dies comitiales, ferine,
etc.

By the side of the assembly of citizens (comitia curiata),
but not directly associated with them in legislation, there
Jrf ai. The existed from the earliest times another very im-
San*t0- portant body, the council of elders or senate
(patrum concilium).2 This body consisted of all the most
influential heads of families, and formed a sort of representa-
tive assembly. It, no doubt, had its origin in the old clan
constitution, and thus far tradition runs parallel with fact
in stating that in the original Rome the senate was composed
of all the heads of households. The ancient clan was a
monarchy under the rule of one elder, chosen to this position
for life by the clansmen. When the separate clans federated

1 Botrford, II, 154 ; Varro, De Lingua Latina, V, 13 ; VI, 27.
* Sohm, 77-78 ; Muirhead, 287 and n. 10 ; Ortolan, 19 ; Bote*
ford, 37, 101-113.

Chap. II] INSTITUTIONS . bF THE PRIVATE LAW [J21

into one community, these clan elders formed a sort of ruling
body, independent alike of the curia and the king, and partak-
ing to a certain extent of the powers of each. It shared with
the king the executive government of the State, and at the
same time indirectly controlled legislation. Its composition
must have partaken of the same irregularity as that of the
clans composing it, and, therefore, the number could not
have been arbitrarily fixed. Tradition states that Romulus
chose at first one hundred men to be senators, that this number
was doubled on the union with the Sabines, and that under
Tarquin one hundred more were added. Thus the normal
number would seem to be three hundred, corresponding to the
three hundred households or clans into which the ancient
tribes were- said to be divided. When it became no longer
possible to trace the clans and so have a senate composed
by natural selection of clan elders, the king selected this body
from the number of more prominent citizens. I •

It is impossible to believe that this forceful body of clan
leaders, brought together by the necessity of federation, con-
tented itself with the empty function of giving advice to the
king, when asked, without putting forth any effort to enforce
its opinions and so have an active part in government. This
was no doubt true in the republican period, when the senate
had been shorn of some of its prerogatives, but in the earlier
regal period it certainly partook of the executive government
of the State. In accordance with the monarchical principle
of the Romans with which they were alone acquainted, these
clan elders recognized the authority of the king and aided
him in carrying out his plans, but they manifested their real
power in their control of all elections and of all legislative
acts. The "authority of the fathers" (patrum auctoritas)
was here insisted upon to the fullest.

§ 21] A HISTORY OP ROMAN LAW [Part I

Another privilege of the senate was to determine when a
magister populi should be chosen for the command of the
army. Again, when the king died, the senate at once took his
place and exercised all the royal prerogatives, each member,
in turn, acting as king for five days and nominating his suc-
cessor. This idea of associate royalty was further indicated
by the senatorial dress. The insignia of the senator were
similar to that of the king, though inferior ; he wore the purple
on his dress and the red shoe like the king, but the whole
robe of the king was purple, and his shoes were much finer in
quality and finish than those worn by a senator. Thus, under
the sacerdotal kings, the senate occupied a most influential
position. On the senate devolved the duty of examining
every resolution adopted by the centuriata at the instigation
of the king, and refusing to confirm it if it seemed to violate
existing rights or work any unusual hardship. This amounted
to a practical veto on the action both of the curiata and the
king, and yet this must not be construed into bestowing upon
the senate the powers of a second legislative chamber, equal
to that of the comitia curiata. The senate was a watchdog
merely, and so guarded against innovations and hasty action
on the part of king or people.

A vast amount of discussion has arisen touching the rela-
tion in which the plebeian stood to the senate.1 Mommsen
Plebeians represents one extreme in this controversy. He
and the holds that plebeians were admitted to the senate
**' at a very early day and cites the word 'con-
scripti/ in the phrase, 'patres conscripti' as evidence of this,
inserting "et" so as to read 'patres et conscripti,' 'fathers and
those associated with the fathers/ Ihne is utterly opposed to
this view and takes the ground that the plebeians were in no

1 Botsford, 235.

Chap. II] INSTITUTIONS OP THE PRIVATE LAW [{21

way related to the senate ; that they were not admitted to
membership in this body and, having no gens, could not even
be represented. He deduces a great mass of evidence
against the view advocated by Mommsen and says that
'conscripti' does not mean what Mommsen says it does, but
has reference to the fathers, being used as an adjective and
designating those patres who were chosen (adlecti) from
among the other patres for senators, and not applying to ple-
beians at all who, according to Ihne, could not have been
made patricians without destroying the plebeian party by
removing its backbone.

Such an argument seems to me to be out of place in the
early regal period when clans were still vital and election
rarely resorted to, and then naturally limited to the clan
whose leader had been recently removed by death. But in
the later regal period and early republic when election to the
senate became the rule, the argument of Ihne touching the ex-
clusion of plebeians seems to be unanswerable.

The places for holding the senate were always consecrated
by the augurs.1 The oldest place of meeting was the Curia
Hostilia, in which alone, originally, a senatus con- puce of
sultum could be made. Later in the history sev- Meeting,
eral tempjes were made use of for this purpose, such &s the
temple of Concordia.

The king, or perco acting in his name, after consulting
the pleasure of the gods by auspices, convoked the senate
(convocare) by summoning each individual by Convening
name, and opened the session with the words : the Senate-
"Quod bonum, faustum, felix fortunatumque sit populo
Romano Quiribus." He then laid before the body what he
had to propose.

i Botsford, 130.
39

i 21] A HISTORY OP ROMAN LAW [Part I

The senate was regularly held with open doors, but no one
could be present save senators, lictors, pages, and scribes;
later, tribunes, sons of senators, and foreign ambassadors
were admitted to the floor. The man who called the senate
regularly presided at the meeting.

No one could speak upon any question unless called upon
by the presiding officer, and no new business could be brought
Controlling forward by any one save the presiding officer.1
Business. f^g magistrate regularly called upon members to
speak in the order of their rank, but this order was not always
followed. Sometimes he called upon members to speak twice.
There was no real discussion of the question. A senator
sometimes broke away and talked of something outside of
the business in hand, but this was only as a question of
privilege.

A vote was taken (sententiam rogare) by a simple method
of polling ; each man, when asked, expressed himself either as
in favor of or as opposed to the bill as introduced by a state-
ment of his agreement or disagreement with the view
held by the presiding officer.2 Sometimes a standing vote
was called for, known as pedibus sententiam. An opinion
of the senate thus taken, which required a vote of the
people, was known as a senatus consultum. When the sen-
ate passed an act which did not require a popular vote, it was
called senatus decretum. All bills were inscribed in the sen-
ate before witnesses. The name of the decree and date of
passage were affixed, and the tribunes (in the republican pe-
riod) agreed to it by inscribing the letter "c." The senate
was adjourned by the presiding officer rising and saying,
"We delay for no other business."

The power of the senate was ever the compelling force,

' Botsford, 188-197, 230-232, 304. * Ortolan, 287.

Chap.II] INSTITUTIONS OP THE PRIVATE LAW [§22

of the best public opinion legally expressed. It always
overawed the populace and generally controlled the king.1

As the Roman State was built up out of a number of clans
which in turn were composed of families, so the form of the
body politic was modeled after the family, both in general and
in detail. The family was provided by nature with a head
in the person of the father with whom it originated. The
State was merely an overgrown family that traced its descent
from one mythical founder. As no such person lived to
perform the functions of the house father, it seemed but
natural to choose from among the patricians some one to act
in his stead. Accordingly one of their number § &. The
was set apart for this duty and became the ****

leader (rex), and master and lord in the household of the
Roman community. As the house father was also the
family priest, his representative, the king, was high priest
of the nation. The family theory was carried out com-
pletely in the case of the king. He was consecrated by
proper religious ceremonies and set apart for life to the
duties of his office. He possessed in fullness that power
over the community which belonged to the house father in
his household. He held intercourse with the gods of the
community and consulted them continually for the common
welfare, and offered sacrifices to appease their wrath in case
the divine displeasure had been incurred. He concluded
treaties in the name of the community with foreign powers
that were binding upon all. He was commander in chief
of the army, and his power was unlimited. Lictors preceded
him, bearing axes and rods, the emblems of the power of life
and death. He kept the keys of the public treasury and was
the only one who had the right publicly to address the

1 Muirhead, 68-75.
41

5 23] A HISTORY OF ROMAN LAW [Pabt I

citizens. He it was who sat in judgment in all private and in
all criminal processes. He was also chief fireman and was
himself bound to respond in person whenever an alarm of fire
was sounded.. Some of his functions he delegated to sub-
ordinates, who acted in his name. Thus judges nominated
by him tried criminal cases, and military commanders,
acting in his name, ofttimes relieved him of the burden of
commanding the army in the field. But at the last analysis
all executive and judicial functions were performed by the
king. While it was considered an honorable and highly
valued thing to be of noble descent and related to earlier rul-
ers, it was not a necessary condition. Any Roman citizen of
mature age and sound mind and body could fill the kingly
office.

The Romans were a people that originally gave their
almost exclusive attention to agriculture and stock-raising.
. To say that a man was a good farmer was, at one

Landed time, to bestow upon him the highest praise.1
p**per*y" This character, joined to the spirit of order and
private avarice which in a marked degree distinguished the
Romans, has contributed to* the development among them of
a civil law which is perhaps the most remarkable monument
which antiquity has left us. This civil code has become the
basis of the law of European peoples, and recommends the
civilization of Rome to the veneration of mankind.

Urbs, the name of the village, takes its origin, according
to an etymology given by Varro,* from the furrow which the
plow traced about the habitations of the earliest dwellers.

1 Cato, De Re Rustica, I, lines 3-8 ; " Majore^nostri . . . virum
bonttm cum laudabant, ita laudabant, bonum agrioolam bonumque
eolonum. Ampiissime laudari existimabatur, qui ita laudabatur."

* Varro, De Lingua Latina, V, 143.

Chap. II] INSTITUTIONS OP THE PRIVATE LAW [J23

But what is of more interest to us is that the legal signification
of Urbs and Roma was different. The former was the village
comprised within the sacred inclosure; the latter was the
total agglomeration of habitations which composed the vil-

lage, properly so called, and the outskirts, or suburbs. The
powers of certain magistrates ceased with the sacred limits of
the Urbs, while the privileges accorded to a citizen of Rome
extended to the village and the suburbs and finally embraced
the entire Roman world.1

The most ancient documents which have reached us from
the history of India and Egypt show that they had landed
property fully established, while Roman annals reveal to us
the very creation of this institution. Whatever modern
criticism may deduce, Dionysius, Plutarch, livy, and Cicero
agree in representing the first king of Rome as merely estab-
lishing public property in Roman soil. This national prop-
erty the people possessed in common and not individually.
Such appears to us to be the quiritarian property par excel-
ence,* and its primitive form was a variety of public com-
munity * of which individual property was but a later solemn
emancipation. To this historic theory attaches the true
notion of quiritarian land of which we will speak in greater
detail hereafter.

As regards the organization and constitution of individual
and private property, the traditions themselves attribute
this to the second king of Rome, the real founder of Roman
society, who divided the territory among the citizens, marking
off the limits of individual shares and placing them under the

1 Frag, of Digest, 287 and 147 of Title 16, Bk. 5, with notes of
Schultung and Small.

1 Plutarch, Romulus, par. 19.

* Mommsen, History of Rome, I, 194.

§23] A HISTORY OP ROMAN LAW [Part I

protection of religion. In this way a religious character was
given to the institution of private property. Thus a primi-
tive division of territory appears to have been the basis of
these varied traditions, but the precise form of this division
eludes us.

The Roman territory, as is shown in another chapter, was
confined for many ages to a surface of very limited extent,
which properly bore the name of Ager Romanus. This name
with signification slightly changed appeared to be still in use
in the time of the empire, and even at the present day a por-
tion of the Roman territory which very nearly corresponds to
the ancient territory of the regal period is called Agro Ro-
mano.1

Both city and land increased with time. Property seems
to have been added and lost successively during the regal
period.2 The last increase of the Ager Romanus was due to
the labors of Servius Tullius, and it was in the reign of this
king that it reached its greatest limit. Dionysius * says ; "As
soon as he (Servius) was invested with the government, he
divided the public lands among such of the Romans as, having
no lands of their own, cultivated those of others. ... He
added two hills to the city, that called the Viminal and the
Esquiline hill, each of which forms a considerable city ; these!
he divided among such Romans as had no houses, to the
intent that they might build them. . . . This king was
the last who enlarged the circumference of the city by the
addition of these two hills to the other five, having first con-
sulted the auspices as the law decided, and performed the
other religious rites. Further than this, the city has not since

1 8i8mondi, Etudes sur l'econ. polit., I, 2, par. 1.

» Dionysius, II, 55 ; III, 4&-50 ; V, 33, 36 ; Iivy, I, 23-36.

* Dionysius, IV, 13.

Chap. II] INSTITUTIONS OF THE PRIVATE LAW [523

then been extended." Without doubt these possessions re-
ceived great additions in later times/ but they were not
incorporated in the Ager Romanus as the* preceding had been.
The subjugated territories kept their ancient names, while
their lands were made the object of distributions to the
people, of public sales to the citizens who also extended
their possessions outside of Roman territory,2 or else the new
conquests were abandoned to municipia, given up to colonies,
or became a part of that which was called Ager Publicus.
In fine, it was a fundamental principle of the public law of
Rome that the lands and the persons of the conquered be-
longed to the conqueror, the Roman people, who either in
person or by their delegates disposed of them as it seemed
best. Among the ancients war always decided concerning
both liberty and property.

The result of all these facts is that the Roman territory
was made the object of a division or a primitive distribution
either among the three races of the first population, or, a
little later, among the citizens or inhabitants. This very
same principle has been frequently observed in recent times in
regard to confiscated * territories and conquered peoples.

But what was the allotment of the first distribution of
land ?

Upon this topic the ancient authorities are blind and
confusing to such an extent as to be wholly inadequate for
the solution of the difficulty. Among the more recent au-
thorities, two opposing systems have been sustained, the one
represented by Montesquieu, and the other by Niebuhr.
(1) According to Montesquieu, the kings of Rome divided the

1 Varro, De lingua Latina, V, 33.

* Sigonius, De Antiq. Juris Cir. Rom., Bk. I, eh. 2.

• Hume's Hist, of Eng., I, oh. 4 ; IV oh. 61.

{ 23] A HISTORY OP ROMAN LAW [Part I

land into perfectly equal lots for all the citizens, and the title
of the law of the Twelve Tables relative to successions was
for no other object than to establish this ancient equality
of the division of lands.1 (2) Niebuhr,* on the contrary,
claimed that territorial property was primitively the attribute
of the patriciate, and every one. who was not a member of
this noble race was incapable of possessing any part of the
territory. From this theory the author deduced numerous
consequences which are important both to law and history.
Neither of these systems is free from errors. Montesquieu
seems to have made no difference between patrician and ple-
beian in using the term citizen, while it is no longer disputed
that the plebeian was not a burgess and consequently had no
civic rights save those granted to him by the ruling class.
His idea of goods must have, at least, become chimerical at a
very early date, as this equality was so little suspected by the
ancients that Plutarch,8 after having spoken of the efforts
of Lycurgus to overturn the inequality of wealth among the
Spartans, accuses Numa of having neglected a necessity so
important. It is, moreover, difficult to see how Montesquieu
could think that testamentary disposition tended to maintain
equality when the privilege was accorded to every citizen of
disposing of his entire patrimony by will even to the prejudice
of his children.4 Again, the law of debt was hardly favorable *
to equality.

Niebuhr clearly* denied the existence of the plebs until
Ancus incorporated the Latins and bestowed upon them

1 Esprit dee lois, liv. 27, o. I.

f Roman History, II, 164, III, 175 and 211.

1 Lycurgus and Numa, II ; Cicero, De Republics, II, 9.

4 Muirhead, Roman Law, 46 and note — uti legasset suae ret
ita jus esto.

5 Muirhead, 92-96. • Niebuhr, I.

Chap. II] INSTITUTIONS OF THE PRIVATE LAW [§23

peculiar privileges, thus forming a new and third class distinct
from both patricians and clients. Had Niebuhr succeeded
in establishing this view, the right to landed property would
appear to be wholly vested in the patricians, for a client,
from the very nature of his position, could hold nothing inde-
pendent of his master. But this theory has fallen to the
ground, and no writer of the present day pretends to uphold
it.1 The plebeians existed from the very first, and some of
them held land in full private ownership very little different
from the quiritarian ownership of the patricians. Cicero,
who in his Republic has occupied himself with the ancient
constitution of Rome and has spoken in detail of the division
of the lands, always speaks of the distribution among the
citizens without regard to quality of patrician or plebeian,
divisit viritim civibus. He has nowhere written that terri-
torial riches were the exclusive appanage of the patriciate. It
must be confessed, however, that it is doubtful whether he
intended to embrace the plebeians in his " civibus. " For more
than two centuries before the time of Cicero the plebeians had
enjoyed the full rights of Roman citizenship, but for more than
that length of time property had been concentrated in the
hands of the aristocracy. This result was the consequence of
the Roman constitution 2 and the establishment of a populous
city in the midst of a narrow surrounding country. Roman
policy had ever been conducive to this concentration, and
the nobility, who had the chief direction and administration
of public affairs, had little by little usurped the property
which formed the domain of the State, i.e., Ager Publicus, and
swallowed up the revenues due the treasury.

1 Mommsen, I, 126 ; Dine, I ; Nitzseh, Geschiohte der rftmisohen
Republik, 52; Lange, Rdmiaohe Gesohichte, I, 18.

* Dureau de la Malle, M6m. sur lee pop. de l'ltalie, 500 el seq. ,

5 24] A HISTORY OF ROMAN LAW [Pabt I

Citizenship was the first requisite to the right of property
in Roman territory. This rule, although invariable and in-
§ a* Qaki- herent in the Roman State, bent under the influ-
tarian ence of international politics or the philosophy ,of

wnenhip. |aw^ yet ^ severity affords us a notable charac-
teristic of the law of ancient Rome. Cicero and Gaius have
preserved to us an important monument of this law in a
fragment of the Twelve Tables which proclaims the solemn
principle, adversus hostem seterna auctoritas esto.1 Hostis
in the old Latin language was synonymous with stranger,
peregrinus.2 This Roman name was, moreover, applied to a
person who had forfeited the protection of the law by reason
of a criminal condemnation, and who was therefore desig-
nated peregrinus.8

Auctoritas also had in 'old Latin a different signification
from what it had in later Latin. It expressed the idea of the
right to claim and defend in equity. It was very nearly
equivalent to the right of property.4 .The sense of the
Roman law was, then, that the peregrinus could not bar or
proceed against a Roman, a disposition somewhat similar
to the old law of England.6 And as it was necessary to be a
citizen in order to acquire by the civil and solemn means
which dominated the law of property in Rome, it followed
that the peregrini were excluded from all right to property in
land by those laws. This exclusive legislation for a long time

1 Cicero, De Officiis, I, 12 ; Gahia, Frag., 234 ; Digest, 50, 16.

1 Varro, De lingua Latina, V, 14 ; FLautus, Trinummus, Act I,
Scene 2, V, 75 ; Harper's Latin Dictionary ; Cicero, De Off., 1, 12 ;
''Hostis enim apud majores nostros is dioebatur, quern nunc pere-
grinum dicimus."

• Cicero, foe. cit.; Gains, Frag., 234.

4 Foroellini, Lexicon ; Harper's Latin Lexicon.

* I.e., the descendants of a person escheated could bring no action
for the recovery of the property.

Chap. II] INSTITUTIONS 0$ THE PRIVATE LAW [5 24

governed Europe and did not disappear even from the Code
Napoleon of 1809.1

We have a forcible example of the severity of the old Roman
law in this regard in the text of Gaius, — " Aut enim ex jure
quiritium unusquisque dominus erat, aut non intelligebatur
dominus." *

Dominium was therefore inseparable from Jus Quiritium,
the law of the Roman city, the optimum jus civium Roma-
norum. The peregrinus was excluded from landed property
both Roman and private ; he could neither inherit nor trans-
mit, claim nor defend in equity. Moreover, the name pere-
grinus was not confined to the stranger proper, but was also
bestowed upon subjects of Rome8 who, being deprived of
their property and also of political liberty by right of conquest,
had not received the right of citizenship which was for a long
time confined within very narrow limits. It would thus
appear conclusive from the law quoted that the client and
plebeian could not at first hold land optimo ex jure quiritium.

Thus the tenure of the patricians was threefold : first, they
had full property in their own land ; second, they had a seign-
iorial right, jus in re, in the land of their clients and the
plebeians whose property belonged to the populus, i.e., the
generality of the patricians ; in the third place, in their own
hands, they had lands which were portions of the domain and
which were held by a very precarious tenure called possessio.

According to Ihne, all lands in Rome were held by the
above-mentioned tenures until the enactment of the Icilian
law converting the former dependent and incumbered tenure
of the plebeians into full property.

1 Giraud, Recherchea sur le Droit de Propria, p. 219.

* Gaius, Bk. II, 40.

* Ulpian, Frag., Title XIX, 4 ; Giraud, 216.

§ 25] A HISTORY OP ROMAN LAW [Part I

In her early history Rome was continually making fresh con-
quests, and in this way adding to her territory.1 She stead-
525. Ag«r fastly pursued a course of destruction to her neigh-
Publicum j^pg 'm or(jer that she might thereby grow rich

and powerful. In this way large tracts of territory became
Roman land, the property of the State or Ager Publicus.2
This public land extended in proportion to the success of the
Roman arms, since the confiscation of the territory of the
vanquished was, in the absence of more favorable terms, a
part of the law of war. All conquered lands before being
granted or sold to private individuals were Ager Publicus,8
a term which with few exceptions came to embrace the whole
Roman world.

This Ager Publicus was further increased by towns4
voluntarily surrendering themselves to Rome without await-
ing the iron hand of war. These were commonly mulcted
of one third of their land.6 " The soil of the country is not
the product of labor any more than is water or air. Individual
citizens cannot therefore lay any claim to lawful property in
land as to anything • produced by their own hands/' The
State in this case, as the representative of the rights and inter-
ests of society, decides how the land shall be divided among
the members of the community, and the rules laid down by the
State to regulate this matter are of the first and highest im-
portance in determining the civil condition of the country
and the prosperity of the people. Whenever but one class
among the people is privileged to have property in land, a most

1 Long, Decline of the Roman Republic, I, oh. xi.
1 Muirhead, Roman Law, 92.

* Ortolan, Histoire de la legislation Romaine, p. 21.
4 Mommsen, I, 131 ; Arnold, I, 157.

• Dionysius, IV, 11, Iivy.
•Ihne, I, 175.

Chap. II] INSTITUTIONS OP THE PRIVATE LAW [§25

exclusive oligarchy is formed.1 When the land is held in
small portions by a great number and nobody is legally or
practically excluded from acquiring land, there we find pro-
vided the elements of democracy.

According to the strictest right of conquest in antiquity,
the defeated lost not only their personal freedom, their move-
able and landed2 property, but even life itself. All was at
the mercy of the conquerors. In practice a modification of
this right took place, and in Rome extreme severity was
applied only in extreme cases, generally as a punishment for
treason.8

This magnanimity was not rare, and it even went so far as
to restore the whole of the territory to the people subdued.4
But let us not suppose that this humanity toward a con-
quered people' sprang from any pity inspired by their forlorn
condition. It was due merely to the interest of the con-
querors themselves. The conquered lands must still be
cultivated and the depleted population restored. For this
reason the conquered had generally not only life and freedom
left them, but also the means of livelihood, i.e., some portion
of their land. This portion they held subject to no restric-
tions or services save those levied upon quiritarian property*
It was private property to the full legal extent of the expres-
sion, thus being in the unlimited disposition of the individual.5
These people formed the nucleus of the plebeians, the free-

l/Wd.

9 Livy, Bk. I, c. 38, with note by Draohenborch ; Livy, Bk. VII,
o.31.

1 Siculus Flaoeus, De Conditione Agrorum, 2, 3: "Ut vero
Romani omnium gentium potiti sunt, agros alios ex hoste captos
in victorem populum partiti sunt, alios vero agros vendiderunt,
ut Sabinorum ager qui dieitur questorius."

4 Cicero, in Verrem, II, Bk. 3, par. 6.

* Giraud, Droit de propriltl chez les romains, 160.

§ 25] A HISTORY OF ROMAN LAW [Part I

men who were members of the Roman State/ without
actually having any political rights.

The Ager Publicus was the property of the State, and as
such could be alienated only by the State.2 This alienation
could be accomplished in two ways : (a) by public sale, and
(6) by gratuitous distribution.

(a) The public sale was merely an auction to the highest
bidder, and in the later days of the monarchy and early part
of the republic, rich plebeians must have become possessed
of large tracts of land in this way, the privilege of acquiring
property in land having been extended to them some time
before the Servian reform.8

(6) The gratuitous distribution of land was accomplished
by means of Agrarian Laws or royal grant and had for its
object the establishment of colonies for purposes of defense,
the rewarding of veterans or meritorious soldiers,4 or, in
later times, the providing for impoverished plebeians.

But even in the earliest times a portion of the domain
lands was excluded from sale or private appropriation,8 in
order to serve as a resource for the needs of the State. This
was the general usage of ancient republics, and this maxim
of reserved lands was recommended by Aristotle 6 as the first
principle of political economy.

Such reserved ager publicus was leased either in periods
of five years (quinquennial leaseholds) or perpetually, i.e.,
by emphyteutic lease or copyhold. From these lands 7 the

^Ihne, I, 175.

1 Muirhead, 92 ; Giraud, 165.

1 Hygin. De limit. Const, apud Goes. Rei Agr. Script., pp. 159-
160.

« Giraud, 164. • Dionysius, II, 7.

• Aristotle, Politics, Z. Ke<£. $. 7 : fAmyKaibv rotor elf ftfo pe>ij fttip$<rfai
fV x*&Pap *** TV M*" C^WM coir^r, Hfp 3t rwr IduarQv.

» Giraud, 163.

Chap. IIJ INSTITUTIONS OF THE PRIVATE LAW [|26

treasury received an income of from one tenth to one fifth
of the annual crops.

Besides these legal methods mentioned, there was another
very common one which was seemingly never established by
any law and therefore existed merely by title of tolerance.
I speak of the indefinite possessio, which was nothing but
an occupation on the part of the patricians 1 of the land be-
longing to the State and was in nature quite similar to the
so-called "squatting" commonly practiced in some of our
Western States and territories. The title to the enjoyment
of the public lands was at first clearly vested in the patri-
cians, nor was this right extended to the plebeians until
, after they had been admitted to full citizenship. With
regard to the State, the possessor 9 was merely a tenant at
will and could be removed whenever desired ; but as regarded
other persons he was like the owner of the soil and could alien-
ate the land which he occupied either for a term of years, or
forever, as if he were the real proprietor.8 The public land
thus occupied was looked to as a resource upon the admission
of new citizens. They customarily received a small free-
hold according to the general notion of antiquity that a
burgess must be a landowner. This land could only be
found by a division of that which belonged to the public,
and a consequent ejectment of the tenants-at-will. In the
Greek States every large accession to the number of citizens
was followed by a call for a division of the public lands and,

1 Festus, p. 209, Lindemann ; Cicero, ad Att., II, 15 ; Philipp., V,
7; De Leg. Agr., I, 2, III, 3; De Off., II, 22; Iivy, II, 61, IV, 51,
53, VI, 4, 15; Suet., Julius Caesar, 38; Octavius, 13, 32; Caesar,
De Bell. Civ., I, 17 ; Orosius, V, 18.

1 Aggenus Urbieus, p. 69, ed. Goes.

'Qiraud, 185-187; Mommsen, I, 110; Ortolan, 227; Hunter,
Roman Law, 367.

§ 26J A HISTORY OF ROMAN LAW [Pabt I

as this division involved the sacrifice of many existing in-
terests, it was regarded with aversion by the old burgesses
as an act of revolution. A great part, of the wealth of the
Romans consisted in domains of this kind, and the question
will occur to the thoughtful mind how the government was
able to keep the most distinguished part of her citizens in a
legal position so uncertain and alarming.

Probably in no other way does the Roman government so
clearly reveal its nature and strength as in its method of
I a6. colonization. No other nation, ancient or mod-

Roman era, has ever so completely controlled her colonies
** as did the Roman. Her civil law, indeed, re-
flected itself in both political and international relations. In
Greece, as soon as a boy had attained a certain age his
name was inscribed upon the tribal rolls,1 and thenceforth he
was free from the potestas of his father and owed him only
the marks of respect which nature demanded. So, too, at
a certain age, the colonies separated themselves from the
mother city without losing their remembrance of a common
origin. This was not so in Rome. The children2 were
always under the potestas of their parents. By analogy,
therefore, the colonies ought to remain subject to their
mother city. Greek colonies went forth into a strange land
which had never been conquered by Hellenic arms or hitherto
trod by Grecian foot. Roman8 colonies were established
by government upon land which had been previously con-
quered and which therefore belonged to the Roman domain.
The Greek was fired with an ambition to obtain wealth and

1 Bouchaud, M. A., Dissertation but les colonies romaines, pp.
114-222, en Memoires de I'institut Sciences, Morals et Politique,
III.

* Muirhead'8 article on Roman Law in Enc. Brit. ; Ihne, I, 235.

• Mommsen, I, 145.

Chap. Ill INSTITUTIONS OP THE PRIVATE LAW [§26

personal distinction, being wholly free to bend his efforts to
personal ends. Not so the Roman. He sacrificed self for
the good of the State. Instead of the allurements of wealth,
he received some six jugera of land, free from taxation, it is
true, but barely enough to reward the hardest labor with
scanty subsistence. Instead of the hope of personal dis-
tinction, he in most cases sacrificed the most valuable of his
rights, jus suffragii et jus honorum l and suffered what was
called capitis diminutio/ He devoted himself, together with
wife and family, to a lifelong military service. In fact, the
Romans used colonization as a means to strengthen their
hold upon their conquests in Italy9 and to extend their
dominion from one center over a large extent of country.
Roman colonies were not commercial. In this respect they
differed from those of the Phoenicians and Greeks. Their
object was essentially military,8 and from this point of view
they differed from the colonies of both the ancients and mod-
erns. Their object was the establishment of Roman power.
The colonists marched out as a garrison into a conquered
town and were exposed to dangers on all sides. * Every colony
acted as a fortress to protect the boundary and keep subjects
to their allegiance to Rome. This establishment was not a
matter of individual choice, nor was it left to any freak of
chance. A decree of the senate decided when and where
a colony should be sent out, and the people in their assemblies
elected individual members for colonization.

From another point of view Roman colonies were similar
to those of Greece, since their result was to remove from the

1 Mommsen, toe. cit.

* Brutus (Appian, De Bello Civile, II, 140) calls the colonists,

'Ihne, I, 236.

{ 26] A HISTORY OP ROMAN LAW [Pabt I

center to distant places the superabundant population, the
dangerous,1 unquiet, and turbulent.

But the difference in the location of the colonies was easy
to distinguish. In general the Phoenicians and the Greeks,
as well as modern peoples, founded their colonies in unoccu-
pied localities. Here they raised up new towns which were
located in places favorable to maritime and commercial
relations. The Romans, on the contrary, avoided establish-
ing colonies in new places. When they had taken posses-
sion of a city, they expelled from it a part of the inhabitants,
whether to transfer them to Rome as at first, or, a little later,
when it became necessary to discourage the increase of Ro-
man population, to more distant places. The population
thus expelled was replaced with Roman and Latin citizens.2
Thus a permanent garrison was located which assured the
submission of the neighboring countries and arrested in its
incipienpy every attempt at revolt. In every respect these
colonies remained under surveillance and in a dependence
the most complete and absolute upon the mother city, Rome.
Colonies never became the means of providing for the im-
poverished and degraded until the time of Gaius Gracchus.
When new territory was conquered, there went the citizen
soldier. Thus these colonies mark the growth of Roman
dominion as the circumscribed rings mark the annual growth
of a tree. They were of two kinds, Latin and Roman.

1. Latin colonies were those8 which were composed of
Latini and Hernici, or Romans enjoying the same rights as
these, i.e., possessed of the Latin right rather than the Ro-

1 Cicero, Ad Att., I, 19: "Sentinam urbis exhaurire, et I tali©
solitudinem frequented posse arbitrator."

1 Mommsen, I, 145.

1 Marquardt u. Mommsen, IV, 35-51; Mommsen, History of
Rome, I, 108, 539 ; Madvigi Opuscula Academica, I, 208-305.

Chap. II] INSTITUTIONS OF THE PRIVATE LAW [|27

man franchise. They were established inland as road for-
tresses and, being located in the vicinity of mountain passes or
main thoroughfares, acted as a guard to Rome, and held the
enemy in check.

2. Roman, or Burgess, colonies1 were those composed
wholly of Roman citizens who kept their political rights and
consequent close union with their native city. In some cases
Latini were given the full franchise and permitted to join
these colonies. In position, as well. as rights, these colonies
were distinguished from the Latin, being with few exceptions
situated upon the coast, and thus acting as guards against
foreign invasion.

Professor Mommsen says;1 "Land among the Romans was
long cultivated upon the system of joint possession and was
not distributed until a comparatively late age; §27. Joint
the idea of property was primarily associated, not CnltiTttlon
with immovable estate, but with 'estate in r*t«Aiiot-
slaves and cattle' (familia pecuniaque). Each menu,

clan tilled its own land, and thereafter distributed the prod-
uce among the several households belonging to it. There
exists indeed an intimate connection between the system
of joint tillage and the clan form of society, and even sub-
sequently in Rome joint residence and joint management
were of frequent occurrence in the case of co-proprietors.
Even the traditions of Roman law furnish the information
that wealth consisted at first in cattle and the usufruct of the
soil, and that it was not till later that land came to be dis-
tributed among the burgesses as their own special property.
Better evidence that such was the case is afforded by the

1 Marquardt u. Mommsen, IV, 35-51 ; Ihne, Vols. I-V ; Momm-
sen, Vols. I-V ; Madvigi Opus., loc. cU.
1 Mommsen, II, 440.

§ 27] A HISTORY OF ROMAN LAW [Part I

earliest designation of wealth as 'cattle-stock' or 'slave and
cattle-stock' (pecunia, familia pecuniaque) and of the sepa-
rate possessions of the children of the household as 'small
cattle' (peculium); also by the earliest form of acquiring
property, the laying hold of it with the hand (mancipatio),
which was only appropriate in the case of movable articles ;
and above all by the earliest measure of 'land of one's own'
(heredium, from hems, lord), consisting of two jugera (about
an acre and a quarter), which can only have applied to gar-
den-ground and hot to the, hide. . . . When and how the
distribution of the arable land took place, can no longer be
ascertained." Commenting on this same statement, the
author goes on to say : " Since this assertion still continues to
be disputed, we shall let the numbers speak for themselves.
The Roman writers of agriculture of the later republic and
the imperial period reckon on an average five modii of wheat
as sufficient to sow a jugerum, and the produce as fivefold.
The produce of a heredium accordingly (even when, without
taking into view the space occupied by the dwelling house
and farmyard, we regard it as entirely arable land and make
no account of years of fallow) amounts to fifty, or, deducting
the seed, forty modii. For an adult hard-working slave
Cato 1 reckons fifty-one modii wheat as the annual consump-
tion. These data enable any one to answer for himself the
question whether a Roman family could or could not subsist
on the produce of a heredium. This result is not shaken
by reckoning up the subsidiary produce yielded by the
arable land itself and by the common pasture, such as figs,
vegetables, milk, flesh (especially as derived from the an-
cient and zealously pursued rearing of swine), etc., for the
Roman pastoral husbandry, though not in the older time

*c. 60.
58

Chap. II] INSTITUTIONS OP THE PRIVATE LAW [|27

unimportant, was yet of subordinate importance, and grain
notoriously formed the chief subsistence of the people ; nor
is it much affected by the boasted thoroughness of the older
cultivation.

" By assuming, indeed, that the return was on an average
not fivefold, but tenfold, and taking into account the after-
crop of the arable land and the fig harvest, a very consider-
able increase of the gross produce will no doubt be obtained,
and it has never been denied that the farmers of this period
drew a larger produce from their lands than the great land-
holders of the later republic and the empire obtained, but
moderation must be exercised in forming such estimates,
because we have to deal with a question of averages and with
a mode of husbandry conducted neither methodically nor
with much capital, and in no case can the enormous deficit,
which is left according to those estimates between the prod-
uce of the heredium and the requirements of the household,
be covered by the superiority of the cultivation. The at-
tempted counterproof goes astray when it relies on the argu-
ments that the slave of later times subsisted more exclusively
on corn than the free farmer of the earlier epoch, and that
the assumption of a fivefold return for this epoch is too low ;
both assumptions ifeally lie as the foundation of the view
here given. The counterproof can only be regarded as suc-
cessful when it shall have produced a methodical calculation
based on rural economics, according to which among a popu-
lation chiefly subsisting on vegetables, the produce of a piece
of land of an acre and a quarter shall be proved sufficient on
an average for the subsistence of a family.

"Perhaps the latest, although probably not the last, at-
tempt to prove that a Latip farmer's family might have
subsisted on two jugera of land, finds its chief support in

§27] A HISTORY OF ROMAN LAW [Pabt I

the argument that Varro * reckons the seed requisite for the
jugerum at five modii of wheat but ten modii of spelt, and
estimates the produce as corresponding to this, whence it is
inferred that the cultivation of spelt yielded a produce, if
not double, at least considerably higher, than that of wheat.
But the converse is more correct, and the nominally higher
quantity sown and reaped is simply to be explained by the
fact that the Romans sowed and garnered the wheat already
shelled, but the spelt still in the husk,2 which in this case
was not separated from the fruit by threshing. For the
same reason spelt is at the present day sown twice as thickly
as wheat, and gives a produce twice as great by measure, but
less than that of wheat after deduction of the husks. Ac-
cording to Wurttemberg estimates furnished to me by G.
Hannsen, the average produce of the Wurttemberg morgen
is reckoned in the case of wheat (with a sowing of one quarter
to one half scheffel at three scheffel of the medium weight
of two hundred and seventy-five pounds (= 825 lbs.); in
the case of spelt (with a sowing of one half to one and one
half scheffel) at least seven scheffel of the medium weight
of one hundred and fifty pounds (= 1050 lbs.) which are
reduced by shelling to about four scheffel. Thus spelt com-
pared with wheat yields in the gross more than double, with
equally good soil perhaps treble the crop, but by specific
weight before the shelling not much above, after shelling
(as 'kernel') less than the half. It was not by mistake, as
has been asserted, but because it was fitting in computation
of this sort to start from estimates of a like nature handed
down to us, that the calculation instituted above was based
on wheat ; it may stand, because, when transferred to spelt,
it does not essentially differ, and the produce rather falls than

* De R. R., I, 441. * Pliny, H. N., XVIII, 761.

Chap. Ill INSTITUTIONS OP THE PRIVATE LAW [J 27

rises. Spelt is less nice as to soil and climate, and exposed
to fewer risks than wheat ; but the latter yields on the whole,
especially when we take into account the not inconsiderable
expenses of shelling, a higher net produce (on an average of
fifteen years in the district of Frankenthal in Rhenish Bavaria
the maker of wheat stands at eleven gulden three Kreutzer,
the malter of spelt at four gulden thirty Kreutzer), and, as
in South Germany, where the soil admits, the growing of
wheat is preferred and generally with the progress of cultiva-
tion comes to supersede that of spelt, so the analogous tran-
sition of Italian agriculture from the culture of spelt to that
of wheat was undeniably a progress."

This is certainly a very skillful argument and ably sets
forth all that can be said upon this side of the question.
Granting the hypotheses assumed to be true and the con-
clusion is inevitable. It is indeed fully established upon the
authority of Pliny that far was the grain which the Romans
used, and thus far Mommsen is right. But Varro testifies l
that not five modii, but ten of far, are consumed in seeding a
jugerum, and he also declares that not a fivefold but a tenfold
yield is obtained, in these words : " Seruntur fabae modii IV, in
jugero tritici V, hordii VI, f arris X ; sed non nullis locis paulo,
amplius aut minus ut ex eodem semine aliubi cum decimo
redeat, aliubi cum quinto decimo, ut in Etruria et in locis
aliquot in Italia. In Sybaritano dicunt etiam eum centis-
simo regere soli turn." By this statement it is clearly evinced
that the grain fluctuates in Italy between ten and fifteen fold,
and the soil of Etruria furnishes an example of the remarkable
yield of fifteen fold, according to Varro. It is true that the
words of Columella seem to be opposed to this; "Frumenta
majore quidem parte Italise quando cum quarto respon-

1 De R. R., I, 44.
61

§27] A HISTORY OF ROMAN LAW [Part I

derint, vix meminisse possumus." This writer, however,
lived in the time of Pliny when Roman agriculture was almost
destroyed by the civil wars with which the republic was
distracted during the rule of the Caesars. He too speaks in
glowing terms concerning the agriculture in the time of Cato
and Varro,1 "ut omittam veterem illam felicitatem arvorum,
quibus et ante jam M. Cato et mox Terentius Varro prodidit,
etc." Even if we decide that an eightfold gain was obtained,
and Varro declares that this occurs not only throughout
Latium but throughout all Italy, deducting the grain con-
sumed in seeding, the annual harvest will be, not forty but
one hundred and forty modii of far to the heredium. Such
a yield is obtained as a common thing in the cultivation of
far in many places in Germany.*

As to the second argument set forth by Mommsen, it is
true that four modii of wheat for each winter month and four
modii of spelt for each summer month are assigned by Cato
to each hard-working slave, thus making a whole of some
fifty-one modii as the food for one year. But it will appear
on examination that the slave, in the time of Cato, received
no meat at all, but grain, olives, oil, salt, and wine. Again,
only thirty-six modii were assigned per annum to the steward,
overseer, and shepherd, whence it may be safely concluded
that meat and milk were measured out to them.

Now, since the grain supply of an adult man is to be esti-
mated at little more than fifty-four modii of far or only forty
modii of wheat (the strength of one hundred modii of far is
equal to seventy-three modii of wheat) the annual production
of a heredium, in the time of Cato, one hundred and forty
modii, would be sufficient to sustain almost three men in the
open field. Hence, without taking into consideration the

1 III, 2. * Hildebrand, p. 4.

Chap. II] INSTITUTIONS OF THE PRIVATE LAW [|27

use of public pasture, belonging to each man's heredium,
where the most valued part of a man's private property, his
flock, was fed, it seems clear that the food produced by one
heredium would go far towards supporting a family. Again,
it would seem that Mommsen's statement that "pasturage
must not be considered important in the early period of Ro-
man history" is wide of the truth. For, although it must be
admitted that in the time of Cato and Varro, this kind of
husbandry was of little moment, there is much probability
that the agriculture of the Roman people, and the kind and
consumption of food, progressed in a manner similar to that
of their more recent Aryan kinsmen, the Britons, Germans,
and Franks. In the first place men made their chief gain by
means of flocks and pasturage and lived almost exclusively
on flesh and milk. Secondly, by the increasing study of
agriculture an age followed in which a living was sought al-
most exclusively in grain until flesh was at last used only by
the rich. A third period followed in which to their zeal for
agriculture men added the breeding and rearing of cattle.
This followed as an actual necessity in order to keep life in
the soil. Without doubt, flesh became again an article of
food, and indeed we find it given to the plebs in the early
empire, as in the time of the republic corn was distributed,
thus proving that it had become a common article of food.

Pliny, when speaking upon the exceeding cheapness of
former times, narrates upon the authority of Varro that at the
end of the first Punic War a modius of far or thirty pounds
of dried figs could be bought for one as ; likewise twelve
pounds of meat and ten pounds of oil.1

We grant with Mommsen 2 that these prices were unusual
and cannot be taken as representative Roman prices, but

1 Hist. Nat., XVIII, 316. « R6m. Ge., I, 316.

1 271 A HISTORY OF ROMAN LAW [Pabt I

if we compare this price of meat with the prices of beasts
of burden which in a.d. 326 were valued in the estimation
of cattle fines, we will see that in an earlier time the prices
set forth by Pliny were very customary. J

In that estimate of fines a sheep was valued at ten and an
ox at one hundred asses. An adult sheep is estimated at
seventy to eighty pounds of mutton and an ox at seven
hundred to eight hundred pounds of beef. Accordingly, a
modius of far and twelve pounds of meat were of the same
price, and, as a modius of far was equal to about fifteen Roman
pounds, one pound of far was equal in price to one and one
quarter pounds of flesh. It is therefore certain that flesh,
as compared with grain, was, in early Roman history, very
cheap. The history of prices common among the Romans
cannot be described with accuracy, and consequently the
ratio between the prices of meat and grain cannot be fully
given, but the testimony of the ancients argues, as we might
suppose, that meat as compared to grain became gradually
dearer.

In the edict of Diocletian concerning Prices of Salable
Articles, the value of one hundred denarii is given to a modius
{i.e., fifteen pounds) of shelled spelt and twelve denarii for
a pound of pork, so that a modius of spelt equaled the price
of eight and one third pounds of pork. Again, in the edict
of Valentinian III, given at Mauretania in the year a.d.
446, forty modii of spelt were bought for a gold solidus and
two hundred and seventy pounds of meat for the same money,
so that a modius, or fifteen pounds of far, was equal "to six
and three quarters pounds of meat. Accordingly, one
pound of meat which had, at the time of the first Punic War
and before, a price equal to one and one quarter pounds of
far, in the time of Diocletian equaled one and three quarters

Chap. II] INSTITUTIONS OF THE PRIVATE LAW [5 27

founds of far, and in the time of Valentinian III, two and
eight tenths pounds of far. Hence, if in the time prior to
the republic it is shown that meat was cheaper than grain,
then we must justly conclude that a greater abundance of
flesh was at hand and was consequently a staple article of
food for the people.

Finally, if we believe that, as Columella says,1 the Roman
farmers themselves held pasturage and cattle raising among
the most ancient and profitable occupations of the farmer,
and, if we bear in mind the words of Pliny,2 "etiamnum in
tabulis censoriis pascua dicuntur omnia ex quibus populus
reditur habet, quia diu hoc solum vectigal fuerat," then the
third argument which Mommsen has set forth must fail of
its object. We must, therefore, conclude that there is no
well-founded reason why we should cast doubt upon the
statements of Dionysius and Livy concerning the divisions
of land among the Romans.

If Dionysius can be trusted, when land was assigned to
the plebeians by Servius Tullius, each man received in addi-
tion to his heredium a building lot within the city, and this
would seem to be the method followed in the early days of
the city. The houses were placed for safety within the city
walls, while the heredium, without, was cultivated by mem-
bers of the household passing to and fro. As conquest ex-
tended Roman territory and at the same time rendered it
safe for families to settle outside of the city walls, it became
customary for those holding allotments outside of colonies
to construct their dwellings and barns upon their heredium,
and we find the allotments usually increased in size in order
to make up for the waste of farm land incident to this change.

i De R. R.f VI, Pwrf.
' Hist. Nat., XVIII, 3.

5 28] A HISTORY OP ROMAN LAW . (Part I

The heredium consisted of two constituent parts of dif-
ferent economic functions ; (I) the ager, i.e., the farm, prop-
erly speaking, and (II) the garden lot. The latter wa3
commonly composed of three separate belongings : the cot-
tage with its dwelling and workrooms, sometimes surrounded
by a narrow walk; the farmyard with its barn and out-
buildings; and finally the pomerium, a garden for fruit,
vegetables, and flowers for the use of bees. The ager was
usually a level piece of land set off by official limitations,
and separated on all sides from the adjoining lands by narrow
roads or calles. It commonly consisted of two jugera, a
jugerum or jugum being the amount of land which a span of
oxen could plow in one day. The jugerum was again divided
into two smaller portions called actus or morgen, each a half-
day's work, a strip of land one hundred and twenty feet
square, being the amount of land which a span of oxen could
plow around without rest. The jugerum, therefore, was an
oblong one hundred and twenty feet by two hundred and
forty feet, which contained 28,800 square feet. In this way
it would appear that the Roman farm was commonly two
hundred and forty feet square and contained about an acre
and a third.

The actus was the smallest unit of measure with the ag-
rimensores of Rome. A higher unit of measure, and that
1^ most commonly used even in latest times, was

Method of the centuria, consisting of two hundred or two
BaXY9f' hundred and forty jugera, one hundred sortes or
lots, a sors being the Roman farm.

The ordinary method of procedure in measuring land was
as follows : the gnoma (Greek, yv&na) was a cruciform
machine of wood (sometimes called a stella) supported on
an iron leg which passed through the center and was fixed in

Chap. II] INSTITUTIONS OP THE PRIVATE LAW [J 29

the ground. This instrument was used by agrimensores
to mark out the land in lots by lines exactly perpendicular to
each other, tested by looking along the ground in opposite
directions, backwards and forwards, signa or meta being set
at each end of the lines, which covered one another exactly.
The augur, or person making the survey, stood upon the center
of the gnoma, and according to the direction he took the four
regions were named. The most usual aspect of the augur
was toward the east. Hence the region in front of him was
called antica or citrata, that behind him postica, or ultrata,
that on each side dextrata and sinistrata. The line from east
to west was called decimanus, and was the most important
and the broadest ; that from north to south was the kaido.
The two principal of these lines were public military roads.
On each side of them were li mites dividing the land into square
plots called centurise. Every fifth line (quintarius) was also
a road, but not so broad as the two principal lines. The
others were generally merely lines of demarcation, though
in Italy they were rough roads eight feet broad, used by the
occupiers for agricultural purposes. The centurie were
marked out by termini, stones or stakes with letters upon
them indicating their distances in this or that direction from
the center and the main lines of division. By this means
each single lot had its proper notation.

From the earliest times the Romans recognized inherit-
ance and an order of succession.1 This is made clear from
the statement that Romulus granted little home- | ^ q^^.
steads to certain people that were "to follow the of Sucgm-
heir" (qui heridem sequentur). The funda-
mental idea which lies at the base of this recognized succes-
sion is that of immortality. The owner dies, but the prop-

1 Muirhead, 166 ; Sohm, 408-413 ; Ortolan, 125-129.

5 291 A HISTORY OP ROMAN LAW [Part I

erty lives on. The debtor dies, but the obligation remains.
Property is not destroyed by the death of the proprietor.
The reason for this is that while the individual may die, the
family survives. Romans made it obligatory on a man's
descendants to perpetuate the family and its sacra. It
would seem only reasonable and just therefore, that the prop-
erty as a means of defraying the expense of their obliga-
tions should pass to them.

In the oldest times the family is the sole owner ; individual
ownership is unknown, and common ownership is the only
recognized form. Thus family ownership in time developed,
on the one hand, into the common ownership of the gens or
even the State, and on the other into the private ownership
of the individual. The death of the individual for this
reason does not remove the real owner of the property, as
the family continues to exist, and they were co-owners. As
the years went by the idea of private ownership outstripped
the tradition of family ownership, and the individual was
allowed by law to dispose by will of his possessions as he saw
fit. But there is no evidence that this could be done in the
early regal period, and only intestate succession maintained.

On the death of a pater familias his patrimony devolved
upon those of his children in potestate who by that event
became sui juris, his widow taking an equal share with them.1
There was no distinction made between movables and im-
movables, personalty and realty. In case the deceased
left no immediate family, the estate went to his agnates in
equal division; and in case agnates failed, it went to the
gens.

Romans never made any distinction between males and
females in the distribution of an estate.2 Among the Athe-

1 Sohm, 409. * Muirhead, 275 et «eg.

Chap. II] INSTITUTIONS OP THE PRIVATE LAW [§29

nians daughters could not succeed, because they could not
perpetuate the family. Sons, therefore, took all and, failing
sons, nearest male heirs. In India the same custom held.
But Rome stands out in clear distinction in this regard, and
unmarried daughters took share and share alike with sons,
and completely excluded male heirs that were more remote.
A daughter who had passed into the hand of a husband dur-
ing her father's lifetime of course could not have any share
in the inheritance, for she no longer belonged to the house-
hold of her father.

Further, there is no trace of any law of primogeniture to
be found in Rome. Estates held together sometimes for cen-
turies, but this was accomplished by means of limitations
placed upon alienation. Women held their shares of the
estate only in name. In reality they were under the control
of the guardian, who was always a member of the family or
gens. This kept the property together. It was further
a very common method for brothers to hold the inheritance
in common and thus to avoid the splitting of an estate into
numerous small holdings. Another method of preserving
the estate was the drafting of the younger members of the
family into colonies. In the time of the republic the testator
regulated his estate by testament and so managed to con-
serve it by keeping the lands intact, but it is exceedingly
doubtful if testamentary power had developed during the
regal period, and surely this evolution had not proceeded far
enough to permit a man to disinherit some of his children in
order that the family estate might remain unbroken.

Plebeians had no legal heirs, as they were not members of
any gens, but there can be little doubt but that the children
of a plebeian became sui juris at the death of their father
and entered upon the free administration of the estate. This

§ 30] A HISTORY OF JIOMAN LAW [Pabt I

would be custom, however, and not law. In case a plebeian
died without children, he would be heirless at law. Custom
did not disapprove of the appropriation of his property by
another. A brother would very naturally come first, and if he
succeeded in maintaining his possession for a year, the law
dealt with him as heir, and the pontiff fixed upon him the
maintenance of the sacra.

The ancient Roman was engaged preeminently in pastoral
and agricultural pursuits. This necessarily implied consider-
f 30. Early able commerce and exchange of goods. The
Contract*, location of the city of Rome proved the commer-
cial instinct of her people. They must have bought and sold,
made loans, rented houses, carried goods, hired labor, and
been parties to a variety of business transactions incident
to such pursuits. There must, therefore, have been some sys-
tem of contracts common among them, and consequently
some law of contract.1 In business transactions involving
other things than a mere barter or exchange and immediate
delivery of one commodity for another, one of the parties
must have trusted to the good faith of the other. If he did,
what guarantee did he have, and what security for breach of
engagement ? In the first place, he evidently relied on the
honesty of the party with whom he was dealing and his
respect and reverence for Fides; the dread he felt for the
disapprobation of his fellows should he prove false, and of
the penalties, both social and religious, that might be im-
posed upon him by his gens or his gild. A solemn oath
(jusjurandum) might be demanded from the person obliged
in case the handshake and the good faith that went along
with it were deemed sufficient. The ancient writers, Cicero

1 Muirhead, 49, 143-157 ; Ortolan, 134 ; Sohm, 132, 288, 282-
290.

Chap. II] INSTITUTIONS OF THE PRIVATE LAW [§§31,32

and Gellius especially, give testimony as to the sanctity of
an oath and its potency in holding men to their word. An
altar was erected to Hercules in the cattle market where those
who desired mutually bound each other by a covenant, and
he who forswore himself was amenable to pontifical dis-
cipline. A pledge or pawn was sometimes turned over to the
promisee in case he desired substantial security. This he was
forced to return when the contract had been fulfilled. If
he did not do this, he suffered a penalty on the ground that
he was committing a theft in retaining that which did not
belong to him.

An action for damages or reparation founded on breach
of contract, at this early stage, was unknown.1 If actual
loss was sustained, the injured party was per- §31. Breach
mitted to resort to self-redress and to seize the °* Contract
goods at issue with the strong hand. Self-help, in the
time of the kings, as a vindication of a right of prop-
erty, and not merely in self-defense, was permissible, and
an actual display of force between the contending parties
was common. Manus injectio, the actual arrest of the
debtor, and pignoris capio, the seizure of the goods by
the creditor, were customary transactions until late in the
republic.

Family relationships gave rise to the first bonds of national
union in Rome. This is discernible everywhere, but spe-
cially seen in the early concepts of crimes and civil 1 3J# Early
injuries.2 For anything like a clear line of de- Criminal
marcation between these, we look in vain in the w*

regal period, and the reason for this is to be found in the
family origin of the Roman State.3 Blackstone makes the

1 Sohmf 335. ' Muirhead, 18, 53, 65.

* Mommsen, History of Rome, Vol. I, Bk. 1.

5 32] A HISTORY OP ROMAN LAW [Pabt I

distinction between public and private offenses as follows:
"A crime is an act committed, or omitted, in violation
of a public law, either forbidding or commanding it. Pri-
vate injury concerns no one but the individual." This dis-
tinction is not strictly true. Austin was perhaps the first to
give the correct distinction. He says;-* "The difference
between Crimes and Civil Injuries is not to be sought for
in a supposed difference between their tendencies, but in the
differences between the modes wherein they are respectively
pursued, or wherein the sanction is applied in the two cases.
An offense which is pursued at the discretion of the injured
party or his representative is a Civil Injury. An offense
which is pursued by the sovereign or by the subordinates of
the sovereign is a crime." If now, in this definition of
Austin's, we substitute for sovereign the words "any member
of the State, " we will arrive at the distinction and definition
given by Justinian to public crime, where any one could
prosecute.

Muirhead says; "Offenses against the State itself, such
as trafficking with an enemy f6r its overthrow (proditio) or
treasonable practices at home (perduellio), were of course
matter of State concern, prosecution, and punishment from
the first. But in the case of those that primarily affected
an individual or his estates, there was a halting between, and
to some extent a confusion of, the three systems of private
vengeance, sacral atonement, and public or private penalty."

"The field of law," says Holland, "may be divided be-
tween the law which regulates rights between subject and
subject and that which regulates rights between the State
and its subjects." Hannis Taylor, commenting on this, '
says; "The private person just referred to must be under-

1 Austin, Province of Jurisprudence Determined, p. 417.

Chap. II] INSTITUTIONS OP THE PRIVATE LAW [55 33, 34

stood to be an individual, or a collection of individuals, how-
ever large, who, or each one of whom, is of course a unit in
the State, but in no sense a representative of it, even for a
special purpose.1 The public person thus referred to must be
understood to be either the State, or the sovereign part of it,
or a body or individual holding delegated authority under it."

The application of the above definition and explanation
leads us to a correct concept of the difference between a tort
(civil injury) and a crime. "Torts are an infringement or
privation of the private, or civil, rights belonging to individ-
uals, considered as individuals ; crimes are a breach of public
rights and duties which affect the whole community, con-
sidered as a community." Let us now consider judicial
procedure in the light of this distinction.

In all cases whatsoever where the individual alone was
injured, and not the public peace, the king, who represented
the State, never interfered save when he was §33.

appealed to by the party injured.2 The prose- Damage,
cutor compelled his opponent to appear with him before the
king, if necessary by forcibly seizing him. When both par-
ties had appeared, the plaintiff orally stated his demand and
the defendant in like manner refused to comply with it.
The king thereupon, or a deputy in his name, investigated
the case, and two witnesses established the truth or falsity of
the prosecutor's claim, and rendered a decision. This decision
was enforced by the winner of the suit.

If repayment of a loan did not take place at the specified
time, the procedure depended on whether the .

1 34. Loan,

facts relating to the case had to be established by

proof or were already clear. The establishing of the facts as-

1 Taylor, The Science of Jurisprudence, 525-526.

2 Taylor, loc. ciU

J 35] A HISTORY OF ROMAN LAW [Part I

sumed the form of a wager in which each party made a de-
posit (sacramentum) against the contingency of his losing
his suit. Thereupon the judge decided, after hearing the
evidence, who had gained the wager. The deposit of the
losing party fell to the priests, who were the stakeholders.
The party who lost was allowed thirty days in which to satisfy
the judgment. In case he did not do so, then he was liable
to procedure in execution (manus injectio). The plaintiff
seized him wherever he found him and haled him to the bar
of the judge to demand the acknowledged debt. Here he
was not allowed to defend himself, but he either paid or was
adjudged a bondsman to his creditors.

Theft 1 may be defined as the secret and wrongful appro-
priation of a movable thing not one's own. In the regal
1 35. period of Roman history it was looked upon as a

Tb**t civil or private injury and not a crime. If the

thief was caught plying his vocation by night, he might be
slain on the spot by the person whose goods he was despoiling,
but he could not be dealt with in this summary manner
if caught in the daytime unless he resisted arrest. A thief
taken in the act (fur manifestus), if he was a free man, was
scourged and turned over by the magistrates (addictus) to
the person whose goods he had stolen; if a slave, he was
flogged and thrown from the Tarpeian rock. A thief who
was not caught in the act, but who subsequently had the
theft proved upon him, suffered merely a pecuniary penalty.
He was compelled to pay twofold the value of the stolen goods.
A person who aided and abetted the thief in any way, or
received the stolen goods, was punished as if he himself had
committed the act.

Judicial procedure took the form of a public process only

1 Sohm, 323-325.
74

Chap. II] INSTITUTIONS OF THE PRIVATE LAW [J 36

in case of a breach of the public peace. Such breach was
considered a crime and was pursued by the State f 3&

itself, i.e., the king, and not a private individual.1 Crfnwi.
These crimes were comparatively few in number and con-
sisted in public treason or communion with the enemy9
(proditio), violent rebellion against the magistracy (perdu-
ellio), foul murder, rape, adultery, arson, bearing false
witness, and a few others. The king or his deputy arrested
the accused, opened and conducted the trial, and pronounced
sentence. The punishment for all violation of the public
peace was death. The king could not pardon ; that power
was vested in the community alone (curiata) ; but the king
could either grant or withhold permission to make an appeal
for pardon. The modes of inflicting capital punishment
varied according to the nature of the crime. The false witness
was thrown from the Tarpeian rock; parricides and incen-
diaries were burnt alive; while the person convicted of
treason was either scourged to death or hurled from the
Tarpeian rock, his goods confiscated, and his memory
accursed.

Between these two kinds of offenses were many that were
not classified and which were left wholly in the hands of the
individuals concerned. Thus the field of self-redress was
necessarily large, and private vengeance continued to be an
active power for a long time. There was a difference between
foul murder, where the State prosecuted, and manslaughter,
which was looked upon as a private injury to be punished or
condoned by the injured party, i.e., the family of the deceased.
This is in accordance with a law attributed to Numa Pom-
pilius; "Si quis imprudens occidisset hominem pro capiti
occiso agnatis ejus in contione offeret arietem." No doubt a

1 Taylor, 591-594. ' Muirhead, 69.

5 36] A HISTORY OF ROMAN LAW [Pabt I

formal tender of reparation had been made and accepted
before "offeret arietem." "Contio" signifies a meeting, but
only a meeting called together by a local magistrate or priest.
It is altogether probable that the meeting took place under
religious auspices and that a priest presided over it, as the
offender had taken what the gods alone could bestow. It was
necessary to appease the wrath of the gods as well as that of
man, therefore the earnest of the victim was a purifying
sacrifice. The Athenian law was the same as that of the
Romans. The consent of the relatives of the slain man must
be obtained before the offering was made. The case is
entirely different according to Numa for willful murder;
"Si quis hominem liberum dolo sciens morti duit, paricidas
esto."

"Si quis dolo/' and its sequel, "Si quis imprudens ocidisset
etc.," furnish the real distinction, not only between crimes
and private injuries, but also a true guide and criterion for a
definition to murder. So Lord Coke defines murder;
"When a man of sound 'reason killeth another reasonable
creature in being and under the king's peace with malice
aforethought." The distinction between murder and man-
slaughter is malice aforethought.

To avenge the death of a kinsman was a religious duty,

as his manes had to be appeased.1 This idea was so strongly

impressed that long after the State had interfered and made

murder a matter of public prosecution, a kinsman was bound

to set such prosecution in motion, and if he failed to do so, he

was not permitted to take anything of the inheritance of the

deceased. Private vengeance was also lawful at the instance

of a husband or father who surprised his wife or daughter in

an act of adultery. Before his wrath had time to cool he

1 Sohm, loc. cit.
76

Chap. IU INSTITUTIONS OF THE PRIVATE LAW [§ 36

could kill her and her paramour on the spot. Afterwards, he
must deal with her only judicially in his domestic tribunal.
There are some other cases where private vengeance is trace-
able, especially in talion and the imprisonment of the nexal
debtor who was not able to meet his obligations.

CHAPTER in
THE REFORMS OF SERVIUS1

It is stated by Livy that Servius Tullius became king
of Rome (578 B.C.) without being indebted in any way to the
patricians who had heretofore controlled elections (non
comissit se patribus). He was, in fact, the first rank outsider
to obtain this office, and being left free from aristocratic
influence was able to accomplish some very necessary reforms.
The old tribal division based upon primitive origin was out-
grown by reason of the population daily increasing of those
who came from the outside and who, consequently, had no
part in the government. Servius himself is represented by the
Etruscan annals as a chief of a band of Etruscans who had
left their old home and settled in Rome, thus increasing the
plebeian population of that city and rendering the old-time
aristocratic control impossible.

The radical reform which he introduced in the political con-
stitution of Rome was to place side by side with an aristoc-
racy of race, the superior caste of the ancient patrician order,
an aristocracy of wealth whose ranks were open to all. The
aim of the Servian reforms, whether military or financial, was
to promote the equality of the plebeians and patricians, and
this could only be done by a fundamental change of base.

1 Discussions of the Reforms of Servius are almost without end.
The following are among the best : Moyle, Institutes of Justinian,
6-10; Ortolan, 63-69; Mommsen, Bk. I, 6; Muirhead, 36-77;
Ihne, I, 78-110; Hunter, Roman Law, 8-10; Botsford, The Roman
Assemblies, 49-118.

Chap, nil THE REFORMS OF SERVIU8 [{37

Heretofore all the revenue necessary to the carrying on of the
government had been raised by means of a poll tax arbitra-
rily imposed without any fixed principle or any adequate pro-
portion between the rich and the poor. The division of the
people into tribes and curiae, based on origin, and, from the
latter, the formation of the only legislative assembly (comitia
curiata) had kept all political power in the control of the
patriciate and had denied the franchise to the plebeians even
though they had wealth and social standing. It was the
work of Servius to substitute for this division depending
upon caste, a distribution of the people and a system of vot-
ing regulated by wealth. In fine, he made the amount of tax-
ation and the suffrage of each citizen depend upon property.
To carry out his reforms it was necessary for Servius to
know the number of persons holding property, and the
amount and kind of each holding.1 To accom- §17.

plish this he caused the head of each family to Ccnm.
make a written statement upon oath of the number of
persons composing his family, of his property of every de-
scription, and its fair estimated value, under penalty of con-
fiscation of any article omitted. When this task was accom-
plished he held a grand review of the entire population by
marching them in order through the Campus Martius.
Subsequently they underwent the ceremony of purification
(populum lustrare). As this ceremony was repeated every
fifth year the term lustrum finally came to signify a period of
five years. This table or register of all the people and prop-
erty was called the "census." A new chapter (caput) was
added for each head of a family, and thus it was easy to as-
certain the condition of the population and the respective
fortunes of the various families.

1Botsford, foe. eft.
79

|38] A HI8T0RY OP ROMAN LAW [Part I

According to the first census the population of Rome was
somewhat above 80,000. This shows a large influx of for-
eigners and consequent increase of the plebeian population.

Every person whose name appeared in the census was
henceforth a citizen and enjoyed the privilege of citizenship.
The names of sons were doubtless inscribed in the chapter
dedicated to the father. Women and males under age were
enumerated merely, while slaves were indicated simply by
numbers amongst the chattels of their masters.

From the institution of the census, which had determined
the amount of the fortune of each citizen, was derived the
distribution of the people into classes (from calare) or sum-
monings according to the amount of the property held
by each.1 This division of the populace into classes was
primarily to determine the amount and kind of military
service to be demanded of each. " Every freeholder from the
seventeenth to the sixtieth year of his age, including children
in the household of fathers who were freeholders, without
distinction of birth, was under obligation of service." If a
manumitted slave had come into the possession of landed
property, he was compelled to render military service.

The body of men thus made liable to serve was divided
into five classes. As to this division Livy and Dionysius
1 38. are in practical agreement. Iivy * gives the fol-

&*"**- lowing account ; " Prom those whose rating was
100,000 asses or more he made eighty centuries, forty of
seniors and forty of juniors, and termed them all the
first class. The seniors were to be ready for guarding
the city and the juniors were to serve in the field. Hie

1 Huschke, Die Verf assung dee Kftnigs Servius Tullius (followed
by Muirhead); Boteford, 67-71.
'1,43.

Chap. Ill] THE REFORMS OF 8ERVIU8 [{38

arms required of them were a helmet, round shield, grieves,
and cuirass, — all bronze, — for the protection of the body.
Their offensive weapons were a spear and a sword. To this
class were added two centuries of sappers who were to serve
without arms. Their duty was to convey the engines of war.
The second class was made up of those whose rating was
between 75,000 and 100,000 asses, twenty centuries of seniors
and juniors together. They were equipped with an oblong
shield (scutum) instead of a round one, and they lacked the
cuirass, but in all other respects their arms were the same.
The minimum rating of the third class was 50,000 asses. They
had the same number of centuries but their arms were
changed, nothing being assigned them but a spear and a long
javelin. The fourth class consisted of all those having from
25,000 to 50,000 asses. They were not required to furnish
any defensive armor, but must be equipped with long spears
and light javelins. The fifth class was larger, composed of
thirty centuries. They carried slings and stones for throw-
ing. Among them were counted the accensi, the horn blow-
ers, and the trumpeters, three centuries in all. This class
was appraised at 11,000 asses. Those whose rating was less
formed one century exempt from military service. Having
thus armed and organized the infantry, he levied twelve
centuries of equites from among the chief men of the State.
Also the three centuries instituted by Romulus he made into
six others of the same name as those under which the three
had originally been inaugurated."

Modern critics generally agree in rejecting the money reck-
oning in this account as being too high for the period, and in
fact only in use nearly two centuries later. The source
made use of by Livy and Dionysius * was the Commentarii

1 Dionysius, Hal., IV, 18-22.

{38] A HISTORY OF ROMAN LAW [Past I

Servi Tulii or descriptio centuriarum. This was not written
before the year 269 B.C. In the meantime a change of
base had taken place. Most historians, including Mommsen,
have adopted the rating of Huschke, who concludes that be-
fore the censorship of Appius Claudius Ceecus, 312 B.C.,
military service was based on the possession of land, and that
the gradations of equipment must have been determined
by the size of the estate reckoned in jugera. Thus we have
the following gradation : —

I. All those who possessed a full hide or twelve acres of
land were placed in the first class. These were
divided into eighty centuries, forty of juniors,
twenty to forty-five years of age ; forty of
seniors, forty-five to sixty years of age. To this
class also belonged the knights, a privileged class
who voted first and made up the cavalry service,
who furnished eighteen centuries, thus making
ninety-eight centuries, in all, belonging to the first
class.
II. All who possessed nine acres or three fourths of a hide
of land were placed in the second class. These were
subdivided into twenty centuries, ten juniors, and
ten seniors.

HI. The third class consisted of those who possessed six
acres or one half hide. These were subdivided
into twenty centuries, ten juniors, and ten
seniors.

IV. The fourth class consisted of those who possessed
three acres of land or one fourth hide. These were
subdivided into twenty centuries, ten juniors, and
ten seniors.

Chap. Ill] THE REFORMS OF 8ERVIU8 [539

V. The fifth class consisted of all those who possessed one
and one half acres or one eighth of a hide. These
were subdivided into twenty-eight centuries, four-
teen juniors, and fourteen seniors.

It is to be noted that the centuria which is here used as
the unit of computation, was not an exact hundred, as the
word would imply, as the number fluctuated. The members
of the first class had to equip themselves fully in the heavy
armor of the hoplite. The remaining classes of freeholders
were compelled to render service but were not required to'
arm themselves fully.

Those not classified by Servius had no part in the public
burdens at all. The proletarii furnished workmen and a
number of substitutes (accensi) who went with the army
unarmed, but were furnished with tools and weapons by the
government and were also fed. I

The object of the legislation of Servius Tullius was purely
military. This is seen at a glance. " In the whole detailed
scheme we do not encounter a single feature suggestive of any
destination of the centuries to other than purely 1 30# q^.
military purposes ; and this alone must, with tk c«n-
every one accustomed to consider such matters, ***

form a sufficient reason for pronouncing its application to
political objects a later innovation."

The centuriate assemblies represented the aristocracy of
wealth.1 Power and influence were to be determined by
property and age. The division of the entire body of Roman
citizens into great property classes expedited this. In settling
any question which was referred to them each centuria had one
, vote, so that a class had as many votes as it had centurise.

» Botsford, 8&-100, 200-236.

§40] A HISTORY OP ROMAN LAW [Part I

Adding the eighteen centuriee of the knights to the eighty
centurifle of the first class gave to that body a majority of the
whole. If this wealthy class agreed, the question was settled
at once, as the Romans continued the voting only till they
obtained a majority. Thus it may well never have hap-
pened that the inferior centurise were called upon for their
suffrage.

As the people were arranged in military order and under
arms, the comitia centuriata could not meet within the city
as there was not sufficient room. The Campus Martius was,
consequently, chosen as the meeting place, and the people were
summoned at the sound of the bugle. The king who sum-
moned the centuriata in the regal period gave thirty days
notice, three market days. This was at first nothing but a
notice of war, as the centuriata was merely the nation in
battle array. A red flag hung upon the wall for thirty days
was the signal for gathering. The people arranged them-
selves in military order like soldiers, each under his own
standard and commander, and each man was called upon to
vote in the order in which he stood in his centuria.

Questions of war and peace were referred to the centuriata
for decision, but beyond this there could have been no po-
litical activity until the establishing of the republic.

In order to facilitate the levying of the infantry the city
and its precincts were divided into tribes (tribus, parts) or
I 40. levy districts.1 These must not be confused with

Mbeiu the ancient triple division of the city. As the
population of Rome was rapidly increased by the accession of
strangers, it became no longer possible to maintain the old
distinction of the three primitive tribes whose origin was
traced from race. The new elements had no way of entering

1 Ortolan, 71-75.
84

Chap. Ill] THE REFORMS OF SERVIUS [$40

thes?. The Servian tribes were determined by locality (ex
locis).

The boundaries of the city were extended so as to embrace
the seven hills, and this enlarged territory was split into four
tribes, the Palatina, Colina, Esquilina, and the Suburana.
The old tribal names were retained and, in fact, the districts
assigned to the first three were those occupied by the three
ancient tribes. These four tribes, designated as urban, were
increased in size as the city grew but were never increased in
number.

The country around Rome occupied by persons enjoy-
ing, by the constitution, the rights of citizenship, was in like
manner divided into levy districts, each with its separate name.
These formed the rural tribes (tribus rusticse). They were
gradually increased in number as Rome added by conquest
the surrounding territory, but this number cannot be defi-
nitely ascertained.

It was a bond of union between citizens to be members
of the same tribe. Taxes were levied by tribes and the
legions were recruited in the same manner. Each tribe had
its own religious system and sacrifices. The tribal name now
took the place of the old-time curia as a means of designation.
The chief of a city tribe was called magister vici ; the chief
of a rustic tribe was called magister pagse. The tribal group-
ing embraced all who were able to pay the land tax. Up to
this time revenue had been raised by a poll tax arbitrarily
imposed without any distinction between rich and poor.
Servius instituted a method of voting regulated by wealth.
In short, he arranged a system of taxation in accordance with
the amount of property held. This distinction seems to have
been made for the purpose of providing for three contingen-
cies, — revenue, war, and legislation. Privileges, duties, and

IJ41.42] A HISTORY OP ROMAN LAW [Pabt I

burdens were to be measured by the amount of real estate
which a man held by quiritarian title. Henceforth the bur*
dens of the State must have fallen on each in a manner in
proportion to his means.

At first the new Servian tribes had no political functions.
They did not meet for any legislative purpose. The comitia
§ 41. Comi- tributa represents the rise of democracy. It had
tu Tribute, its origin in the plebeian troubles which preceded
the secession of the plebeians to Mons Sacer, and had the op-
pressive laws against debtors as an incentive to organization.1

One special feature of the Servian Census was the recording

of the ownership, the value of lands, and the appurtenances,

which record was to be revised at least once every

§42. Effect .

of the Re- &ve years.2 To aid in the accomplishing of this it
forms on the was declared that no transfer of property would
efT *" henceforth be recognized which had not been
surrendered in court by a formal ceremony before
the supreme magistrate (in jure cessio), or by a solemn
formula which was a sort of imaginary sale per ses et
libram, in the presence of five witnesses and an official
librapens or balance holder. Thus we have two forms of
property conveyance recognized by Servius, — in jure cessio,
and mancipatio.

In jure cessio, or title by a fictitious surrender in court,
according to Gaius, took place as follows : " Before a magis-
In jure trate of the Roman people, as the Praetor, or be-
C**8*0- fore the president of a province, the man to whom
the thing is being granted appears holding it, and makes his
claim thus; 'This slave, I say, is mine, ex jure Quiritium.'
Then after he has made his claim the praetor asks him that
grants it whether he will make a counter claim. And when

» Botsford, 283-295. * Muirhead, 55-61.

Chap. Ill] THE REFORMS OF 8ERVIUS [{42

he says no, or remains silent, then the Praetor makes over the
property to the claimant." 1

This form of conveyance was called a legis actio and could
take place anywhere, even in the provinces before their
presidents. It was, however, rather too formal and cumber-
some to be made use of very commonly.

The second mode of conveyance, which is said by Gaius
to have been almost universal, was known by the name of
mancipium or mancipatio, and the lands and other Maadpatfe.
properties which were conveyed by this process were called
res mancipi. These were, according to Ulpian, rm

lands or houses in Italy, predial servitudes thereto M*n*W-
attached, slaves, and ordinary beasts of burden, such as
horses, mules, asses, oxen, but not -elephants or camels.

The transfer of property known as mancipation was
accomplished as follows: "The transferee, with one hand on
the thing being transferred, and using certain words of style,
declared it his by purchase with an as (which he held in his
other hand) and the scales (hoc ere eneaque libra) ; and si-
multaneously he struck the scales with the coin, which he
then handed to the transferrer as figurative of the price. The
principal variation when it was an immovable that was being
transferred was that the mancipation did not require to be
on the spot; the land was simply designated by its known
name in the valuation roll."

If these forms were not observed, the property of res
mancipi was not transferred, and the purchaser had no rights
which he could defend in court.

Gaius calls mancipatio a fictitious sale, but before the
Twelve Tables, when there was as yet no coined money, the
weighing out of the ees by the libripens, no doubt, constituted

1 Muirhead, loc. cit.

1 42] A HISTORY OF ROMAN LAW [Part I

the actual payment of the purchase money. Then it was not
a fiction (imaginaria venditio), but a genuine sale. The use
of the scales goes back to a time when money was not yet
current but raw copper was a standard of value, and to a cer-
tain extent at least a medium of exchange. Back of this lay
a period when all values and fines were estimated in cattle
and sheep. Raw copper could be made available for
loans or payments only when weighed in the scales. The
decemviri introduced coined money into Rome in the form
of a copper as. Silver was not coined till nearly two hun-
dred years later. But this change to a coined medium of
exchange did not affect the formalism of mancipatio. The
libripens and the scales still remained, though no longer in
actual service in the weighing out of the raw copper. The
enactment in the Twelve Tables that no mancipatio should
be legally operative unless the price were actually paid, or
security given, marks a development of the older form, but
still indicates a real sale for ready money with rigid formalities
and only available for a single economic purpose.

Transfer of property was thus made public and a matter
of record. Witnesses were present to vouch to the census
officials the regularity of the procedure. The parties them-
selves were not intrusted with the scales, but an impartial
officer, an official balance holder, performed the weighing,
thus securing accuracy in detail.

Thus it is clear that mancipation, as regulated by Servius,
was no fiction, but a completed sale in the strictest sense of
the term.

All things not embraced in the list of res mancipi and which
were capable of ownership, when taken separately and not
as a universitas, were res nee mancipi. These were provin-
cial lands generally whose ownership was vested in the State,

Chap. Ill] THE REFORMS OF 8ERVIU8 [$43

the ager publicus, swine, sheep, poultry, vehicles, precious
stones, jewels, gold, silver, wearing apparel, household furn-
ishings, etc. The ownership of res nee mancipi passed by
simple delivery without any formality whatever. Concern-
ing these Gaius says; "For what are nee mancipi pass to
another in full ownership by simple delivery, provided they are
corporeal and thus capable of delivery. Therefore, if I have
delivered to you a garment, or gold, or silver, whether in pur-
suance of a sale, or as a donation, or upon any other sufficient
cause, it straightway becomes yours, provided always that I
who deliver it am in law its owner."

Prior to the time of Servius the unions of plebeians were
not considered as lawful marriages. At least this was the
opinion held of them by the patricians. For this
there were two reasons. In the first place, they V3"^ -/
did not possess the preliminary qualification for focti of th*
juste nuptise, connubium, as they were not Roman ****** on

tho Law of

citizens. In the second place, since they were not th6 *mmn7
patricians, the only ceremony of marriage known
to the law (conf arreatio) was incompetent to them. The first
obstacle was removed through the instrumentality of the
Servian reforms by the admission of the plebeians to citizen-
ship. The second difficulty in the way was overcome by the
development of a new form of marriage, coemptio.1

Coemptio was without doubt the adaptation to a new
form of contract of the mancipatio whi$h has already been
described. The Roman looked upon marriage as
"a contract by which a man and a woman entered
into a mutual engagement, in the form prescribed by law,
to live together as husband and wife during the remainder
of their lives/'

* Muirhead, 64-67.
89

J 43J A HISTORY OF ROMAN LAW [Pa*t I

Marriage itself and the form of marriage were questions
which were left entirely to the discretion of individuals, with-
out any legal compunction of any kind. The law did not
require the intervention of any authority or of any public
ceremony whatsoever. The mutual consent of the parties,
consummated by the tradition or delivery of the woman was
all that was deemed necessary. It was a transaction primitive
in its simplicity, but savoring of rough justice.

But this contract by consent and delivery was not sufficient
to give Quiritarian property in any human being, and mar-
riage thus contracted did not place the woman under the hand
(in manu) of her husband. To accomplish this it was neces*
sary that the nuptials should be performed according to the
formula of the confarreation, or that the woman should be
transferred per «s et libram to her husband. This coemptio
was a sort of symbolical purchase of the wife by the husband
in the presence of five witnesses and the official balance
holder. As mancipatio placed the thing purchased under the
dominion of the dominus, so coemptio placed the woman
under the hand (in manu) of her husband. So soon as it was
demonstrated that coemptio conferred the manus over wives,
plebeians would naturally make use of it.

In coemptio it was not the father who sold his daughter
so much as the daughter who, with the consent of her father,
sold herself. Indeed this sale must have been mutual, as
the term coemptumem facere would imply, the woman buy-
ing a husband and the man buying a wife. Boethius, in
his De Consolatione Philosophise, causes persons marrying
by this civil law to use the following form : —

Man. — An mihi mulier, mater familias esse velis ? Ilia
respondet, Velli. Idem mulier interrogabat ; An vir, mihi
pater familias esse velis ? Ule respondet, Velli.

Chap. Ill] THE REFORMS OF SERVIUS [$44

Following this came the regular form of the mancipation
which was, in all probability, the binding part of the contract.

There was another mode of marriage in vogue prior to the
enactment of the Twelve Tables by which a woman passed in
manum. This was usus or cohabitation for one Utoa.
year with the consent of her father or guardian.1 Usus was
founded on prescription, just as coemptio was founded on
mandpatio. Uninterrupted cohabitation for one year carried
with it manus and the absolute control of the woman's prop-
erty by her husband. To avoid this the woman absented
herself from her husband's bed for three consecutive nights
(tri noctium) during the first year.

To the introduction of mancipatio is also due a device
resorted to by the plebeians for the disposal of their estates in
contemplation of death.2 They had not obtained 1 4+ Effect
admission to the comitia curiata, and could there- -/f*11* **"

SOffflM OB (DO

fore make no valid wills other than "testamenta i*w <* suc-
in procincta facta." They commonly made a ceMfao.
disposal of their property to a friend by sale on trust
to let the former have the use of it until his death and to
distribute whatever remained of the estate, after taking out
whatever he was authorized to keep, among his heirs as per
arrangement. The person to whom this sale on trust was
made was designated familiee emptor. He always paid the
nominal price which made an obligation in law. This dispo-
sition of the property was entirely unprotected by law, the
persons whom the transferrer really meant to benefit having
no action whatever against the transfenee. But the per-
fectly mutual character of the transaction and respect for
Fides compelled the familiee emptor to fulfill the lex mancipii.
The declaration of the testator set forth the entire disposition

» Sohm, 260, 261 * Muirhead, 63-67.

1 45] A HISTORY OF ROMAN LAW [Past I

of his property (nuncupatio) . The full form of the mancipatio
was passed through, the five testes witnessing the transaction
and also the testament itself. This mortis causa but inter
vivos alienation was the forerunner of the testamentum per
res et libram of the Twelve Tables.

It is impossible to tell just how much effect Servius had
on the law of contract.1 Dionysius states that he was the
§45- Effect author of more than fifty enactments relative to
of the Re- contracts and crimes. Nexum certainly felt the

forms on

Contract influence of his legislation. This was originally
merely a loan of money or of raw copper which took the
place of money, but we know nothing of the formalities ac-
companying this loan beyond the mere weighing of the
money, nor do we know what rights, if any, the creditor had
over the debtor who failed to pay prior to the time of Servius.
Certain it is, however, that nexum was severe upon the
plebeian who had borrowed money from the patrician and then
failed to pay. Such a person was doubtless sold into slavery
or even in aggravated cases, put to death. This was consid-
ered all the more severe by reason of the fact that the contract
between the debtor and creditor was never published or
recorded, and the probability is that the patrician creditor
never really fulfilled his part of the contract but demanded
repayment before it was due and at a time totally unexpected
by the plebeian debtor. This would be a very easy procedure
since the plebeians had no way of officially knowing the
calendar. Servius demanded the publication of the contract
and withheld the right of manus and restraint of the debtor
if the conditions had not been fulfilled.

These conditions consisted of a solemn loan in the presence
of five witnesses. The libripens weighed out the proper

1 Muirhead, loc. tit.
92

Chap. Ill] THE REFORMS OF SERVIUS !fr46

amount of raw copper to the borrower and the lender at the
same time declared in solemn words that the borrower was
now in his debt (dare damnas esto). This placed the debtor
under an obligation to repay. He was said to be 'nexus' to
his creditor. He had mortgaged his own person as security
for the loan. When coined money was introduced a modifica-
tion of procedure in nexum took place. The actual loan was
arranged privately and the money paid over; the official
transaction became a mere fiction for the purpose of securing
witnesses and record. As in the case of mancipatio, the
weighing of a single piece of copper in the presence of five wit-
nesses by the libripens and its delivery by the creditor was
symbolical* of the actual weighing and delivery of the whole,
and the recital of certain words of style had the effect of bind-
ing the borrower in an obligation to repay with interest.
Thus the reform brought the certainty of an open and
provable contract.

Very little is known of the course of justice in either
criminal or civil matters before the time of Servius.1 Pro-
fessor Clark, referring to criminal matters and §4*.
summarizing the information about the judicial Sertim
functions, says; "The king as judge, sometimes mention
availing himself of the aid of a council, sometimes, the Coutm
perhaps, in cases of minor importance, delegating °* *■***••
his judicial powers to individual judices ; aided in his quest of
capital crimes by the queestores parricidii ; appointing at his
pleasure, in cases of treason, the extraordinary duum viri ;
allowing, though perhaps aot bound to do so, an
appeal from the latter to the assembled burgesses :
this is all that we can recognize with any degree of confidence."

But the king alone was by no means invested with the sole

» Muirhead, 69-75.
93

i 46] A HISTORY OF ROMAN LAW [Part I

criminal jurisdiction, as the pater familias was judge within
Pater the family of criminal as well as civil matters.

Famffiai. He alone was competent in any charge against the
domestic order. He could inflict the death, penalty, sell into
slavery, or banish, as he saw fit, as punishment for crime
against the domestic order. Voygt cites many examples
from the history of the early republic where the pater familias,
with the aid of a family council, passed judgment and inflicted
the penalty in case of unchastity of wife or daughter, immoral-
ity of his sons, or undutiful conduct of children or clients.

The indications of criminal jurisdiction on the part of the
gens are very slight. It must have been called on, however,
G by reason of its organization and composition, to

exercise criminal jurisdiction continually over
members of the gens. Muirhead cites as an example of this
gens jurisdiction its sitting in judgment on one of its members
to determine whether he was guilty of having put one of his
children to death before it had reached its third year, contrary
to the law of Romulus, and so incurring the penalty of sacra-
tio capitis.

Besides the cases of jurisdiction cited above, the individual
Self- right of self-redress was still granted by custom,

*•*•■■• and must have been prevalent well on toward the
end of the republic.1

The boundary between civil and criminal jurisdiction was
not strongly marked at this time in Rome. This is true in a
very marked degree in the history of the procedure of any
people in the same stage of development. Theft and rob-
bery, although punishable by death or slavery, were looked
upon as private wrongs and the thief or robber was not en-
titled to a trial, but was summarily disposed of by the injured

1 Muirhead, loc. eiL
94

Chap. Ill] THE REFORMS OF SERVIUS [$46

person in order to satisfy his desire for vengeance. Prior to
the enactment of the Twelve Tables compounding with the
wrongdoer was allowed, and thus was taken a step in advance,
as it was surely much more beneficial to the injured party than
was the mere taking of vengeance upon the violator of his
peace or property. The right of self-redress was thus gradu-
ally lost, as, when the custom of compounding for private
wrongs became common, difficulty in settling Print©
arose necessitating an appeal to a third party. Warn*.
It was doubtless this fact that called into use the intervention
of the king and ultimately gave him jurisdiction in these mat-
ters. He would very naturally be the person to whom to refer
disputes as he alone had the power of enforcing his decision.
It is not definitely known how the kings acquired jurisdic-
tion in questions of Quiritarian right (disputes about property
or inheritance).1 Such questions could not arise in the
family, as the distinction of ownership could not be drawn
owing to the common right of its members. Disputes con-
cerning property between clansmen would certainly be settled
by the gens or its leader. The spear was in earliest times the
arbiter, and victory of one faction over another decided the
right. When the State was established such a procedure as
this must have gradually passed away. The question of right
was submitted to the pontiffs of whom the king was the head,
and in order that this college might have jurisdiction the par-
ties interested were required to make oath to their conten-
tion. The matter then became a religious one and, since the
parties thus referred the matter to the gods, the truth or
falsity of their oaths could be decided by the pontiffs. Under
this head the real question at issue could be decided and
the party winning was then allowed to take self-redress.

» Muirhead, 74-75.
95

Title 2. Early Republican Period : From the Be-
ginning of the Republic to the Twelve Tables,
509-451 b.c.

CHAPTER IV

EARLY REPUBLICAN INSTITUTIONS TO THE

TWELVE TABLES

509-451 B.C.

The expulsion of the kings and the establishment of the
republic is dated 509 B.C. ; that is, nearly two hundred and
1 47. The **fty years after the reputed founding of the city.1
Political Neither the cause nor the course of this revolution
•wwmon. can y^ g^tecl with confidence, but the immediate
result was the lodgment of exclusive powers in the hands
of the patricians. The plebeians were not eligible for any
of the offices or honors in the new republican State. They
were excluded from the auspices and from all knowledge of
the laws ; they could not lawfully intermarry with patricians,
and they possessed practically no influence in that new in-
stitution of Servius, the comitia centuriata. All the good
which came to them from the revolution that had culminated
in the overthrow of the kings was to teach them a political
lesson. Perhaps they aided in the expulsion of the tyrants,
thinking that they too would have an active part in the new
political organization. In that they were mistaken. The
methods of revolution must doubtless have been absorbed
by the plebeians during the long struggle in which they, may-

1 Ortolan, 18-26.
96

Chap. IV] EARLY REPUBLICAN INSTITUTIONS [§48

hap, united their forces with the patricians in order to free
themselves from royal restraint. The establishment of the
consulate was not attended by the happy results that must
have been anticipated by many of the people of both or-
ders who had rejoiced over the expulsion of the Tarquins.
Through revolutionary methods, however, the plebeians, in
the fullness of time, were destined to compel the recognition
of their rights.

It would appear at first sight as if the revolution which
had culminated in the expulsion of the kings had brought in
its wake but slight change. There was no ap- §48. The
parent innovation in the comitia, in the senate, Comwii.
or in the administration generally. In the place of the kings
who held their position for life there were now elected by
the comitia centuriata two consuls as joint chief magistrates
who were chosen for a period of one year.1 At first these
magistrates were always of patrician rank. Although each
possessed supreme power, neither could act alone in opposi-
tion to the will of his colleague. Their powers were the
powers of the kings, more or less modified ; but as time went
on many of the original functions of the consuls were clipped
away and bestowed upon other officials by reason of the ris-
ing power of the hitherto despised plebeians. The priestly
functions of the king were at once transferred to a special
officer (rex sacrorum) who was excluded from all political
offices and officially subordinated to the chief pontiff. How-
ever, this brought about no real loss of power to the chief
magistrates, as they were always able to bend religion to
what they considered to be the true service of the State. The
nomination of the priests, however, did not remain with the
consuls as it had been with the king. The consuls were in-

* Muirhead, 79-81.
97

§49] A HISTORY OF ROMAN ^LAW, [Pabt I

vested with the supreme military power and because of this
had the authority of life and death outside of the limitations
of the city. As civil heads of the State they convoked the
senate and the assemblies of the people (regularly the comitia
centuriata, rarely the comitia tributa), conducted the busi-
ness of the meetings, and directed the executive administra-
tion. As judges the consuls administered justice both in
civil and criminal cases to patricians and plebeians alike,
either in person or through their delegates. However, in
criminal cases, the patricians were tried before the comitia
centuriata, while the plebeians were brought to justice before
the consuls. They, however, had the right to appeal from
consular decisions, in case of the death penalty, and a little
later, the tribunes could interpose a veto in their behalf.

By this time the comitia centuriata, which was at first
but an organization for military purposes, had entered practi-
l49a cally upon the functions of the comitia curiata,

Comitia superseding it in all respects except in the matter
*** of unavoidable formalities which lay under a
strong religious sanction.1 It had already become the sov-
ereign power in the State. It elected the chief magistrates ;
it passed the laws ; it decided questions of peace and war ;
it formed a court of last appeal. The comitia centuriata
embraced the whole body of citizens, and was consequently
spoken of as the populus, but the real power lay with the
patricians. During the next century and a half measures
submitted to the centuriata could not pass into law tfithtiut
senatorial sanction, and the senate was still patrician.

According to Livy the first act of the centuriata as a po-
Eiectfo litical body was the election of the two consuls.
Authority. Thereafter the comitia not only continued to elect

1 Botsford, 219-241.
98

Chap. IV] EARLY REPUBLICAN INSTITUTIONS [§49

the consuls but also naturally acquired the right to choose all
elective higher magistrates who were intrusted temporarily
or permanently with some or all of the consular powers.
These magistrates were, aside from the consuls : —

Praetors, chosen first in 366 B.C.

Military Tribunes with consular powers, first chosen in

450 B.C.
Censors, first chosen in 443 B.C.
Decemviri legibus scribundis, chosen in 451 B.C.

• The authority of this assembly expanded with the growth
of the number of offices and its importance was further
increased by the opening of the patrician magistracies to
plebeians. The validity of centuriate elections at first de-
pended upon the subsequent sanction of the curiata, later
upon the patrum auctoritas. This latter action was finally
done away with by the Msenian plebiscite and the centuriata
was henceforth free to make its own elections without check.
Primitive Rome, like primitive Greece, regarded law as god*
given. This, indeed, was the concept of nearly every nation
of antiquity. It left no scope for legislation by a Lt&Utir*
popular assembly. The comitia curiata, no doubt, A»thodtj.
confined its legislative activity to resolutions affecting custom.
It was only from the custom of the soldiers to participate in
the settlement of questions touching their interests that de-
veloped the function of declaring war. This was a very slow
development and can only be said to be fully recognized by
the time of the Twelve Tables. The legislative authority
of the comitia centuriata began in their sanctioning or re-
jecting measures brought before them by the presiding magis-
trate in the form of a senatus consultum.1 The earliest

1 Botsford, loc. tit.
99

i 49] A HISTORY OF ROMAN LAW [Past I

legislation of this assembly that has been recorded was the
lex de provocation attributed to Valerius Publicola, consul
in the first year of the republic, 509 B.C. In 449 B.C. the
consuls Valerius and Horatius passed through the centuriata
a law prohibiting the election of a magistrate without appeal,
and affixed as a penalty the outlawing of the trespasser.
Thus far popular legislation had no basis save that of prece-
dent, but a law of the Twelve Tables provided that there
should be resolutions and votes of the people, and whatever
the people voted last should be the law of the land. This
established the fundamental principle that the will of the
people, whenever expressed, prevailed over every authority.
But the initiative still remained with the magistrates so that
we should not be justified in pronouncing this popular sov-
ereignty. The auctoritas of the senate had to be obtained
for all acts of the comitia centuriata until 339 B.C., when an
article of the Publilian law required them to grant it to legis-
lative acts of the centuriata before the voting began and while
the issue was still in doubt. Thus it became a mere for-
mality, and centuriate legislation was freed from the con-
stitutional control of patrician senators. Still, a senatus
consultum introduced by a consul was the only business
brought before the centuriata in its legislative capacity.

The comitia centuriata were the court of last resort ; their
jurisdiction, however, was confined to cases of crime and of
judicial serious disobedience to magistrates.1 Their power
Power. wa3 not exercised in the first instance but only
by way of appeal. There came to them through this channel
all offenses committed against the State, purduellio, and
majestas, and all cases involving the life of Roman citizens.

Gradually the comitia centuriata shook off the control of

^Botsford, loe, tit.
100

Chap. IV] EARLY REPUBLICAN INSTITUTIONS [} 49

the comitia curiata and acquired the right of discussing and
deciding upon matters which were not brought before them
in the form of a senatus consultum. In other words, they
obtained the right pf originating and deciding upon measures
of import. The magistrate at first proposed all candidates
who had in turn been previously chosen by the senate.
Gradually the people claimed the right to vote upon any
candidate who might offer himself without his having re-
ceived any previous nomination from the senate. This made
elections popular. As heretofore, the place for holding the
comitia centuriata was the Campus Martius, which lay out-
side of the city walls. It contained the septa for the voters,
the tabernaculum for the president, and the villa publica for
the augurs. The centuriata met annually for the purpose
of holding the elections, at a certain time appointed by the
senate and consul ; this time consequently changed from year
to year. As we have seen, the method of voting was at
first oral ; each person present was called upon to vote ac-
cording to his rank in his centuria, and this vote was recorded
opposite his name. In 139 B.C. the custom of voting at
elections by tablets with the names of candidates written
upon them was introduced by the lex Gabinia tabellaria;
two years later this method of voting was introduced into
the curiata when acting as a court of justice, and afterwards
it was followed in all legislative measures. Thus each voter
was provided, in case of a judicial decision, with two ballots
or tablets, upon one of which was written "A" (absolvo);
on the other the letter "C" (condemno).

In case of a legislative decision he had two tablets, on one
of which was written "uti rogas" or "R"; on the other,
"antiquo" or "ant." The septa or ovile, where they voted
in later times, was a stone building large enough to contain

101

§ 50) A HISTORY OP ROMAN LAW [Part I

the whole body of franchisee! citizens. It was divided into
separate compartments for each class, and tribe, and century.
To each one of these compartments there led a narrow pas-
sage or fidus. Upon entering, each citizen received his
tablets, and after deciding he cast his tablet into the cista or
ballot box, which was carefully watched over by custodes
who saw to it that no citizen "stuffed the box." Votes were
taken out and counted immediately by officers appointed
for that purpose. As soon as a majority was obtained the
voting ceased, as has been previously stated ; at first, the
classes voted in order, but when the two bodies had become
fully consolidated, the order was ascertained by lot, thus mak-
ing it more democratic. The business of the meeting having
become completed, the president recited a short prayer and
then dismissed the assembly with the word "discedite."

It frequently happened that the centuriata was disturbed
so that it became necessary to postpone the meeting. This
occurred when it was discovered that the auspices had been
unfavorable, or when the gods manifested their displeasure
by means of rain, thunder, or lightning, when a tribune in-
terceded, when the sun set before the business was over, or
when a morbus comitialis occurred (when one of the assem-
bled citizens was seized with an epileptic fit).

In all such cases the comitia had to continue their business
on some other day.

The senate remained for a long time purely patrician.

Says one authority; "A whole century elapses after the be-

§so. The ginning of the Republic before we find a single

Sentte- plebeian in the senate."1 Of course there are

many authorities who do not agree with this statement in its

entirety. The senate had no independent legislative or

1 Sohm, 77 ; Botsford, 177, 406-408.

102

Chap. IV] EARLY REPUBLICAN INSTITUTIONS [§51

executive power, but was simply an advisory council, ap-
pointed, convened, and presided over by the consuls. The
senate advised the consuls when the latter saw fit to ask its
advice, just as it had formerly advised the kings under like
conditions, but it had no legal or formal means of controlling
their actions. And yet, owing to the permanency of the
senate and the annual election of consuls, the practical result
of it all was that, in all essential and important questions, the
senate decided the policy which the consuls had no alternative
but 'to adopt. The senate underwent no legal change at
the time of the revolution, although its authority and prestige
must have been very materially increased for a time. In
usual course a consul laid a proposition before the senate
and that body after discussion and deliberation adopted a
resolution (senatus consultum) on the subject. This reso-
lution was then carried by one of the consuls before the
comitia centuriata, which body without discussion took im-
mediate action thereon. If approved, it returned to the
senate and the confirmation of that body (patrum auctoritas)
gave it the force of law. This senatorial right of confirmation
was of especial importance only when the magistrates laid
a proposition before the people without previously submitting
it to the senate.

In the year 508 B.C., one of the earliest of the consuls,
Publius Valerius Publicola, proposed to the comitia curiata
and carried through that body certain very im- |5I. Leges
portant enactments which were suggested by the Valeria,
circumstances of the recent revolution.1 The most popu-
lar of these were the following : (1) Whoever should at-
tempt to obtain royal power should be devoted to the in-
fernal gods, his head to Jupiter, his property to Ceres. This

1 Ihne, 1, 141 ; Mommsen, 1, 267 ; Ortolan, 94 ; Hunter, 13.

103

i 51] A HISTORY OF ROMAN LAW [Part I

enactment was deemed to be a substantial security for the
annual election of magistrates and the control of any ambi-
tious person who might aim at the establishment of a des-
potism. (2) A law of appeal securing to every citizen the
right of an appeal to the comitia centuriata from a sentence
of death or scourging which had been pronounced by a magis-
trate (in the first place a consul). This law has been called
the Roman Habeas Corpus Act and is spoken of by Cicero
and Livy in terms of highest praise. It evidently embraced
all persons, patricians and plebeians, although upon this
there is no agreement among the authorities. Livy leaves
the impression that appeal from the decision of the magis-
trate is now granted for the first time, yet it is quite certain
that this law merely transferred into writing what had
previously been a custom among the patricians. The new
feature was the application of this principle to the plebeians
and it must have resulted in a great accretion of protection
and security to that class.
This law had three very important exceptions : —

(a) It did not apply to foreigners and slaves, who could
be scourged and put to death by any magistrate
on his own authority.

(6) It did not apply to the jurisdiction of the pater familias,
who could carry out his own right independent of
any enactment or interference on the part of either
magistrate or assembly. It thus came to pass that
a person who could not legally be put to death
without the consent of the comitia curiata, could
be executed by his own father.

104

Chap. IV] EARLY REPUBLICAN INSTITUTIONS [§§52,63

magistrate had the authority of life and death and
could act upon his own volition.

Any private citizen was at liberty to prosecute before the
comitia centuriata for capital crimes as well as a magistrate.
This body, however, frequently delegated their §5*.

power to a committee of citizens called qiuestors ^h^^!
(qusestores parricidii), whose duty it was to pre- dde.

side over the investigation of all criminal charges, to direct
the proceedings, and to deliver judgment in the name of
the people.1 It is well to note that parricidium signifies
at this period in the development of Roman law "paris-
cidium," the murder of one's equal (homicide); and not,
as in later times, "patris-cidium," the murder of a father
(patricide). To this body of quaestors was added the care
of the State chest and the State archives, and they became
annual magistrates elected by the people in the comitia cen-
turiata, rather than appointed by the consuls, a custom
which had previously been maintained. The last-named
duties were clipped away from the consuls and devolved
upon the queestors by means of a law brought forward
by the same Valerius Publicola who was the author of
the laws mentioned above.

When the Tarquins were expelled by means of a combina-
tion of patricians and plebeians against them, they did not
remain inactive but, instead, waged an almost §53. The
continual warfare against the Romans for a Wdrtor.
period of more than nine years, endeavoring to reestablish
the kingship and regain their lost authority. At one time
in this struggle it looked as if they might succeed in their pur-
pose. Conditions became so desperate that the Romans

1 Ortolan, 95.
105

§541 A HISTORY OP ROMAN LAW [Pabt I

at last resorted to a plan of reuniting their sovereign power
in the hands of one man in order that their energies might
be centralized and better directed. The consuls and other
magistrates gave up their offices and, at the advice of the
senate, appointed from among the patricians a dictator who
was invested with supreme power for a period of six months.1
As chief magistrate he ruled Rome ; as general he commanded
the army. The ax (a symbol of the life and death power)
was restored to the fasces of his lictor. He could condemn
citizens to the scourge, exile, or death without the appeal to
the centuriata (provocatio ad populum). The appeal to a
colleague, as in case of consuls, of course, no longer existed,
as the dictator possessed the sole authority. His word was
law. The plan worked with success and the enemy was
quickly overthrown and the effort to reestablish the king-
ship abandoned. The Romans found this to be a good thing
in time of great danger, and so long as citizens were animated
solely by love of country, but later this constitutional scheme
of centralization led to arbitrary despotism.

The dictator was provided with a lieutenant whom he was
at liberty to choose, and wljo was styled the master of the
I ^ horse (magister equitum)r a military office which

Hacittor is thought to date back to the time of Romulus.
^ru^ai" This lieutenant headed the young nobles who
composed the cavalry contingent and made up the knights
of the new Servian classification. The dictator himself al-
ways went on foot, whether in the city or in the field, at the
head of the infantry, preceded by his twenty-four lictors.
This order of procedure would put the dictator specially in
command of the plebeians, who furnished the greater part
of the infantry.

1 Ortolan, 100.
106

Chap. I V] EARLY REPUBLICAN INSTITUTIONS [J 56

As soon as the danger which caused the appointment of a
dictator had passed away and the people had an opportunity
to consider their own condition, the struggle

• 55*

which had been rife between patrician and plebeian straggle
almost from the first year of the city was re- between
newed.1 Let us see how the case now stood. dene end
The political situation of the plebeians was by the Pie-
no means promising. It had changed little beittw.
for the better during the brief period of the republic.
The senate was composed solely of patricians. They had
a monopoly of the religious offices, of the posts of consul,
quaestor, dictator, and master of the horse. They alone
held military command and ruled arbitrarily in the comitia
centuriata and the comitia curiata ; in the one by virtue of
their wealth, in the other by reason of their race. Thus all
the offices of the State from the consul to the lowest rank in
the army were in the hands of the patricians. The conditions
of private life were no better. The plebeians knew little or
nothing of mercantile affairs or the practice of mechanical
arts, there being little or no demand for such occupations at
this time. They thus had no other resource open to them
but agriculture on a very small scale. On the other hand
they were subject to military service without any recompense,
thus being compelled ofttimes to neglect the cultivation of
their fields and the harvesting of their crops. If there came
an unproductive harvest, the plebeian was compelled to bor-
row from his more fortunate patrician neighbor. In case
he was unable to pay, by the process known as nexum he
lost what little property he possessed as well as his liberty,
and fell into a condition of servitude to his creditors. The
Twelve Tables forbade his intermarriage with the patrician.

1 Ortolan, 91-04.
107

§65] A HISTORY OF ROMAN LAW [Part I

He had no share in the conquered territory and could not
take possession of the ager publicus, as did his wealthy patri-
cian neighbors. Common necessity and common poverty
and degradation taught their lesson at last; namely, com-
mon sympathy and a united effort toward bettering their
condition. We have already stated that the revolution
taught the plebeians the method of revolution. The first
use to which they put this new knowledge was to retire en
masse to Mons Aventinus beyond the Anio, in 494 B.C.

This first secession of the plebeians had for an immediate
result the remission of debts, the liberation of debtors, and,
Tnbuni most of all, the creation of two magistrates, the
Piebis. plebeian tribunes (not tribunes of the people as

is often stated). Tribunes already existed prior to the first
secession, but their functions were economic, pertaining to
land and taxation. The word and the office were of still
older military origin. A compromise was brought about
by which this office was changed in nature and given over
to the plebeians.1 The tribunes were henceforth chosen
from among the plebeians, but, strange to say, they were at
first nominated by the curiata, which was the most thoroughly
patrician of all the assemblies. The functions of the tribunes
were not at first initiative, nor did the office at first confer
executive power, but it was solely protective. It was the
province of the tribune to shelter the plebs from acts of vio-
lence or injustice. This protection was secured by what
was termed their intercession (intercedere, intercessio) or
their opposition ; that is, the veto which they were empowered
to pronounce upon the acts of the consuls, other magistrates,
and even the decrees of the senate. At a later period they
acquired executive power and the right of initiating action.

1 Ortolan, he. ciL
108

Chap. TV] EARLY REPUBLICAN INSTITUTIONS [§65

The rights mentioned were guaranteed to them by the comi-
tia centuriata; they were sanctioned by the senate, and
consecrated by religious ceremonies. The persons of the
tribunes, the hill to which the plebeians had retired, the laws
which secured these privileges, all became sacred objects:
the hill took the name of the sacred mount (Mons Sacer) ;
the laws, that of sacred laws (leges sacra) ; the person of the
tribune was inviolable (sacro-sancta) ; and the head of him
who should attempt the life of a tribune was forfeited to
Jupiter (caput Jovi sacrum), and his family sold into slavery
in aid of the sacrifices to Ceres. The power of the tribune
at no time extended farther than the first milestone from
the city. Thus it was powerless against the military im-
perium ; that is, against the authority of the dictator or the
consul beyond the limits mentioned. The doors

TribonL

of the houses of the tribunes stood open day and
night to afford unimpeded access to the plebeians who re-
quired their aid. The chief limitation of their power lay in
the right of mutual veto, as any one tribune could veto the
order of a fellow tribune as well as that of a consul. The
increase of their numbers increased the chances of patrician
control, as it made bribery practical. In 494, two tribunes
were appointed ; in 471, the number was raised to five, and,
in 457, to ten.

At the same time that the tribunes were first elected two
aediles were also appointed as their assistants.1 These cor-
responded in a way to the qiuestors of the consuls. The
eediles had charge of the details of police administration,
thus arresting offenders and bringing them before the plebe-
ian tribunals. They also had under their care the protec-
tion of the temple where the resolutions of the tribes were

1 Ortolan, loc. cit.
109

§ 66] A HISTORY OF ROMAN LAW [Past I

deposited (plebiscite). The persons of the eediles were
inviolable as well as those of the tribunes. They possessed
inferior judicial power extending, as did that of the tribunes,
to the imposition of fines. A great expansion of their author-
ity took place in the later republic, and next to the tribunes
they were the most influential of the officers of the republic.

Every year added to the difference between the patrician
and plebeian, the rich and the poor ; a difference which had
1 56. Ux now grown so great as to threaten seriously the
CtMta- very existence of the State. The most sagacious
of all the plans which had been proposed to stop this evil
was that set forth by Spurius Cassius, a noble patrician now
acting as consul for the third 1 time. In the year 486 B.C.,
he submitted to the burgesses s a proposal to have the public
land surveyed, that portion belonging to the populus set
aside and the remainder divided among the plebeians or
leased for the benefit * of the public treasury.

He thus attempted to wrest from the senate the control
of the public land and, with the aid of the Latini and the
plebeians, to put an end to the system of occupation.4 The
lands which he proposed to divide were solely those which
the State had acquired through conquest since the general
assignment by King Servius, and which it still retained.1
This was the first measure by which it was proposed to dis-
turb the possessors in their peaceful occupation of the State
lands, and, according to Livy, such a measure had never been

1 Dionysius, VIII, 68 ; "01 64 wapa tvOtw r^w brartlar wapa\n^6wnjt
vbr\tot OfapyLnoi koL ZrtfjMot Kd<r<rtoj, rb rplrow r6rc dvo&ecxlefc wrortt,
k.t. A."

f Dionysius, VIII, 69 ; Livy, II, 41, et seq.
1 Dionysius, VIII, 81.
4 Dionysius, VIII, 69 ; Mommsen, I, 363
•Niebuhr, 11,166.

110

Chap. TV] EARLY REPUBLICAN INSTITUTIONS [556

proposed from then to the time in which he was writing, un-
der Augustus, without exciting the greatest disturbance.1
Cassius might well suppose that his personal distinction and
the equity and wisdom of the measure would carry it through,
even amidst the storm of opposition to which it was subjected.
Like many other reformers equally well meaning, he was
mistaken.

The citizens who occupied this land had grown rich by
reason of its possession. Some of them received it as an in-
heritance, and doubtless looked upon it as their property as
much as the Ager Romanus. These to a man opposed the
bill. The patricians arose en masse. The rich plebeians,
the aristocracy of wealth, took part with them. Even the
commons were dissatisfied because Spurius Cassius proposed
in accordance with federal rights and equity to bestow a
portion of the land upon the Latini and Hemici, their con-
federates and allies.2 The bill proposed by Cassius, together
with such provisions as were necessary, became a law, ac-
cording to Niebuhr,* because the tribunes had no power to
bring forward a law of any kind before the plebeian tribes
obtained a vote in the legislature by the enactment of the
Publilian law in 472 B.C. ; so that when they afterwards made
use of the agrarian law to excite the public passions it must
have been one previously enacted but dishonestly set aside,
and, in Dionysius's account, this is the form which the com-
motion occasioned by it takes.4 Though this is doubtless

1 Livy, II, 41 ; "Turn primum lex agraria promulgate, est nun-
quam deinde usque ad hano memoriam sine maximus motibusrerum
agitata."

8 Livy, II, 41 ; Dionysius, VIII, 69.

» Niebuhr, II.

4 Dionysius, VIII, 81 : " iKxMjirtal re (rvpcytU ford rdr r6rc 8ii/i&pxu*
tylworro xaX dx<unfr<rei$ rty forwxeVectf ." See also VIII, 87, line 25 et
seq,

111

J 57] A HISTORY OF ROMAN LAW [Pabt I

true, yet the law, by reason of the combined opposition,
became a dead letter, and {he people who would have been
most benefited by its enforcement joined with Cassius's
enemies at the expiration of his term of office to condemn
him to death. In this way does ignorance commonly re-
ward its benefactors. This agitation, aroused by Cassius,
stirred the Roman Commonwealth, now more than twenty
years old, to its very foundations, but it had no immediate
effect upon the ager publicus. The rich patrician, together
with the few plebeians who had wealth enough to farm this
land, still held undisputed possession. The poor plebeian
still continued to shed his blood on the battle field to add to
Roman territory, but no foot of it did he obtain. Wealth
centralized. Pauperism increased.

Modern historians who have written upon the Roman
Republic have, so far as I know, passed immediately from
I S7a the consideration of the Lex Cassia to the law of

A«wri«a Licinius Stolo. Meanwhile more than a century
between ^ad passed away. Cassius died in 485 B.C.,
486 and Licinius proposed his law in 376. During this
367B.C. century which had beheld the organization of
the republic and the growth, by tardy processes, of the
great plebeian body, many agrarian laws were proposed and
numerous divisions of the public land took place. Both
Dionysius and Livy mention them. The poor success of
the proposition of Cassius and the evil consequences to him-
self in no way checked the zeal of the tribunes. Proposi-
tions of agrarian laws followed one another with wonderful
rapidity^ Livy enumerates these propositions, but almost
wholly without detail and without comment upon their tend-
encies or points of difference from one another or from the
law of Cassius. As this law failed of its object by being dis-

112

Chap. IV] EARLY REPUBLICAN INSTITUTIONS [§57

regarded, we may safely conclude that the most of these
propositions were but a reproduction of the law of Cassius.

In 484 B.C., and again in 483, the tribunes proposed agra-
rian laws, but what their nature was, Iivy, who records
them, does not tell us. From some vague assertions which he
makes we may conclude that the point of the law was well
known, and was but a repetition of that of Cassius.1 The
consul, Cseso Fabius, in 484, and his brother Marcus in the
following year, secured the opposition of the senate and
succeeded in defeating their laws.

Livy* mentions very briefly a new proposition brought
forward by Spurius Licinius in 482. Here we are able to
complete his account by reference to Dionysius,* who says
that, in 483, a tribune named Caius Maenius proposed an
agrarian law and declared that he would oppose every levy
of troops until the senate should execute the law ordaining
the creation of decemvirs to determine the boundaries of
the domain land. He, in fine, did forbid the enrollment of
citizens, but the senate was able through the consuls, Marcus
Fabius and Valerius, the former colleague of Cassius, to
invent a means of avoiding this difficulty. The authority
of the tribunes, by the old Roman law,4 did not reach without
the walls of the city, while that of the consuls was every-
where equal and only bounded by the limits of the Roman
world. They moved their curule chairs and other insignia of
their authority without the city walls and proceeded with
the enrollment. All who refused to enroll were treated as
enemies * of the republic. Those who were proprietors had

1 "8olieitati, eo anno, sunt dulcedine agrariae legis animi plebU,
• . . vana lex vanique legis auotores." Iivy, II, 42.

» Iivy, II, 42. » Dionysius, VIII, 606, 607.

4 Iivy, loc. tit. ; Dionysius, loc. cU.
* Dionys., VIII, 564.

113

J 57] A HI8T0RY OP ROMAN LAW [Part I

their property confiscated, their trees cut down, and their
houses burned. Those who were merely farmers saw them-
selves bereft of their farm implements, their oxen, and all
things necessary for the cultivation of the soil. The resist-
ance of the tribunes was powerless against this systematic
oppression on the part of the patricians ; the agrarian * law
failed and the enrollment progressed.

There is some difficulty in determining the facts of the
law proposed by Spurius Licinius2 of which Livy speaks*
Dionysius calls this tribune, not Licinius but Sttv/mosSuc/Xw.
The Latin translation of Dionysius has the name Icilius, and
this has been the name adopted by Sigonius and other his-
torians. Livy tells us that the Icilian family was at all times
hostile to the patricians and mentions many tribunes by this
name who were stanch defenders of the commons. In
accepting this correction, therefore, it is not necessary to
confound this Icilius with the one who proposed the parti-
tion of the Aventine among the plebeians. Icilius, according
to both Livy and Dionysius,' made the same demand as the
previous tribunes, i.e., that the decemvirs should be nomi-
nated for the survey and distribution of the domain lands,
according to previous enactment. He further declared that
he would oppose every decree of the senate, either for war
or the administration of the interior, until the adoption and
execution of his measures. Again the senate avoided the
difficulty and escaped, by a trick, the execution of the law.
Appius Claudius, according to Dionysius,4 advised the senate
to search within the tribunate for a remedy against itself,

1 Dionys., VIII, 555.

> Val. Max., Fg. of Bk. X : i'Spurii, patre inoerto geniti."

1 Livy, loc. til. ; Dionys., loc. cit.

« Dionys., IX, 558 ; livy, II, 43.

114

Chap. IV] EARLY REPUBLICAN INSTITUTIONS [§57

and to bribe a number of the colleagues of Icilius to oppose
his measure. This political perfidy was adopted by the
senate with the desired effect. Icilius persisted in his propo-
sition and declared he would rather see the Etruscans mas-
ters of Rome than to suffer for a longer time the usurpa-
tion of the domain lands on the part of the possessors.1

This somewhat circumstantial account has revealed to us
that at this time it took a majority of the tribunes to veto an
act of their colleague. At the time of the Gracchi the veto
of a single tribune was sufficient to hinder the passage of a
law, and Tiberius was for a long time thus checked by his
colleague, Octavius. Then the tribunician college consisted
of ten members, and it would be no very difficult thing to
detach one of the number either by corruption or jealousy.
But it is evident that, at the time we are considering, it took
a majority of the tribunes to veto an act of a colleague;
moreover, the college consisted of five members. This lat-
ter fact is seen in the statement of Livy,s when he mentions
the opposition which four of the tribunes offered to their
colleague, Pontificius, in 480 B.C. In this same case he at-
tributes to Appius Claudius the conduct which Dionysius
attributed to him in the previous year. But he causes Appius
to state, in his speech favoring the corruption of certain
tribunes, "that the veto of one tribune would be sufficient
to defeat all the others." ' This is contrary to the statement
of Dionysius 4 and would seem improbable, for, if the opposi-
tion of one tribune was sufficient, the patricians would not

1 Dionys., IX, 55&-560; MT©*t mriymt tV x&P** *♦* *v*-
wlav . . . ." uKal ItxiXtos oMerif tn rfpiot 4}r."

1 Livy, loc. cit.

1 livy, II, 44 : "Et unum vel adversus omnee satis esse . • •
quatuorque tribunorum adversus unum/!

4 Dionys., IX, 562.

115

§ 571 A HISTORY OF ROMAN LAW [Part I

have deemed it necessary to purchase four. That would
have been contrary to political methods.

Of the two propositions of the tribunes, Icilius, in 482 B.C.,
and Pontificius, in 480 B.C. the results were the same. The
opposition of their colleagues defeated them. But this
persistent opposition rather than crushing seemed to stir up
renewed attacks. We have seen the tribunes, Msenius,
Icilius, and Pontificius, successively fail. The next move-
ment was led by a member of the aristocracy, Fabius Caeso,1
consul for the third time in 477 B.C. He undertook to re-
move from the hands of the tribunes the terrible arm of
agrarian agitation which they wielded constantly against
the patricians, by causing the patricians themselves to dis-
tribute the domain lands equally among the plebeians, say-
ing ; "that those 2 persons ought to have the lands by whose
blood and sweat they had been gained." His proposition
was rejected with scorn by the patricians, and this attempt
at reconciliation failed, as all the attempts of the tribunes
had. The war with Veii which, according to Livy, now took
place, hindered for awhile any agrarian movements; but,
in 474, the tribunes Gaius Considius and Titus Genucius
made a fruitless attempt at distribution, and, in 472, Diony-
sius speaks of a bill brought forward by Cn. Genucius which
is probably the same bill.

In 468, the two consuls, Valerius and iEmilius, faithfully
supported the tribunes in their demand3 for an agrarian
law. The latter seems to have supported the tribunes be-
cause he was angry that the senate had refused to his father

1 livy, loc. cit. ; Dionys., loc. cit.

1 Livy, II, 48 : "Captivum agrum plebi, quam maxime nquali-
ter darent. Verum esse habere eos quorum sanguine ao sudor*
partus sit. Aspernati Patres sunt/'

1 Livy, II, 61, 63, 64.

116

Chap. IV] EARLY REPUBLICAN IN8TITUTION8 [§58

the honor of a triumph ; Valerius, because he wished to con-
ciliate the people for having taken part in the condemnation
of Cassius.

Dionysius, according to his custom, takes advantage of
the occasion to write several long speeches here, and one of
them is valuable to us. He causes the father of iEmilius
to set forth in a formal speech the true character of the
agrarian laws and the right of the State again to assume the
lands which had been taken possession of. He further says ;
"that it is a wise policy * to proceed to the division of the
lands in order to diminish the constantly increasing number
of the poor, to insure a far greater number of citizens for
the defense of the country, to encourage marriages, and, in
consequence, to increase the number of children and defend-
ers of the republic/' We see in this speech the real pur-
pose, the germ, of all the ideas which Licinius Stolo, the
Gracchi, and even Caesar, strove to carry out. But the
Roman aristocracy was too blind to comprehend these
words of wisdom. All these propositions were either de-
feated or eluded.

In the year 454 B.C.,2 Lucius Icilius, one of the tribunes
for that year, brought forward a bill that the Aventine hill
should be conveyed to the plebeians as their per- 1 58. l«x
sonal and especial property.8 This hill had been IdBt-

the earliest home of the plebeians, yet thay had been sur-
rounded by the lots and fields of the patricians. That part

'Dionys., IX, 606, 607; Livy, III, 1. The authorities are
somewhat conflicting at this point, and I have followed the account
of Dionysius.

'Schwegler, Rdmisehe Geschichte, II, 484; Dionys., X, 31,
p. 657, 43.

1 Dionys., X, 31, 1. 13 ; Ihne, Hist, of Rome, 1, 191, note ; Lange,
Rdm. Alter., I, 619. Also see art. in Smith's Diet, of Antiquities.

117

§ 68] A HISTORY OF ROMAN LAW [Part I

of the hill which was still in their possession was now de-
manded for the plebeians. It was a small thing for the
higher order to yield this much, as the Aventine stood beyond
the Pomcerium,1 the hallowed boundary of the city, and,
at best, could not have had an area of more than one fourth
of a square mile, and this chiefly -woodland. The consuls,
accordingly, made no hesitation about presenting the bill
to the senate before whom Icilius was admitted to speak in
its behalf. The bill was accepted by the senate and after-
wards confirmed by the centuries.2 The law provided:
"that all the ground which has been justly acquired by any
persons shall continue in the possession of the owners, but
that such part of it as may have been usurped by force or
fraud by any persons and built upon, shall be given to the
people; those persons being repaid the expenses of such
buildings by the estimation of umpires to be appointed for
that purpose, and that all the rest of the ground belonging
to the public, be divided among the people, they paying no
consideration for the same."* When this was done the
plebeians took possession of the hill with solemn ceremonies.
This hill did not furnish homes for all the plebeians, as some
have held ; nor, indeed, did they wish to leave their present
settlements in town or country to remove to the Aventine.
Plebeians were already established in almost all parts of
the city and held, as vassals of the patricians, considerable
portions of Roman territory. This little hill could never
have furnished4 homes of any sort to the whole plebeian
population. What it did do was to furnish to the plebeians

1 /.e., outside of the "quadrata" but 'E/irefHtxtf""* rj x6\eif,
Dionyeius, X, 31, 1. 18 : "pontificate pomsrium, qui auspicato olim
quidem omnem urbem ambiebat prater Aventinum." Paul, ex
Pest., p. 248, Mull.

1 Dionys., X, 32. * Dionys., X, 32. « Mo mm., I, 355.

118

Chap. IV] EARLY REPUBLICAN ^INSTITUTIONS [558

a trysting place in time of strife with their patrician neigh-
bors, where they could meet, apart and secure from inter-
ruption, to devise means for resisting the encroachments
of the patricians and further to establish their rights as
Roman citizens. Thus a step toward their complete emanci-
pation was taken. For a moment the people were soothed
and satisfied by their success, but soon they began to clamor
for more complete, more radical, more general laws. An
attempt seems to have been made in 453 B.C. to extend the
application of the lex Icilia to the ager publicus,1 in general,
but nothing came of it. In 440 b.c. the tribune, Petilius,
proposed an agrarian law. What its conditions were Livy
has not informed us, but has contented himself with saying
that " Petilius made a useless attempt to bring before the
senate a law for the division of the domain lands." * The
consuls strenuously opposed him and his effort came to
naught.

1 Dionys., X, 34.

1 Livy, IV, 12: "Neque ut de agris dividendis plebl referrent
consoles ad aenatum potuit. • . • Ludibrioqueerant mina tribuni."

119

CHAPTER V
THE TWELVE TABLES1

Cicero says that the later kings generally regarded the
plebeians as in a manner royal clients and were careful that
1 5*. justice should be done them in their private re-

Oiigfai. lations. This was a matter of good policy on their
part, as the plebeians made up the mass of the population
and sooner or later would force recognition of their rights.
When the republic was established the royal laws were
generally disregarded, and the consuls were too busy with
the military affairs of the nation to listen to complaints
coming from the oppressed and poverty stricken plebs.
The yearly changes in the magistracy made it all the more
difficult to obtain any uniformity either of rule or practice
so long as the law rested upon nothing more stable than un-
written custom, and few people knew what that custom was.
"The constant clash of coordinate jurisdictions/9 says Hun-
ter, "and the constant operation of acrid political bias, cor-
rupted and reduced to miserable uncertainty the administra-
tion of the law. It was useless for the plebeians to possess
special officers for their legal protection, if the interference of
the tribunes could be thwarted by the opportune production
of a forgotten or wholly unknown law by the representatives
of the patricians. Such written laws as existed, and the law
of custom which was chiefly followed in legal proceedings,

*8ohm, 24-27; Muirhead, 86-100, 434-443 ; Ortolan, 112-142 ;
Botsford, 30, 233, 239-245 ; Hunter, 15-28.

120

Chap. V] THE TWELVE TABLES [§59

were guarded by the patricians with intense jealousy and
with the cloak of religious mystery from the plebeians. This
was no longer to be endured. The efforts of the plebeians
were therefore directed mainly to two things; to secure
publicity and equal laws for all classes (Livy, III, 31).
And with this object in view, they demanded that the pristine
laws of the republic should be reduced to writing and pro-
mulgated/1

The first step taken for the carrying out of this reform was
made by one of the tribunes, C. Terentilius Arsa, who, in
462 B.C., demanded that a commission of five plebeians be
appointed to draw up laws defining and regulating the
arbitrary powers of the consuls.1 This was resisted by the
patricians, and Terentilius was persuaded to withdraw his
bill and cease his agitation for a time. In 457 the number
of the tribunes was increased from five to ten and, in 456,
some land was given the plebs to turn their minds from the
question at issue. In 454 the consuls themselves proposed
a bill limiting the amount of fines that they should have
the right to impose. This was passed by the centuriata.
Still the issue could not be dodged nor longer delayed, and,
in 452 B.C., a bill was carried sanctioning the appointment
of ten commissioners for one year with sole and supreme
power, for the purpose of compiling a complete code of laws.

In the meantime it would appear that three ambassadors
had been sent to the Greek colonies and settlements in
southern Italy to make a study of their statute law and to
collect such materials as would be useful in preparing the
contemplated code.

The commission of decemviri legibus scribundis, patricians
with consular power, took office in 451 B.C. under the presi-

* Ortolan, 114.
121

§ 59] A HISTORY OP ROMAN LAW [Part I

dency of Appius Claudius. The regular magistrates re-
tired and laid down their authority, while each decemvir
administered the government for a single day. They drew
up, with the aid of the material and knowledge gained by the
ambassadors, and the assistance of a Greek exile, Herodorus,
a body of laws which was approved by the senate and the
comitia centuriata and immediately set forth in public on
ten tables of wood. The work of the commission was not
completed and was reestablished the following year with
some change in its membership; five plebeians probably
receiving seats in that body. However, the laws which
were prepared by the decemvirs the second year were for
some unknown reason rejected, and the consular system of
government was again resumed in 449 B.C. The consuls
of this year, Valerius and Horatius, immediately drew up
two tables of laws which were passed and published. The
ten sections of the decemviral laws and the two sections of
the consular laws constitute, when taken together, the
famous laws of the Twelve Tables (Lex XII Tabularum).
They form a collection of the earliest known laws of the
Roman people and are the foundation of the whole fabric
of Roman law.

''There were provisions in the Tables that were almost
literal renderings from the legislation of Solon; this is so
stated, with reference to particular enactments, by both
Cicero and Gaius. Others again bore a remarkable corre-
spondence to laws in observance in Greece, such as the pro-
vision that the conveyance following on a sale should not
carry the right of property until the price had been paid or
security given for it to the seller, and the rules about theft
discovered with loin-cloth and platter (f urtum Iinteo et lance
conceptum), but which there is no authority for saying

122

Chap.V] THE TWELVE TABLES [§60

were directly borrowed." It is certain, however, that by
far the greater portion of the laws was native and original,
being but a codification of the customary law in vogue
for centuries. Cicero speaks in terms of highest praise of
them and Livy calls them "the fountain of the whole law
both public and private/' and yet they are in many in-
stances both rude and barbarous, revealing the fact that the
Roman people, at the time of their enactment, were but
half civilized ; in pretty much the same condition as were
the Jews at the time of the enactment or codification of
Deuteronomy.

"Such was the origin," says Ortolan,1 "of this primitive
monument of Roman jurisprudence, called for distinction
'The Law/ Lex (Leges XII Tabularum, Lex Decern viralis).
As a carmen necessarium it was the custom to make children
commit it to memory, for imagination was sometimes fertile
enough to enable people to believe that they could recognize
a poetical character in its clauses. These laws, which sur-
vived so many ages of Roman history, and even outlived
the republic itself, were held in such respect that the slightest
alteration was never permitted."

The task that the decemvirs had to perform was to equalize
the law for all and to remove every cause of arbitrary deal-
ing and legal oppression on the part of the patri- { 60.
cians by means of distinct specification of penalties Sowce*.
and precise declaration of the circumstances under which
rights should be held to have arisen or been lost, and to make
such amendments as were necessary to meet the complaints
of the plebeians and prevent their oppression in the name of
justice. Those portions of the common law that were, by
their nature, universally known, were omitted. This is

1 Ortolan, 113.
123

§61] A HI8T0RY OP ROMAN LAW [Part I

why the leges regime form so little part of the Twelve Tables,
and the enactments of the early republic have been passed
by in silence. They gave their attention only to the more
obscure portions and the technical machinery of the law
that had been the exclusive appanage of the patriciate.1

We are told that the original laws of the Twelve Tables
were destroyed when Rome was sacked and burned by the
1 61. Ro- Goths. If so, they were, no doubt, quickly re-

Recomtruc- product from memory and copies of them
tfcm. multiplied, as Cicero says that when he was

a youth the children were required to commit them
to memory as an ordinary school task. This fact ren-
ders it all the more extraordinary that the remains of
them are so scattered and fragmentary. All we know of
them have been collected from different authors throughout
whose pages they are scattered, and the genuineness of these
portions are in many cases debatable. The Twelve Tables
were embodied in the Tripertita of Sextus jEUus, consul in
558 A.U.C., and formed the basis of all the writings on
the jus civile to the time of Servius Sulpicius Rufus at the
beginning of the eighth century A.U.C., when the praetor's
edicts were used as a text. Labeo, in the early days of the
empire, and Gains, in the time of Antoninus Pius, made them
the subject of monographs, and yet despite all this some two
score of these laws are all that can be found. Further, the
order of their arrangement is very largely a matter of pre-
sumption. Cicero tells us that the first table contained
the invocatio in jus ; that the tenth treated of religious cere-
monies and funeral rites, and that either the eleventh or
the twelfth prohibited intermarriage between patricians and
plebeians. Dionysius indicates the existence in the fourth

1 Muirhead, 95.
124

Chap. V] . THE TWELVE TABLES [§ 61

of the permission of a father to sell his children. With these
definite indications, and aided by hints found in Gaius and
the Digest, we are able to arrive at the probable order of
the subject of each table.

With these fragments, few in number and somewhat
doubtful in content, scholars have undertaken from time
to time the reconstruction of the Twelve Tables.1 In this
task they have relied for the most part upon the guidance
of Gaius's commentary on the decemviral code and the
consolidation of the praetorian edict of Julian. The com-
mentary of Gaius is arranged in six books ; he is supposed to
have followed the order of his text of the Twelve Tables and
to have written one book of commentary for every two
tables. These commentaries of Gaius exist only in excerpts
from them in the Digest and do not furnish evidence suffi-
cient in themselves to warrant any definite conclusion. The
compilers of Justinian's Digest and Code are supposed to
have followed the order of the Edictum Perpetuum of Salvius
Julianus, while the latter is supposed to have followed that
of the Twelve Tables. Thus by a second step we get back
to the decemviral laws. The latest and perhaps the ablest
of all the scholars who have attempted this reconstruction
is Voigt. He concludes that the jus civile of Sabinus, to-
gether with the commentaries on the same, formed a trust-
worthy guide to the order of the Twelve Tables. After
commenting on the work of the various editors, Muirhead
says in conclusion ; " It is safer, therefore, when referring to a
provision of the Tables, to quote the ancient writer on whose
authority it is said to have been contained in them, without
specifying either table or law. For after all, the sequence
is of little importance, and is throughout purely conjectural."

* Muirhead, 96-100.
125

§ 62] A HI8T0RY OP ROMAN LAW [Pabt I

We may safely admit that the course of Roman law was
strongly influenced by the principal arrangement of the
Twelve Tables. In fact, to the close of its history, com-
positors used language which implied that the body of their
system rested on the Tables, and therefore rested on a basis
of written law. Among the chief advantages which the
Twelve Tables, and similar codes, conferred upon societies
obtaining them was the protection afforded against fraud
on the part of the principal classes or oligarchy, and the
consequent debasement of the national institutions. The
Twelve Tables are but a written account of laws already in
existence.

Table I. Proceedings Preliminary to Trial

1. If the complainant summon the defendant before the
magistrate, he shall go ; if he do not go, the plaintiff may
1 62. The take a bystander to witness, and take him by
Tftbles- force.

2. If the defendant attempt evasion or flight, the com-
plainant may lay hands upon him.

3. If the defendant be prevented by sickness or old age,
the complainant shall provide a conveyance ; but he need
not provide a covered carriage, unless he choose.

4. A freeholder (or taxpayer, or man whose fortune is
valued at not less than 1500 asses) shall find a freeholder (or
taxpayer) as vindex or surety (for his appearance at trial) ;
a proletary (or man of less fortune) shall find such surety
as he can.

5. Where the parties agree (as to preliminaries), the plain-
tiff shall open his case at once. (Otherwise: Where the
parties come to terms, let the matter be settled.)

126

Chap.V] THE TWELVE TABLES [§62

6. If the parties do not agree, the plaintiff shall state his
case in the comitium or in the forum before midday. Let
both parties appear, and argue out the matter together.

7. If one of the parties has not appeared by midday, the
magistrate shall then give judgment in favor of the party
that has appeared.

8. If both have appeared, at sunset the court shall rise.

9. Both parties shall enter into recognizances for their
reappearance (vades, subvades).

Table II. The Trial

1. The amount of the stake to be deposited by each
litigant shall be either 500 asses or 50 asses ; 500 when the
subject of dispute is valued at 1000 or upwards, 50 when at
less than 1000. But when the subject of dispute is the
freedom of a man, then, however valuable the man may be,
the deposit shall be only 50 asses.

2. A dangerous illness, or a day appointed for the hearing
of a cause in which an alien is a party. ... If any one of
these circumstances occur to a judex or to an arbiter, or to
a party, the cause shall be adjourned.

3. A party that is in want of a witness, shall go and cry
aloud at the door of his house, thus summoning him to. attend
on the third market day following.

4. Theft may be the subject of compromise.

Table III. Execution

1. In the case of an admitted debt or of awards made by
judgment, 30 days shall be allowed for payment.

2. In default of payment, after these 30 days of grace
have elapsed, the debtor may be arrested (or proceeded

127

§62] A HISTORY OF ROMAN LAW [Part I

against by the action of manus injectio), and brought before
the magistrate.

3. Unless the debtor discharge the debt, or some one come
forward in court to guarantee payment, the creditor may
take the debtor away with him, and bind him with thongs
or with fetters, the weight of which shall not be more (but,
if the creditor choose, may be less) than 15 pounds.

4. The debtor may, if he choose, live on his own means.
Otherwise the creditor that has him in bonds shall give him
a pound of bread a day, or, if he choose, more.

5. In default of settlement of the claim, the debtor may
be kept in bonds for 60 days. In the course of this period
he shall be brought before the praetor in the comitium on
three successive market days, and the amount of the debt
shall be publicly declared. After the third' market day the
debtor may be punished with death or sold beyond the
Tiber.

6. After the third market day the creditors may cut their
several portions of his body ; and any one that cuts more or
less than his just share shall be held guiltless.

Table IV. Patria Potestas

1. Monstrous or deformed offspring may be put to death.

2. The father shall, during his whole life, have absolute
power over his legitimate children. He may imprison the
son, or scourge him, or keep him working in the fields in
fetters, or put him to death, even if the son held the highest
offices of State, and were celebrated for his public services.
He may also sell the son.

3. But if the father sell the son a third time, the son shall
be free from his father.

128

Chap. V] THE TWELVE TABLES [§62

4. A child born within ten months of the death of the
mother's husband shall be held legitimate.

Table V. Inheritance and Tutelage

1. All women shall be under the authority of a guardian;
but the vestal virgins are free from tutelage.

2. The mancipable things belonging to a woman that is
under the tutelage of her agnates are not subject to usu-
capion, unless she herself deliver possession of them with
the authority of her tutor.

3. The provision of the will of a paterfamilias concerning
his property and the tutelage of his family shall be law.

4. If the paterfamilias die intestate and without suus
heres, his nearest agnate shall succeed.

5. Failing an agnate, the gentiles shall succeed.

6. In default of a testamentary tutor, the male agnates
shall be tutors by operation of law.

7. If a man cannot control his actions, or is prodigal, his
person and his property shall be under the power of his
agnates, and, in default of these, of his gentiles ... if he
has no curator.

8. If a freedman die intestate, and without suus heres,
his patron shall succeed.

9. Debts due to or by a deceased person are divided among
his co-successors, by mere operation of law, in proportion to
their shares in the inheritance.

10. The rest of the succession is divided among the co-
successors by the action familiae erciscundae.

11. A slave freed by will, upon condition of giving a cer-
tain sum to the heir, may, in the event of being alienated by
the heir, obtain his freedom by payment of this sum to the
alienee.

129

f 62] A HISTORY OF ROMAN LAW [Part I

Table VI. Ownership and Possession

1. The legal effect of every contract, and of every con-
veyance (made with the money and the scales) shall rest
upon the declarations made in the transaction.

2. Any one that refuses to stand by such declarations
shall pay a penalty of double damages.

3. A prescriptive title is acquired after two years' posses*
sion in the case of realty ; after one year's possession in the
case of other property.

4. If a wife (not married by confarreatio or coemptio)
wishes to avoid subjection to the hand of her husband by
usucapion, she shall absent herself for a, space of three nights
in each year from his house, and thus break the usus of each
year.

5. No length of possession by an alien can vest in him a
title to property as against a Roman citizen.

6. In the case where the parties plead by joining their
hands on the disputed property, in the presence of the
magistrate (the actual possessor shall retain possession;
but, when it is a question of personal freedom), the magis-
trate shall award provisional possession in favor of liberty
(that is, in favor of the party that asserts the man's freedom).

7. If a man finds that his timber has been used by another
in building a house, or for the support of vines, he shall not
remove it.

8. But he shall have a right of action against the other
for double its value.

9. Between the first pruning and the vintage (the owner
may not recover the timber by vindicatio?). (Otherwise:
And when they become separated, then they may be claimed
by the owner.)

([130

Chap. VI THE TWELVE TABLES [§62

10. Things sold and delivered shall not become the prop-
erty of the vendee until he has paid or otherwise satisfied the
vendor.

11. Conveyance by bronze and scales (mancipatio), and
surrender in court (in jure cessio) are confirmed.

Table VII. Real Property Law

1. A clear space of two feet and a half shall be left around
every house. (That is to say, every two houses must stand
at least five feet apart.)

2. Boundaries shall be regulated (according to the com-
mentary of Gaius) by the provisions of Solon's Athenian
code : (if a man plants a fence between his own land and
his neighbor's, he shall not go beyond the boundary line;
if he builds a wall, he must leave a foot of space ; if a house,
two feet ; if he digs a ditch or a trench, he must leave a space
equal in breadth to the depth of the ditch or trench ; if a well,
six feet ; and olives and fig trees may not be planted within
nine feet of a neighbor's land, nor other trees within five
feet).

3. Conditions relating to villas, farms, and country cot-
tages.

4. A space of five feet between adjoining lands shall not
be liable to usucapion.

5. For the settlement of disputes as to boundaries, three
arbiters shall be appointed.

6. The breadth of road over which there is right of way
is eight feet in the straight, and sixteen feet at the bends.

7. The neighboring proprietors shall make the road
passable ; but if it be impassable, one may drive one's beast
or vehicle across the land wherever one chooses.

131

i 62] A HISTORY OF ROMAN LAW [Past I

8. If one's property is threatened with damage from
rain-water that has been artificially diverted from its
natural channels, the owner may bring an action aqu« pluviae
arcencUe, and exact compensation for any damage his prop-
erty may sustain.

9. The branches of trees that overshadow adjoining land
shall be lopped to a height of fifteen feet from the ground.

10. Fruit that falls from one's trees upon a neighbor's land
may be collected by the owner of the tree.

Table VIII. Toras

1. Whoever shall publish a libel — that is to say, shall
write verses imputing crime or immorality to any one —
shall be beaten to death with clubs.

2. If a man break another's limb, and do not compromise
the injury, he shall be liable to retaliation.

3. For breaking the bone of a freeman, the penalty shall
be 300 asses ; of a slave, 150 asses.

4. For personal injury or affront, 25 asses.

5. (Accidental) damage must be compensated.1 This
provision was followed up by the Lex Aquilia.

6. A quadruped that has done damage on a neighbor's
land, shall be given up to the aggrieved party, unless the
owner of it make compensation.

7. He that pastures his animals on a neighbor's land is
liable to an action.

8. A man shall not remove his neighbor's crops to another
field by incantation, nor conjure away his corn.

9. For a person of the age of puberty to depasture or cut

1 On the whole of this subject see Sell, Die Actio de rupitiis der
XII. Tafeln.

132

Chap. V] THE TWELVE TABLES (§62

down a neighbor's crop by stealth in the night, shall be a
capital crime, the culprit to be devoted to Ceres and hanged ;
but if the culprit be under the age of puberty, he shall be
scourged at the discretion of the magistrate, and be con-
demned to pay double the value of the damage done.

10. If a man willfully set fire to a house, or to a stack of
corn set up near a house, he shall be bound, scourged, and
burned alive; if the fire rose through accident, that is,
through negligence, he shall make compensation, and, if
too poor, he shall undergo a moderate punishment.

11. If a man wrongfully fell his neighbor's trees, he shall
pay a penalty of 25 asses in respect of each tree.

12. A person committing theft in the night may lawfully
be killed.

13. But in the daytime a thief may not be killed, unless
he defend himself with a weapon.

14. If theft be committed in the daytime, and if the
thief be taken in the fact, and do not defend himself with
a weapon, then, if a freeman, he shall be scourged and ad-
judged as a bondsman to the person robbed ; if a slave, he
shall be scourged and hurled from the Tarpeian rock. A boy
under puberty shall be scourged at the discretion of the
preetor, and made to compensate for the theft.

15. A person that searches for stolen property on the
premises of another, without the latter's consent, shall search
naked, wearing nothing but a girdle, and holding a plate
in his hands ; and if any stolen property is thus discovered,
the person in possession of it shall be held as a thief taken
in the fact. When stolen property is searched for by a consent
in the presence of witnesses (without the girdle and plate),
and found in a person's possession, the owner can recover
by action of furti concepti against the person on whose

133

§62] A HISTORY OF ROMAN LAW [Part I

premises it is found, and the latter can recover by action
furti oblati against the person who brought it on his
premises, three times the value of the thing stolen.

16. For theft not discovered in commission, the penalty
is double the value of the property stolen.

17. Title to property in stolen goods cannot be acquired
by prescription.

18. A usurer exacting higher interest than the legal rate
of ten per cent per annum is liable to fourfold damages.

19. A fraudulent bailee shall pay double the value of the
deposit.

20. Any citizen may bring an action for the removal of
a tutor suspected of maladministration, and the penalty
shall be double the value of the property stolen.

21. A patron that wrongs his client shall be devoted to
the infernal gods.

■ 22. If any one that has consented to be a witness, or has
acted as scale-bearer (in mancipation), refuses to give his
evidence, he shall be infamous and incapable of giving evi-
dence, or of having evidence given on his behalf.

23. False witnesses shall be hurled from the Tarpeian
rock,

24. If one kill another accidentally, he shall atone for
the deed by providing a ram to be sacrificed in place of

25. For practicing incantations or administering poisonous
drugs (the penalty shall be death).

26. Seditious gatherings in the city during the night are
forbidden.

27. Associations (or clubs) may adopt whatever rules they
please, provided such rules be not inconsistent with public
law.

134

Chap. V] THE TWELVE TABLES [{ 62

Table IX. Public Law

1. No laws shall be proposed affecting individuals only.

2. The assembly of the centuries alone may pass laws
affecting the caput of a citizen.

3. A judex or arbiter, appointed by the magistrate to
decide a case, if guilty of accepting a bribe, shall be punished
with death.

4. Provisions relating to the quaestors (or court appointed
for the investigation of cases) of homicide. — There shall
be a right of appeal from every decision of a judex (judicium),
and from every penal sentence (poena).

5. Whoever stirs up an enemy against the State, or betrays
a citizen to an enemy, shall be punished capitally.

6. No one shall be put to death, except after formal trial
and sentence.

Table X. Sacred Law

1. A dead body shall not be buried or burnt within the city.

2. More than this shall not be done. The wood of the
funeral pile shall not be smoothed with the ax.

3. Not more than three mourners wearing ricinia, one
wearing a small tunic of purple, and ten flute-players may
attend the funeral.

4. Women shall not tear their cheeks, nor indulge in
wailing.

5. The bones of a dead person shall not be preserved for
later burial, unless he die in battle or in a foreign country.

6. Regulations regarding (prohibiting ?) unction, drinking
(banquets), expensive libations (of wine perfumed with
myrrh), chaplets, and incense boxes.

7. But if the deceased has gained a chaplet, by the achieve*
ments either of himself or of his slaves or his horses, he or

135

§62] A HISTORY OP ROMAN LAW [Pabt I

his parents may legitimately wear such, in virtue of his
honor and valor (while the corpse is lying within the house
or is being borne to the sepulcher).

8. No person shall have more than one funeral, or more
than one bier.

9. Gold shall not be burned or buried with the corpse,
except such gold as the teeth have been fastened with.

10. A funeral pile or sepulcher for burning a corpse shall
not be erected within sixty feet of another man's house,
except with his consent.

11. Neither a sepulcher for burning nor its vestibule can
be acquired by usucapion.

Table XI. Supplementary
1. Patricians shall not intermarry with plebeians.

Table XII. Supplementary

1. An action of distress shall lie, on default of payment,
against the purchaser of a victim, and also against the hirer
of a beast of burden that has been lent for the purpose of
raising money to spend on a sacrifice.

2. If a slave commit a theft, or do any other injury, the
master may, as an alternative to paying the damages as-
sessed, surrender the delinquent.

3. If any one wrongfully obtain possession of a thing that
is the subject of litigation, the magistrate shall appoint
three arbiters to decide the ownership ; and, on their adverse
decision, the fraudulent possessor shall pay as compensation
double the value of the temporary possession of the thing
in question.

4. A thing whose ownership' is the subject of litigation

136

Chap. V] THE TWELVE TABLES [§ 63

shall not be consecrated to religious purposes, under a penalty
of double its value.

5. The most recent law repeals all previous laws that are
inconsistent with it.

The law of the Twelve Tables is, as has peen previously
stated, a compilation in writing of the more important
portions of the customary law in use at the time.1 * 6*. Charw
Familiar details are omitted and principles xweWe
emphasized. It is this fact that has caused TaMm.
these laws to be regarded by the Romans as the basis of
their civil rights. The early law of Rome was, like the
early law of every nation, personal and not territorial. A
man enjoyed the benefits of its institutions and of its pro-
tection, because he was a Roman citizen and not
because he was within Roman territory. All rights,
connubium, commercium, and actio, flowed from citizenship,
and under the jus civile, belonged to no other save Roman
citizens. Connubium was the capacity to enter into a mar-
riage which would be productive of the patria potestas and
agnation of Roman law. Dependent upon these latter was
intestate succession of sui heredes and agnates and of the tu-
tories and curatories claimable by the agnates of the clansmen.
Commercium was the capacity of acquiring or alienating
property by civil methods unconnected with connubium,
such as mancipation, cession in court, or usucapion, and of
becoming a party to an obligation by any civil contract,
such as nexum. Actio was the capacity for being a party
to a legis actio or legal action clothed in the forms of the
jus civile and used for vindication, protection, or enforce-
ment of a right either included in or flowing from connubium

1 Ortolan, loc. ciU
137

{63] A HISTORY OF ROMAN LAW [Part I

or commercium, or which was conferred by a statute that
embraced none but citizens in its intent. Non-citizens may
have enjoyed some or all of these rights, but only by reason
of treaties or special enactments.

In addition to citizenship and the laws pertaining thereto,

the law of the Twelve Tables treats of gentility and gentile

relations. These were greatly affected by the main

Gens.

purpose of the Twelve Tables, which was to give
equal rights to all citizens whether they happened to be mem-
bers of a gentile association or not. Some clan customs were
not in conflict with the common law and were left undis-
turbed, the clan occupying the position of a corporation
under the law. Clans still possessed the right to make laws
or regulations affecting no one but themselves; to hold
common property; to discipline their members; to forbid
the marriage of a female member with a man belonging to
another gentile house ; in fine, to carry out all customs that
affected patricians alone. But there were jnany old clan
customs that necessarily ran counter to the new order of
equality before the law of patricians and plebeians, and these
had to give way. For instance, the old-time gens control of
clients passed to the ordinary civil magistrates, as they were
now citizens and entitled to equal rights with their fellows.

It does not appear that the family was affected in any
material way by the Twelve Tables. All forms of marriage
recognized by them were doubtless in use before their publi-
cation, and even the limitation upon usus (trinoctium) by
which the wife escaped being subject to her husband, was in
operation some time before the decemviral legislation.

Cicero makes a vague allusion to a provision in the Twelve
Tables touching divorce, whereby the husband simply de-
prives his wife of the house keys, and turning her out of

138

Chap. VI THE TWELVE TABLES [§63

doors, formally dismisses her with the words, "Take thy goods
and get thee gone." But there is no evidence to show that
this method of divorce was not in vogue at an earlier time.
Moreover, divorce must have been very rare, especially by
this summary method, as a marriage by confarreatio could
be severed only by diffarreatio and a marriage by coemptio
could be dissolved only by the legal process known as reman-
cipation.

In connection with the law of parent and child, the first
thing to be noticed is touching the legal status of a child
born after the death of the father. The Twelve „ _

Family.

Tables declared that the birth must be within ten
months after the alleged father's death, that being the longest
possible period of gestation. A few fragments refer to the pa*
tria potestas and apparently raised the question as to whether
children born of an informal marriage were under the potes-
tas of their father. The decision of this question seems to
have been that such children were in the same position touch-
ing potestas as if they had been born of a confarreatic or
coemptionate marriage.

An interesting question has also arisen in connection with
patria potestas from the statement in the Twelve Tables;
" si pater (f amilias) ter filium venum duuit, a patre filius liber
esto." What did this mean ? Was it a law in favor of a son
and indicating a way by which he could be freed from the po-
testas ? This seems to be the original purpose of the law.
" If a house-father have thrice sold his son, the latter shall be
free from his father." It reads as if it were the intention of
the law to relieve the son from a gross disregard on the part
of the father of the laws of parental duty and affection.
Muirhead1 suggests a very plausible reason for this law.

*P. 92.
139

|64] A HISTORY OF ROMAN LAW [Past I

"May not its object," he says, ''have been to restrain the
practice, which prevailed to a late period in the empire, of
men giving their children to their creditors in security for
their loans — a process that, at the time of the Tables, could
be effected only by an actual transfer of the child per aes et
libram as a free bondsman (mancipii causa), under condition
of reconveyance when the loan was retained?"

There was not a word spoken in the Tables concerning the
question of adrogation of a paterfamilias, or adoption of a
filius familias as a means of recruiting a family when natural
issue had failed. Possibly prior to the time of the Tables
there had taken place an adaptation of the conveyance per
«s et libram in accordance with which the natural parent
mancipated his child to a friend for a nominal price and the
friend then emancipated to the parent. By repeating this
process three times the child was no longer in potestate, but
in mancipio ; he was now in a position in which he could be
transferred to the adopter and thus passed forever from the
control of his natural parents.

The nature of the relation between master and slave, like
that of manus and patria potestas, was passed by in the
Tables, no doubt because it was deemed to be so well known
as to need no comment or explanation.

There are some other topics mentioned or omitted in the
Twelve Tables that are worthy of some note and comment,
but these are left for discussion in a subsequent chapter.

After the enactment of the Twelve Tables, as before, the
{64. lftw was administered publicly in the forum by

Roman the magistrate (that is, in the early times of the

■sk***6*- republic, the consul or, as he was at first named,
the praetor) and the judex or arbiter. A definition to the
word magistratus is given by a celebrated Roman lawyer as

140

Chap. VI THE TWELVE TABLES [§64

"qui jure dicendo praesunt," or those who have the charge
of making the law. The king was originally the sole magis-
trate ; he had all the potestas of the Roman State. Upon
the expulsion of the kings, two consuls were annually ap-
pointed, and they were magistratus. In the course of time
the powers of the consuls were differentiated and other
magistratus were created, so that, toward the end of the
republic we find the following list: —

(a) Consuls, two in number.

(b) Dictator, when necessary.

(e) Praetors, eighteen in number.
(/) Propraetors and proconsuls.
(?) Censors, two in number.
(h) Decemviri litibus judicandis.

Festus says that a magistratus is one who has "judicium
auspiciumque." In this, however, must be distinguished
some grade, as the auspicia maxima belonged to consuls,
praetors, and censors only who were, therefore, called mag-
istratus majores and were always, as we have seen, elected
by the comitia centuriata. The other magistratus were
called minores. This distinction was not wholly based upon
the auspicia maxima, however, as there was a further mark
of distinction in that the majores had imperium, while the
minores had no such authority.

The functions of the magistratus may be broadly divided
into two, command and veto power. These were FoncHooi
generally vested in one man. Further than this «rf the m«c-
the Romans classified all government under three to8<

heads; (1) potestas, (2) imperium, and (3) intercessio.

141

i G4] A HISTORY OP ROMAN LAW [Pabt I

(1) Potestas was the general term for the power of doing
anything.1 When this was bestowed upon the magistratus
it was called imperium, provided that officer was a major,
otherwise it was not. Potestas conveyed the right of issuing
edicts, of calling a popular assembly, and of taking the aus-
pices, as well as that of magisterial interference, which latter
must be considered as totally distinct from the veto power
of the tribune.

(2) Imperium, or sovereignty, was historically connected
with patria potestas, but could, unlike it, be unmade by the
people who created it. It was personal, supreme, absolute
power or authority over individuals, but not the absolute
tyranny over the individual. It simply expressed the will
power of the nation. Romans regarded all imperium of
whatever sort to be divided into military and judicial. Both
of these were vested in the king and, after his time, the con-
suls. Subsequently these were divided so that military
imperium vested in the consuls, while judicial imperium
vested in the censors and praetors. However, the consul
still had judicial power outside the limits of the city of Rome,
while the praetor sometimes had military power vested in
him. Imperium belonged to no officers save those who had
been invested with it.

(3) Intercessio was the peculiar power of the tribune, and
was distinct from imperium in that it was merely the brake
applied to imperial power.8

After the enactment of the Twelve Tables, as before, the
law was administered publicly in the forum by the magistra-
tus. It was before them that the vocatio in jus had to take
place ; it was before them that the solemn ceremonies peculiar
to the legis actiones had to be performed ; upon them rested,

1 Sohm, 385-389. ' Sohm, 299-300.

142

Chap. V] THE TWELVE TABLES [|64

at least during their term of office, the duty of declaring the
law, of arranging the suit, and either themselves determining
the case or instructing a judex charged with the duty of
hearing the suit and pronouncing judgment. It must be
remembered that the judex was not a magistratus, but a
simple citizen who was converted by the magistratus into a
judicial officer in the individual case, at the conclusion of
which his judicial functions ceased and he returned to the
rank of private citizen. It was a principle of Roman law
that while the magistratus had to be selected and created
by the State, the judex, in each case, was nominated, or at
least accepted, by the litigants themselves. All citizens
however were not eligible to be selected. From the earliest
time, the privilege of acting as judex was monopolized by
the patricians. Only a senator could act as a judex. The
magistratus invested him with his powers, and he took an
oath to discharge the duties of his office without fear or favor.
The judex heard the evidence and declared judgment in
accordance with the instructions given him by the magis-
tratus ; the latter enforced the judgment. The proceedings
before a magistratus were called jus, and were said to take
place in jure; the proceedings before a judex were called
judicium, and were said to take place in judicio. »-*-.

The two functions were kept distinct down to the
reign of Diocletian, at the close of the first century after
Christ. It is to this separation between the acts of the magis-
tratus and those of the judex that the private law of Rome
was indebted for its logical clearness and practical precision.
In some cases instead of a judex being appointed, an arbi-
ter was chosen. There seems to have been no difference in
function between these two judges, unless it be that to the
latter was given greater latitude in reaching his decision.

143

§ 651 A HISTORY OP ROMAN LAW [Part I

Criminal cases involving the caput of a citizen were decided
by- the comitia centuriata. The right of appeal from the
sentence of a magistratus affecting any of the elements of
the caput was established and confirmed by the Valerian
laws. The magistratus who summoned the assembly was
the accuser, and the defendant pleaded his own cause,
being sometimes assisted by his nearest relation. No pro-
fessional assistance was afforded the accused party prior
to 150 B.C. Subject to the prisoner's right of appeal, the
magistratus might sentence him to be flogged, imprisoned,
or even put to death.

To the judex and arbiter given above there was added
some time later the court of the centumviri. Instead of
being nominated for an individual case like the judex and
arbiter, the centumvirs constituted a permanent tribunal
whose members were elected in equal number from each tribe.
It was in this tribunal that the plebeians were
first admitted to the judiciary. It would seem
that the members of this tribunal were chosen annually in
the comitia tributa. It was divided into four chambers or
councils, but it is impossible to tell whether these chambers
sat separately and had jurisdiction over special cases or not.
The centumviral court confined its action very largely to the
settlement of disputes concerning the ownership or posses-
sion of lands.

The law had been carefully written down and published
1 6s# for the benefit of the whole people in the Twelve

statute- Tables, but this was only one step on a long
JJ2J* road and proved in reality of very little value
Actionem), to the plebeians, because a form of procedure

*Muirhead, 172-176; Sohm, 52, 152-172; Ortolan, 140-147;
Hunter, 23-38, 41-52, 979-980.

144

Chap.V] THE TWELVE TABLES . [§65

adapted to put the law into operation was indispen-
sable, and of this the pleb knew nothing. There must be,
together with the law, a judicial authority and a judicial
procedure. Judicial authority has been explained above.
It now becomes necessary to make clear the statute-process,
that is, the procedure by which the plaintiff could get his
cause into court, obtain a decision, and have it enforced. The
law did not go abroad to take cognizance in a civil dispute,
except in so far as it authorized the plaintiff to compel, in
the presence of a witness or witnesses, an unwilling defendant
to come before the magistrates for the appointment of a
judex to settle the question at issue. If there was no witness
at hand, or if the plaintiff was not strong enough to make the
arrest, or if the defendant could contrive to get away, the
law did not serve in aid of the aggrieved party. Further, a
defendant might avoid immediate appearance by obtaining
some friend of equal rank with himself to go bail for him.
When both parties at length appeared before the magistrate,
the procedure took on the aspect of a voluntary arbitration,
although, as a matter of fact, it was compulsory. So soon as
both parties invoked the decision of the law, the civil juris-
diction asserted itself, and neither party could thereafter
withdraw. The old barbaric custom of trial by battle had
fallen away into the symbolical mock-combat preceding the
more essential usage of the sacramentum, namely, the wager.
In order to decide this wager the law prescribed that the case
should be investigated and pronounced upon by a judex.

The forms of procedure in an action at law were called
legis actiones, according to Gaius, because they were ap-
pointed by statutes before the days of the praetor's edict, or
because they followed the letter of a statute, and were as
incapable of variation in form as law. Indeed, they were so

145

1 65] A HISTORY OP ROMAN LAW [Part I

rigid that, if a man brought an action against another for
cutting down his vines, and in his action called them vines,
he was nonsuited, because he ought to have called them trees,
as the Twelve Tables, from which he derived his right of
action, spoke not of vines, but generally of trees (arbores).
The term action, at the period we are now discussing, is a
generic designation which signifies a particular form of pro-
cedure. This procedure, taken as a whole, includes the
ceremonies, the acts, and the words which constitute it.
These legis actiones were four in number at the time of the
Twelve Tables. Of these four, two are forms of procedure
instituted in order to arrive at a decision of the point in
dispute, the other two are forms of procedure used to put
the judgment into execution.

Of the first two, the most ancient was the actio sacramenti.
This, with some slight variations of form, was employed in
suits either to enforce obligations or in suits relating to rights
of property or other real rights. The predominant charac-
teristic in all cases was the sacramentum, or sum of money
which each litigant had to deposit in the hands of the pontiff
before the action proceeded. This was forfeited by the un-
successful party for the benefit of public worship. The
sacramentum was in fact a form of bet. A similar process
is described in the laws of Moses. We know more concern-
ing this form of action than any other. The Twelve Tables
fixed the amount of the sacramentum. This was in favor
of the poor litigant, who would not be able to make a deposit
of any great sum for the purpose of obtaining justice. The
second of the legis actiones instituted in order to arrive at a
decision of the point in dispute was the judicis postulatio.
This was an application made to the magistrate calling upon
him to appoint a judex to try a given case without recourse

146

Chap. V] THE TWELVE TABLES [§ 65

to the sacramentum. This was a simplification of procedure
and was at first only admitted in certain cases. By reason,
however, of its simplicity and freedom from the sometime
onerous burden of the sacramentum, it was destined to come
into almost universal use.

Of the last two actions which were instituted to put the
judgment which had been arrived at into execution, the first
was the manus injectio (the putting on of the hand). This
was the corporeal seizure of the person of the debtor, when
he had been condemned by the judex or surrendered by him-
self in default, as a result of which the debtor was adjudged
to his creditor by the magistratus. The second of these
actions was known as the pignoris capio (the taking a pledge) ;
this was the seizure of the property of the debtor after
judgment had been rendered. Concerning this there was a
specific law of the Twelve Tables.

These legis actiones could not be made use of by any save
Roman citizens. They required the parties to appear per-
sonally in court; but an assertor libertatis was allowed to
claim the freedom of the person alleged to be unjustly held
as a slave, such person not being present in court. They
maintained an absolute rigidity of form and exhausted the
cause of action in every case, even though that cause ended
in a nonsuit by reason of the slightest technical error. The
sentence commonly awarded the subject in dispute and not
damages.

Even with the publication of the Twelve Tables, and the
settlement of the forms of procedure, the plebeians remained
at very serious disadvantage. Plebeian suitors were usually
unable to adapt their peculiar cases to the rigid forms of
procedure, not being masters of the proper legal terms. In
this event the suit would be lost. Besides this, the calendar

147

1 65] A HISTORY OF ROMAN LAW [Part I

was in the hands of the pontiffs, who were all patricians and
who sedulously preserved the mysterious knowledge of the
days when it was lawful for the magistrates to sit in court.
The veil was not lifted from these mysteries until one hun-
dred and fifty years after the date of the Twelve Tables.

When speaking of the Roman civil law the whole system of
usages and rules of private law adopted by the Romans is
meant. The Corpus Juris Civilis as left by Justinian was
the result of gradual modification and enlargement of the
code of the Twelve Tables, under three great influences, the
jurisconsults, the praetors, and legislation. All these influ-
ences will receive consideration in their proper place.

148

Book II. FROM THE TWELVE TABLES TO THE

EMPIRE, 451-30 B.C.

Title 1. From the Twelve Tables to the Submission of all

Italy (Jus Civile). 451-869 B.C.

Title 2. From the Submission of all Italy to the Begin*

ning of the Empire (Jus Gentium). 269-30 B.C.

Title 1. From the Twelve Tables to ' the Submission of
all Italy (Jus Civile). 451-269 B.C.

CHAPTER VI
THE PASSING OF THE PATRICIATE

The origin of the Servian tribes has been shown in a pre-
vious chapter to lie in the necessity of facilitating the levying
of infantry. It was, therefore, like the centuri- j 66, The
ata, a military institution. The tribes had no i>«™to»-
political functions at first. There is no evidence cwnitk
that the tribes ever met in a general assem- Tribute.*
bly for a political purpose until some time after the
establishment of the republic. As has been previously
stated, the tributa had its origin in the troubles which pre*
ceded the first secession of the plebeians to Mons Sacer.
When, as an outcome of this revolution, tribunes of the plebs
were appointed whose duty it was to protect them from op-
pression, the only means open for the performance of this

1 Botsford, 236-259 ; Ortolan, 106, 107, 273-276 ; Muirhead, 86
etseq.

149

S 66] A HISTORY OF ROMAN LAW [Part I

duty was through personal contact. The law prohibited
a tribune from being absent from the city over night and re-
quired him to keep the doors of his house open at all times
in order to afford easy access for those who would appeal to
him for aid. In furthering the interests of the citizens
the tribunes had the unrestricted right of calling the
plebs to a contio and addressing them at any time and upon
any subject. There soon grew out of this custom some or-
ganized plan of obtaining their opinion as to important meas-
ures that had been discussed in their presence. The as-
sembly was divided into voting groups, according to their
tribal lines, and a vote was taken on proposals affecting ple-
beian interests. Such questions were brought before them
from time to time by the tribunes and their opinion obtained
by means of a vote. At first this plebiscitum had no other
value than an expression of sentiment and sympathy with
the efforts of the tribunes in their behalf. Soon, however,
a plebiscitum was made binding upon plebeians in so far as
it was in harmony with the laws of the State. It was from
these original functions that the vast powers of the tribunes
and the comitia tributa gradually developed.

Thus it was that assemblies, convened without consulta-
tion of augurs, and convoked and presided over by plebeian
tribunes, though originally intended solely for the political
deliberation of a single order of citizens, soon acquired the
right of pronouncing judgment in certain cases, of making
certain elections, and of passing laws affecting private rights.
Thus it became a branch of the national legislature. Their
decrees were termed plebiscita, decrees of the plebeians.
The unit for the purpose of voting was the Servian tribe, and
as each tribe consisted of both patricians and plebeians,
there can be no doubt but what patricians had the right to

150

Chap. VI] THE PASSING OP THE PATRICIATE (§66

vote in the tribute. The plebeians, however, greatly out-
numbered the patricians, and the enactments of the comi-
tia tribute always bore the name of the preponderating
element.

In the early republic the senate had undergone a great
accretion of power. It looked for a time as if it would be-
come not only a legislative body, but the supreme legisla-
tive body of the land. In treaties of peace and alliance the
senate assumed full authority, and at the close of a conquest
the senate disposed of the acquired territory and population.
In the affairs of peace it retained almost as absolute power of
administration as it had assumed in times of war. It at one
time authorized a magistrate to erect a temple in commemora-
tion of victory; it provided for the restoration of the city
after it was sacked by Brennus and his Gallic horde; it
built temples, paid the soldiers for service, founded colonies,
and meted out justice to magistrates and officers who had
gone beyond their authority, or failed in the performance of
their duties.

In the face of a force so vast as that indicated above, the
assemblies, whether centuriate or tribal, could for a time make
slow headway. The development of their func-
tions, nevertheless, though slow was steady. At
first the patricians seem to have put forth an effort to control
the tribunate by choosing the tribunes from their own class.
This jdan was successful for a time and patricians were chosen
as tribunes of the plebs. The danger of patrician control
was at last obviated by the passage of a law brought forward
by a tribune, Lucius Trebonius. This law enacted that who-
ever presided over the comitia for the election of tribunes
should continue till ten tribunes were elected, the object
being to preclude coaptation and leave the plebeians in the

151

1 66] A HISTORY OF ROMAN LAW [Past I

ascendancy.1 The tribune who violated this law was to be
burned alive. If there ever had been any danger of patri-
ciate control of the tribal assemblies, this law obviated it.
Subsequently the comitia tributa elected the quaestors, curule
Kdiles, military tribunes, and other minor officials.

Shortly after the abolition of the decemvirate, a division

of popular jurisdiction was made between the centuriate and

the tribal assemblies, on the basis of a distinction

JndicuL

in the nature, not of the crime, but of the penalty.
It became the function of the comitia tributa to try all cases
that were punished with fines,2 while the centuriata tried all
cases where the extreme penalty was inflicted, banishment
or death, to which was always added the confiscation of all
property. It became necessary for the prosecutor first to
determine what the penalty would be in case the accused
was proven guilty; then he brought his accusation before
the body that had jurisdiction of that particular case. If
he wanted a death sentence he went before the centuriata ;
if he could demand nothing more than a fine in cattle and
sheep, he went before the tributa. Gradually the Roman
people became averse to the death penalty and, conse-
quently, the judicial business passed over to the comitia
tributa.

The legislative functions of the tribal assembly were al-
most continuously under the presidency of the tribunes;
.... at first these assemblies were contiones merely,

Legislation.

with no authority to consider anything but mat-
ters pertaining to the plebs.' It was not till the lex Valeria,
in 445 B.C., that the tributa obtained the authority to legis-
late for the whole people. Thereafter they became very ac-

1 Botsford, 272-274. * Botsford, 283-316.

« Botsford, 274-279.

152

Chap. VI] THE PASSING OF THE PATRICIATE [§67

tive in legislation. They assumed the control of finances
and passed many plebiscite in relief of the poor ; they gradu-
ally absorbed the authority to regulate magistracies, and to
extend the term of office, if they deemed it necessary, of a
magistrate whose time had expired ; they assigned provinces
and regulated the provincial government; they even took
it in hand to regulate the composition of the senate. An
Ovinian plebiscitum, passed in 339-312 B.C., took the power
of nominating to the senate away from the consuls and be-
stowed it upon the censors, with the requirement under oath
that they would enroll " all who were worthy among the re-
tired magistrates of every rank from the curule function-
aries down through those of plebeian standing to the quaes-
tors." They assumed the right of legislation in matters of
religion by passing the Ogulnian plebiscitum in 300 B.C.

In the long struggle that had been going on between pa-
trician and plebeian, the one to keep absolute control, the
other to gain political and legal equality, the bal- _ ^
ance seemed at last to turn in favor of the plebs. Sroiotkm
In this gradual democratic evolution there may be •* *■*•!■■
traced some thirteen distinct steps.

Of these thirteen steps the lex Valeria de plebiscitis may
well be considered the first.2 This law was passed in the
comitia centuriata during the consulship of Valerius and
Horatius immediately after the expulsion of the decemvirs.
This law recognized the general authority of the comitia
tributa and declared that the plebiscita decreed in these
assemblies should be binding on all persons : " Ut quod tri-
butim plebis jussisset, populum teneret." Henceforth plebi-
scita; gassed under certain conditions, were the full equivalent

1 Ortolan, 21-24, 29-39.

'Botsford, 234, 274-280; Muirhead, 82.

153

|67] A HISTORY OP ROMAN LAW [Past I

of leges passed by the comitia centuriata and, in fact, they
quite frequently bore this name. It is so similar to a pro-
vision of a later Publilian statute and also one still later bear-
ing the name of Hortensius, that many writers have been
inclined to reject it as an anticipation merely of the one or
the other of these. But many plebiscita of great importance,
such as the Canuleian, the Licinian-Sextian, and the Genu-
sian, were passed under this law, and historically its enact-
ment cannot be doubted. It is probably nearer the truth
Lex Valeria, to conclude that it was not enforced and required
445B.C. to be reenacted. This would be only in accord-
ance with the usual fate of progressive legislation. It was
sanctioned by the senate and thus made constitutional. By
it all bills brought before the tributa for consideration must
previously have been sanctioned by the senate, so that the
advantage gained by the plebeians was not so great as would
appear on the surface. In support of this plan the patri-
cians could urge that their magistrates had always been re-
quired to obtain the consent of the senate before bringing
any measure to the consideration of either the curiata or
centuriata, and that the same formality should be observed
by the tribunes in presenting bills for the consideration of
the tribes.

The use of the words 'tributim plebis' to designate the
tribal gatherings under tribunician presidency in this law has
given rise to much controversy, many contending that the
patricians, who were certainly members of the tribes, were by
this excluded from the meeting and, consequently, disfran-
chised. But Dionysius is of opinion that they participated
in the comitia tributa both before and after this enactment ;
Livy also thinks of them as still present in the meetings as
late as the struggle for the Licinian-Sextian laws. It seems

154

Chap. VII THE PASSING OP THE PATRICIATE [§67

to be a question to be settled by the method of voting in the
early tribal assembly. The plan followed was for the leaders
to meet in council and determine upon a measure, which
they then submitted to the people to be accepted ' with clamor
and din9 according to their custom. As all members of the
tribes were permitted to be present, all must have joined in
the shouting or at least have been entitled to do so, as it is
difficult to conceive of any method of eliminating the noble
class. This method of voting by acclamation continued
in use in the tributa for some time. The expression, 'tri-
butim plebis' must, therefore, have been used in the same
sense in which populus was used in speaking of an act of the
centuriata.

In 445 B.C. a resolution was carried in the comitia tributa
by Caius Canuleius that the obnoxious provision in the Twelve
Tables prohibiting marriage between patricians l«x Oura-
and plebeians and thus perpetuating the old caste m«»44*b.c.
system, should be abrogated.1 There was also attached to
this resolution a second, that the consulate be opened to the
plebs. Having carried these resolutions through the tributa
by acclamation Canuleius presented himself before the sen-
ate and asked for a senatus consultum sanctioning the same.
There followed a strenuous debate, in which the loose mar-
riages common among the plebeians, which were without any
religious sanction whatever, were roundly condemned. But
after a long discussion in which the objectors grew eloquent
in their abuse of the measure, the outcome was the desired
senatus consultum for. the first resolution and the rejection
of the second. The stigma which had hitherto rested upon
the plebeian body was thus removed, and social inequality
passed away.

» Muirhead, 84 ; Botsf ord, 294.

155

§67] A HISTORY OF ROMAN LAW [Part I

The plebeian still lacked admission to the highest dignity
of the republic! and although Canuleius was inclined to rest
Mflitary satisfied with the half of what he had asked for,
ititaaM, his colleagues in office were not. They demanded
445 B,c# the passage of the second resolution, — the admis-
sion of plebeians to the consulate. This, as might be sup-
posed, was strenuously opposed by the patricians. They
seemed to recognize, however, that defeat was certain, and
they brought about a compromise. There was introduced
into the comitia centuriata a bill to change the constitution
and to substitute for consuls military tribunes with consular
power, this office to be open to the plebeians.1 This bill
finally passed and became a law. This plan was continued
for a short time only, when a return to patrician consuls was
made, and there is no evidence that plebeians were chosen
to this new office for a period of more than forty years. The
number of military tribunes was at first three, but afterwards
increased to six. It is clear enough that this was only a po-
litical makeshift in order to keep the supreme power in the
hands of the patriciate.

Prior to the year 443 B.C. the consuls had presided over
the taking of the census every fifth year. They had them-
CoiMn, selves constructed the tables ; they had assigned
443 BX. to eaci1 c}tizen his class in his tribe and in his
curia; they had inscribed whom they thought fit in the
ranks of knights and of senators ; they had, in fact, arranged
the whole political organization in a way to suit themselves.
It was doubtless with a view of checking the growing powers
of the plebs and keeping these prerogatives in their own
hands that the new censorship was created.2 The censors
were two in number. They could only be selected from the

1 Ortolan, 31. * Ortolan, 32 ; Muirhead, 85.

156

Chap. VI] THE PASSING OP THE PATRICIATE [§67

members of the senate, and could only be elected by the
comitia centuriata. It was centuriate legislation that created
this body. The same senator could not hold the office twice,
and the term of this office was for a period of five years ; that
is, from census to census. As guardians of the public, as
well as private, morals, they could blast the reputation of
any citizen.

It is difficult to understand the extent of the influence
possessed by those who had the power of determining the
class to which a citizen should belong, and the exercise of
this power, in the composition of the different tribes, was
not without its uses. As has already been stated, there were
at no time more than four urban tribes, while the number of
rural tribes ultimately reached thirty-one. The censors
inscribed in the urban tribes all those who possessed no prop-
erty, the proletarii, no matter whether they dwelt in the city
or not. The proprietors, though dwelling inside the city
walls, were classified by the censors in the rural tribes where
they had their estates. It was in this way that the votes of
the more turbulent and, at the same time, more dangerous,
class were reduced, even in the plebeian assembly, to four
out of thirty-five. This lower class strove frequently to
have their numbers distributed, for political purposes,
throughout the rural tribes, but the censors checked all such
movements and rendered them of no avail.

By one of the Licinian laws of 367 B.C. the plebeians were
at last admitted to the consulate, which had been rees-
tablished in place of the military tribuneship Lex Udnia
mentioned above, and it was enacted that at r\ "

' torn), 367

least one consul must be a plebeian.1 The no- B.C.

bility of blood now saw the proudest of their old-time offices

1 Ortolan, 39.
157

{ 67] A HISTORY OF ROMAN LAW [Part I

pass from their control and were compelled to submit to
the humiliation of being commanded by a person who had
risen from the ranks of the plebs. The immediate effect of
this law was the passing of tribunes of the soldiers with
consular power.

The word praetor is derived from praeire (to go before),
and was early in use to designate the first or chief magistrate
Pnato, of the city. It was, further, frequently given as
Urbmnug, an honorary title to the consuls. But it now be-
3^ " " came the exclusive title of a special magistrate.
The senate detached from the functions of the consul, as
soon as plebeians were admitted to that office, all that re-
lated to his v judicial office, together with the powers conse-
quent upon it, and conferred them upon a special patrician
magistrate, under the title of praetor, which was qualified by
the term 'urbanus' on account of his powers being limited
to the city of Rome.1 At first there was only one praetor,
who was nominated by the centuriata and selected from the
patrician order. The dignity of this office was only second
to that of consul. The praetor was preceded by lictors and
considered the colleague of the consuls. In the absence of
the consuls upon military expeditions the praetor took their
place and administered the government within the city of
Rome. At such times he convoked the senate and presided
over it ; he assembled the comitia and presented to them any
suggestions as to new laws. This office is destined to become
very powerful. It will subsequently be considered in ex-
tensio.

There already existed two plebeian sediles who were created
in 494 B.C. and charged, under the supervision of the tribunes,
with the details of police. In the year 365 B.C. two patri-

1 Ortolan, 33; Muirhead, 85.
158

Chap. VI] THE PASSING OP THE PATRICIATE [§67

cian magistrates were created bearing the same name and
having similar though superior functions. They enrol*

were called sediles majores or sediles curules,1 BMw,
while the older plebeian officers were called plebeii 3 s ' *
sediles or sediles minores. By the creation of this new office
the latter had their powers somewhat curtailed. They were
limited to the supervision of the market, the price and quality
of commodities, the accuracy of weights and measures, and
the security and good order of the public streets. All the
higher offices of police were confined to the sediles curules.
To them also belonged the maintenance and improvement
of roads and bridges, the preservation of temples and amphi-
theaters, together with the public thoroughfares. They
also had charge of the public games, and in later days were
expected to furnish, at their own expense, wild beasts for
the amphitheaters.

Ten years after the first election of a plebeian to the office
of consul, Popillius Lsenas, plebeian consul for the year,
nominated a plebeian, Caius Marcius Rutilus, as dictator.2
To this nomination no objection was offered and Dictator,
no formal lex passed the comitia. This act was *** B,c'
subsequently interpreted as formally opening the office of
dictator to the plebeians.

The severance of the censorship from the duties of consul
when plebeians were admitted to that office was " good poli-
tics" on the part of the still powerful but waning Com,
aristocracy. Thus they kept control of the most **• B,c#
coveted of the consular powers for one hundred years after
the plebs had captured the consulate.3 In 339 B.C. a lex
Publilia was passed which opened the censorship to the pie-

1 Ortolan, 34. ' Botsford, 182.

' Botrioid, 60-64, 234, 237 ; Ortolan, 32.

159

J 67] A HISTORY OF ROMAN LAW [Pabt I

beian and made an easy road to the admission of plebs to the
senate. In addition to the original and important duties of
registration the censors, in process of time, undertook the
general oversight of public morals. " Not only gross breaches
of morality in public and private life/' says Ramsay, "cow-
ardice, sordid occupation, or notorious irregularities, fell un-
der their corrective discipline, but they were in the habit
of denouncing those who indulged in extravagant or luxuri-
ous habits, or who, by the careless cultivation of their es-
tates, or by willfully persisting in celibacy, omitted to dis-
charge obligations held to be binding on every citizen."
It was also their duty to superintend the arrangements for
the collection of the revenue, fixing the amount of property-
tax each citizen should pay, and even framing the leases or
contracts on which the greater part of the imposts were
farmed out to contractors. They also exercised a general
superintendence of public works, kept in good repair all
existing buildings, and made the contracts for the overseeing
and the execution of all new works. The censorship is thus
seen to have been one of the most important offices in the
Roman State. For plebeians to be admitted to this office
meant that they had at last succeeded in forcing the hands
of a stubborn aristocracy.

Pi»tar, Apparently without any formal lex, the praetor-

336 b.c. ship was opened to the plebeians in 336 B.C.

Livy says this law was the commencement of a new era
of liberty for the plebeians. It had its origin in the reaction

Lex against the excesses of a creditor, Lucius Papirius

Petuiift ky name 1 rpjle cruej £ate tkftt awajte(j the debtor,

Papilla (Do

ifexU), 326 and the severity with which he was liable to be
B-c- treated, were made use of by the tribunes in ex-

1 Ortolan, 37.
160

Chap. VI] THE PASSING OP THE PATRICIATE [§67

citing the animosity of the plebeians against the patricians.
This stirred up such a storm that the nobility bowed before
it. The lex which was passed as a result of it prohibited
debtors from assigning themselves per ses et libram in
slavery to their creditors as security for their debts, and in
this way terminated the nexi. Henceforth it became illegal
for a man to mortgage his person as security for a debt. The
law did not abolish poverty, but it did ameliorate the con-
dition of the unfortunate.

Technically religious, but of vast importance politically,
was the plebiscitum known as the lex Ogulnia, which ad-
mitted plebeians as pontiffs and augurs.1 It ux
increased the number of augurs and pontiffs to Ogniaia,
nine each, and provided that four augurs and
five pontiffs should henceforth be plebeians. This was the
last step in the opening of the offices of the State to the
plebs, and must have been one of vast satisfaction to them.
They had, no doubt, for several hundred years, gazed with
envy upon the flowing robes and insignia of these priests of
the State religion. At last they too are permitted to pass
the threshold and become acquainted with the penetralia
which had hitherto been sedulously hidden from their eyes.

Two laws had already been passed concerning the author-
ity of the plebiscita, — the lex Valeria-Horatia, and the lex
Publilia of the dictator Publilius Philo, in 339 B.C.1 I#egM pab.
Under the name of this dictator Livy mentions ■"■» ^
three laws. By one of these it was ordained mePie-
that one of the censors should be taken from budtu),
among the plebeians, as above. Another related 286 BaC<
to the laws decreed by the centuriata and enacted "Ut

» Botaford, 102, 166, 307.

» Muirhead, 83, 93 ; Ortolan, 39; Botaford, 292-302.

161

S 67J A HISTORY OP ROMAN LAW [Part I

legum quae comitiis centuriatis ferrentur, ante initium
suffragium, patres auctores fierent." The third, lex Pub-
lilia, related to the plebiscita. We have already called
attention to the fact that Livy alludes to it in terms that are
almost identical with those of the lex Valeria-Horatia, which
was passed one hundred and ten years earlier; "Ut plebi-
scita omnes Quirites tenerent."

Fifty-three years after the publication of the lex Publilia
we have another, a third lex de Plebiscitis, enacted by the
dictator Quinctius Hortensius, the lex Hortensia. This law
is given by both Pliny and Aulus Gellius in very nearly
identical language with that used by Livy in describing the
lex Publilia. These three laws, enacted upon the same subject
at different intervals during a period of a century and a
half, cannot fail to lead to much misunderstanding among
critics.

At first it would seem that the plebiscita had to be con-
firmed by a vote of the comitia centuriata and afterwards
receive the auctoritas of the senate. Whatever may have
been the process of development, it is certain that after the
lex Hortensia was passed, the authority of the plebiscitum
was never called in question, provided it had the previous
sanction (senatus consultum) of the senate. Thus we may
properly date the plebiscita from this period in the legal his-
tory of Rome, touching both public and private law. Here-
after the auctoritas of the senate was never needed to make a
plebiscitum binding upon all Roman citizens. Henceforth
the comitia tributa and the comitia centuriata coexisted as
supreme legislative bodies. The comitia tributa for the most
part dealt with private law, while the comitia centuriata
busied itself with public law, such as peace and war, alliances
with foreign States, boundary treaties, and the like, as well

162

Chap. VI] THE PASSING OF THE PATRICIATE [§6fiT

as the judicial proceedings which involved the caput of a
Roman citizen, or matters affecting the constitution. This
was the last step needed to raise the plebeian to full legal
rights. Henceforth, so far as law was concerned, there was
no distinction between patricians and plebeians.

Only three years before the passage of the lex Ogulnia an
event occurred to diminish the influence of the pontiffs in con-
nection with the law more than anything else in § 68. jw
the whole history of Rome. This was the publi- Ftattawm-1
cation of a work setting out in detail the steps to be taken
and the formulae necessary for conducting the legis actiones,
together with a calendar of the lawful and the unlawful days
for the bringing of such action. For this work the plebeians
were indebted to the grandson of the enfranchised slave
Cnseus Flavius, who, as secretary to the celebrated jurist
Appius Claudius Ctecus, had access to the pontifical records,
and with rare ingenuity and power of observation, and,
according to Pliny, encouraged and aided by his patron, pre-
pared this manual, which was known as the jus civile Flavia-
num. The preparation of this work proved so acceptable to
the people that they raised its author successively to the
dignity of tribune, senator, and curule sedile. The outcome
of this was to make a knowledge of the law as much a heritage
of the laity as of the pontifical college. Cicero, referring in
derision to the pontiff and patricians, to whom it had pre*
viously been necessary to have recourse as to the Chaldeans
in order to ascertain these days, says that Flavius "put out
the crow's eyes " (qui condemn oculos confixerit).

The progress now made by the plebeians as a result of this

opening up of an hitherto closed door was immense. Men of

intellect now took up the study of the law as a means of

1 Muirhead, 246 ; Ortolan, 164.

163

§68] A HISTORY OP ROMAN LAW [Part I

advancement. "They occupied themselves in giving advice
to clients, teaching, pleading at the bar, framing styles of
contracts, testaments, and various other deeds of a legal
character, or writing commentaries or shorter treatises on dif-
ferent branches of the law." Pomponius gives a long list of
eminent jurists who now flourished, and Cicero adds the weight
of his influence to their honor in his Orator and Brutus.
"Among them may be mentioned the two Catos, — M. Por-
cius Cato Censorius, who wrote some commentaries on the
jus civile, and his son M. Porcius Cato Licinianus, the author
of a famous doctrine in the law of legacies known as the
regula Catoniana ; M. Junius Brutus, who wrote three books
de jure civili ; M. Manilius, whose styles of contract of sale
are celebrated by Cicero, Varro, and Gellius; the three
Scsevolas, — Quintius Mucius, the augur, who in his old age
gave Cicero and his friend Atticus their first lessons in law,
Publius Mucius, his cousin, and, greatest of the three, Quin-
tus Mucius, the son of Publius, who, Pomponius says, first
wrote systematically on the jus civile, arranging it in eighteen
books, from which a few extracts are incorporated in Jus-
tinian's Digest ; P. Rutilius Rufus, the author of the bank-
ruptcy procedure described by Gaius; C. Aquilius Gallus,
who devised the actio and exceptio de dolo and the Aquilian
stipulation; Servius Sulpicius Rufus, frequently mentioned
by Gaius and Justinian, regarded by his contemporaries as
the greatest jurist of his time, and after Cicero the greatest
orator ; Aulus Ofilius, a scholar of Servius % and intimate of
Caesar's, who wrote at some length on the praetor's edict;
Alfenus Varus, also a scholar of Servius's, whose works are
largely quoted and cited in Justinian's Digest; and JEHus
Gallus, author of a treatise De Verborum quae ad jus civile
pertinent signification^ which must have been very welcome

164

Chap. VI] THE PASSING OF THE PATRICIATE [{69

when the Roman law was penetrating into provinces in which
the Latin language was strange." '

The introduction of the simplified form of contract known
as stipulation had an influence more far-reaching than did
any other event in the history of private law. It { 69. Stipu-
brought about a revolution in the law of contract, UtiwL *
as there was created by it a unilateral obligation that in time
became adaptable to almost every conceivable undertaking
by one man in favor of another. By this simple form of
question and answer with certain words of style inserted,
any lawful agreement could thereby be made not only morally
but legally binding. In this way many transactions that
heretofore were outside of the civil law and binding only on a
man's sense of honor, now became enforceable by a legal pro-
cedure. For instance, when a vendor of any article gave his
stipulator^ promise to his vendee to guarantee peaceable
possession of the thing sold or its freedom from faults, and
the vendee in turn gave his stipulatory promise to pay the
price, the engagement thus entered into was enforceable in a
court of justice, when without stipulation neither party would
have had legal redress. This made the contract sure and safe
and accounts for Paul's derivation of the name of this species
of contract from the word stijndum, 'safe.' Subsequently the
Roman jurists grouped about the stipulation nearly all their
disquisitions upon the general doctrines of the law of contract,
and so caused it to mark an epoch in the history of the law.

Although this is true, yet there is no certainty as to the
time at which stipulation was introduced or the manner of
its coming. Modern criticism has developed three theories
touching it : (1) that it was the verbal remnant of the nexum,

* Muirhead, 247-248.

* Sohm, 296-304 ; Muirhead, 213-216, 256-258.

165

§69] A HISTORY OP ROMAN LAW [Part I

after the copper and the scales had gone out of use ; (2) that
it was evolved out of the oath of covenant at the great altar
of Hercules or the appeal to Fides; (3) that it was im-
ported from Latium, which it had reached from some of the
Greek settlements farther south. Of these theories Muirhead
thinks the last the most probable and accepts the statement of
Verrius Flaccus as quoted by Festus that it is connected with
the Greek ow&Seiv and owovSq ; Gaius also considers the word
of Greek origin. In fact, Homer and Herodotus both refer
to <nrovhri (a libation) as a frequent accompaniment of
treaties and other solemn covenants — a common offering
by the parties to the gods, which imparted sanctity to the
transaction. Gradually the libation and other religious
features were dropped, but the word mrovhri was retained as in
the sense of an engagement that bound parties just as if the
old religious ceremony had been passed through. Thus it
came about that as a question by a creditor the word
spondes came to mean, "Do you engage as solemnly as if
the old ceremonial had been gone through between us ?" .

Tliis simple form of contract by the use of the words spondes
and spondeo, was confined to Roman citizens down at least to
the time of Gaius and was, hence, essentially juris civilis.
Other similar forms, such as promittesne ? promitto, dabisne ?
dabo, and the like, though less solemn, were nevertheless legally
binding, and were open to peregrins, thus belonging to the
jus gentium. In such contracts no witnesses were required
to assist at them, and they were always open to qualification
by conditions and terms. Words of style made the contract
legally binding ; a mere promise to fulfill was not enforceable
in Roman law. In case suit was entered to compel the carry-
ing out of the contract, the action lay upon the promise which
the words of style embodied, apart from any consideration

166

Chap. VI] THE PASSING OP THE PATRICIATE [§69

whether or not value had been given for it. It will be seen by
what has been said that the stipulation was a form of contract
that was not confined to particular transactions, such as buy-
ing and selling, or hiring, and the like, but was coextensive
with the subject matter of contract. It was a universal form
by which any promise could be made binding in law.

Much discussion has arisen as to the age of stipulation as a
contract. Bekker holds that it was in use before the Twelve
Tables. Most writers, however, are agreed that w „,„
it became actionable, and, therefore, enforceable in
law only by the lex Silia.1 This was a fifth actio legis, the
condictio, and was introduced, in all probability, in 277 B.C.
This was at first exclusively confined to disputes respecting
specific sums of money. It was afterwards extended by the
lex Calpurnia, in 234, to every species of obligation, provided
the obligation was definite in its character. The date given
above is only approximate, and is open to considerable criti-
cism. By this last form of legis actiones, the symbolic and
material acts of the sacramentum were dispensed with and
more simple ideas and practices were substituted in their
place. In this process the plaintiff merely announced (con-
dicebat) to his adversary that he would have to appear before
the magistrate in order that a judex might be appointed to
arbitrate the matter of dispute between them. The con-
dictio was evidently a much more simple and inexpensive
legal process for the recovery of damages than any that had
been in use previously.

By the enactment of the lex Silia when a man "disputed his

liability for what was called pecunia certa credita and forced

his creditor to litigation, the latter was entitled to require

from him an engagement to pay one third more than the sum

1 Botsford, 339, n. 5.
167

{ 70] A HISTORY OF ROMAN LAW [Pabt I

claimed by way of penalty in the event of judgment being
against him. The creditor also had to give an engagement to
pay as penalty the same amount in case of judgment in favor
of the alleged debtor." Such an engagement as the above
was not allowed in every case in which a definite sum of money
was claimed per condictionem, but only when it was techni-
cally pecunia credita. Thus the lex Silia may be considered
as an enactment which gave legal sanction to the sponsio or
stipulation. When this was once recognized the simplicity
of the procedure and its convenience soon gave it greater
range and caused it to be adopted in other transactions.

Caput, in Roman law, meant primarily a person whom the
law regarded as capable of having rights. In a derivative
I r0u . sense it was applied to his personality or jural

Capitis capacity, passive and active, in public and private
life. The measure of this jural capacity depended,
according to Roman notions, on three considerations;
(1) whether he was free or slave, (2) whether, being free, he
was a citizen ofnon-citizen, (3) what, being a citizen, was his
position with regard to family. If a man was not free, he had
no rights at all. If he lost his liberty, it carried with it the loss
of all the other elements of status. This was the theory of the
jus civile and also that of the jus gentium. He was amply a
chattel and not spoken of as a person at all. In case he were
free, the extent of his capacity varied according as he was or
was not a citizen. It was only among citizens that the
supremacy of the paterfamilias was recognized and, conse-
quently, it was only among them that the position of an
individual in the family was of any moment. A person in the
power of the paterfamilias though free, had no jural capacity,
only as this was derived from the latter.

1 Muirhead, 122-126.
168

Chap. VI] THE PASSING OF THE PATRICIATE [|70

When, therefore, a man lost either freedom or citizenship,
or changed his family, he was said to have suffered capitis de-
minutio, or loss of his jural capacity. In the first two cases
the civil status was entirely lost. In the third, the status
was maintained, but modified, since a person came out of one
family to enter into another or himself to commence a family.
It is to be noted that when a man changed his family, property
and person also changed ; property, because in each family a
distinct joint ownership was centered ; person, because there
was in each family no other persona than that of the chief,
and by changing his status he quitted this persona to identify
himself with another. This he did even when, by the death of
the paterfamilias, he became sui juris and, so, the head of a
new family. All these events were called capitis deminutio,
of which there were three degrees. The loss of freedom was
maxima capitis deminutio ; the loss of citizenship, as when a
man went into exile or joined a Latin colony, was media
capitis deminutio; the change of family (familiae mutatio)
was minima capitis deminutio. This deminutio implies a fall
or degradation in the status of the person suffering it. This
is very clear in the first two, as they affected the capacity of
the person suffering it in a marked and prejudicial degree,
causing serious loss. But this is surely not true in the last
case, minim* capitis deminutio, as this may well have in-
volved an advance in jural capacity. The Roman evidently
looked upon it as a sort of degragation to pass by adrogation,
when sui juris, to the position of a son, but as this was done at
pleasure, it must have been accompanied by substantial gain.
In case a person alieni juris suffered minima capitis deminutio
by adrogation or adoption into another f amilia he severed the
bond of agnation and was no longer looked upon as related
to any of those persons that had been previously bound to

169

{ 71] A HISTORY OF ROMAN LAW [Part I

him by ties of love. There was no longer any right of succes-
sion between him and them.

Early patrician Rome had developed two varieties of testa-
ment, that made at stated periods in the comitia calata, under
1 71. The ^e ftdvu* and direction of the college of pontiffs,
Law of Sue- and that made by soldiers upon the eve of battle,
0,1 in the hearing of a few of their comrades (testa-
mentum in procinctu factum). This latter was in all proba-
bility nothing more than a distribution of the property of the
testator among his proper heirs. Both these forms of will
remained in use in the early republic, but they were in course
of time displaced by the very general adoption of a form of
will executed with the copper and scales (testamentum per
ses et libram). There is a general statement in the Twelve
Tables touching inheritance; "uti legassit suae rei ita jus
esto." This very broad statement has been generally inter-
preted to apply only to the two older forms of testament.
Whether resort was to be made to the comitia or to the army,
the testator's own will in the matter was to be henceforth
supreme. No interference of the pontiffs touching the
expediency of the testament in view of the interests of the
family sacra or of some creditor of the testator was to be
tolerated. The Quirites in the comitia calata were henceforth
merely witnesses and were not called upon to sanction a de-
parture from the ordinary rules of succession. They listened
to the oral declaration of the testator's will in regard to the
distribution of his property.

The development of the testamentum per »s et libram
marked a very distinct departure and growth from these older
forms. There may be seen three distinct stages in its history.
Its origin has already been explained in describing the result of

» Muirhead, 408-413 ; Sohm, 409-414, 462-464.

170

Chap. VI] THE PASSING OP THE PATRICIATE [{ 71

the Servian reforms upon the private law. It was at first
nothing but a makeshift to aid the plebeian who was not quali-
fied to make a testament in the comitia to dispose of his prop-
erty before his death. As has been already stated, he trans-
ferred his estate to a friend on whom he could rely, with
instructions as to its distribution upon the event of his death.
This same device may easily have been resorted to by patri-
cians who had neglected the making of a regular testament
until it was too late, by reason of sickness, to appeal to the
curiata. At first this would hot be looked upon as a testa-
ment at all, but merely as a temporary sale of the estate. A
testament proper was the nomination of a person as the
testator's heir, so that the testator might be able to impose
upon him what burdens he pleased as the tacit condition of
heirship. The person thus instituted became the represent-
ative of the testator after his death, just as the heir-at-
law would have been, had no will been made.

The testamentum per «s et libram did not necessarily im-
mediately divest the testator of the property mentioned, as
he could reserve unto himself a life interest in the same. He
was equally competent to postpone the liberty of possession
without infringing the rule that the mancipation itself could
not be ex certo tempore. Indeed, there was nothing to pre-
vent him making a bargain that he was to retain the posses-
sion till his death.

In case the testator was in debt at the time he executed
the mancipation, upon his death his creditors would have no
security for the liquidation of their claims other than the
honor of the testator and the heirs appointed. No action for
payment would lie against the person or persons who received
the estate through mancipation per «s et libram, as the
obligation did not carry over to the person newly invested.

171

§71] A HISTORY OF ROMAN LAW [Pabt-I

The second stage in the development of this testament was
reached in the addition to the transfer of the testator's estate
to the f amiliee emptor, of the institution of an heir. This was
in accordance with the idea that the true testament per aes et
libram had its legal warrant, not in the law quoted from the
Twelve Tables, but in another equally famous provision,
"cum nexum faciet mancipiumque, uti lingua nuncupassit
ita jus esto." The comprehensiveness of these words led
subsequent interpreters to the conclusion that there was
nothing in them to prevent the direct institution of an heir
in the course of the verba nuncupata which were annexed
to a mancipation. As soon as this view was adopted and
put in practice, the families mancipatio ceased to be a trans-
fer of the testator's estate to the familiee emptor ; this was
looked upon as a mere form ; it was the oral declaration
addressed to the witnesses that really contained the testa-
mentary disposition; i.e., the institution of an heir, with
such other provisions as the testator thought fit to em-
body in it. The third stage was marked by the introduction
of tablets in which the testamentary provisions were set out in
writing, and which the testator displayed to the witnesses,
folded and tied up in the usual manner, declaring that they
contained the record of his last will. Gaius gives the words
spoken by the familise emptor, as an illustration of this third
stage in the development of the testamentum per aes et
libram, as follows; "Your estate and belongings, be they
mine by purchase with this bit of copper and these copper
scales, subject to your instructions but in my keeping, that
so you may duly make your testament according to the
statutes." The nuncupation, attached to the above sale,
was; "As is written in these tablets, so do I give, so do I
legate, so do I declare my will ; therefore, Quirites, grant me

172

Chap. VI] THE PASSING OF THE PATRICIATE [§ 71

your testimony." Gaius adds to his quotation of this formula
the following statement; "Whatever the testator had set
down in detail in his testamentary tablets he was regarded as
declaring and confirming by this general statement." After
the testator had made his appeal to the witnesses they re-
sponded by giving their testimony, but the words of this
formal testimony have been lost. The testament thus com-
pleted was sealed by the testator, officials, and witnesses,
the seals being on the outside, and over the cord with which
the tablets were tied. It would thus be impossible subse-
quently to tamper with or change the testament without
destroying the seals, and this fact would render the will
inoperative.

By subsequent interpreters of the Twelve Tables the widest
possible construction was given to the statement uti legassit.
Upon the strength of these words the testator was held en-
titled to enfranchise slaves, to appoint tutors to wife and
children, to make bequests to legatees, and even disinherit
his proper heir in favor of a stranger, so long as he did so in
expressed term4. The institution of a stranger without
mention of the proper heir, however, was fatal, at least if the
latter was a son ; for without expressed disherison his father
could not deprive him of the interest he had in the family
property, as in a manner one of its joint owners. In fact,
disherison cannot be supposed to have been made use of to
any great extent, as it was altogether foreign to traditional
conception of the family and the family estate.

In the absence of a testament, or in case of its failure from
any cause whatsoever, the succession opened to the heirs ab
intestato ; of these heirs the sui heredes were entitled to the
first place, as they were looked upon as now entering upon the
active exercise of rights that hitherto existed but had lain

173

J 71] A HISTORY OF ROMAN LAW [Past I

dormant. This was in accordance with the statement in the
Twelve Tables ; " If a man die intestate, leaving no suus heres,
his nearest agnates shall have his estate. If the agnate also
fail, his gentiles shall have it." The establishment of agnate
inheritance was no doubt due to the action of the decemvirs.
They had to devise a law of intestate succession that would be
suitable alike to the patricians who had gentes and the plebe-
ians who had none. To put the latter in exactly the same posi-
tion as the former was beyond their power, as the fact had to
be met that the plebeians had no gentile institutions! and to
create these was as impossible as it would be to give noble
blood to those who were of common origin. They overcame
the difficulty by accepting the principle of agnation upon
which the patrician gens was constructed and establishing an
agnatic circle of kinsmen which was to reach out to the sixth
degree. This did not result in perfect equalization, but the
nearest approach to it that the circumstances permitted.

The order of intestate succession which was thus established
by the Twelve Tables, was first to the sui heredes of the
deceased, as has been stated, next to his nearest agnate or
agnates, and finally, if the deceased was a patrician, to his
gens.1 His sui heredes included those of his descendants who
were in his potestas at the time of his death, who by that
event became sui juris, together with his wife in manu ; but
did not include children whom he had emancipated, or
daughters who had passed in manum of husbands.

The heir was burdened with the debts, as well as enriched

by the property, of the deceased ; he was also burdened with

his family sacra, — the sacrifices and other religious services

that had periodically to be performed for the repose of the

souls of the deceased and his ancestors. The jus civile in

1 Sohm, 409.
174

Chap. VI] THE PASSING OF THE PATRICIATE [§ 72

reference to this latter matter contented itself with the simple
statement that the heir was responsible for their maintenance.
According to Gaius it was a stimulus to heirs to enter as soon
as possible on an inheritance that had opened to them, and
thus to make early provision alike for satisfying the claims
of creditors of the deceased and attending to his family sacra.
There seems to have grown out of this a rather remarkable
institution of usucapion or prescriptive acquisition of the
inheritance in the character of heir.1 Such a usucapion was
erf course impossible in case the deceased had left sui heredes,
for the inheritance vested in them the moment he died. But
in case there were no sui heredes, then any person, by taking
possession of the effects that had belonged to the deceased,
and holding them without any interruption for the space of
twelve months, thereby acquired them as if he were heir.
In this case the possessor was required to pay all debts against
the property and to charge himself with the maintenance of
the family sacra.

Party lines were, at the time of the enactment of the
Licinian law, strongly marked in Rome. One of the tribunes
chosen after the return of the plebeians from Mons |7a. Lax
Sacer was a Licinius. The first military tribune iidni*.
with consular power elected from the plebeians was another
Licinius Calvus. The third great man of this distinguished
family was Caius Licinius Calvus Stolo, who, in the prime of
life and popularity, was chosen among the tribunes of the
plebs for the seventh year following the death of Manlius
the Patrician. Another plebeian, Lucius Sextius by name,
was chosen tribune at the same time. If not already, he soon
became the tried friend of Licinius. Sextius was the younger,
but not the less earnest of the two. Both belonged to that

1 Sohm, loc. cit.
175

§ 72] A HISTORY OP ROMAN LAW [Past I

portion of the plebeians supposed to have been latterly con-
nected with the liberal patricians. The more influential and
by far the more reputable members of the lower estate were
numbered in this party. Opposed to it were two other parties
of plebeians. One consisted of the few who, rising to wealth
or rank, cast off the bonds uniting them to the lower estate.
They preferred to be upstarts among patricians rather than
leaders among plebeians. As a matter of course, they became
the parasites of the illiberal patricians. To the same body
was attached another plebeian party. This was formed of the
inferior classes belonging to the lower estate. These inferior
plebeians were generally disregarded by the higher classes of
their own estate as well as by the patricians of both the liberal
and illiberal parties. They were the later comers, or the poor
and degraded among all. As such they had no other resource
but to depend on the largesses or the commissions of the most
lordly of the patricians. This division of the plebeians is a
point to be distinctly marked. While there were but two
parties, that is, the liberal and the illiberal, among the patri-
cians, there were no less than three among the plebeians.
Only one of the three could be called a plebeian party. That
was the party containing the nerve and sinew of the order,
which united only with the liberal patricians, and with them
only on comparatively independent terms. The other two
parties were nothing but servile retainers of the illiberal pa-
tricians.

It was to the real plebeian party that Licinius belonged, as
also did his colleague Sextius,1 by birth. A tradition of no
value represented the patrician and the plebeian as being
combined to support the same cause in consequence of a
whim of the wife and daughter through whom they were

* Iivy, VI, 34.
176

Chap. VI] THE PASSING OP THE PATRICIATE [§ 72

connected. Some revolutions, it is true, are the effect of an
instant's passion or an hour's weakness. Nor can they then
make use of subsequent achievements to conceal the caprices
or the excitements in which they originated. But a change,
attempted by Licinius with the help of his father-in-law, his
colleague, and a few friends, reached back one hundred years
and more (486 B.C.) to the law of the martyred Cassius, and
forward to the end of the Commonwealth. It opened new
honors as well as fresh resources to the plebeians.

Probably the tribune was raised to his office because he had
shown the determination to use its powers for the good of
his order and of his country. Licinius and Sextius together
brought forward the three bills bearing the name of Licinius
as their author. One, says the historian, ran concerning
debts. It provided that, the interest already paid being de-
ducted from the principal, the remainder should be discharged
in equal installments within three years.1 The statutes
against excessive rates of interest, as well as those against
arbitrary measures of exacting the principal of a debt, had
utterly failed. It was plain, therefore, to any one who thought
upon the matter, — in which effort of thought the power of all
reformers begins, — that the step to prevent the sacrifice
of the debtor to the creditor was still to be taken. Many of
the creditors themselves would have acknowledged that this
was desirable. The next bill of the three related to the public
lands. It prohibited any one from occupying more than five
hundred jugera, about 300 acres; at the same time it re-
claimed all above that limit from the present occupiers,
with the object of making suitable apportionments among the

1 Livy, VI, 35 : "unam de sere alieno, ut deduoo eo de capita,
quod UBuris peraumeratum est, id, quod superesset, triennio equis
portionibus persolveretur."

177

S 72] A HI8T0RY OF ROMAN LAW [Part I

people at large.1 Two further clauses followed, one ordering
that a certain number of freemen should be employed on every
estate ; another forbidding any single citizen to send out more
than a hundred of the larger, or five hundred of the smaller,
cattle to graze upon the public pastures.2 These latter
details are important, not so much in relation to the bill
itself as to the simultaneous increase of wealth and slavery
which they plainly signify. As the first bill undertook to
prohibit the bondage springing from too much poverty, so
the second aimed at preventing the oppression springing from
too great opulence. A third bill declared the office of mili-
tary tribune with consular power to be at an end. In its
place the consulate was restored with full provision that one
of the two consuls should be taken from the plebeians.* The
argument produced in favor of this bill appears to have been
the urgent need of the plebeians to possess a greater share in
the government than was vested in their tribunes, eediles, and
quaestors. Otherwise, said Licinius and his colleague, there
will be no security that our debts will be settled or that our
lands will be obtained.4 It would be difficult to frame three
bills, even in our time, reaching to a further, or fulfilling a
larger, reform. " Everything was pointed against the power
of the patricians * in order to provide for the comfort of the

1 Livy, VI, 35; Niebuhr, III, p. 16; Varro, De R. R.f 1 : VNam
Stolonis ilia lex, qu® vetat plus D jugera habere civem Romanorum."
Livy, VI, 35 : "alteram de modo agrorum, ne quis plus quinqua-
genta jugera agri posideret." Marquardt u. Momm., Rom. Alter-
thumer, IV, S. 102.

1 Appian, De Bello Civile, I, 8.

• livy, VI, 35 ; see Momm., I, 382 ; Duruy, Hist, des Romains,
II, 78.

< livy, VI, 37.

'livy, VI, 35: "creatique tribuni Caius licinius et Lucius
Sextiufl promulgavere leges adversus opes patriciorum et pro com-
modis plebis."

178

Chap. VI] THE PASSING OF THE PATRICIATE [g 72

plebeians." This to a certain degree was true. It was
chiefly from the patrician that the bill concerning debts de-
tracted the usurious gains which had been counted upon. It
was chiefly from him that the lands indicated in the second bill
were to be withdrawn. It was altogether from him that the
honors of the consulship were to be derogated. On the other
hand, the plebeians, save the few proprietors and creditors
among them, gained by every measure that had been pro-
posed. The poor man saw himself snatched from bondage
and endowed with an estate. He who was above the reach of
debt saw himself in the highest office of the State. Plebeians
with reason exulted. Licinius evidently designed reuniting
the divided members of the plebeian body. Not one of them,
whether rich or poor, but seems called back by these bills to
stand with his own order from that time on. If this supposi-
tion was true, then Licinius was the greatest leader whom the
plebeians ever had up to the time of Caesar. But from the
first he was disappointed.1 The plebeians who most wanted
relief cared so little for having the consulship opened to the
richer men of their estate that they would readily have
dropped the bill concerning it, lest a demand should endanger
their own desires. In the same temper the more eminent men
of the order, themselves among the creditors of the poor and
the tenants of the domain, would have quashed the proceedings
of the tribunes respecting the discharge of debt and the dis-
tribution of land, so that they carried the third bill only, which
would make them consuls without disturbing their posses-
sions. While the plebeians continued severed from one
another, the patricians drew together in resistance to the
bills. Licinius stood forth demanding, at once, all that it had
cost his predecessors their utmost energy to demand, singly

1 Ihne, I, 314.
179

§ 72] A HISTORY OF ROMAN LAW [Pabt I

and at long intervals, from the patricians. Nothing was to
be done but to unite in overwhelming him and his supporters.
"Great things were those that he claimed and not to be se-
cured without the greatest contention." l The very compre-
hensiveness of his measures proved the safeguard of Licinius.
Had he preferred but one of these demands, he would have
been unhesitatingly opposed by the great majority of the
patricians. On the other hand he would have had compara-

tively doubtful support from the plebs. If the interests of
the poorer plebeians alone had been consulted, they would not
have been much more active or able in backing their tribunes,
while the richer men would have gone over in a body to the
other side with the public tenants and the private creditors
among the patricians. Or, supposing the case reversed and
the bill relating to the consulship brought forward alone, the
debtors and the homeless citizens would have given the bill
too little help with hands or hearts to secure its passage
as a law. The great encouragement therefore to Licinius
and Sextius must have been their conviction that they had
devised their reform on a sufficiently expanded scale. As
soon as the bills were brought forward every one of their
eight colleagues vetoed their reading. Nothing could be
done by the two tribunes exdept to be resolute and watch for
an opportunity for retaliation. At the election of the mili-
tary tribunes during that year, Licinius and Sextius inter-
posed their vetoes and prevented a vote being taken.2 No
magistrates could remain in office after their terms expired,
whether there were any successors elected or not to come after
them. The commonwealth remained without any military

1 Livy, VI, 35 : "Cunota ingentia, et quad sine oertamine ob-
tineri non possent."
* livy, VI, 35.

180

Chap, VI] THE PASSING OF THE PATRICIATE [§72

tribunes or consuls at its head, although the vacant places
were finally filled by one interrex after another, appointed
by the senate, to keep up the name of government and to hold
the elections the moment the tribunes withdrew their vetoes,
or left their office. At the close of the year Licinius and
Sextius were both reelected, but with colleagues on the side
of their antagonists. Some time afterwards it became
necessary to let the other elections proceed. War was
threatening,1 and in order to go to the assistance of their
allies Licinius and Sextius withdrew their vetoes and ceased
their opposition for a time. Six military tribunes were
chosen, three from the liberal and three from the illiberal
patricians. The liberals doubtless received all the votes of
the plebeians, as they had no candidates. They had in all
probability abstained from running for an office, bills for the
abolition of which were held in abeyance. They showed in-
creasing inclination to sustain Licinius and his colleague,
both by reelecting, them year after year and by at length
choosing three other tribunes with them in favor of the bills.
The prospects of the measure were further brightened by the
election of Fabius Ambustus, the father-in-law of Licinius
and his zealous supporter, to the military tribunate.2 This
seems to have' been the seventh year following the proposal
of the bills. This cannot be definitely determined, however.
During this long period of struggle, Licinius had learned
something. It was constantly repeated 3 in his hearing that
not a plebeian in the whole estate was fit to take the part
in the auspices and the religious ceremonies incumbent upon

1 livy, VI, 36.

' livy, VI, 36. Fabius quoque tribunis militum, Stolonis socer,
quarum legum auctor fuerat, earum sua.
1 Livy, loc. cit.

181

§ 72] A HISTORY OF ROMAN LAW [Part I

the consuls. The same objections had overborne the exer-
tions of Caius Canuleius three-quarters of a century before.
Iicinius saw that the only way to defeat this argument was by
opening to the plebeians the honorable office of duumvirs,
whose duty and privilege it was to consult the Sibylline
books for the instruction of the people in every season of doubt
and peril.1 They were, moreover, the presiding officers of the
festival of Apollo, to whose inspirations the holy books of
the Sibyl were ascribed, and were looked up to with honor
and respect. This he did by setting forth an additional bill,
proposing the election of decemvirs.2 Hie passage of this
bill would forever put to rest one question at least. Could he
be a decemvir, he could also be a consul. This bill was joined
to the other three which were biding their time. The strife
went on. The opposing tribunes interposed their vetoes.
Finally it seems that all the offices of tribune were filled with
partisans of Licinius, and the bills were likely to pass when
Camillus, the dictator, swelling with wrath against bills,
tribes, and tribunes,* came forward into the forum. He
commanded the tribunes to see to it that the tribes cast no
more votes. But on the contrary they ordered the people
to continue as they had begun. Camillus ordered his lictors
to break up the assembly and proclaim that if a man lingered
in the forum, the dictator would call out every man fit for
service and march from Rome. The tribunes ordered resist-
ance and declared that if the dictator did not instantly recall
his lictors and retract his proclamation, they, the tribunes,
would, according to their right, subject him to a fine five times
larger than the highest rate of the census, as soon as his

1 Appian, De Bell. Civ., I, 9.

* Momm., I, 240 : "decemviri aaoris faoiundia." Lange, loc. eiU

• Livy, VI, 38 ; Momm., loc. tit.

182

Chap. VI] THE PASSING OF THE PATRICIATE [§ 72

dictatorship expired. This was no idle threat, and Camillus
retired so fairly beaten as to abdicate immediately under the
pretense of faulty auspices.1 The plebeians adjourned, satis-
fied with their day's victory. But before they could be again
convened some influence was brought to bear upon them so
that when the four bills were presented only the two concern-
ing land and debts were accepted. This was nothing less
than a fine piece of engineering on the part of the patricians
to defeat the whole movement, and could have resulted in
nothing less. Licinius was disappointed but not confounded.
With a sneer at the selfishness as well as the blindness of those
who had voted only for what they themselves most wanted,
he bade them take heed that they could not eat if they would
not drink. He refused to separate the bills.2 The consent to
their division would have been equivalent to consenting to
the division of the plebeians. His resolution carried the day.
The liberal patricians as well as the plebeians rallied to his
support. A moderate patrician, a relation of Licinius, was
appointed dictator, and a member of the same house was
chosen master of the horse. These events prove that the
liberal patricians were in the majority. Licinius and Sextius
were reelected for the tenth time, A.u.c. 366, thus proving
that the plebeians had decided to eat and drink.'

The fourth bill, concerning the decemvirs, was almost
instantly laid before the tribes and carried through them. It
was accepted by the higher assemblies and thus became a
law. It is not evident why this bill was separated from the
others, especially when Licinius had declared that they should
not be separated. Possibly it was to smooth the way for the

1 Livy, VI, 38 ; Momm., lot. cit.

* Dion Caserns, Fragment, XXXIII, with Reimer'a note.

» livy, VI, 42.

183

J 72] A HISTORY OF ROMAN LAW [Pabt I

other three more weighty ones, especially the bill concerning
the consulship.1 There seems to have been an interruption
here caused by an invasion of the Gauls.2 As soon as this
was over the struggle began again. The tribes assembled.
" Will you have our bills ? " asked Licinius and Sextius for the
last time. "We will," was the reply. It was amid more
violent conflicts, however, than had yet arisen that the bills
became laws 3 at last.

It takes all the subsequent history of Rome to measure the
consequences of the revolution achieved by Licinius and
Sextius, but the immediate working of their laws could have
been nothing but a disappointment to their originators and
upholders. We can tell little or nothing about the regard
paid to the decemvirs. The priestly robes must have seemed
an unprecedented honor to the plebeian. For some ten
years the law regarding the consulship was observed, after
which it was occasionally violated,4 but can still be called a
success. The laws of relief,5 as may be supposed of all
such sumptuary enactments, were violated from the first.
No general recovery of the public land from those occupying
more than five hundred jugera ever took place.6 Conse-
quently there was no general division of land among the
lackland class. Conflicting claims and jealousy on the part of

1 Livy, VI, 42 ; et comitia consilium adversa nobilitate habita,
quibus Lucius Sextius de plebe primus consul faotus.
1 Livy, loe. cit.
•livy, VI, 42; Ovid, Faustus, I, 641, aeq.:

"Furius antiquam populi superator Hetrusci
Voverat et voti solverat ante fidem
Causa quod a patribus sumtis secesserat annis
Vulgus ; et ipsa suas Roma timebat opes."
4 Momm., I, 389. • Momm., I, 384.

• Arnold, Roman History, II, 35 ; Ihne, Essay on the Roman Con-
stitution, p. 72 ; Ihne, Roman Hist., I, 332-334 ; Long, I, ch. XI ;
Lange, loc. cit.

184

Chap. VI] THE PASSING OF THE PATRICIATE [5 72

the poor must have done much to embarrass and prevent the
execution of the law. No system of land survey to distin-
guish between ager publicus and ager privatus existed. Li-
cinius Stolo himself was afterwards convicted of violating
his own law.1 The law respecting debts met with much the
same obstacles. The causes of embarrassment and poverty
being much the same and undisturbed, soon reproduced the
effects which no reduction of interest or installment of
principal could effectually remove. It is not our intention,
however, to express any doubt that the enactments of Licin-
ius, such as they were, might and did benefit the small farmer
and the day laborer.2 Many were benefited. In the period
immediately following the passing of the law, the authorities
watched with some interest and strictness over the observance
of its rules, and frequently condemned the possessors of large
herds and occupiers of public domain to heavy fines.' But in
the main the rich still grew richer and the poor and mean,
poorer and more contemptible. Such was ever the liberty
of the Roman. For the mean and poor there was no means
of retrieving their poverty and degradation.

These laws, then, had little or no effect upon the domain
question or the redistribution of land. They did not fulfill
the evident expectation of their author in uniting the ple-
beians into one political body. This was impossible. What
they did do was to break up and practically abolish the pa-
triciate.4 Henceforth were the Roman people divided into
rich and poor only.

1 Livy, VI, 16 : "Eodem anno Cains Lfoinius Stolo a Marco
Popillio Lnnate sua legi decern milibus aris est damnatus, quod
mille jugeram agri cum filio possideret, emancipandoque filium
fraudem legi fecisset." Appian, Bell. Civ., I, 8; "t^ yrjp it rott

oUlovs erl farofcpfrei 8i4pefio*" * Momm., I, 389.

• Momm., I, 389, 390. « Momm., I, 389, 390.

185

J 73] A HISTORY OP ROMAN LAW [Part I

"To sow discord among different nations in order to array
one against another, — to assist the vanquished in conquering
4 _ their conqueror, — to husband its own resources,
«2gn Policy and under the pretext of defending its allies to
of Rome.1 exhaust them, — to invade the territories of its
neighbors, — to interfere in the disputes of other states, so as
to protect the weaker party and finally subjugate both, —
to wage unceasing war and prove itself stronger in reverses
than in success, — to evade oaths and treaties by subterfuge,
— to practice every kind of injustice under the specious guise
of equity. It was such a policy as this that gave Rome the
scepter of all Italy and which was destined to secure for it
that of the entire known world." The first stage in this
universal conquest has now been reached. Although in
existence but a few centuries, Rome has passed far out upon
the road of conquest. The Albans, the Sabines, the people of
Veii, have been incorporated in the new State. The Equi,
the Volsci, and the Samnites, who struggled hard against
their fate, have been destroyed. The Etruscans, the Cam-
panians, and the Tarentines have submitted to the Roman
yoke and been received as allies. Rome is master of. Italy.

But it is rather the legal history with which we are con-
cerned, and it is of special interest as well as of vital impor-
tance for us fully to comprehend this legal history in its rela-
tion to other nations. This task is a difficult one because
there are a number of different elements to be distinguished
with care and because there was no uniform policy applicable
alike to all the cities and territories connected with the ruling
State, but its relation with each depended on the terms and
conditions of treaties. For convenience we will consider
this question of relationship under three heads ; (1) in relation

* Ortolan, 181-218.
186

Chap. VI] THE PASSING OF THE PATRICIATE [J 73

to the cities themselves, (2) in relation to the soil or territory,
and (3) in connection with the persons or inhabitants. Each
one of these fields is worked out in answering the question
whether there was, as regards the city, the soil, or the indi-
vidual, any participation in the public or private privileges
of Roman citizenship.

Before entering into a discussion of the question it may be
well to remark that the Quiritarian law (jus Quiritium, jus
civitatis, jus civile), which was confined to Roman Citizens,
may be divided or considered under two heads, (I) private law
and (II) political rights.
(I) Private law comprised : —

(a) The connubium, whence sprang the patria potestas,
agnation, and all the effects of the civil law.

(6) The commercium, which affected both the individual
and the soil ; as to persons, conferring the right
to make contracts with citizens, and to acquire
and alienate property under the civil law ; as to
land, constituting it Quiritarian property under
the operation of the civil law.

(c) The factio testamenti, which was the right of receiv-
ing from citizens, or of making dispositions in their
favor by testament.

(II) Political rights comprised : —

(a) The jus honorum, or the capacity to hold office and
magistracies in the State.
- (b) The jus suffragii, or the right of voting in the comitia.

The above-named powers could be granted either separately
or collectively by the ruling power to cities, to territories, or
to individuals. The whole was called the optimum jus.

187

§ 73] A HISTORY OP ROMAN LAW [Pabt I

(1) Taking up the subjects as classified above, Rome is
the dominant city and the sovereign power.1 The Roman
in Relation colonies (colonise Romanse, colonise togatae) were
to Cities. offshoots of the sovereign city. These were con-
stituted upon the Roman model, each having a senate (curia),
two consuls (duumviri), and the order of patricians and
plebeians. Each was admitted, both as to the population and
soil assigned to it, to a complete participation in the rights
of private Roman citizenship (connubium, commercium,
factio testamenti, and dominium ex jure Quiritium), but
they were deprived of those of public citizenship (civitas
absque suffragio). Being daughters of Rome they did not
cease to observe the laws of Rome and to be dependent upon
her, and under her government. These colonise multiplied
as the power of Rome increased and, when that power, as now,
had spread over all Italy, they formed stepping-stones upon
which this centralizing power could safely rest a foot. In
those places which had offered the firmest resistance, a sena-
tus consultum decreed the establishment of a colony and
commissioners called triumviri or quinqueviri, according to
their numbers, were appointed. The commissioners enrolled
the enfranchised, and the proletarii, who volunteered, con-
ducted them to the spot, and distributed among them, in
some cases, a portion of the conquered territory, in some cases
the whole of it, without leaving anything to the former in-
habitants. The colony was then founded upon the model
of the mother city. At the time of the extension of Roman
authority over all Italy about thirty of these colonies had been
founded.

The cities of Latium bore different titles and were placed
under various conditions, according to the treaty entered

1 Ortolan, loc. tit.
188

Chap. VI] THE PASSING OP THE PATRICIATE [§ 73

into with each ; they were either free towns or allied towns
(civitates libera, civitates federate) } They were the nearest
neighbors of Rome and, consequently, the earliest subjected
to its power and taken into alliance. After the defeat at Lake
Regillus, in 396 B.C., they were placed under a more onerous
yoke. The cities which escaped destruction and were not
transferred into colonise were allowed to remain in the enjoy-
ment of independence under the conditions of the treaties
admitting them to alliance. Some concessions were made
toward them in the shape of admission to the rights of Roman
citizenship : —

(a) They generally had the commercium, and their soil was
susceptible of Quiritarian ownership.

(6) They enjoyed the factio testamenti, providing they
had commercium.

(c) There are cases where the connubium and a participa-
tion to a certain extent in political rights were
conceded. The citizens of such favored towns who
happened to be at Rome at the time of the meeting
of the comitia were at liberty to vote, and the tribe
to which they should attach themselves was deter-
mined by lot. Such was the jus Latii, jus Latinita-
tis which, in course of time, became extended to
towns and countries beyond Latium, and still later
beyond Italy, to Spain and Gaul, to the inhabitants
of which the jus Latii, and not the full Roman
rights, was extended.

Latin colonies (Latinae colonise) were colonial communities,
assimilated not to Rome, but to the towns of Latium, and they
consequently enjoyed the jus Latii rather than full Roman

1 Ortolan, loc. cU.
189

§ 73] A HISTORY OF ROMAN LAW [Part I

rights.1 These colonies were chiefly composed of Latins or
other people settled either by the arms or policy of Rome in a
conquered country. The Romans who enrolled themselves
in these colonise, and there were many of them, forfeited their
Quiritarian rights and enjoyed only the jus Latii. A decree
of the senate was not necessary for the establishment of such
colonies, and a Roman citizen was generally permitted to
join one of these without the special permission of the tribes.

The towns of Italy which submitted to Rome at the con-
clusion of the struggle and the consequent total subjection of
all Italy in the latter part of the fifth century a.u.c. remained,
by virtue of treaties, free cities in alliance with Rome (civi-
tates libera federate). They did not receive so good terms
as did the cities of Latium, but they still possessed the funda-
mental element of their own constitution, liberty and inde-
pendence. They were governed by laws made and magis-
trates appointed by themselves. They had the commercium,
and their property enjoyed the Quiritarian rights (domi-
nium ex jure Quiritium). In virtue of this they were free
from the tax imposed upon the possessors of conquered
lands, but their inhabitants could not obtain citizenship as
could those of Latium. Such right was known as the jus
Italicum.

The distinctive characteristics of municipia did not rest
upon the basis of origin or geographical position but upon
the peculiar constitution of the city to which the term
munieipium was applied. Thus in Latium and Italy there
were certain cities that were separated from their surround-
ings and erected into municipia. As Rome's conquests in-
creased, these municipia extended beyond Italy. The word
munieipium has not at all times had the same meaning, but

1 Ortolan, he. cit.
190

Chap. VI] THE PASSING OP THE PATRICIATE [§ 73

the dominant idea of a municipal town was a town to which
liberty of legislation and freedom of internal administration
had been accorded. The greater number of these, although
they enjoyed the free exercise of their own institutions, had,
like the colonies, a political system somewhat analogous to
that of Rome. They usually had : —

(a) A species of senate under the name of curia.

(6) Under the name of decurians or curiales, they had
orders answering to senators, patricians, and be-
low these, plebeians.

consul.

(d) They also had cediles, censors, and quaestors for their

police and local finance, officers, designed to main-
tain the balance of power in the State just as
they did at Rome. These differed in some details
owing to local peculiarities. Their legal systems,
like their institutions, were a close copy of Rome.

The plebiscitum which conferred upon a town the title of
municipium, determined the extent to which the privileges of
Roman citizenship were to be accorded to its inhabitants.
Sometimes the jus Latii was in this way conferred; some-
times all the rights of Roman citizenship as to private law,
including connubium, were conceded, while in others the
concession was restricted to the commercium and the factio
testamenti; sometimes even the public rights of Roman
citizenship were accorded, together with the capacity to hold
magistracies (jus honorum) and to exercise the suffrage
(jus suffragii). The inhabitants of these latter municipii
were citizens of two countries, of the municipality and of
Rome itself. This latter right had been bestowed upon very

191

§ 73] A HISTORY OF ROMAN LAW [Pabt I

few at the time of the subjugation of Italy. The town of
Caere was the first to be created a municipium, in 389 B.C.

Prefectures were towns, municipalities, or colonies to
which Rome, while leaving to the inhabitants the free exer-
cise of their own administration, yet sent a prefect for the
administration of justice.

(2) As regards the soil or territory belonging either to the
Roman colonies, the allied towns of Latium, and Latin colo-
in Relation nies, the allied towns of Italy, or the municipia,1
to Sou. — 0f ajj these we can say that an assimilation to
the Ager Romanus had taken place and, by reason of the
commercium granted to these several peoples, the land was
treated as Quiritarian property. The proprietors of this
class of soil had the territorial rights of Roman citizens
(dominium ex jure Quiritium). They were subject to the
civil law, and held their lands in full ownership free from all
rent or tribute.

(3) As regards personal status, the inhabitants of these
lands were divided into six classes : —

» „ (°) Cives, citizens.

In connec-
tion with (b) Romani coloni, Roman colonists.

the Person*. (c) cjocii Latini, or Latini, allied Latins.

(d) Latini colonarii, Latin colonists.

(e) Municipes, citizens of municipalities.
(/) Hostes, peregrini, or barbari, foreigners.

(a) The title of citizen was at first bestowed upon all the

vanquished, but it gradually became restricted and guarded

with great jealousy. It carried with it all civil

dozens.

rights, both of a public and of a private nature, —
the privilege of electing and being elected to magistracies,

1 Ortolan, toe. ciL
192

Chap. VI] THE PASSING OF THE PATRICIATE [J 73

and of voting in the comitia. It was conferred by a plebis-
citum upon the inhabitants of an Italian city collectively ; in
others it was bestowed upon individuals who were distin-
guished by reason of their wealth and influence.

(6) Roman colonists had full private rights, but no share in
political rights. They took part in the political
affairs of their colony, but could not vote or hold
office in Rome.

(c) The allied Latins possessed the rights of private citi-
zenship accorded to the city of which they were
members. These usually consisted of commer-
cium and factio testamenti ; this last, per ees et libram.

(d) Latin colonists were placed in a legal status entirely
similar to that of the Latins just named. They, Latin
too, enjoyed the rights of private citizenship. Cotaafata.

(e) Municipes, as the word implies, took part in the mu-
nera; that is, the charges, functions, and consequently the
advantages of Roman citizens. Their personal lfitiiljMa
status varied according to the concessions made

to each municipium, but usually they had the full rights of
Roman citizenship and, in case they were present in Rome
at the time of the meeting of the comitia tributa, could
vote; the tribe in which they would be entitled to make
use of the franchise being settled by lot.

(/) Three different expressions were applied to the for-
eigner ; he was either peregrinus, hostis, or barbarus. The
peregrinus was the foreigner whose country was FowteDM,
already under Roman dominion, but who lacked
the right of Roman citizenship. This term applied to the
majority of Latins and Italians. The hostis was a foreigner
whose country had not yet. submitted to Rome and who was
consequently still looked upon as an enemy. The barbarus

193

§ 73] A HISTORY OP ROMAN LAW [Part I

was one who dwelt beyond the limits of civilization and the
scope of Roman geographical knowledge. These were the
relations in which the peregrinus, the hostis, and the bar-
bams stood to Rome; the one in her bosom, or at least
under her dominion ; the other beyond the pale of her in-
fluence ; and the third outside the limits of the empire and
beyond the reach of its civilization.

194

Title 2. From the Submission of all Italy to the Empire,

(Jus Gentium) 269-80 B.C.

CHAPTER VII

COMMERCIAL EXPANSION AND ITS INFLUENCE ON

ROMAN LAW

In the life of the nation, as in that of the individual, there
is nothing abrupt. History reveals very few instances of a
sudden revolution in the political laws of a State,
while an abrupt change in the manners of a people

is a phenomenon that has never been witnessed.
The unskilled and superficial observer may believe in the
occurrence of such revolutions, for he sees events only when
they have become conspicuous to all mankind. But he who
has been trained in the observance of political phenomena
and who takes note of causes and calculates their effects
will never be so deceived. At the beginning of the epoch
the Romans were flushed with the glory of success. Italy
had acknowledged their sway and they were already reaching
out for the conquest of Asia and Africa. But while there
appears on the surface nothing save the signs of prosperity
and success, if we look deeper we will discover that the primi-
tive simplicity and the austerity of manner of former days
had passed away and luxury and wealth obtained by con-
quest had already sapped the strength of their former virtues
of self-restraint and magnanimity. The remaining period
of the republic which we are now to consider may be divided

* Muirhead, 223-236.
195

J 74] A HISTORY OP ROMAN LAW [Pabt I

into two portions. The first terminates with the destruc-
tion of Carthage, Numantia, and Corinth. The second
commences with the fall of Corinth and reaches down to
the empire. During the first of these two portions, events
are preparing the way for the second. Every fresh victory
increased the wealth of the victors. The number of slaves
was continually increased and habits of luxury were en-
couraged by a growing familiarity with the usage of the more
cultured conquered nations. This increased wealth was
concentrated in the hands of the few, while poverty was en-
gendered for the many by their being forced to work in
competition with slave labor. As success accompanied the
Roman arms, the purity of Roman morals declined, and in
proportion as Rome was victorious, she became corrupt.
The political history of this period may be summed up as
follows : from the expulsion of the kings to the subjection
of all Italy there was an internal struggle for supremacy
between the two classes of patricians and plebeians which
finally culminated in the supremacy of the latter. While this
was going on there was also an outward struggle progressing
which involved the fate of all Italy. From the subjugation
of Italy to that of Asia and Africa, the internal conflict had
ceased, but the external struggle for universal dominion
continued to rage. When the object of this struggle was
finally attained and Rome found herself the mistress of the
world, on to the establishment of the empire, the annals
of Rome record no important wars, but she was again rent
by internal dissensions, and by civil war instituted for the
personal aggrandizement of some general, consul, or dictator.
Such a struggle could culminate in one way only. The
hatred and animosity engendered could result in nothing
short of the triumph of one leader and the destruction of his

196

Chap. VII] COMMERCIAL EXPANSION [§74

opponents. In other words, such a condition of affairs leads
inevitably to empire.

The campaigns in which Rome was engaged until the end
of the First Punic War absorbed all her energies and tested
her strength to the utmost. At the close of this struggle
strangers began to flock to Rome, lured by the opportunities
for trade which rapid conquest had made certain. In the
first place, Latins and other allied peoples added their num-
bers and strength to the city. Following them came Greeks,
Carthaginians, and Asiatics. This influx of foreigners and
the expansion of commerce which came with them gave
rise to new political and legal conditions. The jus civile,
peculiar as it was to Rome and her citizens, was inapplicable
to these changed circumstances. Roman modes of acquir-
ing property and contracting obligations were too narrow.
For this reason there gradually developed a jus gentium,
which very early in its history supplanted the jus civile and
drove covenants for recuperatio out of use. At first the jus
gentium was limited to transactions between non-citizens,
or between citizens and non-citizens, but it eventually
proved so far-reaching and useful that it was accepted in
the dealings of citizens with citizens, and became part and
parcel of the jus Romanorum. Gaius and Justinian speak
of the jus gentium as "the common law of mankind/' "the
law in use among all nations." This law, however, was not
built up by the adoption of one doctrine or institution after
another that was found to be generally current among other
peoples. It was, in reality, Roman Law, built up by Roman
jurists, but it was called into existence through the necessity
of intercourse with other peoples. At first it simply regu-
lated intercourse between peregrins or between peregrins
and citizens, on the basis of their common liberty.

197

§ 75] A HISTORY OF ROMAN LAW [Pabt I

The growth of commerce caused the law of contract to
develop more rapidly than any other legal branch. The
adoption and development of the stipulation and the recog-
nition of consensual contracts may be cited as an example
of this. But it is difficult to state with precision exactly
just what were the doctrines and institutions of the jus
gentium as distinguished from the jus civile. The distinc-
tion must have been familiar enough to the Romans.

The subjugation of all Italy was speedily followed by the
extension of commercial relations. Following the successful
1 75. The termination of the First Punic War many for-
institution eigners, as I have already stated, flocked to the
Perenin city to practice the mechanical arts or to
PtMtor- engage in mercantile pursuits. These callings
Mp' were looked upon with contempt by Romans

in general and specially forbidden by law to patrician
families. These strangers brought with them new objects
and new wants, followed by new agreements and new- dis-
putes. The great mass of the foreign population was not
in a condition to make use of the jus civile, while those who
were admitted to this favored footing felt themselves bound
and hampered by the narrow range allowed to them in
the acquisition of property and the protection of their
rights. To meet these new demands, there gradually grew
up a jus gentium whose application for a time was confined,
no doubt, to transactions between these foreigners or between
foreigners and Roman citizens. However, in course of time,
it was accepted in the dealings of citizens with one another.
It was greatly added to by the creation of jurists that were
guided by the principles of comparative jurisprudence and
private international law.

It was to meet the demand of this new order of things

198

Chap. VII] COMMERCIAL EXPANSION [J 75

that there was created a new magistracy, that of the praetor
peregrinus or praetor of the stranger.1 The urban Pmtor

praetorship was an outcome, as has been seen, P«egrinui.
of the Licinian laws of 367 B.C. The object of its institution
was that the administration of justice might be retained in
the hands of the patricians, although the consulate had been
thrown open to the plebs. It was the business of the praetor
to administer the law within the city; "qui jus in urbe
dice ret." In dignity he was on a footing of equality with
the consuls and, in their absence from the city, he could
administer civil affairs as their substitute. In the course
of time this office, which was an annual one, was opened to
the plebeians, but no change was made in the duties devolv-
ing upon this officer. The praetor administered justice single
handed and without fear or favor to both citizens and for-
eigners. But in the beginning of the sixth century a.u.c.
the altered condition of things made it necessary to relieve
him of a portion of the burdens of this office. A special
praetor was appointed, known by the name of praetor pere-
grinus. The date of this appointment is not known with
accuracy, but may be placed at 512 a.u.c. Pomponius says,
"The creation of the new office was rendered necessary by
the increase of the foreign population of Rome, and that the
name of praetor peregrinus was given him because his prin-
cipal duty was to dispense justice to this foreign element."
The jurisdiction of this magistrate extended to all matters
of dispute between foreigners or between a foreigner and a
Roman citizen. He did not apply to foreigners the rules
of the civil law, that is to say, those that were exclusively
confined to citizens, but he applied to them the rules of the
jus gentium or, in other words, 'the law as it was made ap-

1 Muirhead, 228, 229 ; Ortolan, 40.

199

§ 75] A HISTORY OP ROMAN LAW [Pabt I

plicable to all men. The dignity of the praetor urbanus was
infinitely above that of the praetor peregrinus ; nevertheless
these officers, when necessary, could act for each other.

The praetor exerted a great legislative power. With him
all legislative proceedings commenced. He put in shape to
come before the court all cases at issue. When the power of
the people went beyond the province of law, it was necessary
for the praetor to exert an authority far more influential than
that of prudentes. As this power increased a practice grew
up to avoid the evils of uncertainty; a proclamation or
edict stating the rules by which he would be guided in grant-
ing or refusing causes was promulgated by the praetor. This
was called a perpetual edict (edictum perpetuum) for his
entire term of office. Temporary edicts of the praetor were
known as edicta repentina. The praetor was content for
the most part to follow in the footsteps of his predecessors
and simply to enforce the decisions rendered by them in
similar cases that arose in his own jurisdiction. That which
he copied from a predecessor was called edictum translatum.

At first a praetor had only judicial function ; afterwards his
power encroached upon that of the consuls and he assumed
executive authority. There was no guarantee except con-
stitutional usage and opinion that a praetor would adhere
to the rules laid down in his edict. In the discharge of his
duties he necessarily met from time to time with cases for
which there was no provision, or with others to which the
application of the law appeared to be unjust. Under such
circumstances he felt the necessity of supplementing this
law or correcting it with such means as w&s in his power.
Frequently he was compelled to build up a new system. In
the course of time there were precedents established for al-
most every case that could arise, so that it was no longer

200

Chap. VII] COMMERCIAL EXPANSION [J 75

necessary to make law. Thereupon a law was passed (lex
Cornelia de Edicti? Perpetuis) declaring it to be unlawful for
a praetor to depart from the edict which he promulgated at
the first of his year of office. Cicero, speaking of this limi-
tation placed upon the authority of the praetor, says, "You
must, as soon as you have entered upon your magistracy and
taken your seat, publish by an edict the rules that you
intend to observe during the term of your office." In his
prosecution of Verres, Cicero makes it one of the chief accusa-
tions against him that he did not adhere to his published edict.
During the reign of Hadrian, Salvius Julianus, an illus-
trious jurist of that epoch, who held the office of praetor,
published a work entitled Edictum Perpetuum. This was
a methodical arrangement of the praetorian law, of the vari-
ous edicts published up to that time, and of the provisions
established by common use. Henceforth the praetors were
obliged to adopt its provisions and to conform thereunto.
They still enjoyed the right of adding such accessory rules
and forms as the course of events rendered necessary. But
their powers were very much limited. Henceforth the au-
thority of the prcetor may be said to be threefold : —

(1) He denied to a person having a perfect legal right

his proper remedy, in case the carrying out of the law
seemed contrary to equity.

(2) He granted actions to persons having no legal right,

if in his estimation the ends of justice were attained
thereby.

(3) He introduced entirely new actions in order to facili-

tate the rendering of justice. Of these the most
powerful was the interdict. Of this kind of law
we have many examples. They are described by

201

5 75] A HISTORY OF ROMAN LAW [Part I

Gaius as fictions, but he uses the word in a peculiar
sense. Of this kind of action on the part of the
praetor the following is a good example: while it
was a law that the praetor could not make an heir,
yet he by bonorum possessio gave to a person all
the rights and duties of an heir. " If, supposing
Aulas were heir, Numericus ought to pay him so
many sestertia, let the judex condemn Numericus
to pay him that amount." In this form it may be
observed that it does not make the statement that
Aulus is heir, but says that the judex must give
the same verdict as if he were. This seems rather
more a hypothetical than a fictitious act. An action
of this kind was founded upon utility. In some cases
the praetor took a much bolder course. Although
the fiction was a bold scheme, it was adopted to
avoid trouble and to simplify legal procedure. It
was less of a shock to say that Aulus ought to re-
cover as if he were heir, than to say that he ought
to recover, no matter whether he were heir or not.

In some formulae a more direct course was taken, as, for
instance, in the sale of an inheritance, when it was decreed
that the buyer pay the debt of the deceased. The herus
was the universal heir, that is, he was heir both to the assets
and the liabilities. If, therefore, the property which he
received was sold, it was deemed a mere matter of justice
that all debts be met with the proceeds of the sale and only
the residuum turned over to the heir. The praetor stands in
Roman law midway between the jurisconsult and legislator.
His right to alter the law was acknowledged but this right
was limited. He was hedged round by a firm but elastic

202

Chap. VII] COMMERCIAL EXPANSION [§76

band. He represented the conscience of the citizens of Rome.
He decided in what cases the strict law was to give way to
equity. In this way a wide range was given to his judicial
activity, publica utilitas. "Jus praetorium est quod pra-
tores introduxerunt ad privandi vel supplendi vel com-
gendi juris civilis gratia propter utilitatem publicam." A
single example may suffice to show that the praetor's power
was limited by definite bounds, although these bounds were
very flexible. The Twelve Tables gave the succession to a
man's sui heredes, but children released from potestas did
not succeed. The praetor did not hesitate to allow the
emancipated child to enter upon the property of his deceased
father. Afterwards, the praetorian law allowed the child
to inherit from its mother as well as from its father, thus
removing all restrictions whatever. The pnetor's power
was exercised umder three heads: —

(1) He admitted aliens into the protection of Roman law.

(2) It is due to him that the religious fanaticism and the

narrow bigotry of the jus civile gave way to well-
established rules of jurisprudence, thus giving effect
to fundamental legal principles.

(3) He took the first and most decisive part in revising

the law of intestate succession in such a way that
property should henceforth follow the ties of blood
instead of the artificial relation of potestas.

The organization and administration of provinces was a
new departure for Rome and came quite late in * t6- The

' . . Establish-

her history, long after the development of her inter- ment of

nal domestic institutions and laws. Foreign con- Provinces.*

quest made it necessary for Rome to depart from her long

1 Ortolan, 41 ; Muirhead, 230-232.

203

J 761 A HISTORY OP ROMAN LAW [Part I

established administrative custom of leaving everything
in the hands of her two consuls, and to establish trans-
marine provinces with provincial officers to carry on the
government. This departure was but a necessary expan-
sion to meet the needs of the new conditions of conquest
and consequent subordination of foreign States. Of these
Sicily was the first, organized in 241 B.C.; then came, in
order, Sardinia, in 228, Spain, in 206, Cisalpine Gaul, in
160, Illyria, in 155, and Carthaginia, in Africa, in 146.
Each province was placed under the direct domination of
Rome and governed by Roman magistrates according
to the terms of the plebiscitum or senatus consultum
which had been issued to regulate their condition upon the
completion of their conquest. It now became a principle
in the law of conquest among the Romans that the owner-
ship in the soil of a conquered country passed to the con-
queror. By this plan the conquered inhabitants ceased to be
the proprietors of the soil and sank to the condition of occu-
pants, paying to Rome a fixed annual rental or vectigal. In
addition to this payment, which was a tax on the provincial
soil, the inhabitants were also called upon to pay a personal
impost or tribute. They were, in fine, tributaries and not
citizens. The entire province was, with the exception of
municipia and colonies established within its bounds, subject
to the general supervision of the Roman governor or praetor
and under his immediate control.

The provinces were at first administered by magistrates

who were nominated by the comitia especially for this service.1

increase in They were c&Ued pretors after the praetor urbanus

the Number and praetor peregrinus in Rome. In 227 B.C. a

* praetor was appointed to administer the govern-

1 Ortolan, 42.
204

Chap. VII] COMMERCIAL EXPANSION [§76

ment of Sicily. In the same year one was sent to Sardinia.
In 197 Spain was divided into two provinces and a praetor
sent to each. Thus there were in all six praetors, two for
Rome and four for the provinces. When the number of
provinces was increased a new method was adopted for their
administration. Consuls and praetors were chosen for a
period of one year only. When they surrendered their offices
at the expiration of their term, it was thought wise to utilize
their knowledge and experience by sending them to administer
the government of the provinces under title of proconsuls
and propraetors. The four praetors created originally for
the provinces of Sicily, Sardinia, and Spain, remained for one
year at Rome before taking office. Here they aided their
colleagues in the administration of home justice and so
learned the duties of their office before entering upon it.

When Rome discarded her kings and established a republi-
can form of government she needed but one army to protect
her narrow borders, and her two consuls were suffi-
cient for its command. But when, by reason of her many
conquests, it became necessary to maintain an

. Proconsuls.

army simultaneously in Italy, Sicily, Spain, and
Africa, her two consuls were insufficient for the purpose of
commanding them.1 When, therefore, a consul retired from
office, resort was had to law to continue him in command
of the forces as provincial governor. In this way Scipio
Af ricanus the Second was continued in office for ten years
until Carthage was overrun and completely destroyed. When
a victorious war terminated the province thus obtained had
to be governed, and, as there was generally more or less dan-
ger of insurrection in a recently subdued territory, the gov-
ernment was intrusted to a proconsul, and troops under his

* Ortolan, 43.
205

§76] A HISTORY OP ROMAN LAW [Pabt I

command were stationed there. He had almost absolute
authority in his province. The army and the administra-
tion of justice were in his hands, and he was restricted only by

. the law that had been passed regulating the mode of govern-
ment of the province over which he was appointed. He had
legati chosen by himself to assist him in the discharge of his

t duties and to represent him in his absence. The only
check upon his autocratic rule was a qusestor, or treasurer,
sent out by the senate and responsible to that body. He
received and paid out all moneys, and the proconsul had to
make all drafts on the treasury through him. Taxes were
levied immediately by farmers of the revenue (publicani)
who purchased the impost from the government at as small
a figure as possible and then by extortion collected nearly
double the amount.

The consular provinces were those that, by reason of re-
cent conquest, or exposed frontiers, maintained a military
force that was kept ready for instant service.
The command of these was intrusted to the
proconsul. When a province had been organized for some
time and was located in such a manner as to be free from
barbarian inroads so that a military force for protection and
safety was unnecessary, it was usually conferred upon a
praetor who had no military authority.1 From the nature
of the case the condition of the provinces fluctuated and the
classification as consular and praetorian differed from year
to year. Both proconsuls and propraetors were required to
render an account to the senate upon resigning their post.
Provincial government during the republican period was
usually just and moderate, although we have examples of
tyranny and extortion.

1 Ortolan, 44.
206

Chap.VH] COMMERCIAL EXPANSION [§77

Until the time of Diocletian, the administration of law was
not confined to professional lawyers. It was rather regarded
as a public office that any citizen might be called 1 77. PuMic
upon to undertake. After the creation of the tio||g ^ ^
office of praetor that functionary was, generally Jurist*.1
speaking, a politician and statesman rather than a man
learned in the law, while the judex, appointed to try a case,
was a man of senatorial rank and in good social standing, but
without any legal training. The tendency of the Romans
to judicial studies and legal pursuits can be seen at an early
date. The Roman mind was essentially legal and formal.
The Roman had an instinctive love of law and order and took
naturally to legal studies and pursuits. Many persons dur-
ing the republic gave their attention to the study of law and
to the directing of citizens in their private affairs.
. At first, patricians were the only persons who had knowl-
edge of the law and were initiated into the mysteries of the
actiones legis and the dies fasti. The pontifex maximus and
his college of pontiffs had a monopoly in legal procedure, and
a trial of a case assumed in their hands something of a religious
nature, and the aristocratic jurisconsult pronounced his
dictum as a species of oracle. When, however, the curtain
wad drawn aside and the legal mysteries revealed to the
unhallowed eyes of the plebeians, rapid advancement in
legal knowledge was made. Tiberius Coruncanius, the
plebeian who first attained to the dignity of pontifex max-
imus, was also the first plebeian to devote himself to the
public profession of the law. He died in 249 B.C., highly
honored by the Roman people. Many others followed his
example and gradually there grew up a body of men who were
learned in the law and who gave their services to those who

1 Ortolan, 45.
207

5 78] A HISTORY OF ROMAN LAW [Pabt I

had need of them. Cicero, speaking in reference to his own
time, after passing in review over the instruction which formed
a less essential part of the profession, summarizes in four
words the office of a jurist ; respondere, cavere, agere, scribere.
" Respondere, that is, to give advice according to the facts
laid before the legal adviser upon the matters submitted to
him, and frequently upon matters not in litigation, e.g., the
marriage of a daughter, the purchase of an estate, or the
culture of a field. Cavere, that is, to indicate the forms that
must be pursued, or the precautions taken, in order to secure
the rights of an individual or the protection of his interests.
Agere, that is, to interfere actively for his client in the Forum
before the magistrate or before the judge, to appear with him
there to support his advice with his presence, and to give such
counsel as the exigency of the occasion should require.
Scribere, that is, to compose and publish collections, com-
mentaries, or treatises upon certain parts of the law."

This acquaintance with and practical profession of the law
served as a means of acquiring popularity and election to the
higher magistracies. It was not at first a source of revenue,
as nothing could be charged for legal services until late in
the history of the republic. Such were the prudentes, to
whose opinions so much weight attached that they were finally
considered afc one of the sources of law.

The legis actiones gradually declined in use until towards
the end of the sixth century, when they were practically
1 78. The suppressed by the enactment of the lex Aebutia.
Lex The date of this lex is variously given. Ortolan

Aebutia.' makes a rather strong argument for 170 B.C., while
Muirhead gives the date 247 B.C. The earlier date seems to
be preferable, although there is no direct evidence for this.

* Muirhead, 230-234.
208

Chap. VII] COMMERCIAL EXPANSION [J 78

Very little is known about the contents of this law, but it is
generally supposed to have empowered the praetors : —

(1) To devise a simpler form of procedure for causes that

were already cognizable per legis actiones.

(2) To devise forms of action for causes that were not

cognizable under the older system.

(3) To formulate the issue and reduce it to writing so

that no mistakes could be made in its interpre-
tation or application.

The general character of this process and its improvement
upon the old legis actiones will be evidenced to every one
from an analysis of the formula. This usually consisted of
four distinct and separate parts : (1) The demonstrate or
statement of the fact or facts set forth by the plaintiff as the
ground for his cause ; " Quod Aulas Agerius Numerio Neg-
idio Hominem Vendedit." This element did not necessarily
form a part of the formula, inasmuch as this preliminary
statement might be sufficiently set forth in the second part.
(2) The intentio, which contained the precise claim or demand
made by the plaintiff which was to be determined by the
judex and which, consequently, involved the question of
legal rights, the juris contentio, according to the expression
used by Gaius : "Si paret N. M. dare oportere, etc." This
is the vital element of the formula and could in no instance be
wanting when the question was the existence or nonexistence
of a civil right. (3) The condemnatio, which was the author-
ity or order given by the judge to condemn or to acquit, accord-
ing as the facts were proved or not, and which determined
the latitude of his authority; ". . . condemnatio; si non
paret absolvito." Every condemnatio was pecuniary. The
judex, whatever might be the nature of the action, was only

209

§ 79] A HISTORY OP ROMAN LAW [Part I

empowered to condemn in a pecuniary penalty. (4) The
adjudicatio was the power of partition which was conferred
by the magistrates upon the judex, in addition to that of
merely finding for or against the plaintiff. It authorized
him to make such provision or distribution of the property
in question as the circumstances of the case seemed to
require.

The formula might also contain, in connection with the in-
tentio, the pleadings of the parties or the counter statements
made by the defendants and again by the plaintiff, in order
to ascertain the exact point at issue between the contestants,
thus taking the place of the altercation already described
as forming a part of the ancient actio sacramenti. It was
little less than an ingenious method of constituting and direct-
ing a jury in civil cases. The origin of this system is, as I
have previously stated, somewhat in doubt. Some authorities
contend that it was in existence long before the enactment of
the lex Aebutia as a part of the instructions given to the
judex who was to render a decision under one or the other
of the legis actiones. But it would seem to be fairly well
established that the formula had constituted the mode of
administering justice between peregrini, or between citizens
and peregrini. In this case its origin would be ascribed
to the pnetor peregrimis who developed and elaborated it
into a system.

The two-stage procedure, first in jure, before the magis-
trate, and then in judicio, before the judex, constituted the

1 79. p«>- ordo judiciorum privatorum. Early in the em-

Extrm Or- P*re» however, it became the practice in certain
dinem.i cases for the magistrate to abstain from ad-
justing a formula and making a remit to a judex, and to

1 Muirhead, 344 seq.
210

Chap. VII] COMMERCIAL EXPANSION [J 80

keep the ctfuse in his own hands from beginning to end.
This course was, no doubt, adopted sometimes because the
claim that was being made rested not so much upon legal, as
upon moral grounds, and sometimes in order to avoid unneces-
sary disclosure of family misunderstandings. It was in this
way and for this reason that the earliest questions that were
raised about testamentary trusts were sent for consideration
and disposal to the consuls. Questions of dispute which
arose between pupil wards in like manner began to be dealt
with extra ordinem, the cognition being intrusted by the
emperor, Marcus Aurelius, to a praetor tutelaris. Many other
cases of like nature that seemed to involve questions of moral-
ity were settled in this same manner.

The vast increase in foreign population that took place
during the latter half of the republic materially lowered the
moral standard of Rome. The increase of *8o#

wealth and luxury helped on this moral deteriora- Religion
tion and produced a very marked decline in and Morals,
religious sentiment and public and private virtue. This
decline manifested itself everywhere and influenced to a
considerable extent those branches of the private law which
regulated the domestic relations and those which dealt with
property and contract.

Perhaps this decline in morals manifested itself in the dis-
regard of the sanctity of the marriage tie more than in any
other branch of private law. Even the casual reader of
Roman history and law has this fact brought home to him
vividly. It was due to many causes. Chief among these
was the bringing into the wealthier Roman families numerous
slaves, Greeks and Syrians, more polished, refined, and
accomplished than their masters, but utterly devoid of
all religious and moral sentiment. These corrupted both

211

580] A HISTORY OP ROMAN LAW [Part I

master and mistress. While from earliest times the law de-
nounced causeless separation, and Romulus is said to have
pronounced anathema upon the man who put away his wife,
yet in principle it maintained the perfect freedom of divorce.
Gradually the thought became current that it was im-
proper to force persons to continue in the bonds of matri-
mony between whom conjugal affection no longer existed.
The frugality and simplicity of the older days, together
with the supervisory care and advice of the consilium domes-
ticum, offset the ease with which divorce was obtained and no
evil resulted therefrom. Family misunderstandings were eas-
ily smoothed over and divorces were of very rare occurrence.
In 287 B.C., however, the lex Maenia was enacted, and
from this time on there is a growing fequency of divorce.
This law "displaced the family council as a divorce court,
and transferred its functions in that matter to a iudicium de
moribus, — a court of inquiry nominated by the praetor, and
whose duty it was to decide to what extent there should be
forfeiture of the nuptial provisions in case of separation or
repudiation." This made divorce easier than ever and ren-
dered the idea familiar, while at the same time it removed the
wholesome check put upon it by the domestic council. As
the marriage bond became loose, it also had effect on the other
family relations. The obligation of the father to provide for
his children, which in the early history of Rome was looked
upon as a sacred duty, now began to be lightly esteemed. He
took advantage of the freedom given to him in the Twelve
Tables to dispose of his property as he saw fit, to disinherit
some or all of his children, or to give to certain ones less than
the share that would fall to them in case he died intestate.
This was done quite frequently in the latter part of the
republic, and that, too, in order to give a portion or all t>f

212

Chap. VII] COMMERCIAL EXPANSION [J 81

the property to a stranger. To meet this undutif ul conduct
on the part of the father the centum viral court introduced
the querela inofficiosi testamenti, — challenge of the testa-
ment by a person whose natural claims had been carelessly
disregarded. Finally, the rule came to be established that
every child was entitled, notwithstanding the terms of his
father's testament, to at least a fourth part of what would
have come to him had his father died intestate, unless it
appeared on investigation that the latter had sufficient
grounds for excluding him from benefit in "die will.

The decline in morals also had a marked effect upon busi-
ness transactions ; there was a lack of confidence shown in the
integrity of the individual, and laws were enacted to com-
pel honest fulfillment of business obligations, such as exceptio
rei venditse et tradite, or exceptio non numerate pecuniae.

During the period between 367 and 133 B.C. we find no
record of serious disputes between the patricians and com-
mons. Indeed, the senate usually took the lead . gi
in popular measures; lands were assigned with- Agrarian
out any demand on the part of the plebeians. UiW»-
But we must not be deceived by this seeming
harmony. In the midst of this apparent calm a radical
change was taking place in Roman society. It is necessary
for us to understand this new condition of affairs in the
republic before it will be possible to comprehend the roga-
tions of the Gracchi.

One of the greatest dangers to the republic at this time
reveals itself in the claims of the Italians. These Condition of
people had poured out their blood for Rome; th*(?Tltr^

atfueTimoof

they had contributed more than the Romans them- tneGracchan
selves to the accomplishing of those rapid con- Rogations,
quests which, after the subjugation of Italy, quickly extended

213

581] A HISTORY OF ROMAN LAW [Part I

the power of Rome. In what way had they been rewarded ?
After the terrible devastations which afflicted Italy in the
Hannibalic war had ceased, the Italian allies found themselves
ruined. Whilst Latium, which contained the principal part of
the old tribes of citizens, had suffered comparatively little, a
large portion of Samnium, Apulia, Campania, and more par-
ticularly of Lucania and Bruttium, was almost depopulated ;
and the Romans in punishing the unfaithful " allies " had acted
with ruthless cruelty.1 When at length peace was concluded,
large districts were uncultivated and uninhabited. This ter-
ritory, being either confiscated from the allies for taking part
with Hannibal, or deserted by the colonists, swelled the ager
publicus of Rome, and was either given to veterans,2 or
occupied by Roman capitalists, thus increasing the revenues
of a few nobles.

If a nation is in a healthy condition politically and economi-
cally, so that the restorative vigor of nature is not impeded
by bad restrictive laws, the devastations of land and losses
of human life are quickly repaired. We might the more es-
pecially have expected this in a climate so genial and on a soil
so fertile as that of Italy. But Roman laws so restricted
the right of buying and selling land that in every Italian
community none but members of that community, or Roman
citizens, could buy or inherit.8 This restriction upon free
competition, by giving the advantage to Roman citizens, was
in itself sufficient to ruin the prosperity of every Italian town.
This law operated continually and unobservedly and resulted
in placing,4 year by year, a still larger quantity of the soil of
Italy in the hands of the Roman aristocracy. In order to
palliate the evils of conquest, or at least to hide their condi-

» Iivy, XXXI, 4, 1 ; Dine, IV, 370-872. » Ihne, IV, 148.

» Iivy, loc. eU. « Ibid., IV, 371.

214

Chap. VIII COMMERCIAL EXPANSION [§81

tions of servitude, the Romans had accorded to a part of
the Italians the title of allies, and to others the privileges of
municipia.1 These privileges were combined in a very
skillful manner in the interest of Rome, but this skill did not
hinder the people from perceiving that they depended upon
the mere wish of the conquerors and consequently were not
rights, but merely favors to be revoked at will. The Latini,
who had been the first people conquered by Rome and who
had almost always remained faithful, enjoyed under the
name of jus Latii considerable privileges. They held in
great part the civil and political rights of Roman citizens.1
They were able by special services individually to become
Roman citizens and thus to obtain the full jus Romanum.
There were other peoples who, although strangers to Latium,
had been admitted, by reason of their services * to Rome, to
participate in the benefits of the jus Latii. The other
peoples, admitted merely to the jus Italicum, did not enjoy
any of the civil or political rights of Roman citizens, nor any
of the privileges of Latin allies ; 4 at best they kept some sou-
venirs of their departed independence in their interior admin-
istration, but otherwise were considered as subjects of Rome.
And yet it was for the aggrandizement of this city that they
shed their blood upon all the fields of battle which it pleased
Rome to choose ; it was for the glory and extension of the
Roman power that they gained these conquests in which they
had no share. Some who had attempted to regain their
independence were not even accorded the humble privileges
of the other people of Italy, but were reduced to the state

* Ibid., IV, 364 ; Momm., Ill, 277.

* Momm., I, 151-162 ; Dine, IV, 179 ; Marquardt u. Momm.,
IV. 26-27, 63.

» Iivy, IX, 43, 53 ; Ihne, IV, 181.

* Ihne, IV, 185-186 ; Marquardt u. Momm., 46, 60.

215

|81] A HISTORY OF ROMAN LAW [Pabt I

of prefectures. These were treated as provinces and governed
by prefects or proconsuls * sent out from Rome. Such were
Capua, Bruttium, Lucania, the greater part of Samnium, and
Cisalpine Gaul, which country, indeed, was not even con-
sidered as a part of Italy. Those who had submitted without
resistance to the domination of the Romans, and had rendered
some services to them, had bestowed upon them the title of
municipia.2 These municipia governed themselves and were
divided into two classes : —

(1) Municipia sine suffragio, for example, Caere in Etruria,
had only inferior privileges ; their inhabitants could not vote
at Rome and, consequently, could not participate in the ex-
ercise of sovereignty.8

(2) Municipia cum suffragio had, outside of their political
and civil rights, the important right of voting at Rome.4
These citizens of villages had then, as Cicero said of the
citizens of Arpinum, two countries, one ex natura, the other
ex jure. Lastly, there were some cities in the south of Italy,
i.e., in Magna Grecia, that had received the name of feder-
ated cities.6 They did not appear to be subject to Rome ;
their contingents of men and money were looked upon as
voluntary gifts ; 6 but, in reality, they were under the domina-
tion of Rome, and had, at Rome, defenders or patrons chosen
because of their influence with the Roman citizens and charged
with maintaining their interests. Such was the system
adopted by Rome. It would have been easy for a person in
the compass of a few miles to find villages having the jus
Latii, others with simply the jus Italicum, colonies, prefec-
tures, municipia cum et sine suffragio. The object of the Ro-

1 Marquardt u. Momm., IV, 41-43. « Ibid., IV, 27-34.

* Ibid., IV, 26. • Ibid., IV, 44.

• Ibid., IV, 27-34. • Ibid., IV, 45-46.

216

Chap. VII] COMMERCIAL EXPANSION [§81

mans was evident. They planned to govern. Cities alike in
interests and patriotic motives were separated by this diver-
sity of rights and the jealousies and hatreds which resulted
from it. Concord, which was necessary to any united and
general insurrection, was rendered impossible between
towns, some of which were objects of envy, others, of pity.
Their condition, moreover, was such that all, even the most
fortunate, had something to gain by showing themselves
faithful ; and all, even the most wretched, had something to
fear if they did not prove tractable. These Italians, with
all the varied privileges and burdens enumerated above,
far outnumbered the Roman citizens.1 A comparison of
the census of 115 B.C. and that of 70 B.C. shows that the
numbers of Italians and Romans were as three to two.9
All these Italians aspired to Roman citizenship, to enjoy
the right to vote to which some of their number had been
admitted, and the struggle which was in time to end
in their complete emancipation had already commenced.
During the first centuries of Roman history, Rome was
divided into two classes, patricians and plebeians. The
plebeians by heroic efforts had broken down the barriers
that separated them from the patricians. The privilege of in-
termarriage, the possibility of obtaining the highest offices of
the State, the substitution of the comitia tributa for the other
two assemblies, had not made of Rome "an unbridled democ-
racy," but all these benefits obtained by tribunician agitation,
all the far-reaching advances gained by force of laws and not
of arms, had constituted at Rome a single people and created
a true Roman nation. There were now at Rome only rich and
poor, nobles and proletariat. With intelligence and ability a

1 Momm., Rdm. Ge., II, 225.
■ Ihne, IV, 370.

217

§ 81] A HISTORY OF ROMAN LAW [Past I

plebeian could aspire to the magistracies and thence to the
senate. Why should not the Italians be allowed the same
privilege ? It was neither just nor equitable nor even pru-
dent to exclude them from an equality of rights and the com-
mon exercise of civil and political liberty.1 The Gracchi were
the first to comprehend the changed state of affairs and
the result of Roman conquest and administration in Italy.
Their demands in favor of the Italians were profoundly poli-
tic. The Italians would have demanded, with arms in their
hands, that which the Gracchi asked for them, had not this
attempt been made. They failed ; Fulvius Flaccus,2 Marius,3
and Livius Drusus4 failed in the same attempt, being op-
posed both by the nobility and the plebs.

The agrarian laws, as we have seen, had been proposed
by the senate, in the period which we are considering. How
was it then that the Gracchi had been compelled to take the
initiative and that the senate had opposed them? This
contradiction is more apparent than real. It explains itself
in great part by the following considerations. Upon the
breaking down of the aristocracy of birth, the patriciate, the
senate was made accessible to the plebeians who had filled the
curule magistracies and were possessed of 800,000 sesterces.
Knights were also eligible to the senate to fill vacancies,
and it was this fact which caused the equestrian order to be
called seminarium senatus. For some time the new nobles,
in order to strengthen their victory and make it permanent,
had formed an alliance with the plebeians. For this reason
were made the concessions and distributions of land which

1 Momm., Lange, Dine, Long — as given.

• Momm., Ill, 132.

• Ibid., 252, 422.
« Ibid., Ill, 281.

218

Chap. VIII COMMERCIAL EXPANSION [|81

the old senators were unable to hinder. These concessions
were the work of the plebeians who had been admitted to
the senate. But when their position was assured and it was
no longer necessary for them to make concessions to the
commons in order to sustain themselves, they manifested
the same passions that the patricians had shown before them.
Livy has expressed the situation very clearly; "These noble
plebeians had been initiated into the same mysteries, and
despised the people as soon as they themselves ceased to be
despised by the patricians."1 Thus, then, the unity and
fusion which had been established by the tribunician laws
disappeared and there again existed two peoples, the rich and
the poor.

If we examine into the elements of these two distinct popu-
lations, separated by the pride of wealth and the misery
and degradation of poverty, we shall understand this. The
new nobility was made up partially of the descendants of the
ancient patrician gentes who had adapted themselves to
the modifications and transformations in society. Of these
persons, some had adopted the ideas of reform; they had
flattered the lower classes in order to obtain power; they
profited by their consulships and their prefectures to increase
or at least conserve their fortunes. Others having business
capacity gave themselves up to gathering riches, to usurious
speculations which at this time held chief place among the
Romans. Even Cato was a usurer and recommended usury
as a means of acquiring wealth. Or they engaged in vast
speculations in land, commerce, and slaves, as Crassus did a
little later. The first-mentioned class was the least numer-
ous. To those nobles who gave their attention to money-
getting must be added those plebeians who elevated them-

» livy, XXII, 34.
219

(81] A HISTORY OF ROMAN LAW [Pabt I

selves from the masses by means of the curule magistracies.1
These were insolent and purse-proud, and greedy to increase
their wealth by any means in their power. Next to these
two divisions of the nobility came those whom the patricians
had been wont to despise and to relegate to the very lowest
rank under the name of serarii ; merchants,2 manufacturers,
bankers, and farmers of the revenues. These men were power-
ful by reason of their union and community of interests, and
the money which they commanded. They formed a third
order and even became so powerful as to control the senate
and, at times, the whole republic. In the time of the Punic
wars the senate had been obliged to let go unpunished the
crimes committed by the publican Posthumius and the
means which he had employed in order to enrich himself
at the expense of the republic, because it was imprudent
to offend * the order of publicans. Thus constituted an order
or gild, they held it in their hands at will to advance or to
withhold the moneys for carrying on wars or sustaining the
public credit. In this way they were the masters of the State.
They also grasped the public lands, as they were able to
command such wealth that no individual could compete
with them. They thus became the only farmers of the
domain lands, and they did not hesitate to cease paying
all tax on these. Who wps able to demand these rents from
them? The senate? But they either composed the
senate or controlled it. The magistrates? There was no
magistracy but that of wealth. The tribunes of the people ?
These they had disarmed by frequent grants of land of two
to seven jugera each, and by the establishment of numerous

* Ihne, IV, 354-366. r» Ibid.

* Livy, XXV, 3 : "Patres ordinem publicanorum In tali tempore
offensum nolebant."

220

Chap. VIII COMMERCIAL EXPANSION [581

colonies. This was beyond doubt the real reason for their
frequent distributions. They had all been made from land
recently conquered. The ancient ager had not been touched,
and little by little the Licinian law had fallen into desuetude.

In 222 B.C. Roman conquests were extended to the natural
boundary of Italy, the Alps, by the subjugation of the Gauls
north of the Po. At the close of the war with Hannibal,
Rome further added to her territory by the confiscation of
the greater part of the Gallic territory, Campania, Samnium,
Apulia, Lucania, and Bruttium. Thus the territory of Rome
grew in the 287 years of the republic from 115, to 93,000
square miles. Of this territory, 254 square miles had been
given to colonies, leaving 92,746 square miles in the control
of the wealthy classes.

"After having pillaged the world as praetors or consuls
during the time of war, the nobles again pillaged their subjects
as governors in time of peace ;l and upon their re-
turn to Rome with immense riches they employed
them in changing the modest heritage of their fathers into
domains vast as provinces. In villas, which they were wont
to surround with forests, lakes, and mountains . . . where
formerly a hundred families lived at ease, a single one found
itself restrained. In order to increase his park, the noble
bought at a small price the farm of an old wounded soldier,
or peasant burdened with debt, who hastened to squander,
in the taverns of Rome, the modicum of gold which he had
received. Often he took the land without paying anything.2

1 Cicero says that these exactions were common and that the
provinces were even restrained from complaining. Verres apolo-
gized for his exactions by saying that he simply followed the com-
mon example. In Verrem, II, 1-3, 17.

* " Parentes ant parvi liberi militum, ut quisque potentiori confinis
erat, sedibus pellebantur." Sail., Jugurtha, 41. Horace, Ode II, 18.

221

1 81] A HISTORY OF ROMAN LAW [Pabt I

An ancient writer tells us of an unfortunate involved in a law-
suit with a rich man because the latter, discommoded by the
bees of the poor man, his neighbor, had destroyed them.
The poor man protested that he wished to depart and es-
tablish his swarms elsewhere, but that nowhere was he able
to find a small field where he would not again have a rich man
for a neighbor. The nabobs of the age, says Columella, had
properties which they were unable to journey around on
horseback in a day, and an inscription recently found at
Viterba, shows that an aqueduct ten miles long did not
traverse the lands of any new proprietors. . . . The small
estate gradually disappeared from the soil of Italy, and
with it the sturdy population of laborers. . . . Spurius
Ligustinus, a centurion, after twenty-two campaigns, at
the age of more than fifty years, did not have for him-
self, his wife, and eight children more than a jugerum of
land and a cabin." 1

To this masterly sketch quoted from Duruy, we can but
add a few facts. Pliny affirms that under Nero only six men
possessed the half of Africa.2 Seneca, who himself possessed
an immense fortune, says, concerning the rich men of his time,
that they did not content themselves with possessing the
lands that formerly had supported an entire people; they
were wont to turn the course of rivers in order to conduct them
through their possessions. They desired even to embrace
seas within their vast domains.8 We must here, it is true,
make some allowance for rhetoric. So, too, in the writings
of Petronius, some allowance for satire must be made, where
he represents the clerk of Trimalchio making a report of that

1 Duruy, Hist, des Romains, II, 46-47.

* "Sex domini semissem Africae possidebant." Hist, Nat., XVIII, 7.

* Seneca, Epist., 89.

222

Chap. VIIJ COMMERCIAL EXPANSION [§81

which has taken place in a single day upon one of the latter's
farms near Cumae. Here on the 7th of the calends of July,
were born 30 boys and 40 girls; 500,000 bushels of wheat
were harvested and 500 oxen were yoked.1 The clerk goes on
to say that a fire had recently broken out in the Gardens of
Pompey, when he is interrupted by Trimalchio asking when
the Gardens of Pompey had been purchased for him, and is
informed that they had been in his possession for a year.9
So it appears that Trimalchio, in whom Petronius has personi-
fied the pride, the greed, and the vices of the rich men of his
time, did not know that he was the possessor of a mag-
nificent domain. In another place Petronius causes Trimal-
chio to say that everything which could appeal to the appetite
of his companions is raised upon one of his farms which he
has not yet visited, and which is situated in the neighborhood
of Terracina and Tarentum,' towns which are separated by
a distance of 300 miles. Finally, led on by his immoderate
desire to augment his riches and increase his possessions, the
hero of Petronius asks but one thing before he dies, i.e., to
add Apulia to his domains;4 he, however, admits that he
would not take it amiss to join Sicily to some lands which
he owned in that locality or to be able, should envy not check

1 Petronius, Sat., 48 : VII. calendar sextilis in praedio Cumano,
quod est Trimalchionis nati sunt pueri XXX, puellae, XL; sub-
lata in horreum, ex area, tritici milia modium quingenta; boves
domiti quingenti . . . eodem die inoendium factum est in hortis
Pompeianis, ortum ex aedibus nastae, villici.

* Quid ? inquit Trimalchio : quando mihi Pompeiani horti emti
sunt? Anno priore, inquit actuarius. (Ibid., 53.)

* Vinum, inquit, si non placet, mutabo ; vos illud, oportet faciatis.
Deorum beneficio non emo, sed nunc, quidquid ad salivam facit,
in suburbano nascitur eo quod ego adhuc non navi. Dicitur con-
fine esse Terracinenribus et Tarentinis.

* Quod si contigerit Apuliae fundos jungere, satis vivus pervenero.
(76iU, 77.)

223

§ 81] A HISTORY OP. ROMAN LAW [Part I

him, to pass into Africa * without departing from his own
possessions. All this has a basis of fact. Trimalchio would
never have been created, had not the favorite freedmen of
Nero crushed the people by their luxury, debauches, and
scandals.

But the condition of society pictured by Seneca and Petro-
nius is that of the first century of the Christian era and might
not be taken to represent the condition of affairs in the second
century B.C., had we not some data which go to prove the
concentration of property, the disparity between classes,
and the depopulation of Italy within the same century as the
Gracchi. Cicero was not considered one of the richest men
in Rome, yet he possessed many villas, and he has himself
told us that one of them cost him 3,500,000 sesterces, about
$147,000.* Cornelia, the mother of the Gracchi, had a
country residence in the vicinity of Misenum which cost
75,000 drachmae ($14,000) ; s Lucullus some years afterwards
bought it for 500,200 drachmae ($100,040). According to
Cicero,4 Crassus had a fortune of 100,000,000 sesterces
($4,200,000). This does not astonish us when we see upon
the via Appia, near the ruins of the circus of Caracalla and
but a short distance from the Catacombs of St. Sebastian
and the fountain of iEgeria, the still important remains of
the tomb of Caecilia Metella, daughter of Metellus Creticus
and wife of the tribune Crassus, as the inscription testifies.
It is a vast "funereal fortress" constructed of precious

1 Nunc eonjungere agellis Sicilian* volo, ut quum Africam libuerit
Ire, per meos fines navigem. Sat., 48.

•Ad Fam., V, 6: "quod de Crasso domum emissem emi earn
ipsam domum H. S., XXXV."

• Plutarch, Life of Marius.

4 De Repub., Ill, 7 : Cur autem, si pecuniae modus statuendus
fuit feminis, P. Crassi filia posset habere, si unica patri esset, aeris
millies, salva lege?

224

Chap. VII] COMMERCIAL EXPANSION [§81

marble, and which gives us the first example of the luxury
afterwards so common among the Romans. Then, too, we
remember that Crassus was wont to say that no one was rich
who was not able to support an army with his revenues, to
raise six legions and a great number of auxiliaries, both in-
fantry and cavalry.1

Pliny confirms this statement concerning Crassus, but adds
that Sulla was even richer.2 Plutarch gives us fuller details
and also explains the origin of the colossal fortune of Crassus.
According to him, Crassus had 300 talents ($345,000),
with which to commence. Upon his departure for the
Parthian war in which he lost his life, he made an inventory
of his property and found that he was possessed of 7,100
talents, $8,165,000, double what Cicero attributes to him.
How did Crassus increase his fortune so enormously ? Plu-
tarch says that he bought the property confiscated by Sulla
at a very low figure. Then, he has a great number of slaves
distinguished for their talents; lecturers, writers, bankers,
business men, physicians, and hotel keepers, who turned
over to him the benefits which they realized in their diverse
industries. Moreover, he had among his slaves 500 masons
and architects. Rome was built almost entirely of wood
and the houses were very high, consequently fires were
frequent and destructive. As soon as a fire broke out,
Crassus hastened to the place with his throng of slaves,
bought the now burning buildings — as well as those threat-
ened — at a song, and then set his slaves to work extinguish-
ing the fires. By this means he had become possessed of a
large part of Rome.8

1 Cicero, Paradoxia, VI.

• Pliny, Hist. Nat., XXXIII, 10.

1 Plutarch, Crassus, o. 1 and 2.

225

§ 81] A HISTORY OF ROMAN LAW [Pabt I

Some other facts confirm that which Plutarch tells us of
Crassus. Athenaeus * says that it was not rare to find Roman
citizens possessed of 20,000 slaves. At the commencement
of the civil war between Caesar and Pompey, the future dic-
tator found opposed to him, in Picenum, Domitius Aheno-
barbus at the head of thirty cohorts.2 Domitius seeing
his troops wavering, promised to each of them 'four jugera
out of his own possessions, and a proportionate part to the
centurions and veterans. What must have been the fortune
of a man who was able to distribute out of his own lands, and
surely without bankrupting himself, about 100,000 jugera ?

The last of the evils which we wish to mention as bringing
about the deplorable condition of the plebeians at the time
The la- °' ^e Gracchi, and which brought more degrada-
flnoieeof tion and ruin in its train than all the others, is

T6ry" slavery. Licinius Stolo had attempted in vain
to combat it. Twenty-four centuries of fruitless legislation
since his death has scarcely yet taught the most enlightened
nations that it is a waste of energy to regulate bylaw the great-
est crime against humanity, so long as the conditions which
produced it remain the same. The Roman legions, sturdy
plebeians, marched on to the conquest of the world. For what ?
To bring home vast throngs of captives who were destined, as
slaves, to eat the bread, to sap the life blood, of their conquer-
ors. The substitution of slaves for freemen in the labors of
the city and country, in the manual arts and industries, grew
in proportion to the number of captives sold in the markets
of Rome. All the rich men followed more or less the example
of Crassus ; they had among their slaves, weavers, carvers,
embroiderers, painters, architects, physicians, and teachers.

1 AtheniBiis, Deipnosophisto, VI, 104.
1 Cesar, Bell. Civ., I, 17.

226

Chap. VII] COMMERCIAL EXPANSION [§ 81

Suetonius tells us that Augustus wore no clothing save that
manufactured by slaves in his own house. Atticus hired
his slaves to the public in the capacity of copyists. Cicero
used slaves as amanuenses. The government employed
slaves in the subordinate posts in administration ; the police,
the guard of monuments and arsenals, the manufacture of
arms and munitions of war, the building of navies, etc. The
priests of the temples and the colleges of pontiffs had their
familiee of slaves.

Thus, in the city, plebeians found no employment. Compe-
tition was impossible between fathers of families and slaves
who labored en masse in the vast workshops of their masters,
with no return save the scantiest subsistence, no families,
no cares, and most of all, no army service. In the country
it was still worse. It would appear that none but slaves
were employed in the cultivation of the land. Doubtless
the number of slaves in Italy has been greatly exag-
gerated, but it is certain that the substitution of slave
labor for free was an old fact when Lacinius1 attempted by
the formal disposition of his law to check the evil. In the
first centuries of Rome, slaves must have been scarce. They
were still dear in the time of Cato, and even Plutarch men-
tions as a proof of the avarice of the illustrious censor, that
he never paid more than 15,000 drachms for a slave.2 After
the great conquests of the Romans, in Corsica, Sardinia,
Spain, Greece, and the Orient, the market went down by
reason of the multitude of human beings thrown upon it. An
able-bodied, unlettered man could be bought for the price of
an ox. Educated slaves from Greece and the East brought

1 M. Dureau de la Malle, Eo. polit. des Romania, eh. 15, p. 143 ;
eh. 2, p. 231.

1 Plutarch, Cato the Censor, 6 and 7.

227

§81) A HISTORY OP ROMAN LAW [Part I

a higher price. We learn from Horace that his slave Davus,
whom he has rendered so celebrated, cost him 500 drachmae.1
Diodorus of Siculus says that the rich caused their slaves to
live by their own exertions. According to him the knights
employed great bands of slaves in Sicily, both for agricultural
purposes and for herding stock, but they furnished them with
so little food that they must either starve or live by brig-
gandage. The governors of the island did not dare to
punish these slaves for fear of the powerful order which
owned them.2 Slave labor was thus adopted for economic
reasons, and, for the same reasons, agriculture in Italy was
abandoned for stock raising.

Says Varro ; * " Fathers of families delight rather in cir-
cuses and theaters than in farming and grape culture. There-
fore, we pay that wheat necessary for our subsistence be
imported from Africa and Sardinia ; we pick our grapes in
the isles of Cos and Chios. In this land where our fathers
who founded Rome instructed their children in agriculture,
we see the descendants of those skillful cultivators, by reason
of avarice and in contempt of laws; transferring arable lands
into pasture fields, perhaps ignorant of the fact that agri-
culture and fatherland were one."

Fewer men were needed for the care of these pasture lands ;
but the evil did not stop here. Little by little these pasture
lands were transformed into mere pleasure grounds attached
to villas. This had already begun to take place as early as the
second Punic war, when the plains of Sinuessa4 and Falernia
were cultivated rather for pleasure than the necessaries

1 Horace, Sat. II, 7 ; v. 42-43 : "Quid ? si me stultior ipso quin-
geiitis empto drachmis, deprehenderis."
' Diodorus Sioulus, Fg. of Bk. XXXIV.
* Varro, De R. R. Proem. 3, 4.
« Livy, XXII, 15.

228

Chap. VII] COMMERCIAL EXPANSION [§82

of life ; so that the army of Fabius could find nothing upon
which to sustain itself. Under these influences the plebeians,
in 133 B.C., had become merely a turbulent, restless mass,
but full of the activity and the energy which had characterized
them in the early centuries of the republic. They were
composed chiefly of the descendants of the ancient plebeian
families, decimated by wars and by misery. They were
the heirs of those for whom Spurius Cassius, Terentillius
Arsa, Virginius, Licinius Stolo, Publilius Philo, and Horten-
sius had endured so many conflicts and even shed their
blood; but they had become brutalized by poverty, de-
bauchery, and crime. No longer able to support themselves
by labor, they had become beggars and vagabonds.

In 133 B.C., more than two centuries after the enactment
of the laws of Licinius Stolo, Tiberius Gracchus, tribune of
the people for that year, brought forward a bill $ g2# lMi
which was in fact little less than a renewal of the Sempronia
old law. It provided that no one should occupy
more than five hundred jugera of the ager publicus, with the
proviso that any father could reserve 250 jugera for each
son.1 This law differed from that of Licinius in that it
guaranteed permanent possession of this amount to the

*App., I, 9; Iivy, Epit., LVIII, XII: " possessore, qui Alios
in potestate haberent, supra legitimum modum ducena quin-
quagena jugera in singulos retinerent.

Mommsen states that this privilege was limited to 1000 jugera
in all, and Wordsworth follows him, making the same statement.
Lange, Rdm. Alterthtimer, III, 9, agrees with Mommsen and cites,
App. B.C., I, 9, 11 ; Veil., 2, 6 ; Iivy, Ep., 58 ; Aurelius Victor, 64 ;
Bio. Flacc., p. 136, Lach. I find no direct proof in the places mentioned
of what Lange asserts, while App. (I, 11) says: ?'«« rcuri, oU elal
rcuSct intone ical rotfrwr tA ^pfrea." Long sayB that there is no proof
of any limitation as to the number of sons, while Ihne, Duruy, and
Nitzsch are agreed in following the statement of Appian, as I have
done. See Marquardt u. Momm., Rdm. Alter., 106.

229

5 82] A HISTORY OF ROMAN LAW [Part I

occupier and his heirs forever.1 Other clauses were sub-
joined providing for the payment of some equivalent to the
rich for the improvements and the buildings upon the sur-
rendered estates, and ordering the division of the domain
thus surrendered among the poorer citizens in lots of 250
jugera each, on the condition that their portions should
be inalienable. They bound themselves to use the land
for agricultural purposes and to pay a moderate rent to the
State. It appears that the Italians were not excluded from
the benefit of this law.2

The design of this bill was to recruit the ranks of the
Romans by drafts of freeholders from among the Latins.8
Such as had been reduced to poverty were to be restored to
independence. Such as had been sunk beneath oppression
were to be lifted up to liberty.4 No more generous scheme
had ever been brought before the Romans. None ever met
with more determined opposition, and for this there was much
reason. There might have been some, like the tribune's
friends, ready to part with the lands bequeathed to them
by their fathers; but where one was willing to confess, a
hundred stood ready to deny the claim upon them. Nor
had they any such demands to meet as those of the olden

»App. I, 11.

'Momm., Ill, 114; Plutarch, Tiberius Gracchus, 9, 1. 9.

1 App. I, 1. 3.

4 Ibid., 9 : " TifMptot TpdK\os . . . &WApx&* ivefiPoXbyipi vepi roO
'IraXtffod ytmvt wt 4viroXe/M*rdrov re jcal ffvyydmvs, <f>$eif>ot*irov 8i #car o\lyov
H droplav k*1 6\iyar9piap. Also App, B.C., I, 13 : Tp&Kxot W puty-
a\avxo6fievot M t$ v6fup . . . ofa flfj jcrArnyt od fuai ir6Xccra oM' Mt ytwovt
dXXA T&rrutv foa 4w 'Irdkia 40n?, iff r jyr oULar Taper tfxrero",

Ihne, IV, 385. Lange says (III, 10) : "Das Gracchus die Latiner
und Bundesgenosen nicht berttcksiohtigte, war bei der Gesinnung
der romisohen Burgersohaft gegen die Latiner ganz natflrlioh."
I cannot see how he harmonizes this statement with that of App.,
'ItoXikoO yiwom and 'Iraki* lenj. Momm., Rom. Ge., II, 88.

230

Chap. VII] COMMERCIAL EXPANSION [J82

times. Then the plebeians were a firm and compact body
which demanded a share of recent conquests that their
own blood and courage had gained? Now it was a loose
and feeble body of various members waiting for a share
in land long since conquered, while their patron rather than
their leader exerted himself for them.1

Tiberius, like Licinius, met with violent opposition, but
he had not, like him, the patience and the fortitude to wait
the slower but safer process of legitimate agitation. He
adopted a course 2 which is always dangerous and especially
so in great political movements. Satisfied with the justice
of his bill and stung by taunts and incensed by opposition,
he resolved to carry it by open violation of law. He caused
his colleague, Octavius, who had interposed his veto, to be
removed from office by a vote of the citizens — a thing
unheard of and, according to the Roman constitution,
impossible — and in this way his bill for the division of the
public land was carried and became a law. It required the
appointing of three commissioners to receive and appor-
tion the public domain.9 This collegium of three persons,4
who were regarded as ordinary and standing magistrates of
the State, and were annually elected by the assembly of
the people, was intrusted with the work of resumption and
distribution. The important and difficult task of legally

1 Sallust, Jugurtha, XLII.

*App., I, XII; Plutarch, Tiberius Gracchus, X-XII; Julii
Flori Epitoma, II (Biblioth. Teubner, p. 67) : "Sit ubi interoedentenr
legibus suis C. Octavium vidit Gracchus, contra fas collegii, juris,
potestas, is injecta manu depulit rostris, adeoque praeaenti metu
mortis exterrait, ut abdicare se magistratu oogeretur."

•Momm., Ill, 115.

« App., I, 9; Iivy, Epit.i LVIII, 12; Plut., Tib. Gr., 8-14;
Cic, De Leg. Agr., II, 12, 13; Valleius, 2, 2; Aurelius Vic, De
Vir. nius., 64.

231

5 82] A HISTORY OF ROMAN LAW [Pabt I

settling what was domain land and what was private property
was afterward added to these functions. Tiberius himself,
his brother Caius, then at Numantia, and his father-in-law,
Claudius, were nominated, according to the usual custom of
intrusting the execution of a law to its author and his chosen
adherents.1 The distribution was designed to go on contin-
ually and to embrace the whole class that should be in need
of aid. The new features of this agraria lex of Sempronius,
as compared with the Licinio-Sextian, were, first, the clause
in favor of the hereditary possessors ; secondly, the payment
of quit-rent, and inalienable tenure proposed for the new
allotments; thirdly, and especially, the permanent execu-
tive, the want of which, under the older law, had been the
chief reason why it had remained without lasting practical
application.3

The dissatisfaction of the supporters of the law concurred
with the resistance of its opponents in preventing its execu-
tion or at least greatly embarrassing the collegium. The
senate refused to grant the customary outfit to which the
commissioners were entitled.8 They proceeded without it.
Then the landowners denied that they occupied any of the
public land, or else asked such enormous indemnities as to
render the recovery impossible without violence. This
roused opposition. The ager publicus had never been
surveyed, private boundaries had in many cases been oblit-
erated, and, except when natural boundaries marked the
limit of the domain land, it was impossible to ascertain what
was ager publicus and what was ager privatus. To avoid

1 Plutarch, Tiberius Gracchus, 13.

* Momm., Ill, 115. See Ihne's just condemnation of this clause :
IV, 387.

1 Plutarch, Tib. Gr., XIII, line 12 ; Duruy, Hist. Rom., vol. II,
pp. 33^-429 of Translation.

232

Chap.VIIJ COMMERCIAL EXPANSION [J 82

this difficulty the commission adopted the just but hazardous
expediency of throwing the burden of proof upon the occupier.
He was summoned before their tribunal and, unless he could
establish his boundaries or prove that the land in question
had never been a part of the domain land, it was declared
ager publicus and confiscated.1

According to Appian, during the years which followed the
death of Gaius Gracchus up to the tribunate of Satuminus,
that is to say, between the years 120 and 100 B.C., Thmiaj
three agrarian laws were proposed and accepted.

1. A law "That the holders of the land which was the
matter in dispute might legally sell it/' 8 Appian, who is the
only authority for this period, does not give the date of the
law nor the name of the tribune who proposed it, but Ihne 4
makes the date 118, and Mommsen assigns the law to
Marcus Drusus.6 This law was a repeal of all the restrictions
which the Gracchi had placed upon assignments of public
land. The object of this clause was to secure the success of
their great reforms, and to establish a number of small
proprietors who would cultivate their little farms, and breed
citizens and soldiers. But forced cultivation is impossible,
and sumptuary laws have never yet succeeded in increasing
population.6 Again it is inconsistent to give land to a man

1 Long, 1, 183 ; Ihne, IV, 387 ; Lange, III, 10-12 ; Nitzsoh, Die
Gracohen, 294 et aeq.

* Rudorff, Ackergesetz des Spurius Thorius, Zeitsohrif t fur
gesohichtliche Reohtswissenschaft, Band X, s. 1-158. Corpus In-
scriptionum Latinarum, vol. V, pp. 75-86. Wordsworth, Speci-
mens and Fragments of Early Latin, 440-459.

1 Appian, Bell. Civ., I, o. 27.

4 Ihne, Roman History, V,* 9 .

'Momrn., Rom. Hist., Ill, 165.

'Long, Decline, of the Rom. Rep. I., 352. See Lange, Rom.
Alter., Ill, 48.

233

§ 82J A HISTORY OF ROMAN LAW [Part I

and deprive him of the power of sale, for this is an essential
part of that domain which we call property in land. If a
man wishes to sell, he will always have sufficient reasons for
so doing, and a rich man can afford to pay 1 the highest price,
freedom of exchange thus bringing ultimate good to both
parties. It is easy to comprehend the consequences of
this law. It was the commencement of a reaction entirely
aristocratic in its nature.2 It was skillfully conducted with
the ordinary spirit of the Roman senate, the ruses, the
mental reservations, and dissimulations under guise of public
interest. The aristocracy presented to the plebeian farmers,
established by the lex Sempronia, a means of promptly
and easily satisfying their passions. They had never earned
their little farms, nor did they appreciate the independence
of the tiller of the soil. Unaccustomed to farm labor,3
and the plodding, unexciting life of the Roman agricola, they
made haste to abandon a toilsome husbandry, the results of
which seemed to them slow and uncertain, and with the
pieces of silver which they received as the price of their
lands, returned to Rome to swell the idle and vicious throng 4
which enjoyed the sweet privilege of an existence sustained
without labor.

Thus the nobles reentered promptly and cheaply into the
possession of the lands of which Tiberius had but a short
time before deprived them, and, by means of a little sacrifice,
substantially and legally converted their possessions into
real property, while the plebeians whom Tiberius had wished
to elevate by means of forcing 6 upon them the necessity of

1 Long, loc. cii.

* Momm., Ill, 161 ; Ihne, V, 10.

' Long, loc. cit.

« Lange, III, 48-49 ; Marquardt u. Momm., IV, 108.

1 Long, loc. cU. Momm., Ill, 167-168 ; Ihne, V, 8-10.

234

Chap. VII] COMMERCIAL EXPANSION [§ 82

labor, fell back into their accustomed poverty and brutality.
But the object for which the nobles were striving was not
yet completely gained. The present victory was theirs;
they now strove to guarantee the future, and so render
impossible dangers similar to those already passed through.

2. A second law was thus enacted : " Spurius Bonus, a
tribune, proposed a law to this effect ; that there should be
no more distribution of the public land, but it should be left
to the possessors who should pay certain charges (vectigalia)
for it to the State (&?/*?) and that the money arising from
these payments should be distributed."1

It is easy to comprehend the effect of a law so conceived.
On the one hand, it guaranteed to the possessors full property
in the public lands which they held. From this point of
view it was aristocratic. But on the other hand it aimed to
unite the interests of the common people with those of the
aristocracy, by placing a tax of one tenth of the produce upon
the holders of these lands,2 thus reestablishing the law which
had been annulled by Drusus. This took the place of
distributions of land, which had now been made impossible9
in Italy. In reality this law was disastrous to the plebeians,
as it established a tax4 for their benefit, a congiarum, and
placed a premium upon laziness.

The narration of Appian presents some grave difficulties.
In all /the manuscripts of Appian the name of the tribune
proposing the second law is Spurius Bonus.5 Cicero mentions
a tribune by the name of Spurius Thorius,6 and Schweighauser
in his edition of Appian has changed 'Bonus' to ' Thorius.'

1 Appian. I, o. 27. * Long, I, 353.

* Ibid., I, 354. « Ihne, V, 10-11.
■Long, I, 353; Wordsworth, 440; Momm., Ill, 165, note;

Ihne, V, 9 ; Lange, III, 48 ; Appian, I, o. 27.

• Cioero, Brut., 36.

235

§ 82] A HISTORY OF ROMAN LAW [Part I

But this does not lessen the difficulty, as the law which
Cicero attributes to Thorius is entirely different from the
second law of Appian which, according to him, was intro-
duced by Spurius Bonus. Cicero says that Spurius Thorius
"freed the public lands from the vectigal."1 Appian says
that Spurius Bonus guaranteed the possessions in the public
lands, levying a tax on them for the benefit of the people.
It is a sheer waste of time to attempt to harmonize these
two statements.2 Granting that Spurius Bonus and
Spurius Thorius are one and the same person, the statements
still remain diametrically opposed according to a simple
and commonly accepted translation of Cicero's words;
"Sp. Thorius satis valuit in populari genere dicendi, is qui
agrum publicum vitiosa et inutile lege vectigali levavit."

Mommsen makes Cicero agree with Appian by changing
"vectigali" into the instrument, and rendering "relieved
the public land from a vicious and useless law by imposing
a vectigal."8 No other writer agrees with Mommsen in
making such a translation.

3. The third law is mentioned by Appian alone who says ;
"Now when the law of Gracchus had been once evaded by
these tricks, an excellent law and most useful to the State
if it could have been executed, another tribune not long
after (oiiro\i> vtrrepov) abolished even the vectigalia." 4
This is evidently the same law which Cicero mentions as
that of Spurius Thorius, and as he also mentions him in
another place (De Or., II, 70, 284), we may possibly
accept him as the author.

1 Cioero, De Orat., II, 70.

* Marquardt u. Momm., Rdm. Alter., IV, 108, m. 4; Words-
worth, 441.

» C. I. L., vol. I, p. 74.
4 Appian, I, c. 27.

236

Chap. VII] COMMERCIAL EXPANSION [§ 82

There are still extant some fragments of a bronze tablet
which contains upon its smooth surface the Lex Repetun-
darum and has cut upon its rough back an agrarian law.1
These fragments were discovered in the sixteenth century
among the collections in the Museum of Cardinal Bembo
at Padua.2 Sigonius attempted the reconstruction of this
law, and after him Haubold and Klentze, but Rudorff has
completed the reconstruction as far as possible and made
the law the subject of an interesting essay.9 Mommsen
has a commentary in the Corpus Inscriptionum Latinarum 4
upon this law. From all these sources the date of this law
.has been established almost beyond doubt as 111 B.C.
Sigonius assigned it to Spurius Thorius, and, as the name
is immaterial, and his arguments moreover, for this title,
are not easily set aside, we can do no better than adopt it.5

The law evidently consists of three parts, although the
rubrics are absent :

I. De agro publico p. R. in Italia (1-43). 'JSS

II. De agro publico p. R. in Africa (44-95). Ttari*.*

III. De agro publico p. R. qui Corinthorum L °nth6

fuit (96-105). J^SS"

This part may be divided roughly into three sections:
(1) lines 1-24, defining ager privatus; (2) 24-32, defining
ager publicus ; (3) 33-43, on disputed cases.

It thus embraces the first forty-three lines of the law,

1 Long, 1, 355 ; Wordsworth, 440.

•Long, I, 355; Wordsworth, 440; see Rudorff, Aok. fes Sp.
Thor.

• Zeitsohrif t f Or gesehiehliche Reehtswissensohaf t, Band X, 1-194.
« C. I. L.f I, pp. 75-86.

• Long, I, 356.

• Wordsworth, 447. See the text of this law in C. I. L., vol. I,
pp. 79-80.

237

§ 82] A HISTORY OP ROMAN LAW [Pabt I

and is concerned with the public land of Italy, from the
Rubicon southwards. It commences by referring to the
condition of this land in the year 133 B.C., when Tiberius
Gracchus was tribune. The law does not affect to touch
anything which had been enacted concerning this land
prior to 133. It either confirms or alters what had been
done in 133, and since that time. All the public land which
was exempted from the operation of the Sempronian laws,
i.e., Ager Campanus and Ager Stellatis, was also excluded
from the operation of the lex Thoria.

(1) The first ten lines of the law relate to that part of the
ager publicus which was occupied before the time of the
Gracchi, if the amount of such land did not exceed the
maximum fixed by the Sepmronian laws ;

(2) Also, to the assignments made by lot (sortito) to Roman
citizens by the commissioners since the enactment of the
Sempronian laws, if such assignments were not made out of
land which had been guaranteed to the old possessors ;

(3) Also, to all lands taken from an old possessor, but on his
complaint restored to him by the commissioners ;

(4) Also, to all houses and lands, in Rome or in other
parts of Italy, which the commissioners had granted without
lot, so long as such grants did not interfere with the guar-
anteed title of older possessors;

(5) Also, to all the public land which Gaius Sempronius,
or the commissioners, in carrying out his law, had used in
the establishment of colonies or given to settlers, whether
Roman citizens, Latini, or Italian Socii, or which they had
caused to be entered on the "formae" or "tabulae."

All the lands comprised in the above are declared in lines
seven and eight to be private property, in these words;
"Ager locus omnis quei supra scriptus est, extra eum agrum

238

Chap. VIIJ COMMERCIAL EXPANSION [J82

locum, quei ager locus ex lege plebeivescito, quod C. Sem-
pronius Ti. f. tr. pi. Rogavit, exsceptum cavitumve est nei
divideretur . . . privatus esto."

lines 8-10 declare that the censors shall, from time to
time, enter this land upon their books like any other private
property ; and it is further declared that nothing shall be
said or done in the senate to disturb the peaceful enjoyment
of this land by those persons possessing it.

Of lines 11-13 (ch. II) nothing definite can be said, be-
cause of the few words which have been preserved.1 Rudorff
explains them as referring to land granted to viasii vicani
(dwellers in villages along the roads), by the Sempronian
commissioners; such lands to remain in their possession,
but to be theoretically ager publicus.

lines 13-14 refer to lands occupied since 133 B.C. agri
colendi causa. They allow to every Roman citizen the
privilege of occupying, for the purpose of cultivation, thirty
jugera of public land; they further declare that he who
shall possess or have not more than thirty jugera of such
land, shall possess and have it as private property,2 with
the provision that land so occupied shall be no part of the
public land excepted from appropriation, and further,
that such occupation shall not interfere with the guaranteed
lands of a previous possessor.

lines 14-15 relate to holders of pasture land (ager com-
pascuus). This ager compascuus was land which had been
left undivided, and had not become the private property
of any individual, but was the common property of the
owners of the adjacent lands. These persons had the right to

1 Long, I, 359.

1 "Quom quia ceivis Romanus agri colendi causa in eum agrum
agri jugera non amplius XXX possidebit habebitue, is ager privatus
eeto.U

239

§ 82] A HISTORY OP ROMAN LAW [Pabt I

pasture stock upon this land by paying pasture dues (scrip-
ture or vectigal) to the State. The Thorid, lex freed these
lands from the vectigal or scriptura, and granted free pas-
turage to each man for ten head of large beasts — cattle,
asses, and horses — and fifty head of smaller animals —
sheep, goats, and swine. This common pasture must be
carefully distinguished from the communal property which
was granted to the settlers in a Colonia and called "com-
pascua publics" with the additional title l of the colony, as
"Julienses."

These rights of common resemble, in some respects, the
English common of pasture as described by Bracton.* By
English customary law, every freeholder, holding land within
a manor, had the right of common of pasturage on the lord's
wastes as an incident to his land.

Lines 15-16. The possession of land, granted by the
commissioners in a colony since 133 B.C., to be confirmed
before the Ides of March next.

Lines 16-17. The same rule applied to lands granted
otherwise by the same commissioners.

Line 18. Such occupants if forcibly ejected to be
restored.

lines 19-20. Land assigned by the Sempronian commis-
sion, in compensation for land in a colony which had been
made public, to become private.

Lines 23-24. Comfirmation of the title or restitution of
such land to be made before the Ides of March next.

lines 24-25. Land besides this which remains public
is not to be occupied, but is to be left free to the public for
grazing. A fine for occupation is imposed. The law al-

1Longv loe, tit.; Wordsworth, 446.

* Digby, History of the Law of Real Property in England, p. 157.

240

Chap. VII] COMMERCIAL EXPANSION [§ 82

lowed all persons to feed their beasts great and small on this
public pasture, up to the number mentioned in lines 14-15
as the limit to be pastured on the ager compascuus, free of
all tax. • This, according to Rudorff, was done for the benefit
of the small holders. Those who sent more than this num-
ber of animals to the public pastures must pay a scriptura
for each head.

Line 26. While the cattle or sheep were driven along
the "calles," or beast-tracks, and along the public roads
to the pasture grounds, no charge was made for what they
consumed along the road.

line 27. Land given in compensation out of public land,
to be privatus utei quoi optuma lege.

Line 27. Land taken in this way from private owner-
ship to be publicus, as in 133 B.C.

lines 27-28. Land given in compensation for ager patri-
tus to be itself patritus.

Line 28. Public roads to remain as before.

Line 29. Whatever Latins and peregrini might do in
112 B.C., and whatever is not forbidden citizens to do by
this law, they may do henceforward.

lines 29-30. Trial of a Latin to be the same as for a
Roman citizen.

lines 31-32. Territory (1) of borough towns or colonies
(2), in trientabulis, to be, as before, public.

lines 33-34. Cases of dispute about land made private
between 133 B.C. and 111 B.C., or by this law, to be judged
by the consul or praetor before next Ides of March.

Lines 35-36. Cases of dispute after this date to be tried
by consuls, praetors, or censors.

lines 36-39. Judgment on money owing to publicani
to be given by consuls, proconsuls, praetors, or propraetors.

241

§ 82] A HISTORY OP ROMAN LAW [Pabt I

Line 40. No one to be prejudiced by refusing to swear
to laws contrary to this law.

lines 41-42. No one to be prejudiced by refusing to obey
laws contrary to this law.

lines 43-44. On the colony of Sipontum ( ?).

Thus we see that the lex Thoria had two main objects in
view: (1) The guaranteeing to possessors full property in
the land which they occupied. (2) The freeing from vecti-
gal or scriptura the property of every one.

In this way was the reaction of the aristocracy completed.
It left nothing of the Sempronian law. Appian 1 has fully
comprehended all this, and, in his enumeration of the three
laws, connection between which he indicates, we see clearly
the entire revolutionary system, conducted, we must admit,
with a rare address and a perfidy which rendered the effect
certain. The aristocracy did not rest. As soon as they
had gained the people by their new bait of money and food,
soothed them by their apparent generosity, and familiarized
them with the idea that the possessions of the nobles were
not only legally acquired but inviolable, then they raised
the mask, and by a bold step swept away the vectigal,*
thus leaving their property free. The enactment of this
law virtually closed the long struggle between patrician and
plebeian over the public lands of Rome, and left them as
full property in the hands of the rich nobility.

1 Long, I, 357. * Appian, I, o. 27.

242

CHAPTER VIII

FACTORS OF THE LAW1

Private Roman law made little or no progress during
the latter half of the republic through the channel of
direct legislation. The comitia centuriata and $83.

the comitia tributa dealt with constitutional i^nWtfta.
questions, municipal and colonial government, agrarian
arrangements, fiscal policy, sumptuary prohibitions, criminal
and police regulations, and other matters that affected the
public law rather than the private. Of the enactments
that affected the private law mentioned by Gaius and Ulpian,
not more than half a dozen can be said to have exercised a
permanent influence on the principles of the law as dis-
tinguished from mere details. Most of these were enact-
ments of the comitia tributa which body had by this time
absorbed almost all legal function of a private nature. This
was due to the ease with which this body could be convened,
and its quick response to popular demand.

Cicero numbers the senatus consulta among the con-
temporary sources of the civil law in terms almost identical
with those which at a later period were adopted $ ^

in the Institutes of Gaius and of Justinian. The Sen»tn»
senate seems to have assumed an authority which
never belonged to it in the early part of Roman history.
It, no doubt, grew rapidly after the establishment of the
republic and before the development of the comitia tributa,

* Muirhead, 237-249.
243

§ 85] A HISTORY OP ROMAN LAW [Pabt I

but it never reached the dignity of being ranked as one of
the constitutional law-making bodies. Necessity and custom
(according to Pomponius) had raised the senatus consulta
to rank as a source of law. In the latter part of the republic
the senate confined its law-making activity very largely
to matters of public interest which had been confided to
its special care. Its legislation upon matters of private
concern is exceedingly small, as it could not abrogate any
civil law, but it, no doubt, controlled with its advice and
orders the consuls, and other magistrates. Toward the end
of the republic its powers began to grow at the expense of
the more democratic centuriata and tributa, and in the early
empire it very largely displaced these bodies.

It is quite certain that the practice of propounding edicts
was very ancient and had been followed by the kings and,
1*5- after them, the consuls, long before the institu-

te Mac- • **on °' *^e pratorship. It was the usual method
Urates.* of exercising the imperium with which the su-
preme magistrate was invested. He laid an injunction
upon a citizen restraining him from some contemplated
action, or compelled him to perform some duty that he other-
wise would not. He conferred upon him some advantage
and maintained him in the enjoyment of the same. • It
was, one of the ways of protecting public order where the
civil law did not act. At the time of the creation of the
pretorship Roman society had grown much more complex,
and the need of action outside of and beyond the civil law
became daily more apparent. The earliest edicts of the
praetors were doubtless of a transitory and special character,
issued with reference to particular cases (edicta repentina).
In course of time, as it became apparent that they served

1 Muirhead, 238-242 ; Sohm, 48-55.

244

Chap. Villi FACTORS OF THE LAW [585

a vital purpose, they became more frequent until finally
they assumed a fixed and permanent character (edicta
perpetua). Announcements by the praetor were made upon
his assumption of office setting forth the principles that would
govern him throughout his term. The next year's praetor
was free to adopt the edicts of his predecessor or not as he
saw fit. However, since he was himself not a lawyer and
was usually a man ignorant of legal procedure, it is more
than likely that he was glad to avail himself of the assistance
offered. As each new praetor entered upon his term of
office he announced his program of judicial procedure
(his lex annua). It was usually made up almost wholly of
tralaticium, that is matter carried over from the work of
his predecessor.

By the time of Cicero edicts had come into common use,
as he says that, in his later years, young men were directed
to the praetor's edict for their first lessons in law instead of
making a study of the Twelve Tables. It was the flexibility
of the edict that made it popular with the people. An action
could be entered, dropped, resumed, or amended by the
praetor at any time according to his judgment and without
any delay. It was the viva vox juris civilis, adapted at
a moment's notice to the changing needs of the time.

The edict, at maturity, contained two parts; the first,
the edict proper, and the second, an appendix of styles of
actions derived, no doubt, from the jus civile. A person
bringing an action under the praetor's edict did so not of
right, as he would under the jus civile, but rather of grace
on the strength of the praetor's promise to grant what he
claimed and make the grant effectual. The edict, in fine,
caught the spirit of equity which was broader and more
just than was the older formal jus civile.

245

J8Q A HISTORY OP ROMAN LAW [Pabt I

Besides the factors of legislation already given, another
perhaps more prolific than all others was consuetude or
§86. Cos- custom approved by the judgment of courts of
raetude.i jftw There is much of this in every legal system,

but it is especially noticeable in that of Rome. It can hardly
be doubted that the literal contract per expensulationem orig-
inated in this manner at the beginning of the sixth century
B.C. Mutuum or formless loan of money as certa credita pe-
cunia came to be recoverable by the same kind of an action.
Many examples of consuetudinary law could be given, but
these are sufficient for purposes of illustration. The formulae
for actions of this kind were furnished by the magistrates
whose cooperation was necessary to make them workable. It
required the combined efforts of judges and commons to
weld custom into law in this manner, and they were both
doubtless aided by the advice given them by professional
jurists. In this matter of consuetude Muirhead says;
"The judge was to a great extent the spokesman of the forum ;
his judgment was formed in accordance with current public
opinion, which he had ample opportunity of gauging ; it was
the reflection of that general sentiment of right, which,
phrase how we may, is the real basis of all customary law."
The formula in an action for establishing a right of property
in a res nee mancipi was a very simple affair. It was as
follows; "If it appear that such or such a thing belongs
to the plaintif in quiritary rights, should the defendent
refuse to restore it on your order, then, Judge, whatever
be its value for the plaintif, in that condemn the defendent ;
should it appear otherwise, acquit him/' Thus it would
appear that the primary duty of a judge in such a case was
to determine whether the title on which the plaintiff founded

1 Muirhead, 243-248.
246

Chap. VIII] FACTORS OF THE LAW [§86

his pretensions gave him a right that came up to property.
This was, no doubt, the origin of that long list of natural
modes of acquiring property given by Justinian. These
decisions, whether grounded upon the obligations of a vendor,
direct or indirect, or upon the sufficiency of a title set forth
by a party averring a right of property by natural acquisi-
tion, may have been arrived at under professional advice

and were in all cases embodied in judgments. However
that may be, the doctrine deduced from than had the char-
acter of customary law.

247

CHAPTER IX

SUBSTANTIVE CHANGES IN THE LAW

From the earliest period of Roman history there is noth-
ing to mark with any particular characteristic feature the
|87. Grim- jurisdiction in criminal matters.1 Under the
JjJ1 Uw kings this jurisdiction belonged to them while the
tones Per- right of an appeal (provocatio) in all capital
petoa). cases lay to the people assembled in the comitia
curiata. After the passage of the leges Valence it be-
came a fixed principle that the comitia centuriata could
alone pass sentence of death in the case of Roman citizens.
This being the case, an appeal to the people (provocatio as
populum) would always lie from a sentence of death or
scourging by a magistrate. The comitia tributa also ac-
quired by the gradual growth of the custom a certain juris-
diction in criminal matters, but they could never go farther
than the imposition of a fine or imprisonment. This as-
sembly had the power to summon magistrates before them
upon the termination of their office and, in case they were
proven guilty of malfeasance in office, meted out to them the
proper punishment. Men of station and rank who were
by their position above the jurisdiction of an ordinary court,
were called to account before the tributa. The magistrates
who convoked these assemblies, usually the tribunes, alone
had the rights of charging the offender, and therefore it was
necessary for a citizen to appeal to these magistrates in

1 Ortolan, 272-280.
248

Chap. IX] SUBSTANTIVE CHANGES IN THE LAW [§87

order that an accusation might be lodged, when necessary,
against an offender.

In addition to the comitia, the senate sometimes exercised
the functions of criminal jurisdiction, although they never
had any constitutional right to inflict punishment on any
citizen without the sanction of a magistrate, or the right of
an appeal to the comitia centuriata. From this general sum-
mary it would appear that the superior authorities in crim-
inal matters were : (1) the kings, (2) the comitia curiata,
(3) the comitia centuriata, (4) the comitia tributa, and (5)
the senate.

But there was a custom which dated from the time of
the kings and continued to the empire, that the superior
authorities, when any criminal matter was presented to them,
either took cognizance of and determined it themselves,
or else delegated the investigation (qusestio) to a commission
(qiuestores) specially summoned for that particular case.
This practice was constantly resorted to in order to save
time and facilitate the carrying out of judgment. This
delegation of criminal jurisdiction was ordinarily made with
reference to the particular case in hand, and when this case
was determined, the commission or quaestio expired. Some-
times, however, it happened that qucestiones were appointed
for a length of time and their duties specially defined, as for
some specific class of public crimes. Thus we have a quees-
tio de homicidiis, a qusestio de benefices, etc. This practice
became more and more a necessity as the population of
Rome increased and crime multiplied. The final state of
this development was reached when the tributa established
qu&stiones perpetuse to have jurisdiction over the most
flagrant cases of crime. The adoption of this system placed
the Roman criminal law upon the same stable basis as civil

249

§ 88] A HISTORY OP ROMAN LAW [Part I

law and freed it from the arbitrary character which it had
at first acquired. Under this system each tribe had its law,
its penalty, its tribunal, and its procedure. Every detail
was regulated. The number of judges, the mode of selection,
the right of rejection, the witnesses, and the time allowed to
both the accuser and the accused, were established by law.

Any citizen could be the prosecutor for crime before a
quaestio perpetua. It was his business to point out the
accused, to state the law in accordance with the terms of
which he brought his accusation, and the crime that was
imputed. He was compelled to take an oath that his accusa-
tion was not calumnious, and that he was actuated by no
motive of revenge. In this way the accuser himself became
a party to the cause and was compelled to furnish the neces-
sary proof. The jury or judge was obliged to pronounce
a verdict in accordance with the law and evidence of the
particular case. No jury or judge had any authority to
remit or modify the sentence.

Toward the end of the republic many changes in the law
of property and lesser real rights took place. These changes

|88. The wftfp reiytored nsgyaanry by reason of the Jgaat-

LawofProp- increase ;» 1^™™*™° «nA ' Im rp*° judges

arty and - — — — # °

the Pubii- recognized a variety of natural grounds of owner-
dan Bdfcti ship. They were frequently called upon to de-
cide the question as to whether a res nee mancipi belonged
to the party claiming it in a vindication. Their decisions
culminated in allowing to peregrins a right of property
in movables, although they could not defend such rights ex
iure Quiritium. The later custom of the republic vested
the ownership of provincial land in the State, and those
occupying it could not have more than a right of usufruct

lMuirhead. 250-255.
250

Chap. 1X1 SUBSTANTIVE CHANGES IN THE LAW [§ 88

or possession. Still, the law allowed such possessors to
protect themselves in their occupation by vindication as
if they really held the property by dominium. Usucapion
was no longer the result of prolonged possession pure and
simple, but it was made subject to the condition that the
usucapient had acquired the land in good faith and on a suffi-
cient title, but had unwittingly failed to fulfill the proper
form of conveyance, or had derived his rights from one who
was not owner, or, at least, not in a position to convey. The
list of predial servitudes was greatly increased and such
rights made good by stipulated penalties. The informal
delivery of a movable by the debtor to his creditor to hold
by the latter until such time as the debt was paid, was now
made use of under the title of pignus. There was also
introduced from Greece the hypothec or mortgage by simple
contract without possession. This latter was contrary to
Roman legal principles. But the most important change
in the law of property during the latter half of the re;
was that which was brought about by the Publicia
which indirectly recognized the validity of two new forms
of ownership; (1) bonitary ownership, as an actual though
inferior kind of ownership, and (2) bonee fidei possessio,
a fictitious ownership of either res mancipi or res nee mancipi,
valid against all the world save the dominus himself.

These two forms of ownership were made use of, or rather
recognized, in order to correct errors in transfer or to alleviate
the condition of a person who had purchased property in
good faith, but had been subsequently defrauded by the
transferrer.1 There is no definite knowledge concerning
the edict that established these forms, but there is no doubt
as to its general purpose, or the defects which it was meant

1 Muirhead, 257.
251

§88] A HISTORY OP ROMAN LAW [Part I

to correct. One of these defects was as follows. If a man had
taken a transfer of a res^pABQigi from its rightful owner,
by simple tradition and not by mancipation or session in
court, he did not acquire ownership in the complete or
legal sense, dominium ex jure Quiritium, and the seller still
remained the legal owner. If now he were so willed, he
could sue by rei vindicatio and oust the purchaser from his
possession while he still kept the purchase money in his
pocket. Moreover, a third party might have, in the mean-
time, obtained possession of the thing, but in such a way
as not to be amenable to an interdict. The transferee who
had paid out his good money had no effectual vindication
against him, as he was unable to prove dominium ex jure
Quiritium. The first remedy for this condition of affairs
was the exceptio rei venditae et traditae. In case the seller
attempted to repossess the thing by vindication on the ground
of his dominium, the purchaser ('transferee') pleaded sale
and delivery as an effectual praetorian defense. In case the
third person entered into the transaction, although he acted
in good faith and held by a formal conveyance from the
transferrer, he could not defeat the prior right of the original
transferee who would have had an unassailable quiritary
right had his possession ripened into usucapion by the lapse
of time. The praetor, therefore, announced in his edict
that if a man came to him and represented that he had
bought a res mancipi from its owner, and had it delivered
to him, but had subsequently lost possession within the
period of usucapion, he (the praetor) would allow him a
vindication embodying a fiction of usucapion with which he
might proceed against any third party whatsoever.

The outcome of this enactment was the same as if the
legislature had directly enacted that in future deliver of

252

Chap. IX] SUBSTANTIVE CHANGES IN THE LAW [§ 89

a res mancipi in pursuance of a sale, or other good cause,
should straightway confer a right of ownership in it even
before the completion of the period of usucapion. The result
of the recognition of this tenure in bonis was that manclpff-*
tion became regarded as an unnecessary formality and the
distinction between res aia&eipi and res nee mancipi, which
haft dominated for so long a time, gradually passed away.

The second case that was met by the Publician edict was x
that of the bona fide transferee of a thing by purchase or \
other sufficient title, who found out afterwards that the /
person who made the sale to him was not the owner, and /
that, therefore, no ownership had been transmitted to himL ]
and he would be unable to vindicate his claim.1 Of courseTA
as against the true owner whose property had been disposed /
of by fraud, no equitable action could lie, but as against /
the rest of the world the right of the transferee was rec-
ognized by the praetor, who accorded to him a vindication
proceeding on a fiction of completed usucapion.

It was in this way that the praetors introduced that bonse
fidei possessio which was worked out with much skill by the
jurists of the early empire.

Probably in no other branch of Roman law was there so
much advance made during the latter half of the republic
as in the law of contract. This was only natu- * **• D***1-
ral, as there had taken place within the same the Uw rf
period a gigantic development in commerce and Contract.*
business of every kind. In that branch of obligations
arising from contract, as well as in those arising from
delict, or those arising from facts and circumstances of
various and unusual kinds, advance was steady and rapid.

1Muirhead, loc. cit.

1 Sohm, 132, 288-290 ; Muirhead, 255-270.

253

$ 80) A HISTORY OP ROMAN LAW [Past I

The law of suretyship received considerable attention and
formed the subject of a series of legislative enactments
for limiting the liabilities of suretyship. The law of
agency, which was but slightly used in Rome, recognized,
with some qualifications, a man's liability for debts con*
tracted by his filiifamilias or slaves. It also made him
liable for debts contracted by persons who were managing
business on his account, or whom he had placed in com-
mand of a ship belonging to him. The development of
the law in the matter of obligations was greatly facilitated
by the simplification of procedure and the introduction
of new forms of action. The instruction which was at this
time given by the praetor to the judex, "Whatever in respect
thereof the defendant ought to give to or do for the plaintiff,
in that condemn him," and which was preceded by a state-
ment of the cause of action, gave wide scope for the recogni-
tion of new sources of liability.

The origin of the verbal contract of stipulation has been
already given. It was theoretically a formal contract which
created an obligation on the strength of the formal ques-
tion and answer interchanged by the parties, even though
no substantial ground of debt might underlie it. In the
interrogatory the respondent of a loan incurred liability,
the contract being unilateral; if mutual obligations were
intended, it was necessary that each should promise for his
own part, with the result that two contracts were executed
which were perfectly independent. Originally, the only
words that could be employed were spondes, on the one
side, and spondeo on the other ; and in this form the contract
entered into was a civil law contract and competent only
to citizens. In the course of time the words promittis,
promitto, came to be used alternatively. These latter were

254

Chap. IX] SUBSTANTIVE CHANGES IN THE LAW [{89

not new words in the law, as the expression dicta et promissa
had long been familiar in reference to the assurance given
by a party transferring a thing by mancipation. They
seemed, eventually at least, to have been competent to pere-
grins as well as citizens, although they may not have been
until the stipulation had become of daily use. The con-
tract was originally competent for the creation of an obliga-
tion to pay a definite sum of money merely ; subsequently
it created an obligation for the delivery of a specific thing
other than money. In course of time, by reason of the
simplification of the words of interrogatory and response,
the substitution of the conditions of the formular system
for the legis actiones of the Silian and Calpurnian laws, and
the introduction of the actio ex stipulatu, it came to meet
cases of indefinite promise, to be adaptable to any sort of
unilateral engagement, whether initiated by it or only con-
firmed. Its capabilities are admirably set forth by the
general stipulation formulated by Aquilius Gallus as the
precursor of an equally general formal release by acceptila-
tion; "Whatever on any ground you are, or will be, or
ought to be bound to give to or do for me, now or at a future
date ; whatever I am or shall be in a position to claim from
you by any sort of process; whatever of mine you have,
hold, or possess, or would be in possession of but for your
fraud in parting with it, — whatever may be the value of
all these, do you promise to pay me the amount in money ? "
This in definite form was of immense value outside of the
ordinary range of contract in what were called necessary
stipulations, if a man complained that the safety of his
house was endangered by the ruinous condition of that of
his neighbor, the latter was required under serious penalties
to give his stipulatory undertaking that no damage should

255

§ 89] A HISTORY OP ROMAN LAW [Part I

result; a tutor before entering on office had to give his
cautio that his pupil's estate should not be diminished in
his hands. We might cite innumerable examples of this
kind of stipulation. Advantage was taken of it in all
directions to bind a man by formal contract either to do
or refrain from doing what, in many cases, he might already
be bound ipso jure to do or abstain from doing, and that
because of the simplicity of the remedy that would lie against
him in the event of his failure.

A second form of contract that came into use to a very
considerable extent in the latter half of the republic was
that which was designated by Gaius the nomen transcripti-
cium, or literal contract.1 It is this sort of a contract that
is discussed by Cicero in his celebrated speech made in behalf
of the player Roscius. In describing this form of contract
Gaius mentions two forms of entry, the nomina arcaria,
and nomina transcripticia. The former were entries of
advances in cash ; these, he observes, did not create obliga-
tions, but only served as evidence of one already created
by payment to and receipt of the money by the borrower.
Of the latter, he says, "there were two varieties : the entry
transcribed from thing to person, and that transcribed
from one person to another; and both of them were not
probative merely but creative of obligation." At first this
would seem- to be nothing but a series of bookkeeping opera-
tions, but it was much more than this for the Roman citizens
who first had recourse to it. There was a time when sale,
and lease, and such like transactions, so long as they stood
on their own merits, created no obligation enforceable at law,
however much they might be binding as a duty to Fides.
In order to found an action they required to be clothed

* Muirhead, 260.
256

Chap. IX] SUBSTANTIVE CHANGES IN THE LAW [{89

in some form approved by the jus civile. The stipulation
was one of these forms; but stipulation was competent
only between persons who were face to face. Another form,
expensilation, was competent also as between persons located
at a distance from each other. This of itself gave expen-
silation an advantage in some cases over stipulation. It
paved the way for subsequent transcriptions from one per-
son to another. This latter must have been of infinite
convenience in commerce, not only by enabling traders to
dispense with the service of coin, but by obviating the
risks attending the transit of money over long distances.

Next to the development of the forms of obligation men-
tioned above, came the evolution of the four purely consensual
contracts — sale, location, partnership, and mandate.1 These
form a very interesting chapter in the history of law. They
did not all follow identically the same course, but they
reached the same goal at almost the same time. It is im-
possible here to sketch the history of each one of these, but
that of the independent contract of sale will be sufficient to
indicate in general terms some of the milestones that were
successively passed by all four. Going back as far as history
carries us, we meet with it under the names of emptio and
venditio, but meaning no more than barter, for emere
originally signified to take or acquire. Sheep and cattle
were usually articles of exchange on one side, and raw copper
weighed in the scales on the other. When the reforms of
Servius were instituted, the distinction between res mancipi
and res nee mancipi arose, but still the transaction was
barter. However, there was now introduced an obligation
on the part of the transferrer of the res mancipi to warrant
the transferee against eviction.

1 Muirhead, loc. cit.; Sohm, 288.

257

§ 89] A HISTORY OF ROMAN LAW [Part I

The substitution by the decemvirs of coined money that
was to be counted out instead of rough metal that had been
weighed, converted the contribution on one side into price
(pretium) as distinguished from the article of purchase
(merx) on the other. Thus sale became distinct from bar-
ter.1 When the process of mancipation degenerated into
an imaginary sale, it was enacted that the property of what
was sold should not pass to the purchaser until the price
had been paid or security given. As a necessary corollary
of this, no eviction should attach to the transferrer until
the price was paid. In case the money had been paid over
and the transferrer refused to mancipate, the purchaser
could recover his money by a legis actio per condictionem
on the ground of unjustifiable enrichment of the vendor.

By the beginning of the sixth century B.C., there had arisen
three several obligations consequent on sale of a res mancipi.
The vendor was bound to support the purchaser in any
action by a third party disputing his right, and to pay him
the price twofold in case the third party was successful.
He was, moreover, bound to make good to him any loss he
had sustained through a deficiency of acreage he had guaran-
teed, non-existence of servitudes he had declared the lands
enjoyed, existence of others he had stated they were free
from, incapability of a slave for labor for which he was
vouched fit, and so on.

In sales of res nee mancipi, a vendor who had been in-
cautious enough to deliver his wares before he had been paid,
or obtained stipulated security for the price, or had con-
verted it into a book debt, might recover them by a real
action, if payment was unduly delayed. The purchaser
could also bring suit for the recovery of the purchase price

1 Muirhead, loc. cit.
258

Chap. IX] SUBSTANTIVE CHANGES IN THE LAW [(89

in case he had paid in advance and had failed to obtain the
delivery of the goods purchased. This action was on the
ground of the unwarranted enrichment of the vendor.

In early times, before trade assumed any great proportion,
it was doubtless the custom for the purchaser to rely on
the honesty of the vendor. The expansion of intercourse
with foreigners, as well as moral decay among citizens,
made necessary some security to the purchaser. This
gave rise to the popularization of the stipulation. Of this
there were two forms in common use; stipulatio habere
licere, and stipulatio duplae. The first of these occurs in
Varro in a collection of styles of sales of sheep, cattle, etc.
It was the guarantee of the vendor of a res mancipi that the
purchaser should have peaceable enjoyment of the things
he had bought. It entitled him to reparation on evic-
tion, according to the loss he had sustained. The idea
of the stipulatio duplse may have been borrowed from the
duplum incurred by a vendor in the eviction of a purchaser
acquiring a thing by stipulation. One of its earliest mani-
festations was in the edict of the curule cediles who insisted
upon it from persons selling slaves, probably because the
dealers were mostly foreigners, and, therefore, unable to
complete their sales per ses et libram. Judging from the
statement of Varro, it was a form of stipulation against
eviction or loss of the enjoyment of the thing purchased,
that in his time was used only in sales of slaves. We also
learn from Varro that the vendor at the same time, and
in the body of the same stipulation, guaranteed that the
sheep or cattle he was selling were healthy and came of a
healthy stock and free from faults, and that the animals
had not done any mischief for which their owner could be
held liable on a noxal action. In the same way the vendor

259

5 89] A HISTORY OF ROMAN LAW [Part I

guaranteed that the slave sold was healthy and not charge-
able for any theft or other offense for which the purchaser
might be held to answer. If the guarantee turned out fal-
lacious, then the purchaser had an actio ex stipulatu against
the vendor after this fashion; " Whereas the plaintiff got
from the defendant a stipulation that the sheep he bought
from him were healthy, etc. (repeating the words of guar-
antee), and that he, the plaintiff, should be free to hold them
(habere licere), whatever it shall appear that the defendant
ought in respect thereof to give to or do for the plaintiff, in
the value thereof, judex, condemn him ; otherwise acquit him."
The actio empti, in its original shape, was nothing but
a simplification of the actio ex stipulatu on a vendor's
guarantee given above. The stipulation had become such
an ordinary accompaniment of sale that the presumption
of the law was in favor of its existence. But the intro-
duction of the actio empti in this shape was far from the
recognition of sale as a purely consensual contract. If the
price was not paid at once, the purchaser gave his per-
missio for it, or got some one on whom the vendor placed
more reliance to do so for him, or else the vendor made a
book debt of it. In case suit had to be entered to collect,
it was by a condictio certi and not by an action on the sale.
If the money was paid but the thing purchased not delivered,
the only remedy open to the purchaser was to get bads his
money by the same condition. It required but little to
convert this strict! juris actio empti into a bouse fidei. This
was accomplished by the simple process by the praetor of
adding the words, "on considerations of good faith/1 to the
"whatever the defendant ought to give to or do for the
plaintiff." The effect of this addition on the part of the
praetor was immeasurable, as it rendered stipulations un-

260

Chap. IX] SUBSTANTIVE CHANGES IN THE LAW [{90

necessary. It turned a sale into a purely consensual con-
tract, in which, in virtue of the simple agreement to buy
and sell, all the obligations on either side that usually at-
tended it were held to be embodied, without express formu-
lation, or still less, stipulatory or literal engagement.

The history of the four real contracts — mutuum, com-
modate, deposit, and pledge — is even more obscure than
that of consensual ones.1 Down to the time of the Poetelian
law (324 b.c.) loan of money, corn, etc., was usually con-
tracted per ees et libram, and it is probable that after the
abolition of the nexum the obligation on the borrower to
repay the money or corn advanced to him was made action-
able, under the Silian and Calpurnian laws respectively,
by a stipulation that ran contemporaneous with the loan.
With the rise of the jus gentium, loan became actionable
on its own merits. The giving and receiving, mutui causa
completed the contract. The obligation arising was purely
unilateral and was enforceable by the same action as a literal
contract. The other three became independent real con-
tracts very much later than mutuum, not enforceable by
action until late in the republic or early in the empire.

It was due to the praetors that the most important changes
in the law of succession were brought about. The praetors
introduced under the technical name of bonorum possessio
what was really beneficial enjoyment of the §90.

estate of a deceased person without the legal Amend-

moats of

title of inheritance. This condition of affairs the Law of
was doubtless brought about by a succession of Sncces-
edicts devised by different praetors in the lat- ^

ter half of the republic and the early empire. Justinian
observes, when speaking of the origin of bonorum pos-

* Sohm, 289-290. * Muirhead, 270-276.

261

J 90] A HISTORY OP ROMAN LAW [Pabt I

sessio, that in promising it to a petitioner, the praetors
were not always actuated by the same motives. In some
cases they wished to facilitate the application of the rules
of the jus civile ; in some, to amend their application accord-
ing to what they believed to be the spirit of the Twelve
Tables ; in others, again, to set these aside as inequitable.
Doubtless it was with the purpose of aiding the jus civile
that the first step was taken in what gradually became a
momentous reform. According to Muirhead a praetor,
when there was a dispute as to an inheritance, and a testa-
ment was presented to him bearing not fewer seals than were
required by law, would give possession of the goods of the
defunct to the heir named in it, pending the question of
legal rights. It was not till the time of Marcus Aurelius
that it was declared that a plea by the heir-at-law of the
invalidity of a testament on the ground of defect of formali-
ties of execution might be defeated by an exceptio doli ; this
on the ground that it was contrary to good faith to set aside
the wishes of a testator on a technical objection that was
purely formal. This converted bonorum possessio secundum
tabulas into possession contrary to the terms of the jus civile.
Another variety of the bonorum possessio was that contra
tabulas. If the person instituted was a stranger, and not
a brother or sister of the child passed over, then, on the peti-
tion of the latter, the praetor gave him and the other sui
heredes concurring with him possession of the whole estate
of the deceased, the person instituted by the will being left
with nothing more than the empty title of heir. In case
of emancipated children of the testator, the jus civile did
not require their institution or disinheritance, for they were
no longer sui heredes and had no interest in the estate of
their natural father. The praetors put them on the same

262

Chap. IX] SUBSTANTIVE CHANGES IN THE LAW (§90

footing as unemancipated children and required that they
be either instituted or disinherited like other heirs, giving
them bonorum possessio if they were not. This was bonorum
possessio contra tabulas, and it frequently displaced the
instituted heirs either wholly or in part.

It has already been shown that the jus civile was very strict
in reference to succession on intestacy. It did not allow
emancipated children nor agnates who had suffered capitis
deminutio to succeed. A widow, unless she had been in manu
of the deceased, could have no part of the inheritance, while
no female agnate except a sister could receive anything.
The praetors changed all this. They established four classes :

(1) They gave the first place to descendants (liberi) includ-

ing all persons whom the deceased would have been
bound to institute or disinherit had he made a will.

(2) On failure of liberi the right to petition for bonorum

possessio was opened to the nearest collateral agnates
of the intestate, under their old name of legitimi
heredes.

(3) By the jus civile the property fell to the state on the

failure of agnates. The praetors recognized the
rights of "cognates" to succeed in case agnates
failed. By cognates was doubtless meant any rela-
tive whatever down to the last degree.

(4) Finally the claim passed to the survivor of husband and

wife, assuming always that their marriage had not
involved manus.

A year was allowed for the filing of a petition for bonorum
possessio on the part of descendants ; all others had to make
petition within one hundred days. No guarantee was given
to the petitioner of peaceful possession.

263

Book III. FROM THE BEGINNING OF THE EM-
PIRE TO THE DEATH OF JUSTINIAN

(30 b.c.-a.d. 665)

CHAPTER X

CHARACTERISTICS OF THE LAW DURING THE

PERIOD »

In out discussion of the history of Roman law we have now
reached the period of its maturity. After the battle of Ac*
1 9Ia tium had placed the government of Rome in the

introduc- hands of one man, Caesar Octavius, instead of

Hon

proclaiming at once the overthrow of the republic
as a less politic man might have done, he proceeded step by
step to make his way to supreme power. He gained over the
soldiers by his liberality, his enemies by his clemency, and the
populace by his extravagance and by gratifying their love for
public spectacles. The stormy period of the civil wars was
followed by a period of tranquillity and the revival of the fine
arts. Rhetoricians, poets, and historians crowded the court
of Augustus. All joyfully lent their aid to the increasing of
his power day by day. The senate vied with the people in
fastening upon themselves the bonds of servitude. They
conferred on Octavius the title of "Imperator" in perpetuity,
confirmed all his acts, and swore obedience to him. This was
in B.C. 29. In 31 B.C. they decorated him with the title of
"Father of his Country " and "Augustus." They placed
the supreme power in his hands for ten years, and made over

1 Sohm, 49-97 ; Ortolan, 59-81 ; Muirhead, 293-299.

264

Chap.X] CHARACTERISTICS OP THE LAW [§91

to him, as his own, the finest and most important provinces
of the empire, provincwe Caesaris, reserving for the people as
provinciae populi, the provinces which were the most quiet
and submissive. This was in B.C. 27. Four years later the
people, assembled in centuriata, conferred on Augustus the
power of the tribunes in perpetuity as well as those of the
proconsul. In 19 they bestowed upon him the consular
power in perpetuity. In 17 the senate, not to be outdone,
again conferred upon him a ten years' period of absolute
power and, later (13 B.C.), made him pontifex maximus,
which carried with it the duty of presiding over the public
worship. Thus without appearing to subvert the magistra-
cies of the republic, Augustus annulled them by accumulating
their powers in his own hands, and by thus grasping the whole
of them became an absolute sovereign. Thus it was that the
emperor by becoming a multiple magistrate and supreme
leader in all matters of state, arrogated to himself all state
functions. He was, indeed, the state personified.

There were, however, consuls, proconsuls, praetors, and
tribunes, who were chosen as colleagues to the emperor, and
who were merely subordinates who aided him in carrying on
his government. In choosing these officers a form of elec-
tion was gone through, but all nominations were made by the
emperor, and this nomination was equivalent to an election.
Augustus was skillful enough to keep all these offices in his
own family, nominating his nephews, sons-in-law, and grand-
sons when the latter were scarcely more than infants. At first
this method was deemed sufficient, but to complete any far-
reaching scheme of absolutism, it was necessary that all
officers should be appointed by the emperor without the for-
mality of an election, and so be attached to his fortunes and
dependent upon him. To accomplish this, Augustus estab-

265

1 91] A HISTORY OP ROMAN LAW [Part I

lished several new offices with functions not very well defined,
but which grew at the expense of the more popular ones.
These were destined in the hands of his successors to be so
developed as to absorb all the old elective offices and thus
render the absolutism of the emperor not only complete, but
permanent. These new offices were seven in number ; legati
Csesaris, procuratores Csesaris, prefectus urbi, prefectus
pretorius, queestores candidati principis, prefectus annona-
rum, prefectus vigilum.

I have already stated that the provinces were divided
between the people and the emperor.1 That portion of them
z. Legati which was considered as still belonging to the
Ca8trfa* "■ people (provinciae populi) was governed as formerly
by the consuls and by the pretors after leaving office. The
revenue derived from them and which was collected and paid
into the public treasury was called stipendium. The other
provinces were looked upon as the property of Caesar (pro-
vinciae Csesaris) and the revenue derived from them was called
tributum. They were administered by officers appointed by
the prince (legati Caesaris). The powers, however, of these
legati differed veiy materially from those of the proconsuls.
The emperor was the commandant of .the army, and as he
had reserved to himself the provinces most liable to disturb-
ance, together with the frontier provinces in which it was
necessary to make war, or from which it was necessary to
carry on warlike expeditions, his legati were military officers,
wearing the military insignia and costume, and commanding
soldiers. The proconsuls were only civil magistrates with no
military authority whatever.

The treasury, like the provinces, was divided into two
parts, one for the public, aerarium, the other for the prince,

1 Ortolan, 58.
266

Chap. XI CHARACTERISTICS OP THE LAW [J 91

fiscus.1 In order the better to manage the property which
constituted his peculiar domain and to secure his a# p,^.
own interests, Augustus appointed to the prov- ntares

inces a steward or agent, who had about the same c*8"1*-
functions in the imperial provinces as did the quaestors in the
older organization. These procuratores were not magistrates
in any proper sense and were at first selected solely from
the emperor's freedmen. But as they acted as agents of the
emperor they became, in the course of time, important per-
sonages and acquired an important administrative position,
and were empowered to adjudicate on all questions connected
with the fiscus.

In the regal period of Roman history we frequently meet
with mention of the praefectus urbi.2 It was the duty of this
functionary, when the king went away at the head 3# p^
of the army, to remain in Rome to protect the city ' **»•

and to preside over the administration. Augustus
re-created this office and made it permanent. In concert
with the consuls he tried criminals in extraordinary cases, and
performed duties formerly belonging to the aediles. As time
went on he was invested with almost entire criminal jurisdic-
tion, thus absorbing the functions of the praetors. But his
authority did not extend beyond a radius of one hundred
miles around the city.

Augustus had raised himself to his autocratic position by
his military skill. He did not lose sight of this in his reor-
ganization of the empire. He created a body of 4# p^
troops called praetorian guards, who were soldiers factum

exclusively attached to the person of the sovereign. "**

At their head were two knights, styled praetorian prefects.'
The number of these praefects varied at different times.

1 Ortolan, 59. * Ibid., 60. « Ibid., 61.

267

§ 91] A HISTORY OF ROMAN LAW [Part I

They were at first purely military in function, but under suc-
ceeding emperors they acquired civil powers, and eventually
retained these alone.

These were functionaries new to the Roman constitution,
having nothing in the older forms in any way parallel to
them.1 They were simply imperial readers whose

5. „
tores duty it was to read aloud in the senate the dis-

Candidati patches which the emperor addressed to that
body, together with all the transactions which he
thought proper to communicate to it. They were regularly
two in number and held office at the emperor's pleasure but
were usually permanently attached to his court.
The title given to this official is sufficient to indicate

6. Pn»- ^s functions as connected with the supply of pro-
fectus Anno- visions.1 He was a subordinate of the praefectus
n*rum* urbi, and his duties were those of a purveyor.

Public tranquillity, in the early times of the republic,
was secured by the plebeii sediles; later by a body of five

7. P*»- magistrates, called the quinqueviri. These
fectua seemed to furnish insufficient protection to life
Yi**aBL and property. Augustus told off for this duty seven
cohorts, each commanded by its tribune, and distributed
about the city, so that each had two districts to protect.
Rome was thus divided into fourteen districts or precincts
for purposes of police. To superintend all these cohorts, a
special magistrate, prafectus vigilum, or police commissioner,
was created whose business it was to make nocturnal rounds,
to prescribe to the inhabitants all the precautions necessary to
prevent fires, and to punish breaches of this law. He also had
jurisdiction over and took cognizance of certain offenses
connected with house breaking, and thefts committed at the

* Ortolan, 62. ' Ibid., 63.

268

Chap. X] CHARACTERISTICS OF THE LAW [$02

baths. In special cases, where the penalty was a heavy
one, he was required to send the case before the prefectus
urbi.

As these imperial offices came into existence they gradually
superseded the republican magistracies. It is difficult to
say to what extent they were a growth incident to changed
conditions, and to what extent they were created with the
fixed purpose of aiding the emperor in his assumption of abso-
lute power. Thus the absolute power of the emperor was
erected amid new institutions which it had itself created, and
which contributed to its support.

Under the influence of the imperial will not only did the
offices of administration and police pass from the people to
the emperor, but this centralizing force was felt .f *>a-

in matters of legislation. Augustus, clinging to the ^comitiT
forms of republican institutions as much as pos- and Senate.*
sible, thought it expedient not to break with the old prac-
tice of submitting his legislative proposals to the vote of the
tribes. Some of these laws were of very great impor-
tance. Various measures for thie amendment of criminal
law were submitted that were far-reaching' and effective. Be-
sides these, three sets of enactments of great importance may
be said to owe their authorship to him. Of these the first had
for its object the improvement of domestic morality and the
encouragement of fruitful marriages; the second strove to
abate the evils that had arisen from the too lavish admission
of liberated slaves to the privileges of citizenship ; the third
aimed to regulate procedure in public prosecutions and pri-
- vate litigations.

To the first set of laws belonged the lex Julia de adulteriis
coercendis, of the year 18 B.C.2 This was demanded by

» Ortolan, 65-67. ' Muirhead, 284.

269

|92] A HISTORY OP ROMAN LAW [Part I

reason of the prevailing licentiousness of the times, but it is
doubtful whether it ever accomplished anything in the check-
z. Ux ing of the evil. Here also belonged the lex Julia
J"***- et Papia Poppsea which was a voluminous matri-

monial code that exercised, for more than two centuries, an
influence so great as to be regarded as one of the sources of
Roman Law almost equal to that of the Twelve Tables, or
Julian's consolidated Edict. This law originated in that of
the lex Julia de maritandis ordinibus which was approved by
the senate in the year 28 B.C., but met with such violent op-
position that it was not until 18 B.C. that it passed the comitia
tributa. Experience taught Augustus that the provisions of
this law were not sufficient to attain its purpose. Accordingly
he introduced an amended edition of it in 3 A.D., which he
succeeded in carrying only by means of allowing a three years9
grace before it should be put into operation. This grace was
afterwards extended to five years. It was thus postponed
until 9 a.d., in which year a supplement to it was carried
through by the consuls Marcus Papius and Quintus Pop-
peeus ; hence the change of name to lex Julia et Papia Pop-
peea. Its leading provisions were intended to prevent mis-
alliances, marriages between men of rank and women of low
degree or immoral character, and to compel women of a
certain age (18) to marry and have children, by declaring
unmarried persons incapable of taking anything of what they
were entitled to under a testament, and married but childless
persons, incapable of taking more than half. In this case
the lapsed provisions fell to those other persons named in the
testament who had fulfilled the requirements of the statute.
Women who had borne a certain number of children (3 in
Italy or 5 in the provinces) were freed from the tutory of their
agnates or patrons and thus had complete control of their

270

Chap. X] CHARACTERISTICS OP THE LAW [J 92

property. By this law divorce was also regulated by requiring
express and formal repudiation.

The second set of enactments referred to above included the
lex iEIia Sentia of the year 4 a.d., the Fufia- J# ^
Caninia of the year 8, and the Junia-Norbana of *h*

the year 19. These will be discussed in another Btatit.
place.

The third set included the two leges Julia? judiciariae of
which we know very little. One of these seems to have com-
pleted the work of the lex iEbutia, in substituting -the for-
mular system for that of the legis actiones. It must have been
a comprehensive and far-reaching statute, as a passage in the
Vatican Fragments refers to a provision of its twenty-seventh
section.

The lex Junia-Norbana was the last legislation passed by
the comitia, as it is quite certain that the lex Claudia which
abolished the tutory-at-law of women was a .. l«
senatus consultum and not a lex.1 There are some Jtmi*-

other enactments bearing the title of leges that WwbM»*
are almost certainly actions of the senate, or mere decrees of
the emperor. From the time of Tiberius onward it was the
senate that did the work of legislation, for the simple reason
that the comitia were no longer fit for the task. Cicero men-
tions senatusconsulta among the sources of law, but very few
can be cited as belonging to the period of the republic. Some
few bearing on the jus privatum are attributed to the epoch
of Augustus, but this cannot be established with certainty.
The activity of the senate as a law-making body was probably
due to the fact that the great professional jurists all had a
.seat in the imperial council where the drafts of the senatus-
consulta were prepared, and they were thoroughly cognizant

» Muirhead, 286, 317.
271

$93] A HISTORY OP ROMAN LAW [Part I

of the legal reforms that were needed. It was the senatus-
consulta that were the chief statutory factors of what was
called by both emperors and jurists the jus novum, the new
law that departed very widely from the principles of the old
jus civile, and was much more nearly in accordance with those
of the edict, the jus naturale. Had not the authority of the
praetors been overshadowed by that of the prince, the greater
part of the jus novum would doubtless have become a part of
the edict.

The series of senatusconsulta affecting the forms of jus
privatum continued, during the imperial era, to run for about
two centuries, till the time of the emperor Septimius'Severus.
After this it is difficult to trace any. Ulpian remarks that in
the time of Caracalla, "non ambigitur senatum jus facere
posse." As the form of legislation became that of the sena-
tusconsultum and this acquired strength and permanence
by being frequently employed, the plebiscita diminished in
number and soon disappeared, so when the imperial constitu-
tions increased in number and in power, the senatusconsulta,
in their turn, became rare and at last ceased. The abstract
principle of their authority however still remained in the law
long after the imperial constitutions had taken their place.

The constitutions of the emperor were the last source of
law and were also destined to be the only source of law. The
. ~ generic name of constitutiones embraces all the

§ 93* Con-
stitution* acts of the emperor of whatever time, but they

of the must for practical purposes be divided into three

distinct classes : —

(a) General ordinances promulgated by the emperor
(edicta).

•Ortolan, 66; Muirhead. 293-295.

272

Chap.X] CHARACTERISTICS OP THE LAW [§94

(b) The judgments rendered by the emperor in cases which

he decided in his tribunal (decreta).

as for example, to his lieutenants in the provinces ;
to the inferior magistrates of the city; to the
praetor or proconsul, who interrogated him upon
any doubtful point of law ; to private individuals,
who petitioned him in any circumstances whatso-
ever (nlandata, epistolee, rescripts) .

The following is a definition of an imperial constitution as
given by Gaius in his Institutes, Sec. 5 ; Constitutio principis
est quod imperator decreto vel edicto, vel epistola constituit.
Of these constitutions some were general and had universal
application ; others were particular, and only had reference
to the cases and to the persons to whom they were addressed.
In some respects the constitutions were similar to the edicts
of the praetor, in that they were enacted to meet the present
occasion and were not binding upon the emperor's successor
unless he was minded to continue them. Force must be
recognized as the only right which lay back of the constitu-
tiones. This is, in fact, the real nature of their authority
when stripped of all the coloring and trappings of the
ancient institutions with which the imperial power had
clothed itself.

I have already given some attention to the history of the
edictum perpetuum during the time of the re- 1 94. The
public. It certainly received some additions in ComoH-

. dated Edic-

the early empire, but by the nature of the case tnm p*,..
these would be few, as the emperor was ever jeal- petnum.1
ous of any legislative authority but his own. The praetors

1 Muirhead, 289-291 ; $01101,76,77.

273

§94] A HISTORY OF ROMAN LAW [Pabt I

still continued annually, upon entering on office, the edicts
that had been handed down to them through generations, but
their own additions were limited to mere amendments ren-
dered necessary by the passage of some senatusoonsultum
that affected certain of their provisions. This was the
status of the edictum perpetuum when Hadrian came to the
throne. He was of opinion that the time had come for
giving to the edict a final and authoritative form, and so
sanctioning it that it might be received as a law and not
merely as an edict, throughout the length and breadth of
the empire. With this purpose in mind he commissioned
Salvius Julianus, urban praetor at the time, to revise it, with
a view to its approval by the senate as a part of the statute
law. This task was accomplished and thus we have the
Consolidated Edictum Perpetuum.

The revised version prepared by Julianus has been lost
and we do not know the extent of his labor or what use he
made of the previous decisions of the peregrin praetor and
other magistrates who had contributed to the jus honorarium.
It is altogether probable that he used both the edicts of the
urban and peregrin praetors as well as the enactments of the
curule sediles. These he abridged and arranged in conven-
ient form. This edictum perpetuum was approved by Ha-
drian and sanctioned by a senatusoonsultum, and thus be-
came a part of the statute law of the empire. No praetor
could henceforth alter it in the least and its interpretation
passed from the praetorian court to that of the emperor.
The edict was not divided into books, but only into rubri-
cated titles; however, its arrangement is not difficult to
ascertain by reason of the numerous commentaries that
have been written upon it. A comparison of these shows the
following order : —

274

Chap. X] CHARACTERISTICS OF THE LAW [J 96

(1) In the first place came a series of titles dealing with

the first steps of legal procedure; jurisdiction,
summons, intervention of attorneys, etc.

(2) In the second place stood ordinary processes in virtue

of the magistrate's jurisdictio.

(3) In the third place came extraordinary process, orig-

inally in virtue of his imperium.

(4) In the fourth place came execution against judgment-

debtors, bankrupts, etc.

(5) In the fifth place came interdicts, exceptions, and

praetorian stipulations.

(6) Lastly came the sedilian remedies.

The German historian, Lenel, has gone far toward re-
producing in a thoroughly scientific manner, the edictum
perpetuum. This work was published in 1883.

We have seen above how all power was lodged in the hands
of the emperor and how he gradually absorbed the adminis-
trative and legislative functions which were j95- ^
formerly exercised by the republican magistrates Reaponaa
and the popular assemblies. But imperialism dent,im-1
did /not stop here. It reached over to the jurists and con-
trolled their independence as well. Pomponius says; "It
is well to remember that before the time of Augustus the
right to give opinions publicly concerning the law had not
been conceded by the chiefs of the republic, but that all those
who considered themselves sufficiently learned were at liberty
to give their opinions to those who thought fit to consult
them. These opinions were not given under the seal of the
jurist who delivered them; but he in many cases himself
wrote to the judge ; in other cases, the parties who came to

1 Ortolan, 68; Muirhead, 291-293.

275

§95] A HI8T0RY OP ROMAN LAW [Part I

consult the jurist brought with them witnesses, who testified
before the judge as to the opinion given. Augustus, whose
object it was to give additional authority to the law, was the
first who gave to the jurists the right to express their opin-
ions by virtue of imperial authority, and this authorization
being once established was supplicated as a favor/'

It was the desire of Augustus to give more credit and au-
thority to jurisprudence than had hitherto been given. He
desired that the responses of the jurist should represent his
own power, simply delegated to certain persons of his own
choice. It was for this purpose that he created the class of
privileged jurists.

Giving advice to clients in public was no new thing. Ti-
berius Coruncanius did this in the beginning of the sixth
century of the city. Scipio Nasica had a house in the Via
Sacra given to him at public cost for the greater convenience
of the public in consulting him. During the last two cen-
turies of the republic it was a matter of pride and ambition
to a patron to have daily a great throng of clients. His
political influence was augmented by this and his standing
in the community increased in proportion.

But the right of responding under imperial authority,
first granted by Augustus and continued by his successors
down to the time of Alexander Severus, was something far
different from this. It did not imply publicity nor did it
cut off the right of unpatented jurists to give advice as be-
fore to any one who chose to consult them. It simply gave
authoritative character to a response, so that the judge who
had asked for it and to whom it was presented, was bound
to adopt it as if it had emanated from the emperor himself.
It is well to remember that the judge was a private citizen
usually unskilled in the law and having no tenure of office.

276

Chap.X] CHARACTERISTICS OF THE LAW [§95

Whatever may have prompted Augustus in originating this
plan, its beneficial results for the law were immediate and
far-reaching. The quasi-legislative powers exercised by the
patented jurists enabled them to influence current legal
doctrine and to leaven their interpretations of the jus civile
and jus gentium with suggestions of equity and natural law
which gave to them a wider and more liberal scope.

The unlicensed jurist gave his legal opinion when asked
by a judge or client, by word of mouth, accompanying it
with such reasons for his opinion as he saw fit to give. The
patented jurist reduced his opinion to writing and sent it
to the court under seal. He was not called upon to give the
reasons which governed him in his decisions. In case the
opinions of patented jurists differed, as they sometimes did,
the judge, by a rescript of Hadrian, was left free to use his
own discretion.

277

CHAPTER XI

ROMAN JURISPRUDENCE

The beginnings of Roman jurisprudence date from the
time of the pontifices, who acted as skilled legal advisers in
196. in- the court of the king, in the regal period, and,
traduction.1 after the establishment of the republic, performed
these functions for the consul, and, later, for the praetor.
From this fact it will appear that the science of law was
closely bound up with that of religion and astronomy. It
was only the priests that had the knowledge of the jus sacrum
and the calendar; they alone could tell the dies fasti and
nefasti, or the times in which an action at law might or might
not be commenced. In fact they had a monopoly of all
legal knowledge and for this reason the control and develop-
ment of the formulae relating to actions rested entirely with
them. Their science was that of the letter of the law and
its technical application, interpretation, and utilization.
This knowledge they kept exclusively confined to the col-
lege of pontifices and handed it down to the new members
by tradition and instruction. The early legal opinions of
the college which formed the base of existing practice were
preserved in the archives of the college, and to these
archives only members had access. All legal business was
thus confined to a few, and pontifical jurisprudence was looked
upon as a kind of occult science. It was a powerful weapon
in the hands of the patricians to which class every member

1 Sohm, 59-80; Muirhead, 279-314; Ortolan, 71-82.

278

Chap. XI] ROMAN JURISPRUDENCE [{96

of the pontifices belonged when they entered upon their long
and strenuous struggle with the plebeians.

The publication by Cnseus Flavius, the secretary of Appius
Claudius Csecus, in 304 B.C., of the Dies Fasti and a work
which set out in detail the steps and the formulae which were
necessary for conducting the legis actiones, was justly con-
sidered a great popular act. The same may be said of the
work of Sextus iElius, published in 204 B.C., the jus iElia-
num vel Tripartita.1 This work contained the law of the
Twelve Tables, their interpretation, and the actiones legis,
or the entire procedure necessary to carry out the law to-
gether with a brief treatise on the law itself. Fifty years
before the publication of the jus iElianum, Tiberius Corun-
canius, the first plebeian pontifex maximus, proclaimed his
readiness to give information to anybody on legal questions.
The knowledge of law was thus to be opened up to all who
desired it, no matter whether they were parties to a suit at
law or merely students of the jus civile. The idea of casting
the hard and crude materials of the Roman law into artistic
form now occurred to Marcus Cato, the younger, who died
in 150 B.C. In his Regulse Juris we can trace general prin-
ciples of law shaped from the raw material of history. It
represents the first attempt to set forth the pontifical jus
civile in literary form ; the first book dealing with law, "the
cradle of juristic literature" (qui liber veluti cunabula juris
continet).

From this time onward the knowledge of law passed more
and more out of the hands of the pontifices and became an
ingredient in national culture. At the same time the in-
fluence of Greek literature and the scientific methods of Stoic
philosophy operated as a powerful and ennobling stimulant.

» Muirhead, 247, n. 12.
279

{ 96] A HISTORY OP ROMAN LAW [Pabt I

But the most distinguished of the "veteres" was Quin-
tius Mucius Scsevola, the younger, pontifex maximus.1
About 100 b.c. he wrote his great treatise on the jus civile,
in eighteen books, a work of wide and enduring fame. It
was Scaevola who for the first time set forth in systematic
order the positive private law, arranging and classifying it
according to the nature of the subject dealt with. He did
not confine himself like his predecessors, to the discussion
of isolated cases or unrelated questions of law, but arranged
his work according to the subject matter with which the
several rules of law are concerned. He was the first to de-
termine in clear outline the nature of such legal institutions
as will, legacy, guardianship, partnership, sale, hiring, etc.,
and to state in logical order the various kinds of these in-
stitutions. His was the first attempt to set forth general
legal conceptions as distinct from the mere facts of law, and
this was the reason for the enormous success of his work. A
mere knowledge of law became in his hands a legal science,
and jurisprudence may be said to date from 100 B.C.

The most important part of the business of a Roman jurist
was to give answers ta legal questions propounded to him by
judges or clients. With this he was accustomed to combine
the practice of teaching law and writing upon legal subjects.
The college of pontifices was accustomed to appoint one of
its number every year to give opinions on questions of
private law. The judges in special cases were bound by
these responses and were not allowed to render opinions
in contradiction. When the republic came to an end, how-
ever, and the knowledge of law spread among the people,
it became a frequent practice for persons outside of the col-
lege of pontifices to give "juristic responses," but they were

1 Muirhead, loc. cit.
280

Chap. XI] ROMAN JURISPRUDENCE [|97

not considered as binding, as no authority lay back of them.
This unrestrained rendering of responsa tended to the les-
sening of the prestige of jurisprudence in general, while on
the other hand, a return to the old monopoly of all legal
learning by the pontifices was out of the question. It was
the emperor Augustus who, perhaps as pontifex maximus,
devised a remedy for this difficulty. He left the practice
of the law absolutely free as before, but ordered that here-
after all responsa should be given ex auctoritate ejus, i.e.,
with the authority of the emperor. By this action the pon-
tifices ceased to play any part in the development of the civil
law and the princeps together with scientific jurisprudence
became the permanent agents in the future development.
The responsa prudentum ex auctoritate principis became a
source of law, and their force began to extend to juristic
literature in general.

Roman jurisprudence was thus placed in a position of
commanding influence, and it only remained to be seen
whether it would be able to utilize the influence which it had
acquired and pass on to even greater heights.1

But at the very beginning of the science of jurisprudence
a conflict arose between the jurists themselves that threat-
ened the very life of the science. Two rival . T(lbftft
schools sprang up, the Sabinians and Proculians, and Capito
the Sabinians being the followers of Caius Ateius m *■* *•

Schools of

Capito, the Proculians the followers of Marcus th« Pro-
Antistius Labeo. Both Capito and Labeo lived ***■■■ «**

i • i • » a i # • Sabinians.*

during the reign of Augustus and were for a time
political rivals. Capito attached himself to the court
party and was a zealous adherent of the emperor. Labeo
was inclined to range himself on the side of the repub-

1 Sohm, lot. cit. ■ Muirhead, 296-299.

281

§97] A HISTORY OP ROMAN LAW [Part I

lican opposition and to champion the old order of things
as against the regime of the rising monarchy. The Sabinians
derived their name from Masurius Sabinus, an adherent of
Capito, who lived in the reign of Tiberius. The Proculians
derived their name from Proculus who lived in the reign of
Nero and was acknowledged as the leader of the disciples
of Labeo. The successors of Sabinus and Proculus were
Caius Cassius Longinus and Pegasus, respectively, and it is
after them that the Sabinians are sometimes called Cassiani,
and the Proculians, Pegasiani.

It is really impossible any longer to determine, with any
certainty, what the essence of this divergence of schools was.
The attempt has often been made to trace a parallel between
the modes of thought in politics and jurisprudence of Labeo
and Capito and to discover here the reason for the diverging
lines in the two schools, but this reason fails because we do
not know enough of Capito as a jurist to enable us to speak
with any certainty as to his opinions. He is very rarely
referred to in the law texts that were in use before the time
of Justinian, and his name does not appear in the collections
of law made by that emperor. Labeo's name, on the other
hand, was that of the greatest authority from the time of
Augustus down to that of Hadrian. From the remains of
his writings preserved in the Digest, it is easy to see that he
was a man of great general culture, well versed in the history
and antiquities of the law, an acute dialectician, and in
philosophy imbued to some extent at least with the teachings
of the Stoics. Pomponius and Aulus Gellius both speak of
him in terms of highest praise. Labeo was as independent
in his exposition of the law as he was in his political opinions.
He criticized with freedom the doctrines of those who had
been his instructors in jurisprudence and was guided in his

282

Chap. XI] ROMAN JURISPRUDENCE [|97

own judgments by constant reference to the origin of an in-
stitution or a rule and the object it was intended to effect.
He composed a theoretical treatise on law which was epit-
omized and annotated by Paulus two centuries later. He
also wrote a Libri Posteriorum, a practical treatise on the
various branches of the jus civile. This work was abridged
by the jurist Javolinus and seemed to have enjoyed con-
siderable authority. Besides these works, Labeo was the
author of commentaries on the pontifical law, the Twelve
Tables, and the Edicts of the urban and peregrin praetors,
as well as of a collection of responses. He was held in very
high esteem by the classical jurists down to Alexander
Severus. It is not uncommon to find his opinions and
definitions of terms of law referred to ten or fifteen times in
the course of the same title.

Neither Labeo nor Capito seemed to have founded a regu-
lar school themselves although they both gave legal instruc-
tion according to the traditional republican fashion of old
and distinguished Romans, whose practice it was to give
public answers to questions in the presence of their pupils
with whom they sometimes argued, but they rarely gave
regular private tuition in a series of connected lectures. It
is generally conceded that Sabinus was the first to establish
a school of law and to give systematic instruction by means
of a corporate organization, such as had been in vogue among
the Greek schools of philosophy. In opposition to the school
of Sabinus, a second school sprang up, organized in the same
manner. This was the school of Proculus. As has already
been said these schools took the names of their founders.
The leading spirit among the chiefs of these schools was
Sabinus. He pointed out to his pupils the lines on which
Roman law should progress, in the sense of ridding itself

283

i 98] A HISTORY OF ROMAN LAW [Part I

of old-fashioned formalism. He seems to have caught the
progressive spirit of Capito, who was a political opportunist
and sympathized with the imperial reforms in law and poli-
tics. The Proculians, on the other hand, were inclined to
abide by traditional rules and to sacrifice the spirit for the
letter of their master's teachings. In this way they became
more conservative than was Labeo.

The task of classical jurisprudence was to reconcile the
opposition between these two schools. Its labors resulted
198. Julian, in the fusion of the jus civile, the already sta-
?-BJ' tnd tionary jus honorarium, and new imperial law
^.n into one harmonious whole. The foundations

juri«t*j 0f this were laid by Publius Juventus Celsus in
his Digesta, a work in thirty-nine books. Celsus was a
follower of Proculus and died in the reign of Hadrian.
He was succeeded by a still more eminent lawyer of the
Sabinian school, Salvius Julianus, who* was by birth an
African and maternal grandfather of the emperor Didius
Julianus. Under Hadrian and Antoninus Pius he filled the
office of praetor, consul, and prefectus urbi, and for a long
time was the leading member of the imperial council. The
task of his life was the consolidation of the edictal law and
the composition of his great digest in ninety books. Like
Celsus he adopted the arrangement of the praetorian edict,
utilizing it, however, for the purpose of expounding the whole
of Roman law. He illustrated his doctrines with hypothet-
ical cases and fresh and lively questions and answers.
" His vast acquaintance with practical case-law, the ingenuity
of his own countless decisions, his genius for bringing out,
in each separate case, the general rule of law which, tersely
and pithily put, strikes the mind with all the force of a bril-

1 Sohm, 68, 69, 73 ; Muirhead, 299-303.

284

Chap. XI] ROMAN JURISPRUDENCE [{98

liant aphorism and sheds its light over the whole subject
matter around — these are the features which constitute
the power of his work." There is probably none in the whole
catalogue of Roman jurists whose dicta are so frequently
quoted by his successors and even by his contemporaries.
Many brilliant and scholarly men were associated with
Julianus in advancing the development of jurisprudence.
Of these Sextus Pomponius was, perhaps, the most distin-
guished. His life was a long one, beginning in the reign of
Hadrian and continuing through the twenty-three years of
.that of Antoninus Pius and well into that of Marcus Aurelius
and Verus. He was a man of extensive reading and learning
in various themes; archaeological, historical, doctrinal, and
critical. His writings on Scsevola and Sabinus were drawn
upon very largely in the compilation of the Digest of Jus-
tinian. His Enchiridion or Hand Book of Roman Law is
the chief source for the knowledge of the external history of
Roman law from the foundation of the city to the time of
Hadrian. Csesilius Africanus was also a friend of Julianus,
though some years younger. He wrote several books of
questions which were made liberal use of by the commis-
sioners of Justinian.

It may now be said that the star of the Proculian school
began to set. The jurist Gaius, who died about the year
180 a.d., and whose institutional treatise Was adopted as a
model by all subsequent writers of legal textbooks, is the
last in whom the opposition between the schools is repre-
sented. He himself was a Sabinian. He still mentions con-
temporary teachers "of the other school," i.e., Proculians,
but their names have not reached us. The Sabinians, in
Gaius, finally gained the day. Henceforth there was to be
but one jurisprudence and the lines of it were those marked

285

{ 98] A HISTORY OF ROMAN LAW [Pabt I

out by him. Gaius must be placed somewhat later than
Julianus and Pomponius, as his literary activity only com-
menced under Antoninus Pius and continued until sometime
after the death of Marcus Aurelius. He is only mentioned
once by a contemporary writer and never by his immediate
successors. Some writers argue from this fact that he must
have been a provincial, and probably an Asiatic, while others
maintain with equal force that he was a resident, if not a
native of the city of Rome. It was as a teacher and theoret-
ical jurist that he excelled and it is asserted by some com-
mentators that he never practiced law at all. It may be
confidently asserted that he did not enjoy the jus respon-
dendi. His famous work was his Institutiones commentarii
quattuor; a compendium of the fundamental doctrines of
the law of very great value, alike for the simplicity of its
method, the interest of its historical illustrations, and the
precision and accuracy of its language. In the year 1816,
the discovery of the manuscript of this work which had been
lost for centuries, produced a profound effect. It came at
the proper time to give an impetus to the newly established
historical school of jurisprudence and to furnish a store of
new material for their investigation and criticism. As a
jurist Gaius does not rank with Labeo, or Julian, Ulpian or
Papinian, but as a teacher he is unexcelled. All his writings
seem to have had an educational aim and are models of ex-
position. When his ground is sure his tread is firm, but he
does not relish controversy. He furnishes a wealth of in-
struction about branches of the law of the republic and early
empire, and his clearness of exposition leaves no room for
doubt as to his meaning.

A little later than Gaius came Quintus Cervidius Scavola.
He was a Greek by birth, and subsequently a member of the

286

Chap. XI] ROMAN JURISPRUDENCE [|99

council of state of the emperor Marcus Aurelius. He wrote
a Digest in forty books in which he set forth Roman law
after the casuistic method, in the shape of "responsa,"
adopting, like others, the arrangement of the edict. His
pupils were Septimius Severus, who afterwards became em-
peror, and, best of all, iEmilius Papinianus, the most illus-
trious of the Roman jurists.

The nature of the task which was now the function of
Roman jurisprudence to fulfill had become manifest. This
was to unfold, in all its wealth and multiplicity, * *>•

the great legal system by means of decisions mptan^wid
and opinions which would bring order out of Ami*1

chaos by vindicating the force of firm principles. Celsus
and Scsevola had aided in this task to a great degree, but
it remained for iEmilianus Papinianus to carry this work to
its highest point of perfection. He was a pupil of Scaevola
and was advocatus fisci under Marcus Aurelius and praetorian
praefect under Septimius Severus, who was among his dearest
friends, and probably related to him by marriage. He was,
like Scsevola, an Oriental, and combined the moral weight
attaching to a character of the highest rectitude with the
elegance of a Greek and the terseness and precision of a
Roman. He made use of the casuistic method of expound-
ing the law, as did his famous teacher, by means of answers
to concrete legal cases, and he carried this method to perfec-
tion. He has been called the prince of jurists, and this justly,
because he was not only a master of Roman law, but a man
so upright in character that he could not be induced to lend
his talents to the doing of evil even by an emperor. The sons
of Severus, Caracalla and Geta, were left to his guardianship,
but he was unable to prevent the murder of Geta by his

* Sohm, 70, 71, 84, 85; Muirhead, 303-306.

287

§ 99] A HISTORY OF ROMAN LAW [Part I

brother, in 212 a.d. Caracalla called upon Papinian to de-
fend his acts and, when he utterly refused to do so on the
ground that, "to defend the murder of the innocent was to
slay him afresh/' he was himself killed at the command of
the emperor. His most important works were eighteen
"libri responsorum" and thirty-seven "qusestiones libri,"
in the latter of which he follows the arrangement of the edict.
Greek and Roman culture combined produced in Papinian
the brightest luminary of Roman jurisprudence. "He has
no equal in the precision with which he states a case, elimi-
nating all irrelevancies of fact, yet finding relevancies of
humanity that would have escaped the vision of most, and
without parade, and as it were by instinct, applying the
rules of the law as if it lay on the surface and was patent to
the world."

Domitianus Ulpianus and Julius Paulus made their first
appearance in public life as assessors in the auditorium of
Papinian and members of the imperial council of Septimius
Severus. In the reign of Caracalla they were the heads of
two ministerial offices, that of records and requests. Ulpian
was a Tynan by birth, and was, probably for that reason,
an intimate friend of Alexander Severus, whose mother was
from this country. He wrote a commentary on the Edict
in more than eighty books; collections of Opinions, Re-
sponses, and Disputations ; books of Rules and Institutions;
and treatises on the functions of the various magistrates.
The characteristics of his work are exposition of the highest
order, together with lucidity of arrangement, style, and lan-
guage. His works have supplied to the Digest of Justinian
fully one-third of its contents.

Paul, who seems to have been a pupil of the jurist, Scsevola,
had a career quite similar to that of Ulpian, and wrote upon

288

Chap. XI] ROMAN JURISPRUDENCE [| 100

much the same themes. He wrote a short commentary on
Sabinus and composed many monographs, some of which
were devoted to the exposition of points of procedure. By
some writers Paul is ranked second only to Papinian as a
jurist, but in clearness of diction and precision of statement
he is certainly inferior to Ulpian.

After Papinian the period of decline begins. Roman
jurisprudence had readied the pinnacle of its development
and produced its masterpiece. The era of creative genius
is followed by that of compilers. Ulpian and Paul mark a
distinct decline from Papinian, great as these two jurists
really are. Modestinus, a pupil of Ulpian, is worthy of men-
tion, but we know little about him. He is put by the Valen-
tinian Law of citations on the same distinguished platform
as Gaius, Papinian, Ulpian, and Paul. Numerous extracts
from his writings are preserved in the Digest. His favorite
topics are the law relating to public officials of the empire
and subtle questions of theory and practice. From this
time on Roman jurisprudence lost its. leading position and
began a rapid decline. The jus respondendi ceased to be
conferred after the close of the third century and the emperor
alone gave "responsa," in the form of "rescripta prindpis."

The principal repository of what remains of the juris-
prudence of the first three centuries of the empire is the Digest
of Justinian, the imperial rescripts being largely § zoo. Re-
contained in various collections of the later em- ■*■•*

die Jurift*

pire, as well as in Justinian's code. Besides these prudence of
a large number of passages from the writings of *• ***od.i
Gaius, Papinian, Ulpian and Paul, are to be found also in
the collatio, thtf Vatican Fragments, and the Consultatio.
In addition to the works mentioned above we have

1 Sohm, loc. cit.; Muirhead, 308-314.

289

§ 100] A HISTORY OF ROMAN LAW [Part I

from other quarters three of great importance, the In-
stitutes of Gaius, part of a work of Ulpian's, and Paul's
Sentences, together with some lesser ones, and a few isolated
fragments. The history of the finding of these various works
after they had been long lost makes an interesting chapter,
but our limited space precludes our entering into details.
The work of Gaius will be considered later in connection
with the law itself.

290

• • • •

•

•* .«

*~ » •

CHAPTER XII

THE PERIOD OF CODIFICATION

In the later empire (which dates from the fourth century)
there were two groups of sources of law : —

a. The jus vetus : — f 101. The

The old traditional law, the development 8to,el

HmiiiAij te

of which was completed in the classical codiflca-

period of Roman jurisprudence.

b. The leges or 'jus novum' : —

The later law which had sprung from imperial leg-
islation.

These two classes of law, 'jus' and 'leges/ mutually supple-
menting each other, constituted the whole body of law as it
existed at the time, and taken together, represented the re-
sult of the whole development of Roman law from the earliest
times down to the period we have now reached.

a. The 'jus' was based on the Twelve Tables, the plebis-
cita, the senatusconsulta, the praetorian edict, and the ordi-
nances of the early emperors. As a matter of fact, however,
neither the tribunals nor the parties were in the habit of using
these sources of law, in their original form, but preferred
to resort to the classical juristic literature where they found
the results of these sources set forth and worked out in logi-
cal form. Practitioners no longer quoted the praetorian
edict or the plebiscitum, but Papinian, Ulpian, Paul, or other

i Muirhead, 353-365 ; Ortolan, 100-104 ; Sohm, 82-86.

291

"»-• •

••••••

:••>

.. •<

*lOT] A HISTORY OF ROMAN LAW [Part I

/•.

• •»

*»jibted jurists. It is also to be noticed that no distinction
was made as to whether the opinion quoted was in the form
of a 'responsum' or not. The old-time authority of the
responsa was now carried over to the juristic literature in
general. To this must also be added the fact that the con-
ferring of the jus respOndendi on individual jurists was dis-
continued in the course of the third century. Later ages
failed to appreciate the distinction between jurists who had,
and jurists who had not the right of the jus respondendi.
Gaius, who never had this authority conferred upon him,
was cited in the courts of law as an authority equal to that
of Papinian or Paul. The Law of Citations of Valentinian
III may be said formally to close the period of the jus vetus
proper. He enacted that the writings of the jurists, to wit,
of Papinian, Paul, Ulpian, Gaius, and Modestinus, as well
as of all those who were cited by these writers should possess
quasi-statutory force, so that their opinions should be bind-
ing on the judge.

The 'jus vetus/ was traditionally taken to include those
collections of early imperial ordinances, more especially of
rescripts among which the Codex Hermogenianus, a later
collection supplementing the former, and published in the
course of the fourth century, were preeminent. The practi-
cal value of these codices lay in the fact that they contained
such rescripts as the classical jurists had not yet been able
to take into account.

b. The second group of sources, ' leges,9 consisted merely of
the new imperial law (jus novum), the 'edictum' in the later
sense of the term, and the 'constitutio generalis' promul-
gated to the public. The only thing necessary to be done
regarding these new sources of law was that they should be
collected. This was accomplished by the Codex Theodosi-

292

Chap. XII] THE PERIOD OP CODIFICATION [|102

anus, published by the emperor Theodosius II in the year
438 a.d., and promulgated in the very same year with statu-
tory force for the Western Empire by Valentinian III. It
contained the constitutiones generates issued since Con-
stantine and at the same time abrogated all such constitu-
tions of the same period as had not been adopted.

Between the Codex Theodosianus and Justinian a series
of separate imperial laws were issued, which were known as
'Novelae/ and collected under that name (post-Theodosian
Novels).

We can now summarize the sources of law that were in
use at the time of Justinian as follows : —

1. The sources of law as determined by Valentinian's Law

of Citations.

2. The earlier imperial ordinances (Codex Gregorianus

and Codex Hermogenianus.)

3. The Codex Theodosianus and its Novels.

These are the materials out of which our corpus juris
was constructed.

Flavius Anicius Justinianus, the most famous of all the
emperors of the Eastern Roman Empire, was by birth a
barbarian, native of a place called Tauresium I *<»• The
in the district of Dardania, a region of Illyri- j^uf
cum, and was born, most probably, on May Justinian.1
eleventh, 483. His family has been variously conjectured
as Germanic or Slavic by reason of dominating family
names, but the probability is in favor of the latter view.
He was early adopted by his uncle, Justin, emperor from
518 to 527, and given the very best education that the
times could afford. Latin seems to have been a mother

1 Muirhead, 376-387 ; Ortolan, 105-1 12; Sohm, 87-91.

293

i 102] A HISTORY OP ROMAN LAW [Part I

tongue to him, but he was a fluent Greek scholar though
speaking the language with a barbarian accent. He was
appointed consul by his uncle, in 521, and won over the popu-
lace by games and spectacles of unrivaled magnificence and
splendor. This was in direct contrast to the frugality of
Anastasius, who carried this virtue to the point of penurious-
ness. This luxuriousness indicated the reactionary policy
of the new dynasty. In April, 527, Justinian was created
Augustus, and in August of the same year, on the death of
his uncle, became sole monarch without any opposition.

Justin had been known as an able soldier, but without any
aptitude for civil affairs* It is doubtful whether he even
knew how to read. He had, however, guided the empire
into a new era and inaugurated a thoroughgoing reaction.
Anastasius had relieved the empire of financial embarrass-
ment by his careful hoarding of the resources. Justinian
reaped the benefit of all of this. He commenced his reign
with a full treasury and political reforms well under way.

The enterprising spirit of Justinian carried out the idea
of regaining a footing in western Europe, and his famous
generals reconquered Africa and the Ostrogothic Empire,
in some measure extending the borders of Rome well toward
her ancient boundaries. As against the aristocracy he made
himself political autocrat; as against Pope and Patriarch,
he made himself ecclesiastically absolute. His buildings in
number and splendor were the marvel of the age and, in St.
Sophia, he bequeathed to posterity an imposing monument
of his greatness. But his greatest work was to set in order
a system of law for the world, and this will ever be his endur-
ing monument. He was ambitious to carry out a legal re-
form more complete than that undertaken by Theodosius
and which that emperor had failed to complete. He took

294

Chap. XII] THE PERIOD OP CODIFICATION [|102

the first step toward this object but a short time after the
death of his uncle, in the appointment of a commission to
prepare a collection of the statute law. The first intimation
of this first great scheme of Justinian's was contained in a
constitution addressed to the senate, bearing date, 13th
February, 528. This constitution contained no hint what-
ever of what the emperor really had in his mind beyond a col*
lection of statute laws (leges) of all that was worth preserving
in the Gregorian, Hermogenian, and Theodosian Codes, and
the later enactments of his imperial predecessors. He in-
formed the senate that he had already appointed a commis-
sion of ten members, mostly ministers of state, but including
Theophilus, who was a professor of law at Constantinople,
and two barristers of distinction. This commission was
instructed to reject all enactments that had gone into disuse
and all that they considered necessary or expedient they
were to add. This work was completed in a little more than
a year, and officially ratified under the name of Justinianeus
Codex, by a constitution of the seventh of April, 529, ad-
dressed to Menna, one of the praetorian prefects. The em-
peror declared in this constitution that the new collection
was in future to be regarded as the sole repository of statute
law throughout the empire, references to the earlier colleo
tions being expressly prohibited. Everything embraced in
this new Codex was to have the force of a general enactment
even though it had previously been addressed to an individual
and had only ranked as a rescript. In the new Justinianeus
Codex was thus gathered all the sources of law save the
writings of the jurists, as determined by Valentinian's Law
of Citations ; in other words, the emperor made laws (leges).
This task was no sooner completed than Justinian turned
his attention to the jus vetus or jurisprudential law as it was

295

§ 102] A HISTORY OP ROMAN LAW {Part I

established by Valentinian's Law of Citations. This was
excessive in bulk and unequal in quality. Moreover it was
uncertain in its meaning in some cases. The emperor
deemed it expedient that the whole should be gone over with
care and thoroughly sifted and reduced into manageable
shape. In this undertaking he was seconded by Tribonian,
who had become quaestor of the Royal Palace, and whose
name will ever be associated with that of Justinian as the
master spirit of the latter's law reforms. The emperor ad-
dressed to Tribonian a constitution in which the lines were
laid down upon which the new collection was to be constructed.
It was to embody such a selection of extracts from the writ-
ings of those of the older jurists whose authority had been
recognized by earlier- sovereigns, as would afford an exposi-
tion of so much of the law still in observance as had not al-
ready been promulgated in the recently completed collec-
tion of statutes, the Codex. To this work was to be given
the name of Digeste or Pandectse. Tribonian, who was
appointed to this task, was to associate with himself such
coadjutors as he saw fit. This commission was required,
in testimony of their strict adherence to the general design,
to insert at the head of each extract the name of its author
and the particular treatise of his from which it was taken.
The commission had a very large discretion in its choice of
materials and in its mode of dealing with them. It could
interpolate a word or phrase when it was deemed expedient,
and could omit such passages as it thought fit. In this it
is made clear that the purpose of the emperor was to publish,
not a historical view of the law, but an authoritative state-
ment of it as it then stood, which should be beyond con-
troversy, and everywhere be received as definitive.
Tribonian associated with himself sixteen colleagues, of

296

Chap. XII] THE PERIOD OP CODIFICATION [|102

whom four were law-professors, and eleven were members
of the bar. Even before they had commenced their labors
Tribonian had discovered that there were mooted questions in
the law which could be satisfactorily settled only by imperial
authority and, as the work progressed, more and more of
them became apparent. To settle these mooted questions
Justinian passed a series of enactments in the years 529 to
532 which received the name of "the Fifty Decisions."
These formed a collection by themselves before they were
finally incorporated in the second edition of the Codex.

In the preparation of this work the Tribonian commission
was divided into three sections, each of which was instructed
to extract a particular group of writings : —

(1) The first section had assigned to it the group of works

dealing with the jus civile. This was usually spoken
of as the "Sabinian group" because the chief part of
these works consisted of the writings of Sabinus and
his commentators.

(2) To the second section was assigned the group of works

dealing with the praetorian edict; the so-called
"edict-group."

(3) To the third section was assigned the group of works

dealing with separate legal questions and cases, the
"Papinian group," so called because in this branch
the writings of Papinian and his commentators
transcended all others in importance.

When the separate sections completed the portion assigned
to them, the whole was consolidated into one work ; a uni-
form self-consistent whole. This was the Digest.

While the commission was busy with the preparation of
the Digest and this was nearing completion, another work was

297

S 1021 A HISTORY OP ROMAN LAW (Pabt I

taken in hand which had been mentioned in the constitution,
entitled "Deo-auctore." This was the little volume so well
known under the name of Justinian's Institutes. This was
an elementary treatise for the use of students. Its prepara-
tion was intrusted to Tribonian, Theophilus, and Dorotheus.
Tribonian, however, was too busy with the Digest to give
active assistance to his colleagues who were men well fitted
for this task, being professors of law, the one in Constan-
tinople, the other in Berytus. This is, in fact, little more
than a new edition of the Institutes of Gaius, edited and
brought down to Justinian's time by the omission of all
obsolete laws and the insertion of necessary new material.

The Institutes were published on the twenty-first of No-
vember, 533; the Digest or Pandects followed on the six-
teenth of December in the same year.1

The completion of this great body of legal labors was an-
nounced by three separate constitutions; one, known as
"Tanta," ratifying the work, was addressed to the senate
and the world; another, known as "Dedoken" which was
but a Greek version of the first; and the third known as
"Omnem rei publicse," addressed specially to the professors
in the law-schools. The whole task had been completed in
three years by reason of the division of labor mentioned
above, and the entire positive law cast in final shape. Equal
validity was given to Institutes, Digest, and Code. The
writing of commentaries upon these works was forbidden and
all points of doubt were to be settled by the emperor himself.

1 Muirhead, loc. tit.; Sohm, 88, 90.

298

CHAPTER XIII

THE TEACHING OF ROMAN LAW BEFORE AND AFTER

JUSTINIAN1

Prior to the reign of Justinian legal education had passed
through various changes. During the republican period
success in the study of law depended wholly upon § 103.

the natural intelligence of the pupil and his dili- Teftchi,l« of

. Law before

gence in the pursuit of knowledge. There were Justinian's
no schools of law. He attached himself to a Tim*»

jurist of renown and derived instruction by imitating
the example set by him in actual practice. These practical
lessons were at times accompanied by explanations on the
part of the master, but as he received no emolument for his
services explanations were probably disconnected and meager.
From this method there grew, in course of time, the habit of
lecturing upon fundamental legal principles to such students
as cared to listen. This had become customary in Cicero's
time. In this manner theory and practice had gradually
run together. It was this method that was followed by
Tiberius Coruncanius and others, and is described by Pom-
ponius as follows ; " Huic nee amplse facilitates f uerunt, sed
plurimum a suis auditoribus sustentatus est." Cicero speaks
in keen appreciation of this method of teaching and it surely
did combine excellent qualities. This was the method adopted
in the school of Labeo, who divided his time between literary
labors and study in the country and reading law and expound-

' Ortolan, 115-128; Muirhead, 394-398; Mackenzie, 31-43.

299

§ 103] A HISTORY OF ROMAN LAW [Part I

ing the same to bis numerous studiosi in town. These were
advanced students and were dealt with in a different manner
than were those of a lower class called auditores. They
had already been admitted to practice but were still under
the direction of their master. All legal instruction was as
yet private and carried on at the home of some prominent
man who gave his services for the love of imparting the knowl-
edge of his chosen cause, and without any pay or emolument
save gifts made by appreciative students. Sabinus was
himself trained in this way and followed the same method
in giving instruction. Pomponius says of him; "Not hav-
ing resources of his own, he was chiefly supported by his
auditores." This was merely a token of appreciation on the
part of his pupils and not the payment of any fixed fee for
instruction.

Paul, Ulpian, and Modestinus may be said to represent
the close of this period in legal instruction. Modestinus, who
studied under Ulpian, and who speaks of him as 'studiosus
meus,' is the last example of any importance of this private
method of being initiated into the mysteries of the legal
profession. Henceforth law is placed on an equal footing
with philosophy and literature and its study is commenced
in the same manner. It was made free both in Rome and
in other parts of the empire, and professors of law at Rome
were exempted from the burdens of tutorship as were those
of philosophy. Schools of law were still private and re-
ceived no support from the government, but the profession
was distinctly honorable.

Toward the end of the fourth century a system of public
instruction which was independent of the private schools
came into vogue and enjoyed great popularity. In these
schools where literature and philosophy held an important

300

Chap. XIIU TEACHING OF ROMAN LAW [| 104

place law was also taught. The first school of this kind, sup-
ported by the government, was at Rome. A little later
there was founded at Constantinople a public school of the
liberal arts with thirty-one professors, of which number two
were professors of law. The emperors, from time to time,
issued rules to govern these schools, touching both studies
and conduct. In 370 a.d. a constitution of the emperors
Valentinian I, Valens, and Gratian, concerning the dis-
cipline to be observed by the students, enjoined them to be
punctual at their classes, to take care not to acquire a char-
acter in any way disgraceful or disreputable, and to avoid
associates of disreputable reputation.

When Justinian issued his directions to the professors of
law, in 533, Rome was only a nominal part of the empire
and had been, in reality, in the hands of the Ostrogoths for
nearly half a century. Still it was mentioned as if it were
the urbs regia of the olden time and classed with Constan-
tinople and Berytus as one of the places where law could be
taught with imperial sanction.

Upon the same day that the Digest was promulgated by
Justinian, which was done by the issuing of two constitutions
in Latin and Greek addressed to the senate and § 104.

the entire nation, he addressed a third to eight Teftchi,l« of

Law alter

professors of the law of the empire who were jwtbiiaii'a
mentioned by name, giving instructions as to the Time*1

course to be pursued by them and their successors in the
teaching of law. A five-year course is authorized as follows : —
" During the first year let them learn our Institutes, which
have been derived from the ancient source of the old In-
stitutes, and reduced to a simple and intelligible form by
Tribonian, a man of transcendent genius, and two of your

1 Ortolan, loc. cit.
301

§104] A HISTORY OF ROMAN LAW [Pabt I

number, Theophilus and Dorotheus, illustrious professors.
The remainder of the year is to be occupied with that which
logically follows, viz., the first portion of the laws, called by
the Greeks irp&ra (preliminary books 1, 2, 3, and 4 of the
Digest).

"The students are no longer to use the old, frivolous
appellation of Dupondii (students of the double as) ; they
will be called Justinianani novi. Let those who aspire to
the science of law bear for the first year our name, inasmuch
as the first volume of our work is placed in their hands.
They heretofore have borne a name answering to the ancient
confusion of laws; but since the laws have been presented
to them in a clear and lucid manner, it has become necessary
to exchange this name for a more honorable one.

"During the second year we sanction the use of the name
edictales, given to them in allusion to the Edict ; as students
of the Edict, they shall be instructed in this, or rather in
the seven books (De judiciis, lib. 5 to 11 of the Digest), or in
eight books (De rebus, lib. 12 to 13, of the Digest), according
to the opportunity that the professor shall have of selecting
either subject, so it be done without confusion. These books,
whether De judiciis or De rebus, must be explained completely
and in their order, without any omission whatever, inasmuch
as everything has been arranged in them in excellent order,
and nothing will be found there that is useless or obsolete.
To these let there be added four books, at discretion, taken
from the fourteen relative to specialities, one of the three
treating upon dower (lib. 23, 24 and 25 of the Digest) ; one
of the two treating upon tutelage and curatorship (lib. 26
and 27 of the Digest) ; one of the two upon wills (lib. 28 and
29 of the Digest) ; and one of the seven treating upon legacies,
fideicommissa and their accessories (lib. 30 to 36 of the Digest) ;

302

Chap. XIII] TEACHING OP ROMAN LAW [§104

the ten remaining books of the fourteen being reserved for
a convenient occasion, for it is impossible, in the second
year's course, for the professor to take the whole fourteen.

"The third year's course shall include either the books
De judiciis or De rebus, according as the professor has adopted
one or other in the preceding year. After this, three courses
of special subjects : the book upon pledges and hypotheca-
tions (lib. 20 of the Digest) ; the book upon interest (lib.
22 of the Digest, De usuris) ; the book upon the edict of
the cediles; the actio redhibitoria, evictions and stipula-
tiones dupli ; subjects which were placed in the latter part
of the Edict, but which we have transposed in order that
they may be more approximate to the subject of sale, with
which they are intimately connected. These three books
shall be taught conjointly with the reading of the most
ingenious Papinian. The students shall, in their third year,
learn to recite his works, in fragments, upon various subjects.
As to you, the illustrious Papinian will furnish remarkable
lessons, derived not merely from the nineteen books of his
responsa, but also from the thirty-seven books of his ques- '
tions, from the double volume of his definitions, from his
book upon adultery, and from almost the whole of his works
which are distributed throughout our Digest.

"In order that the students in their third year, who were
formerly called Papinianists, may not lose the name and the
ffite, the study of his works has been introduced into this
third year, for we have supplemented the book upon hy-
pothecation by the reading of the great Papinian : thus the
students, rightly deriving their name of Papinianists, in
which they rejoice, and which is to be retained, shall con-
tinue to celebrate the ffite, to which they have been accus-
tomed, upon their entrance upon the study of his laws, in

303

i 104] A HISTORY OF ROMAN LAW [Part I

order that the memory of the sublime Papinian, of pre-
fectorial dignity, may endure forever.

"During the fourth year the students shall preserve the
name derived from the Greek Xvrw (licentiates) as heretofore.
In the place of the responsa of Paul, eighteen books out of
the twenty-three which they were in the habit of reciting in
a partial and confused manner, let them learn to read fre-
quently the ten books of the specialities out of the fourteen
to which we have already referred, from which they will
derive greater benefit than from the responsa of Paul. Thus
the seventeen books which we have composed upon the spe-
cialities, forming the fourth and fifth part of our Digest, will
have been acquired by them, and from the commencement
of their studies they will have learned in all thirty-six
books ; as to the remaining fourteen books, which constitute
the sixth and seventh parts of the Digest, let them be so ex-
plained as to enable them to study them afterwards in pri-
vate, and, when required, to be able to cite them in court.

"During the fifth year, when they enjoy the name of
Prolytae, if after having been well grounded in the subjects
already indicated, they devote themselves to the reading
and thorough understanding of the constitutions contained
in our Code, they will lack nothing of the science of the law.

"Thus may they succeed in becoming great orators,
satellites of justice and powerful advocates or judges — happy
in all places and in all ages."

Henceforth Constantinople, Berytus, and Rome were the
only places where the study of law could be pursued, and pro-
fessors of law had to be licensed by the emperor. This method
was followed with considerable strictness until the fall of
the empire of the East.

304

CHAPTER XIV

PATE OP THE ROMAN LAW AFTER JUSTINIAN, AND
REVIVAL OF THE STUDY IN EUROPE

The Institutes, Pandects, and Code of Justinian were al-
most immediately translated into Greek and were in this
form used in the Eastern empire together with § I05. pat©
abridgments and commentaries. These were soon *» ***

preferred to the originals, as Greek was the uni-
versal language of the East. The emperors, from time
to time, published edicts or ordinances which modified the
law of Justinian, and subsequently a series of official
works appeared in the Greek language which gradually
displaced the Corpus Juris and caused it to become obsolete.
The emperor Basilius, the Macedonian, began the com-
pilation of a new work in 878, containing extracts from
the Institutes, the Digest, the Code, and the Novels of
Justinian, arranged according to the subjects discussed,
with the imperial constitutions and modifications of later
days. This work was in Greek and contained, when com-
pleted, sixty books divided into appropriate titles. It was
known as the "Basilica," and was completed by Leo the
Philosopher, son of Basilius, who reigned from a.d. 886 to
911.

The Roman law in this form maintained its authority till
the overthrow of the Eastern empire by the Turks in 1492.
The Basilica have not reached us entire, but in 1647 Fabrot
published them in Paris in an incomplete form. They have

305

1 106] A HISTORY OP ROMAN LAW [Pabt I

been of great importance in explaining the books of Justinian
and have been extensively used for that purpose.

The Western empire had been dismembered before the
reign of Justinian. The law-books were, consequently,
destined for his subjects in the East. In 415 the Visigoths
1 106. Fata founded a kingdom in Gaul and Spain. About
in fhe West ^e middle of the fifth century the Burgundians
founded a kingdom on the banks of the Rhone. Odoacer,
after having overthrown the empire of the West and estab-
lished himself with his Heruli as master of Italy, was him-
self overthrown and slain by the Ostrogoths, in 493, under
their king, Theodoric, who became ruler of all Italy. These
three kingdoms, established upon the ruins of the Western
Roman empire, formed legal codes of their own. The first
one to appear was the Edict of Theodoric (Edictum Theo-
dorici) published at Rome in the year 500 for the king-
dom of the Ostrogoths. It is made up of extracts from
the sources of the Roman law, dealt with in a free and
easy manner, and, consequently, is very imperfect. When
Narses finally overthrew the Ostrogoths in 553 the Edict
of Theodoric was replaced by the legislation of Justinian
and Italy was again a portion of the Roman empire.
Alaric II composed, in 506, the Lex Romana Visigothorum,
commonly called "Breviaricum Alancianum," for the benefit
of the Romans resident in the kingdom of the Visigoths. It
contains extracts from the Thcodosian Code and the Novels
annexed to it, from the two works of Gaius and Paulus,
from the Gregorian and Hermagenian Codes, and from the
Responses of Papinian. This code was in force in Spain till
the middle of the seventh century. In Gaul the code of
Alaric was also in force throughout those provinces which
the Franks conquered from the Visigoths. The Burgundians

306

Chap. XIV] PATE OP THE ROMAN LAW [5 107

also formed a code, in 517, known as the Lex Romana Bur-
gundiorum. This was the shortest and most insignificant
of them all. It was in force until 536 when the kingdom of
the Burgundians was conquered by the Franks, when it was
superseded by the Breviarium.

After the victories of Belisarius and Narses had reestab-
lished Roman rule in Italy and Africa, Justinian, by an edict
of 554, ordered his laws to be observed in the conquered
territory. Almost immediately after the pacifi- 1 107.

cation of the West, the Lombards took possession w

of the greater part of Italy, and the emperors of wholly
the East lost what remained to them — the Ex- Unknown,
archate of Ravenna — in 752, but while the Roman empire
finally passed away and barbarian nations settled down
upon the ruins, Roman law still lived and, indeed, never
lost its authority among the subject populations of the
Gothic, Lombard, and Carlovingian kingdoms. The works
of Justinian, especially the Pandects, were known and studied
in different parts of Europe long before the discovery of the
Florentine copy of this work in the sack of Amalfi which took
place in 1135.

The revival of the Roman Law as a science in Europe
corresponds very largely to the rise of the city states through-
out Italy. This is natural enough, as the move- 1^^ «*
ment carried with it a great quickening of intellec- Roman Uw
tual activity in all directions. It was at the very ta E,"op*-1
end of the eleventh century or the beginning of the twelfth
that Irnerius, who was not a jurist but a man of letters,
founded a school of law at Bologna which flourished greatly
and attracted students from all parts of southern Europe.
The early jurists connected with the school gave their atten-

v 1 Muirhead, 403-406 ; Mackenzie, 32-39.

307

i 1071 A HISTORY OF BOMAN LAW - [Part I

tion to the writing of glosses, which were short lecture notes
explaining what was ambiguous or obscure in the original
text. These glosses were collected by Accursius of Florence
and recast into something like permanent form about the
middle of the thirteenth century, and the dates of these
two men, Irnerius and Accursius, mark the beginning and
the end of the period of the Glossatores.

Irnerius obtained' the Corpus Juris from Ravenna in three
parts, known respectively as the vetus, the novum, and the
infortiatum, the last being the intervening portion between
the old and the new. The Digestum Vetus contained books
1 to 24 (tit. 2) ; the Digestum Infortiatum, and the Digestum
Novum, books 39 to the end. There was thus an omission
of fifteen books from the records of the Glossatores. That
portion of the Corpus Juris in their possession was published
in five volumes, and with this Roman jurisprudence began
a new career.

From the famous school of Bologna, the knowledge of
Roman law spread with great rapidity throughout Europe
and was largely instrumental in correcting the many absurd-
ities which prevailed at that time in the administration of
justice, due to the crudity of the ancient barbarian laws.
Vacarius, a Lombard, went to England and delivered a
course of lectures at Oxford, in 1149, thus inaugurating the
study of Roman law at that ancient seat of learning. He
found that the students were very poor and, consequently,
unable to purchase the necessary books for the pursuit of
this study. To remedy this condition of affairs he prepared
a book consisting of extracts literally taken from the Pandects
and parts of the Code, with the title; "Liber ex uni verso
enucleato jure excerpt us, et pauperibus prasertimdestinatus."
King Stephen forbade Vacarius teaching the Roman law in

308

Chap. XIV] FATE OF THE ROMAN LAW [§107

England and condemned the manuscripts to the flames,
but this had little effect and the study of the civil law was
promoted in every way by the clergy who possessed all the
learning of the times and filled all the important offices, not
only throughout the kingdom of England but throughout
all Europe as well.

The scholastic lawyers succeeded Glossatores and pushed
forward the knowledge of Roman law from the thirteenth,
to the end of the fifteenth century. Among these Odofredus,
Bartolus, and Baldus are conspicuous. For two hundred
years longer the cultivation of the science of law in Europe
was chiefly confined to the schools of Italy, where jurispru-
dence flourished by the side of literature, poetry, and art.
When Constantinople fell, exiles from that- city repaired to
Italy and raised the standard of learning, jurisprudence
benefiting by this as well as science and literature.

The chasm was thus bridged till 1550 when Cujas became
professor of law at Bourges and by his genius and scholarly
labors founded the modern historical school of jurisprudence.

309

Part Two

COMMENTARY ON THE INSTITUTES OF
GAIUS AND JUSTINIAN

CHAPTER I

FUNDAMENTAL CONCEPTS AND DIVISIONS OF THE
LAW AS FOUND IN GAIUS AND JUSTINIAN*

In Part I of this work the history of Roman Law from its
beginning to its codification has been traced with some degree
f 108. in- of care, together with the process by which this
traduction, perfected legal system was carried over, and sub-
sequently became the law of every nation in Europe. It is
now our purpose to proceed to the consideration of the sub-
stance of this law itself as it existed at the time of Justinian.
Possibly this will be best accomplished by a careful study and
comparison of the two bodies of Roman law, the Institutes
of Gaius and the Institutes of Justinian. While our minds
are occupied with this task it may be well to remember
the fact that has been emphasized again and again in pre-
vious historical discussions, that we are dealing with a body
of legal truth which forms the common basis of nearly all
the modern systems of positive law. Thus it happens that

1 Mackenzie, Roman Law, 46-72; Phillimore, Introduction to
the History of Roman Law, &-21 ; Williams, Institutes of Justin-
ian, 1-10; Hunter, Introduction to Roman Law, c. I; Hunter,
Roman Law, 1-38; Moyle, Imperatoris Justiniani Institutdonee,
53-61 ; Poste, Gaii Institutions Juris Civilis, 1-40; Roby, Roman
Private Law, 1-16 ; Taylor, The Science of Jurisprudence, 28-41,
48-191.

310

Chap. II CONCEPTS AND DIVISIONS [j 109

while we are professedly studying the laws of ancient Rome,
we are, in fact, studying general legal doctrines which, to a
greater or less extent, pervade the laws of all civilized coun-
tries. Some peculiar features of the Roman law have passed
away with the decay of the social institutions upon which
they were founded, as, for instance, those that relate to
slavery; certain features have been modified to meet the
new and more complex relations of modern life ; but so far
as modern jurisprudence moves in harmony with the rational
purpose of all law, it cannot depart from those broad and
essential truths which received a clear and scientific form in
the writings of the Roman jurists, and which have been
preserved in the Corpus Juris Civilis.

Jurisprudence, when considered in its literal sense, means
knowledge of law. The Roman jurist Ulpian, who enter-
tained very lofty ideas of his favorite study, |10^
defined jurisprudence as " the knowledge of things Jttrispm-
divine and human, and the science of right and ence#
wrong." "According to modern notions/' says Lord Mac-
kenzie, "jurisprudence is the science or philosophy of posi-
tive law — that is, law established in an independent political
community by the authority of its supreme government.
By positive law jurists understand a collection of rules, to
which men living in civil society are subject in such a manner
that they may, in case of need, be constrained to observe
them by the application of force. General jurisprudence
investigates the principles which are common to various
systems of positive law, apart from the local, partial, and
accidental peculiarities of each; while particular jurispru-
dence treats of the law of a determinate nation, such as
France or England." The term jurisprudence is used
by French writers in a technical sense to denote that portion

311

J 1KB A HISTORY OF ROMAN LAW IPabt II

of law which is founded on judicial decisions, or on the writ-
ings of celebrated lawyers; in popular use the word is fre-
quently employed as synonymous with law. It is the ideal
task of jurisprudence to satisfy the desire for unity which
exists in the human mind. It deals, therefore, with the
facts, or groups of facts, which produce juristic effects with
a view to arranging these under definite categories or concep-
tions. Thus in the place of a series of legal rules such as
we have in positive law, we have in jurisprudence a number
of abstract conceptions which are supposed, at least, to lie
at the base of all positive law.

The scientific character of Roman law is seen, not so much
in its formal arrangement, as in the fact that it is founded
• II0 upon certain principles which are at least conceived

jtwtict to be ultimate in their nature and universal in
and Uw# their application. All law, when looked at from
a rational point of view, must rest in natural justice or in
equity, which consists in doing what is right in the circum-
stances of each particular case. The Romans regarded this
principle as an essential element in the moral nature of man.
Justice was defined by Ulpian as " a constant and uniform
disposition of mind to render to every one his due." Being
a moral quality, it depends like every other moral quality
upon an intelligent conformity to the nature of things.
Judicial tribunals, however, without diving into the motives
of men, only take cognizance of their external actions, which
in a legal sense are accounted just or unjust, according as
they are or are not in conformity with positive law. By
means of this broad conception of justice, the jurist grounded
law directly upon the moral nature of man, and remotely
upon the moral order of the universe. Law was not only
based upon moral principles ; it was also conceived to be a

312

Chap. I] CONCEPTS AND DIVISIONS [§111

means for the attainment of a moral end. As a science law
discriminates between the just and unjust. So the Digest
has it ; " Jurisprudence is the science of the just and unjust."
As an art law aims to bring about that which is right and
equitable. " Jus est ars boni et aequi." The jurists did not,
however, confuse the two ideas of law and morality, but
rather regarded the purpose of the law to be the moral im-
provement of the individual. Law must be prompted by
a constant and perpetual disposition to render to every one
his right, although it may not create in the subject a truly
moral respect for the rights of others. It is, as Cicero says,
" right reason conformable to nature, whose commands urge
us to duty, and whose prohibitions restrain us from evil.
Whether it enjoins or forbids, the good respect its injunc-
tions and the wicked treat them with indifference. . . .
In all times and nations, this universal law must forever
reign eternal and imperishable." The Romans, by thus
perceiving in law an ethical principle, were able to construct
their jurisprudence upon a rational, instead of a merely empiri-
cal basis.

When the law is considered in the broad ethical sense
which has been indicated above it is called natural law, or
the law which the natural reason has constituted § IIX-

for all men (jus naturale or jus gentium), in tnd Poai_
opposition to the civil or positive law which th* Uw.
derives its binding force from the authority of some par-
ticular State (jus civile). It is true that the great body of
positive law is in theory drawn from the sphere of natural
law. In this way the natural law furnishes the under-
lying basis of positive law, so that, although the provisions
may differ in different States, the essential portions of the
law are yet derived from the natural precepts of justice, and

313

§111] A HISTORY OP ROMAN LAW [Pabt II

are for the most part recognized by the common sense of
mankind.

Although there is much ambiguity which sometimes
attaches to the term jus gentium, the proper distinction
between natural and positive law is very clearly indicated
in the writings of the Roman jurists. This distinction
depends not so much upon the content of the law as upon
the authority by which it is enforced.1 All those rules of
conduct which are universally binding upon men and are
sanctioned by the dictates of right reason belong to the do-
main of natural law. On the other hand, the rules of con-
duct which are prescribed and enforced by the sovereign
power of the State belong to the domain of positive law.
This can probably be better understood by citing a few cases
in which this welding of natural and positive law has taken
place. To do this we will refer for a moment to the law of
obligations which will subsequently be considered in full.
These obligations were divided into two classes according
to the degree in which they were recognized by civil law : —

A portion of jus naturale was recognized as a ground of
action. To this class belongs : (1) Simple or formless
contracts to which we have already alluded. (2) Obli-
gations to indemnify, founded upon delict. (3) Right
(quasi ex contractu) to recover property when it has
been lost by one side and gained by another without
any legal right. In any of these three cases the obli-
gation, though naturalis as founded in jus gentium, as
actionable, was said to be civilis obligatio. Civil obli-
gations were those which were actionable under civilis
actio.

1 Moyle, 27-30.
314

Chap. IJ CONCEPTS AND DIVISIONS [§112

Other rights and obligations of the jus gentium were not
admitted as direct grounds for maintaining an action,
yet were otherwise noted by the institutes of civil
jurisprudence and enforced. Of this we might cite
many examples. The following will suffice: (1) On
payment of money which has been paid naturalis, the
person paying could sustain an action for recovery on
the ground of payment made in error ; the defendant
could meet a claim by oompensatio, i.e., cross-demand or
set-off of a debt that merely rested upon natural obliga-
tion. For instance, A pays one hundred oriee to B in
mistake. What can he do ? He can bring an action
for repayment of the money and in this way recover it.
(2) A pays B one hundred oriee in mistake and brings
suit for the recovery of the money. But A owes B fifty
oriee by a merely naturalis obligatio. B can cross-demand
or set-off A's claim and require the payment of the fifty
oriee which he holds against A, although he could not
have had in that circumstance any base for an action.

Having reached the conception of positive law as a body
of rules founded upon natural justice and sanctioned by
State authority it becomes necessary next to fzza.

consider the modes in which this sanction is ex- Written

andfJn-

pressed. In other words, what are the sources written
from which the law derives its positive character ? !*w-

This question has already been answered by the statement
that laws were instituted by the popular assemblies, by the
senate, by the preetor, by privileged jurists, and by the em-
peror. Such were written laws. We have also mentioned
another source, custom or unwritten law. It is unneces-
sary to consider these any further.

315

li 113, 114] A HISTORY OF ROMAN LAW [Pabt II

Besides the distinction already drawn between written and
unwritten law, founded upon their sources or the methods
1 1X3# p^ in which they were sanctioned, the positive law
He and Pri- (jus civile) was also divided with reference to its
**la w* subject matter into public and private law (jus
publicum et jus privatum). The former was defined to be
that which pertains to the Roman State; the latter, that
which pertains to the interests of individuals. More spe-
cifically! the public law includes all those regulations which
have reference to the organization and administration of
the government whether in its religious or political character.
The private law, on the other hand, comprises all those
provisions which determine the rights and duties of persons
with reference to each other ; as the right of property, of
contract, of personal security, of obtaining redress in cases
of injury, etc.

The most important division of the Roman law, and that
which forms the basis of its logical treatment, had reference
i 114. Tn« to the character of the rights secured by the State
jfV** *° tta subject. Every legal right when conaid-
Thtng8,and ere^ in its fullest and most complete sense may
Action*, be said to involve three distinct elements : (1) A
certain degree of legal capacity on the part of the subject by
whom it is exercised. (2) A certain degree of legal con-
trol over the object with reference to which it is exercised.
(3) A certain degree of legal authority involved in the sanc-
tion or remedy by which its validity is insured.

Although a general legal right cannot be regarded as
complete without all these elements, it may yet be re-
solved into subordinate specific rights according as it is
viewed with reference to its subject, its object, or its sane*
tion. This furnishes the basis for the division of the

316

Chap. I] CONCEPTS AND DIVISIONS [§115

treatment of private law which has been adopted by Gaius
and Justinian, into (1) De Personis, (2) De Rebus, and (3)
De Actionibus.

(1) Rights may thus be considered, in the first place, with
reference to the person, or subject, by whom they are exer-
cised. Thus we may speak of the right of a freeman, of a
citizen, of a father, of a son, of a husband and wife, of a
guardian, etc. These rights, relating to persons as such,
and referring to extent of capacity which the law * "5-
recognizes on the part of the subject, are treated ^ ^Y9a
in the law of persons, jus ad personas, jus per- by Gains,
sonarum, jus de personis. Gaius * divided De Personis into
seven groups as follows : —

Manus

Potestas

Tutela Mulierum

Tutela Impuberum

Mancipium

Servus

Curatila

Of these, three had disappeared before the time of Justinian ;
Manus, mancipium, and tutela mulierum.- In modern
times two out of the remaining four have vanished,- —
servus, and potestas.

(2) De Rebus, or the law of things, is divided by Gaius
and Justinian into three groups or divisions as follows : —

Dominium

Hereditas

Obligatio

i Gaius, II, 97-100; Justinian, II, &-16.

317

i 115] A HISTORY OF ROMAN LAW [Pabt II

(3) De Actionibus, or the law of procedure, passed through
many changes between the time of Gaius and Justinian,
The analysis will be given subsequently.

This division of the private law, as given by Gaius and
Justinian, has been made the subject of severe criticism by
modern jurists. Many attempts have been made to form
a new classification which would not involve the defects
that are charged against the Roman method. German
writers have reconstructed the entire Roman law upon a
plan to suit themselves with varying degrees of success.
Still, it may be seriously questioned whether any recent
division is more natural or convenient than that. followed by
Gaius. For the purposes of this work it seems better to
adhere to the method of classification followed by our au-
thorities than to attempt any new or more modern scheme."

318

Book I. THE LAW OF PERSONS

CHAPTER II
PERSONS AND THEIR CIVIL CAPACITY*

The exposition of the Roman law properly begins with
the description of persons as a subject of rights. In the
Institutes of Gaius and Justinian this is regarded as neces-
sary to the understanding of the other portions of the law.
In the application of the law to a given case it is first neces-
sary to ascertain the legal capacity of the person who lays
claim to a given right. It is, therefore, necessary to con-
sider the various classes of persons as regards their legal
capacity.

To be a 'person/ within the meaning of Roman private
law, is to be capable of holding property, of having claims,
and of being subject to liabilities. Hence a person, . Il6#

in the sense of private law, is a subject endowed ' Pmon '
with proprietary capacity. All persons are con- **■■»*•
sidered as capable of enjoying civil rights, but not all in the
same degree. Individuals differ from each other in their
natural and social qualities, from sex, birth, age, state of
mind, and a variety of other circumstances, which are made
the grounds of peculiar privileges or disabilities. In review-
ing the principles of the law regarding persons, it is necessary
at the outset to attach a definite notion to the term person
(persona), and also to understand how, in general, legal

1 Hunter, 160-194 ; Mackenzie, 77-82 ; Roby, 16-24.

319

§ 117] A HISTORY. OP ROMAN LAW [Part II

personality is affected by the possession and loss of civil
status.

According to the popular meaning the word ' person' is
applied to any human being without regard to his condi-
tion or capacity. In a legal sense those only are looked
upon as persons who possess the capacity of assuming the
rights and duties which are sanctioned by the State. In the
sense of the Roman law the term 'person' may be defined
as "a being, whether abstract or concrete, real or ideal,
whether physically existing or a mere creature of the law,
capable of becoming the subject of legal rights and duties."
Thus slaves have no person; corporations have.

The entire Roman world consisted of two classes of human
beings, freemen and slaves.1 Freemen were of two classes,
I X17 either born free, or made free by release from law-

Penoni fu] slavery. This last class were usually called
citiffifM. liberty ^ freeborn Roman, although captured
and enslaved by others, by a liberal interpretation of law,
resumed his original rights and position, in so far as pos-
sible, on his return to Roman territory. He did not, as might
be supposed, become a libertus.

Freemen, in the broad sense of the term, were either Roman
citizens, Latins, foreigners, or dediticii.

Roman citizens had full control over their children, could
make a valid will, be appointed guardians by will, be wit-
nesses to a will ; they could hold and deal with all kinds of
property, and vote and hold office in Rome.

Latins were originally merely the inhabitants of Latium,
but the term was afterwards applied to members of certain
colonies established by the Roman government, although
members of such colonies were very frequently originally

1 Roby, 18.
320

Chap. II] PERSONS ; THEIR CIVIL CAPACITY [§ 118

Roman citizens. They had rights of intermarriage and com-
mercial dealings with Romans, only when specially granted
by treaty or by statute. Some of these Latin colonies en-
joyed the rights of mancipation and inheritance with Romans.

Foreigners (peregrini) may be briefly defined as freemen
who were not either Roman citizens or Latins. They were
not regarded by the Romans as having such full rights over
their children as Romans had. The Romans carried on
business with these foreigners according to what they were
pleased to call the law of the worlct (jus gentium). For-
eigners, dwelling within the boundaries of the empire, usu-
ally enjoyed many of the privileges of Roman citizens (their
lands were held ex jure Quiritium and they enjoyed com-
mercium and factio testamenti), but these privileges they
held by treaty or statute.

Dediticii were foreigners who had been engaged in war
against the Romans and had surrendered at discretion with
arms in their hands. They occupied the lowest place in
the rank of freemen.

Slaves were human beings held and treated as articles of
property, like intelligent animals. They had no legal rights
whatever. Persons became slaves principally by reason
of capture in war, or by birth from a slave mother. There
were some other special cases that will be hereinafter con-
sidered.

While every legal person must possess a certain degree of

legal capacity, the extent of this capacity is not the same for

all.1 In spite of all human efforts to equalize §n8.

the rights of men, there still remain certain Stetui.

distinctions which seem involved in the very structure of

society and even in the necessities of nature. Although the

1 Mackenzie, 77 ; Moyie, 81, 84, 146.

321

5 118] A HISTORY OF ROMAN LAW [Part II

theories of Roman jurists were exceedingly liberal, the Roman
law still imposed legal disqualifications upon certain members
of society. In general, the extent of one's legal capacity
depended at Rome upon his civil position or status. Status
is any set of rights and duties that a person acquires in any
given character. Among human beings the theory of Roman
law distinguishes three kinds of status or degrees of legal
capacity among men : (1) status libertatis, according to which
men are either free or slaves ; (2) status civitatis, according
to which freemen are either Roman citizens or aliens; (3)
status familise, according to which a Roman citizen is either
a pater familias, a filius familias, or filia familias. A person's
capacity, in the eyes of the law, depended, in the first place,
upon whether he was a freeman or a slave; in the second
place whether he was a citizen or a foreigner, and in the third
place, whether he was independent of paternal authority or
dependent upon it. If a man were free, he was relieved from
the severe and almost absolute disqualifications which rested
on a slave. Besides being free, if he were also a citizen, he
was not burdened with the civil disabilities which rested
upon a foreigner. If he, besides being a freeman and a citi-
zen, were independent, he was not subject even to the lighter
incapacities which rested upon the dependent members of
the household. It was only the free and independent Roman
citizen who possessed the full capacity of exercising all the
rights guaranteed by the law.

The loss of this status was called capitis deminutio. As
a person might possess one or more of the elements of status,
so he might lose one or more. The loss of freedom involved
the loss of citizenship and of family rights, and was called
maxima capitis deminutio. The loss of citizenship did not
necessarily involve the loss of freedom, but it carried along

322

Chap. II] PERSONS; THEIR CIVIL CAPACITY [8119

with it the loss of domestic position, and was called media
capitis deminutio. The loss of domestic position involved
the loss of nothing more than the right growing out of one's
previous domestic relationship. It was called minima capi-
tis deminutio. It will be seen that the possession of the lower
status involves the possession of the higher, and the loss of
the higher, involves the loss of the lower.

There were five modes of suffering capitis deminutio that
were in vogue in the time of Gaius but which had become

obsolete before the time of Justinian.1 These

fiip-
were: — ModMof

Stnfofiflg

(1) Nexus or self-sale. This has already been Capita
explained. D—fc

(2) Insolvent debtors who were adjudged by the praetor

under the law of manus injectio to the creditors.
Gaius says that a debtor was allowed a period of
thirty days in which to discharge a judgment debt
before he could be arrested. In case he did not pay
the debt within the specified time, or find a vindex
to dispute it, he was arrested and carried off in
chains. At this point of the process he was said
to be addictus, in arrest, but not in slavery. If re-
leased, he did not become a libertus, but retained
his status as ingenuus, as if he had been subject to
no prosecution.

(3) Fur manifestus, or thief caught in the act. This was

by the Twelve Tables a capital offense if the fur
manifestus was a slave, but if he was a freeman he
was adjudged a slave to him from whom he had
stolen. The Praetorian Edict substituted, whether

»Roby, 41-44; Mackenzie, 82. 83.

323

1 119] A HISTORY OF ROMAN LAW [Pabt II

the theft was by a slave or a freeman, the payment
of fourfold. (Cf. Spartan idea of theft).

(4) Evasion of military service.

(5) In the case of a man who omitted to have his name

placed upon the tax roll in the table of the Census
as a freeman in order to defraud the revenue.
(The Census was taken every five years during the
republic, but ceased during the empire early in the
second century a.d.)

Three ways of suffering capitis deminutio existing at the
time of Justinian but abolished by him : —

(1) Servi poense, or persons condemned to labor in mines

or to fight with wild beasts in the arena, became eo
ipso servi poense, slaves of punishment with no
master. These were somewhat in the position of
penal servitude in England. Justinian, in a novella,
abrogated this class and prohibited the infliction of
slavery as a punishment for crime.

(2) Dediticii. These were enemies who surrendered at

discretion with arms in hand. They were not re-
duced to slavery, but to a condition quite analogous.
They were not allowed to make a will, or to take
' under one ; they never obtained Roman citizenship,
and they could not come within one hundred miles
of the city of Rome.

(3) When a free woman persisted in intercourse with a

slave against the will of the master, and in spite
of him, under provision of a Senatus Consultum
Claudianum, after three denunciations in the pres-
ence of seven witnesses on the part of the master,
she was awarded to him as his slave, and her issue,

324

Chap. II] PERSONS ; THEIR CIVIL CAPACITY [5 119

whether born before or after the adjudgment, were
slaves. The master also acquired the estate of such
a woman by a species of universal succession. If,
however, the owner winked at this act on the part of
his slave, then the woman retained her status and her
children were free. This enactment was abrogated
by Justinian.

Three ways of suffering capitis deminutio retained by
Justinian : * —

(1) Capture by the enemy. The capture must take place

in actual war by belligerents. To be captured by
pirates or brigands was not considered a legal cap-
ture and had no effect upon the status of the person
so taken, but actual capture by the public enemy or
surrender to them, makes a man, if brought within
their territory, their slave. If such a captive re-
turned to his own or to a friendly country with no
intention of going back again to the enemy, he re-
sumed his rights and status as before captivity, in
so far as possible. This reversion was called the jus
postliminii, 'the law of recrossing the threshold.'
If he died in captivity, he was deemed to have died
when captured and, consequently, in the condition
of slavery. Whatever property he possessed at the
time of his capture would in this case revert to the
fisc, as a slave could have no heirs.

(2) An ingratus libertus ; when a slave set free showed gross

ingratitude toward his patron during the republic a
recession of liberty was unknown. In the time of
Nero the utmost severity that could be inflicted

1 Moyle, 146 et *eq., 172-174.
325

A HISTORY OP ROMAN LAW [Part II

relegated into slavery a freedman who had been
grossly ungrateful. Claudius ordered such a person
who had brought a false charge against his former
master again to become slave to his patron. The
emperor Constantine established a law even more
severe than that of Claudius. He enacted that for
slight breach of duty a libertus might be taken back
into slavery, although a mere want of reverence was
not sufficient to cause a forfeiture of liberty.
(3) The fraudulent sale of a freeman. This was in the
nature of a conspiracy to defraud the purchaser
and divide the purchase money. A and B enter
into such conspiracy. A sells B to C. B then says,
"I'm not a slave, I am a freeman." Freedom was
not rashly taken away and it was only when the
following four conditions were fulfilled that this
punishment followed : (a) The person sold must not
be under twenty years of age. However, if a man
just under twenty sells himself and after he becomes
twenty takes part of the purchase money thus be-
coming a party to the fraud, he becomes a slave.
(6) The person sold must have entered into the sale
with intent to defraud. If, however, he repents and
restores the money, he is not remanded to slavery.

(d) The buyer must have been ignorant of the person
sold being a freeman. These four conditions being
fulfilled, the ingenuus became servus.

326

CHAPTER HI.

CAPUT (STATUS) LIBERTATIS

As has been previously stated the Roman world of mankind
consisted of freemen and slaves. Freemen were of two
classes, either born free, or made free by release f no.

from lawful slavery. The further discussion of Freemen,
freemen together with their rights, privileges, and duties will
be discussed under a separate head.

At the present time, in this country, labor is voluntary and
rests upon contract. The authority of the master over the
servant, therefore, extends no farther than is §iaXi

permitted by the terms of the contract. The simw.i
question of slavery has for us merely an historical interest,
but it enters so deeply into the public and private life of the
Romans that it becomes necessary to give some attention to
its origin and character. In principle, the Roman jurists
were. wont to acknowledge that all men were originally free
and equal by natural law. They ascribed the power that
masters were wont to make use of over their slaves entirely
to the law and general custom of nations. They made no
claim as to its ultimate righteousness. They accordingly
defined slavery as follows : " constitutio juris gentium, qua
quis, dominio alieno, contra naturam, subjicitur."

Among the Romans slavery originated in three ways : (1)
Prisoners of war were considered the absolute property of the
captors, and were either retained for the service of the State

1 Roby, 19-21 ; Mackenzie, 93.

327

122, 123J A HISTORY OP ROMAN LAW [Part II

and employed in public works, or were sold by auction, sub
corona, as parts of the plunder. Very frequently captives
1 122. were ass^Sne(l to individual soldiers and were sold

Origin of by them as part of their pay for mifitaiy service, to
sl*Tefy' slave dealers who always accompanied a Roman
army. (2) All the children of female slaves followed the
condition of their mothers, and belonged to their masters,
according to the principle applicable to the offspring of the
lower animals, — Partus sequitur ventrem. Slaves that were
born in the house of the master were called vernse, as opposed
to those that were acquired by purchase or otherwise. (3) By
judicial sentence Roman citizens might be condemned to
slavery as a punishment for heinous offenses, like the galley
slaves of modern times. According to strict Roman law
a Roman could not be the slave of another Roman. The
Twelve Tables permitted an insolvent debtor to be turned
over to his creditor in chains, but required that the debtor
be sold abroad or trans Tiberim.

In the early ages of the republic the number of slaves was
very small, Romans performing all the labor incident to their
I "3. frugal method of life themselves, but after their

of su conquests had extended beyond the boundaries of

at Rome. Italy, the influx of captives became very great,
and slaves were sold by dealers in the public market and
ofttimes at a very low figure.1 Gradually it came about
that a very large portion of the wealth of the Romans con-
sisted of slaves. Among these were skilled artisans whose
labor yielded a highly profitable return. Physicians, school-
masters, artists, actors, hotel keepers, and scribes were for the
most part slaves and carried on their various callings for the
benefit of their masters rather than for themselves. All

1 Mackenzie, 94 ; Roby, 53-57.
328

Chap. Ill] CAPUT (STATUS) LIBBRTATIS [§123

slaves were under the power of the master. Slavery, indeed,
destroyed the dignity of man and placed him, in the eye of
the law, on a level with the beasts of burden. A slave was,
therefore, a human being who was legally not a person but a
thing. Whatever a slave acquired belonged to his master,
and he could transfer it, like other goods and chattels, by
sale, gift, or legacy, to any one he pleased. During the entire
period of the republic, and for some time under the empire,
the master had the absolute power of life and death over his
slaves, but it became necessary to put a check upon this author-
ity in order to stop the wanton cruelty of some masters towards
- their slaves. In the Augustan age Vedius Pollio ordered one
of his domestics to be cast into his fish-pond to feed his
lampreys because he had broken a crystal goblet that the
master cherished. By a constitution of Antoninus Pius a
master who willfully put his slave to death was declared to be
guilty of murder and punished accordingly. The same em-
peror issued a rescript to protect slaves from wanton cruelty
and oppression, directing the governors of provinces to inquire
into the complaints of all slaves who took refuge in temples,
or at the statues of the emperor which were placed in all the
principal towns, and if it appeared that they had been treated
with unreasonable severity to order them to be sold, so that
they would never again fall into the hands of the same
master. By these and similar measures the condition of slaves
was in some degree ameliorated, and we must not forget that
there were very many kind masters who treated their slaves
as if they were equals and provided for them in their old age.
But the master still retained a power of correction over them,
which was substantially unlimited and which led to great
abuses.
The coloni composed the agricultural class under the em-

329

it 124, 125] A HISTORY OP ROMAN LAW [Part II

pire.1 Their origin was obscure, but by the end of the second
century a.d. they had become very common. They occu-
§124. Pied an intermediate position between freemen

Colon! or and slaves. They were classified as freemen but
Serf*" were attached to the soil for the purpose of cul-

tivation and were transferred along with the land when it was
sold. The first mention of coloni in the codes is by the emperor
Constantine where there is an enactment for their recovery in
case they ran away and an imposition of a fine upon any one
who harbored them. A colonus was a real right, a jus in re.
He was, like a slave, considered as stealing his body from his
master if he ran away. He was distinguished from a slave
and classified as ingenuus, but he could not move and take up
his residence anywhere he chose nor could his master trans-
port him. When the land was sold he went with it. Coloni
paid a fixed rate of rent for their holdings and were in a
position somewhat akin to ancient copyholders in English
law. They could marry and have control over their children ;
thus they were regarded as persons capable of enjoying certain
rights, but they could not dispose of their effects without the
consent of their master and they were subject to chastisement
at his hands.

Manumission was the process by which a slave was set
free from the authority of his master. Masters were thus
I us. entitled to give liberty to their slaves. In ancient

Manumit- times this was usually done in three ways: (1)

■ion.'

Manumissio vindicta, (2) Manumissio censu, and
(3) Manumissio testamento.

(1) Manumissio vindicta was the oldest form of manumis-
sion in use. This was accomplished by taking advantage of

1 Mackenzie, 95.

>/***., 98; Roby, 30-35; Hunter, 157-168.

330

Chap. IIIJ CAPUT (STATUS) LIBERTATIS [8126

the in jure cessio of the Servian reforms. A third party,
in the presence of the praetor, placed his rod (vindicta) on
the slave and at the same time claimed him as Modes of
a freeman (vindicatio in libertatem). The mas- M*01"0^

•ion during |

ter admitted his freedom and the praetor accord- the Re-
ingly declared the slave free. This was merely public

a fictitious action at law. Subsequently the forms of an
action were dropped and all that remained was the declaration
by the master, in court, of his desire to enfranchise his slave.

(2) Manumissio cenm. The censor could make any one a
citizen of Rome by the simple process of entering his name upon
the census roll, and this plan was made use of in the process
of manumission. The master accompanied his slave whom
he wished to set free to the censor and allowed him to set
up the claim of being a freeman (professio libertatis) and
having his name entered by the censor upon the census
roll. This was the only formality necessity. The slave
thus immediately became a freeman and a citizen by a single
stroke of the pen.

(3) Manumissio testamento. The master could either
bequeath a slave his liberty directly, thus making him a
f reedman without any living patron, or he could impose on the
heir an obligation to manumit him, in which latter case he
became the freedman of the person by whom he was manu-
mitted. In such a case the slave did not become free by vir-
tue of the will, but only when the heir carried out the trust
and performed the act of manumission.

The forms mentioned above were all in use during the re-
public. Manumission was during that entire period wholly
formal. The State was represented either by a magistrate
(praetor, or censor) or assemblies, as a consenting party to the
manumission. It was further necessary that the owner who

331

§ 125J A HI8T0RY OP ROMAN LAW [Part II

desired to manumit his slave must have full right in the slave
ex jure Quiritium. If both these conditions were conjoined
it had the effect of making the slave at once free and a Roman
citizen. For the slave to obtain freedom alone it was not
necessary for both of these conditions to be met. If the
owner was not full owner, or if the ceremony was private and,
consequently, lacked the full sanction of the State, the slave
became free, but he did not become a Roman citizen, and at
his death his property fell to his master. However, the master
could not again reduce him to a state of slavery.

Within the first years of the empire some special conditions
were added to emancipation by means of the lex ;Elia Sentia,
a.d. 4. These were as follows : —

Additions (l) The slavemust not be of an infamous charac-

ficatfonsto ter; otherwise he becomes a dediticius

Manumit- and not a freedman and citizen.

mJ!1^, e (2) The manumissio must not be in fraud of

Time of x '

Justinian. creditors; otherwise it is wholly void

and the slave instead of becoming free
remains statu quo.

(3) The master who desires to manumit his slave must be

at least twenty years old unless he manumits upon
a cause approved by the council at Rome, or by the
twenty recuperatores, in case he is resident in one of
the provinces. Otherwise the action will be void.

(4) The slave must be thirty years of age or be accepted by

the council at Rome as a proper person for manumis-
sion.

The lex Junia-Norbana which was passed in a.d. 19 created
a new class of freedmen out of those who had been previously
considered free by the praetor but not admitted to citizenship.

332

Chap. Ill] CAPUT (STATUS) LIBERTATIS [5 126

These were called Latini Juniani. By this law they were
given such rights and privileges as were bestowed upon
Latin colonists. Later, by a special enactment, they had
the full rights of citizenship bestowed upon them.

Constantine's legislation added a fourth mode of manu-
mission, namely manumissio in ecclesia. In this form the
master made a declaration in the presence of the bishop and
congregation of his desire to emancipate the slave, and the
slave was thereby manumitted and became not only a freed-
man but a Roman citizen.

Justinian abrogated the lex JSlia Sentia and the lex Junia
Norbana and altered the restrictive laws entirely. changes
The conditions of effectual manumission were now made by
four in number and were as follows : l — '

(1) The person manumitting must be the owner.

(2) The person manumitting must be at least twenty years

old, unless he manumits by will ; this he could do
when but seventeen and later, by a novella, when
but fourteen, if done in anticipation of death.

(3) Manumission must not be in fraud of creditors.

(4) The manumission must be by some recognized and

established authority.

By these changes brought about by Justinian's legislation,
a slave when made free became a citizen in all cases. All
restrictions were abolished in regard to age and character, and
there henceforth existed but one class of freedmen. Justinian
even went farther than this and practically washed out the
distinction between a freeman and a freedman by allowing the
latter to wear the gold ring which had always heretofore indi-
cated free birth as well as gentility.

1 Justinian, I, 6, 4 ; Gains, I, 206.

333

§ 125] A HISTORY OF ROMAN LAW [Part II

(1) In addition to the formal modes of manumission al-
ready given, there grew up sometime within the early empire
informal an orai declaration of freedom in the presence of
ManumL- witnesses.1 This appears to have been the oldest
8km. form of private mancipation inter amicos. Jus-
tinian recognized this form of manumission but required the
number of witnesses to be five and requested the declaration
to be subsequently written out and attested by the witnesses
or by the magistrate for them.

(2) Manumission per epistolam or by letter. This form
of manumission was in vogue as early as the time of Cicero
and became very common during the empire. Justinian
recognized this form also but required the attestation of five
witnesses.

(3) Ostentation at funerals. Romans were very fond of
display at funerals, and deemed it a special mark of distinction
that the deceased should be followed to the grave by as large a
number as possible of slaves wearing the cap of liberty, thus
bearing testimony to the generosity of their former master.
It had become customary on such occasions to have all the
slaves of the f amilia march in the procession with heads deco-
rated with these emblems of liberty. Subsequently these caps
were snatched from their heads and the slaves remanded to
their previous condition. This grew to be such an abuse
that a law was enacted that slaves wearing the cap of liberty
at the funeral of their master, whether by the request of the
deceased or by the consent of the heir, should be free eo ipso.

(4) A female slave who had been given a dos by her master
and united in marriage to a freeman became by that act free
without any formal enactment; but it was necessary for
her to have a written statement of the dos.

1 Moyle, 109.
334

Chap. Ill] CAPUT (STATUS) LIBERTATIS [8125

(5) If a master gave the deeds of a slave to him, or destroyed
them in the presence of five witnesses, the slave became free
without any further enactment.

It is well to note that there .was one exception made to
the law that no one could manumit in fraud of creditors. If
insolvent, a master could manumit his slave in order to set
him free by will and appoint him his agent, or solus et neces-
sarius heres. If he did not so provide, difficulty would arise
in the settlement of the estate and the division of it in a proper
way among the creditors, as no heir would enter upon the
estate in case the deceased owed more than he possessed, as
the law would require him to pay all debts in full.

335

CHAPTER IV
CAPUT (STATUS) CIVITATIS

In our own times the importance of citizenship is confined
chiefly to matters of public law, such as the franchise, the
I sa& liability to taxation, etc. In ancient law, however,

c^k*"*1 citizenship is, at the same time, a most decisive
element in determining the extent of a person's private
rights. A civis is a Roman citizen, i.e., a man who, in the
eye of Roman law, has full legal capacity in matters of public
law (jus suffragii et jus honorum) and who alone has full
legal capacity in matters of private law (jus commercii et
jus connubii). His capacity is recognized not only by the
jus gentium, but also by the jus civile. "In the free re-
public/' says Savigny, "there were two classes of Roman citi-
zens, one that had, and another that had not a share in the
sovereign power. That which peculiarly distinguished the
higher class, was the right to vote in a tribe, and the capacity
of enjoying magistracies." According to the view of this
writer, those who had the suffrage at public elections and also
access to the honors of the State, were full citizens, — cives
optimo jure ; while those who had the civil rights of Romans
without the special privileges named, were citizens of an in-
ferior class.

In its full sense, citizenship embraced both political and
civil rights. Under political rights it comprehended partio

3 Mackenzie, 83-85 ; Roby, 21-24.

336

Chap. IV] CAPUT (STATUS) CIVITATIS [5 126

ularly the right of voting in the comitia, and the capacity
of enjoying magistracies. These were known in the Roman
law as jus suffragii *et honorum. But political rights were
not held to constitute the essence of citizenship, Privileges
as these were not enjoyed by many of the of Citizen-
free-born subjects of Rome. Further, in the *

early republic, plebeians, although classified as citizens and
free, did not enjoy these privileges. That which essentially
distinguished the Roman citizen was the enjoyment of the
civil rights of connubium and commercium. By virtue
of the former the citizen could contract a valid marriage
according to the tenets of the jus civile, and acquire the
rights resulting from it, and especially the paternal power
and the civil relationship called agnation, which was long
necessary to enable him to succeed to the property of a
person who died intestate. By reason of commercium he
could acquire and dispose of property of all kinds, according
to the forms and with the peculiar privileges of Roman law.
He could sue and be sued in a Roman court and receive in
all cases the full protection of the civil law.

In accordance with the terms of the Porcian law, De
capite et tergo civium, which was passed in the year 256 B.C.,
a Roman citizen could not be scourged or put to death with-
out the right of an appeal to the centuries, so that his person
was in a manner sacred. We have a very remarkable example
of the application of this law in the history of St. Paul, who
asks the centurian, " Is it lawful for you to scourge a man that
is a Roman, and uncondemned ? When the centurian heard
that, he went and told the chief captain, saying, Take heed
what thou doest ; for this man is a Roman."

There were three ways of acquiring Roman citizenship;—
by birth, by grant, and by manumission.

337

{ 126] A HISTORY OF ROMAN LAW [Pabt II

Citizenship by birth.1 Citizenship was primarily acquired
by being the child of a Roman father by a lawful mar-
The Acqni- riage (justis nuptiis, justo matrimonio). Touch-
a**on * ing the matter of nationality, if the mother was

Citizen- #

ship. not a Roman, she must be a citizen of a place

or class recognized by Rome as being on an equality for
purposes of marriage. If there was connubium the child
followed the condition of the father at the time of its con-
ception, but if there was no connubium between the parents
the child (in accordance with jus gentium) followed the
condition of the mother at the time of birth. In accordance
with this law, if the mother was a Roman citizen and the
marriage irregular her child became a Roman citizen, no
matter what the status of the father was.

Citizenship by grant.2 It early became a custom of Rome
to grant as a special privilege her citizenship to whole com-
munities. This was done as a special mark of favor. Upon
the conclusion of the Social war Roman citizenship was in
this way given by the terms of the lex Julia (90 B.C.) to all
such municipia within Italy south of the Po as assented to
the grant. Many other examples of this granting of citizen-
ship to communities might be cited from the history of
Rome.

Individuals also sometimes obtained Roman citizenship,
the grant being made by a victorious general, later by the
emperor. Special instances of this were the grants made to
veterans upon their discharge. This was very common.
In case they were foreigners, they obtained citizenship for
themselves, their children, and their descendants, together
with the right of connubium. If they were already Roman
citizens, the grant carried with it the privilege of intermarriage

1 Roby, loc. cit. > Roby, 21.

338

Chap. IV] CAPUT (STATUS) CIVITATIS [§126

with foreigners, and consequent Roman* citizenship for the
children.

The emperor Caracalla, in a.d. 212, granted Roman
citizenship to all persons throughout the Roman world (in
orbe Romano qui sunt). This was of course to all persons
who were free at that time. This grant was no doubt
dictated by financial considerations, in order to increase
the number of persons liable to the death-duty of five per
cent, or as Caracalla made it, ten per cent on all inheritances.
This, together with the ordinary capitation tax, would make
quite an addition to the imperial income.

Citizenship by manumission. Slaves had no civic position
whatever, as they were members of the family and not of
the State, but their manumission was a matter of State con-
cern, as by this they became citizens. The State, therefore,
always made itself a partner to the emancipation of slaves
in order that it might have some control over the number and
quality of its citizenship. This question has already been
sufficiently discussed.

339

CHAPTER V

CAPUT (STATUS) FAMILY)*

Evert Roman citizen is either a pater familias or a filius
familias, according as he is free (homo sui juris) or not free
from parental power. " Pater familias is the generic name for
a homo sui juris, whether man or woman, child or adult,
married or unmarried; filius familias is the generic name
for a homo alieni juris, whether son or daughter, grandson
or granddaughter and so on." So far as the public law is
concerned, the distinction made above between pater familias
and filius familias is of no importance whatever, as a filius
familias, provided he has all other necessary qualifications,
is as much entitled to vote in the comitia and to hold public
offices as a pater familias. This confines the effect of this
distinction to the private law. The filius familias is en-
titled to the jus commercii and the jus connubii as much
as the pater familias, as he is as much a Roman citizen as
his father. According to the civil, law, therefore, he can
» make contracts, acquire ownership, be instituted testamen-
tary heir, contract a valid marriage, etc. "But whatever
a filius familias acquires he acquires for the pater familias.
Whatever rights he acquires, be they rights of ownership or
obligatory rights, nay, the very marital powers over his
own wife and the paternal power over his own children vest
not in him, but in his father. For according to early Roman
law there exists in every Roman household but one ownership,

1 Roby, 52-169 ; Mackenzie, 100-150.

340

Chap.V] CAPUT (STATUS) FAMILLE [5127

one marital and one paternal power, viz. that of the pater
familias."

A Roman household, outside of the pater familias, might
contain four classes of subordinates: slaves, children,
women in hand, and persons in handtake. As slaves and
children were both in potestate, it may be stated that under
caput familiae there were three ways of being subject to
another (alieni juris): (1) potestas, (2) manus, and (3)
mancipium.

Potestas .was a name used to denote the power which a
man exercised over his slaves and over his legitimate chil-
dren. This power could not be made use of by 1 127.
any one who was not sui juris. A slave who had P^ettM.1
gained his freedom could exercise potestas over those children
that were born to him after he became free, but not over
those that were born prior to his becoming a libertus. As
we have considered the question of slaves and slavery under
another head, it is not necessary to dwell further on this topic
here.

Aside from slaves, those who were under the potestas
of the pater familias may be considered under two heads:
those born under the potestas of the father, and those born
under the potestas of another, but afterwards adopted.

By birth children came under the power of their father
only in case their father was a Roman citizen and begot
them in lawful marriage. The conditions of a lawful mar-
riage were the connubium of the parties, the consent of
themselves, and, if they were not sui juris, of their family
superior, and the age of puberty. The effect of connubium
was to make the children carry the condition of the father,
rather than that of the mother, and be under his potestas.

1 Justinian, I, 8 ; II, 12.
341

1 127] A HISTORY OF ROMAN LAW [Pabt II

There were three conditions by which children were not
under the potestas of the father at the time of birth, but were
subsequently brought under it : —

(1) A Latin f reedman who had a son a year old could have

a grant bestowed upon him giving him potestas
over his child.

(2) When a mistake had been made in the status of the

persons marrying. Of this there were two classes: —

(a) A freeman marries a woman who is supposed to

be free, but afterwards it is proved that she was
, in the catalogue of Latini or Dediticii. Upon

i the proof of this being furnished, the woman

and her children were made free, the children
passing under the potestas of their father.

(b) A free woman marries a man who is supposed to

be free, but it is afterwards proved that he
belonged in some lower condition. Upon the
proof of this being furnished and it being
made clear that no fraud had been practiced,
the man becomes free and a Roman citizen,
and his children pass under his potestas.

. <$) In the time of Justinian natural children could be
placed under potestas by legitimation. This was
accomplished in five ways : —

(a) Legitimation per ablationem curiae. This was

simply accomplished by presentation to the
curial magistrates.

(b) Legitimation per subsequens matrimonium.

(d) Legitimation by testament confirmed by the em-

342

Chap.V] CAPUT (STATUS) PAMILLB [§127

peror. In case the father, during his lifetime,
neglected to apply for the resorption, his chil-
dren could apply for it and obtain it, in case
their father had indicated such a wish.
(e) Legitimation by adoption. The emperor Ana-
stasius allowed a man to adopt his illegitimate
children, but Justinian, and Justin before him,
took this right away on the ground of its being
unjust to his legitimate children. But in case
the man had no legitimate children, this adop-
tion was permitted by law.

By arrogation (adoption) persons came into the family of
a Roman and were under his power just as if they were his
lawful natural children.1 Arrogation was the Potest**
oldest form in use by which this was accomplished. •■in**

0T6T th*

It varied a great deal in early times, but was children
brought about by a vote of the comitia calata of Another,
taken in regular form. This bore the specific name, ar-
rogatio per populum. The sanction of the pontiff was
always required, thus giving a religious color to the act.
He was the guardian of sacred rights and was obliged care-
fully to guard against the extinction of a family, thus being
sure to keep alive the family sacra. At some time which is
unknown the fiction of the populum was dropped, and arroga-
tion was performed by a rescript of the emperor without any
other formalities.

Adoption proper or in the narrow sense was brought about
by taking advantage of the statement in the Twelve Tables ;
"If a father sell his son three times, he shall be free." To
this form of adoption there were regularly five steps : —

1 Justinian, I, 11.
343

§ 127] A HISTORY OP ROMAN LAW [Paht II

(1) The natural father sold his son to a fictitious purchaser

under the form known as mancipatio. The son
thus became a mancipium, and the purchaser be-
came his dominus.

(2) The son is manumitted (freed from, the hand) by the

dominus and falls back into the potestas of his father.

(3) The second sale and second manumission are merely

a repetition of the first, and produce the same re-
sult, the son falling back into the potestas of the
father.

(4) For. the third time the father sells his son as before.

This is the last sale that the father will be able to
make according to the terms of the Twelve Tables.
The son now becomes for the third time a manci-
pium of the fictitious purchaser, with the option of
two alternatives : —

(a) Remancipation to the natural father by the
dominus and cessio in jure by the natural
father to the adopted father who had acted
throughout as the fictitious purchaser.

(6) Third sale or mancipation to some third person
(not the fictitious purchaser mentioned above),
a fiduciarius, who cedes the son in jure to the
pater adoptans.

In case of a daughter or grandson the first four steps were
omitted, as a narrow construction was given to the statement
in the Twelve Tables, so that a pater was not permitted to
sell a daughter or grandson but once. This method of
adoption was not changed until the time of Justinian. This
emperor abolished the sales and manumissions and substituted
therefor a mere expression of will in writing. In this manner

%y±rx

Chap.V] CAPUT (STATUS) FAMILLB [§127

parents could appear before magistrates and free their
children from potestas. Any male of the age of puberty
and independent could adopt another male or female as his
child. In case the person adopted was independent, his
consent had to be obtained. Adoption broke all relations
with the former family according to the civil law, and the
former or natural relation was not resumed in case the
adopted person was emancipated by his adopted father.
The effect of this arrogation was that whatever property
the adopted person possessed passed at once to the arrogator,
except as to such rights as were altogether lost. Debts due
to him passed also to the arrogator, who could enter suit for
their recovery. The adopted person became the heir to the
person adopting him just as if he were his heir by blood, while
he at the same time ceased to be the heir of his natural father.

The potestas of the pater familias was destroyed in two
ways: (1) by act of the parties — emancipation, and (2)
by application of the law. Pote«ta»

(1) By act of the parties. The father could d—txoyd.
not be compelled to emancipate his son, and the son could
not be emancipated without his consent. The formula for
emancipation was just the same as that for adoption, in
the first five steps. If, now, the fiduciarius should man-
umit the son, he would be free and the fiduciarius would
be his patron, inheriting whatever property he had in case
he died childless. Usually this was an object to be avoided.
A pater who emancipated his son generally desired to main-
tain his place as patron, and thus be his heir. In order
to accomplish this, after the third sale the fiduciarius eman-
cipates the son to his father, and the father manumits him,
thus becoming his son's patron and heir to whatever prop-
erty he is possessed of in case he dies childless.

345

J 127] A HISTORY OF ROMAN LAW [Part II

Form of emancipation : —

(A desires to emancipate his son B. C is by sup-
position the purchaser or fiduciarius.)

(1) A sells B to C.

(2) C manumits B by the process of vindicta, and B falls

back into the potestas of his father, A.

(3) A mancipates B to C.

(4) C manumits B by same process as before and with the

same results.

(5) A again mancipates B to C.

(6) C, instead of manumitting B, remancipates him to A.

(7) A manumits B. B thus becomes free from the potestas

of his father, but his father is still his patron and,
if he dies, is heir to any property that B possesses
in case he is childless.

All this is changed by Justinian.1
(2) By application of law: —

(a) The death of any person having potestas is a
divestiture from that person, but does not
always free a person from potestas. This
would be true in case a person was under
the potestas of his grandfather. Upon the
death of his grandfather he would imme-
diately fall under the potestas of his father, in
case his father were alive.

(6) Any capitis deminutio suffered by a filius familias
takes away the potestas of the father. In the
same way the father lost potestas by suffering
capitis deminutio.

1 Justinian, 1, 12.
346

Chap. V] CAPUT (STATUS) FAMILLE [§127

this by court action upon prosecution.

(d) The attainment of certain honors, as indicated

by law, destroyed the potestas. These honors
were: —

(1) To become consul.

(2) To become censor.

(3) To become prefect.

(4) To become master of the horse.

(5) To be excused from the curia.

(6) In case of a filia familias, to become a vestal
virgin.

All such persons were allowed the privileges which
accrued from potestas, but were free from the duties.
Generally speaking, wherever the burden falls there
are the privileges. The cases mentioned above
are exceptions to this rule.

The position of children under potestas was in some respects
quite similar to that of slaves. As in the case of slaves, the
father had the power of inflicting punishment on Privileges
his children, even to the extent of the death «"*der

penalty. The actual exercise of such power is *••*■»•

recorded in several cases. It is expressly given in case of
adultery on the part of a daughter. But this extreme right
was very rarely made use of, and was, no doubt, closely
guarded. On the other hand, children enjoyed many
privileges which were not open to slaves. Sons, as has al-
ready been stated, who were of mature age could vote
in the comitia and hold any office in the State. They further
enjoyed the privileges of the private law, could engage
actively in business, could acquire property and dispose of

347

S 128] A HISTORY OF ROMAN LAW [Pabt II

the same, could sue and be sued, could many and, in fact,
perform almost any act of the pater familias. But what-
ever they acquired became the property of the father, and
the various business transactions of the son had to have
at least a nominal sanction of the father in order to make
them legally binding. Children could hold the ordinary
peculium or property granted to them by their father, in the
same way as slaves were wont to hold similar grants. But
such peculium could not be taken away from the children
in case the fisc took the father's estate for debt.

The filius familias, on becoming a soldier, could hold under
the title of castrense peculium that which he acquired during
his military service. This included not only his pay as a
soldier, but anything given or left him for the purchase of
what he required for the campaign, as well as acquisitions
from comrades, or .the share of spoils which fell to him.
Over all such property he had full control as if he were
himself a pater familias. With such property he could
engage in business and enter into legal obligations either
with his own father or other parties. In such a case his
father could not be sued for debts contracted by him.

Manus was the power which a husband had over his wife
in case the marriage had been either conf arreatio, coemptio,
ftia*. or usus- It is practically certain that manus

Manns always accompanied marriage in the earliest
times and had not become obsolete in the time
of Gaius, although no trace of it is discoverable in the time
of Justinian. No woman could enter into a marriage in
accordance with any one of these three ways without the
authority of her father, grandfather, or guardian. A woman
in the hand of her husband had the legal position of a

1 Roby, 70-76.
348

Chap.V] CAPUT (STATUS) FAMILIES * [|129

daughter. All her property passed as a whole without
separate delivery of the items to her husband or her hus-
band's father (in case her husband was not sui juris).

In the earliest days of Rome marriage was a holy relation
and, under whatever form it took place, founded a religious
communion between husband and wife.1 It, there- j Za».

fore, received at its commencement a religious Mintage,
sanction. This religious sanction, however, was superimposed
upon the marriage proper, which was contracted merely by
consent and had no form prescribed by law. The agreement
to marriage was usually entered into by mutual promises
(sponsalia) originally made by sponsio and restipulatio.
Juste nuptiie or marriage, which would give patria potestas
over the issue, required one special condition besides those
necessary for marriage in general ; namely, connubium, and
this belonged mainly to Roman citizens. Connubium is
thus defined by Ulpian; "Connubium est uxoris jure du-
cendi facultas." I.e., when there is no impediment to
the marriage of two persons, they are said to have connu-
bium. Children sprung from such a marriage were called
agnates. As distinguished from juste nuptise, we have
nuptiae simply. Originally the former was the only kind
of marriage known at Rome. But even in the time of
the republic there had grown up into almost equal recogni-
tion a matrimonium juris gentium, a lawful wedlock of
persons between whom there was no connubium. Children
born under this marriage were not in patria potestas, but
were called "liberi justi sed non legitimi concepti." They
were cognates to the father. In ancient times equality of
condition was required in marriage, so that both patricians
and plebeians married only among their own class, and

1 Mackenzie. 100-109 ; Roby, 70-73. 127-137 : Justinian, I, 10.

349

J 129] A HISTORY OF ROMAN LAW [Pabt II

freedmen were prohibited from marrying the freeborn. By
the lex Canuleia, in 445 B.C., connubium was authorized
between patricians and plebeians; and by the lex Julia,
in a.d. 4, the prohibition of marriage between freedmen and
the freeborn was removed, subject to certain restrictions
as regards alliances with families of senatorial rank.

Besides these kinds of sexual union which were recognized
by law, there were the following of a lower class : —

(1) Concubinatus. This was a relation of sexes resem-

bling a legal marriage, but failing to give potestas
over the children. It was a lawful union of an
inferior kind. Only those people could enter into
this kind of a union who were able to marry. It
placed the woman in an inferior position, but the
connection was generally looked upon as marriage.
By Roman law a man could not have a concubine
and a wife at the same time. The only question
raised in law was ; " Does the man intend to treat
the woman as a wife or a concubine?" Children
by such a union were natural ; they were not con-
sidered as being related to the father, but were
cognates of the mother. Of course they were not in
the potestas of the father and could not inherit his
property. They could be made lawful children,
however, by any of the methods of legitimation
that have been mentioned and were entitled to
maintenance from the father.

(2) Stuprum or promiscuous intercourse. This name

was at first employed to designate all connection
between a freedman and free woman outside of con-
nubium, but this was later modified. It embraced

350

Chap.V] CAPUT (STATUS) PAMILLE [§129

all the connections of slaves of every kind even with
a free woman. Children born of all such unions
were called spurii or bastards. They were cog-
nates to the mother and were said to have no father.

Though certain forms were necessary in order to bring
the wife in manum mariti, these were not essential to the
validity of marriage itself.1 Although at first Mania**
there was no marriage without manus, in the without
later republic and throughout the empire the Manns,
wife did not pass under the power of her husband unless
she expressly consented to do so. In the first case, the
wife passed out of her own family into that of her husband,
who acquired all her property and exercised over her the
same kind of control as if she had been his daughter. In
the latter case, the woman remained in the power of her
father or tutor, and retained the free disposition of her own
property.

There were three modes of contracting marriage which
conveyed manus, confarreatio, coemptio, and usus.* These
are mentioned in the probable order of their age. Three

The form of marriage by the spelt loaf (con- Ancient

farreatio) was a sacrifice to Jupiter .of the Spelt FanM-

(Jovi Farreo). This was a solemn religious ceremony,

before ten witnesses, and various things were done with

fixed traditional words. An ox was sacrificed and a cake

of spelt was divided by the officiating priest between the

man and woman as an emblem of the consortium vite, or

life in common, which they were expected henceforth to live.

Gaius gives no further description, but by his time this

marriage ceremony was no longer performed save in connec-

1 Mackenzie, 101. * Ibid., 102.

351

i 129] A HISTORY OP ROMAN LAW [Part II

tion with certain priesthoods. This kind of marriage was
no doubt the oldest, and, in fact, the only kind in use among
the ancient patricians.

Coemptio. The most usual form by which a woman
passed on marriage into the hand of her husband was co-pur-
chase. This form of marriage was in large part a mere adap-
tation of the ordinary form of mancipation and came into
use some time after the reforms of Servius. This was merely
a symbolical purchase of the wife by the husband, per aes et
libram, in the presence of five witnesses and the balance
holder. Ulpian implies that there was mutual questioning
and a consequent sale of the woman to the man and the man
to the woman. The man asks the woman whether she wills
to be mother of the household to him. The woman answers
that she so wills. The woman then asks, whether the man
wills to be father of the household to her. The man answers
that he so wills. By this marriage the woman experienced
a change of civic position and as a consequence all her
property passed to her husband, or to her husband's father
in case her husband was not sui juris. She ceased longer
to be a member of her father's household.

Usus. About the same time that marriage by coemptio
came into use, there arose another form, usus, which was
founded on prescription. In this the woman simply co-
habited with the man as her husband for a whole year,
without having been absent from his house for three whole
nights in succession. This must have been with the consent
of her father or guardian. These conditions having been
fulfilled, the woman passes under the hand of her husband
just as a movable becomes a man's property by uninter-
rupted possession for the same length of time. In later
times the conventio in manum was found by the Roman

352

Chap.V] CAPUT (STATUS) PAMILLB [§129

women to be undesirable. The Twelve Tables provided
that, if she desired to prevent this result, she should ab-
sent herself for three nights (trinoctium) every year, and
thereby break the use. These three nights must not be a
mere absence of the body by chance or some other cause,
but there must be an adverse act of the mind as well. In
other words, the absence must have been for the real and
avowed purpose of bringing about this result. This form of
marriage had fallen into disuse by the time of Gaius. In
fact, all the forms of marriage by which the woman passed
in man urn mariti gradually passed away. The confarreation
shared the fate of the old pagan worship to which it belongs.
Coemption, though more frequent and still made use
of in the time of Gaius, disappeared long before the time
of Justinian. Under the new system of marriage which
grew up, the ordinary rule of the common law granted to
married women the right to dispose of their property without
the authority of their husbands and, in fact, to be entirely
free from marital control. Marriage by the Roman law was
now contracted by the simple consent of the parties. No
written contract was necessary, and no religious ceremony was
passed through. According to the generally accepted opin-
ion, the ceremony of marriage was completed by consent alone
— consensus facit nuptias. Some writers, however, such as
Ortolan, think that marriage was not really perfected until
after the wife had been delivered over to her husband, which
was accomplished by the deductio in domum mariti. This
view made of marriage a real contract completed by tradition.
So far as physical capacity for marriage was concerned,
the Romans fixed puberty at fourteen years of age for males,
and twelve years for females.1 All persons below these

1 Mackenzie, 102-104.
353

§ 129] A HISTORY OF ROMAN LAW [Part II

ages were looked upon as pupils, and could not be legally
married. Absolute impotency was also considered as a
Impedi. physical disqualification. Beyond these physical
meats to disqualifications, there were four impediments
******&• to marriage recognized by IJoman law: (1)
rank, (2) general public policy, (3) relationship, and (4)
quasi-relationship.

(1) Rank: —

(a) Patricians were not allowed to marry plebeians until
the enactment of the lex Canuleia, in 444 B.C.,
when the restriction was removed by the admis-
sion of plebeians to connubium.

(6) Ingenui could not marry liberti until the enactment
of the lex Julia, a.d. 4, when all freeborn men
except senators could marry freed women.

women.

(d) No ingenuus was permitted to marry a person of

notorious character or a comic actress even
after the enactment of the lex Julia.

(2) General public policy: —

(a) A person acting as guardian could not many his
ward until she had attained the age of twenty-six
unless she had been bestowed upon him by her
father before his death. For the same reason
the son of the guardian was not permitted to
marry his father's ward before she had attained
the age of twenty-six.

(6) A governor was forbidden to marry a woman that
was domiciled in his province during his term
of office.

354

Chap.V] CAPUT (STATU8) FAMILLB [§129

riage was declared void, and the children were
classed as spurii.

(d) A ravisher could not marry the woman whom he

had ravished, and if such persons married by the
consent of the parents, they were banished.

(e) An adulterer was forbidden to marry his paramour.

The woman was forbidden to marry at all, and
the man was forbidden to marry her.

(/) A female patron was forbidden to marry her f reed-
man, and a freedman could not marry the
daughter, granddaughter, or widow of his patron.

(g) A man was permitted to marry his freedwoman,
but it was considered more respectable on his
part for him to make her his concubine.

(3) Relationship.1 Relationship within certain degrees,
whether of consanguinity or affinity, rendered the parties in-
capable of contracting marriage. Ascendants and descend-
ants to the most remote degree could not enter into marriage
in. accordance with Roman law. This rule applied to those
who were related by adoption as well as by blood, even after
the tie of adoption had been dissolved. In accordance with
the principle just stated, father and daughter, grandfather
and granddaughter, mother and son, grandmother and grand-
son, and so on to the last living link could not marry. In the
collateral line, marriage was prohibited between brothers and
sisters, including persons so related by adoption so long as this
relationship subsisted, and also in the special case where one
of the parties stood in loco parentis to the other, as uncle and
niece, aunt and nephew, etc.

i Justinian, 1, 10 ; Poste, 66-60.

355

{ 129] A HISTORY OF ROMAN LAW [Pabt II

(4) The degrees which were prohibited in consanguinity
were also prohibited in affinity, this latter being the connec-
tion arising from marriage between one of the married per-
sons and the blood relations of the other. This was known
in Roman law as quasi-relationship. Under this head a man
was forbidden to marry his wife's daughter or his son's wife ;
his wife's mother or his father's wife ; his wife's sister, etc.

These rules as to forbidden degrees have been substantially
adopted both in England and Scotland, as well as wherever
the tenets of the Catholic church hold.

In accordance with the Roman law the consent of the
father or pater familias was indispensable to the marriage of
Father's such children as were under potestas. The con-
_?ll8e?^ sent of the mother was not required, nor was the

when Hec- ^

MMry. consent of the guardian necessary in case the
parties were under tutelage. It was deemed sufficient to
have the tacit consent of the father. If he did not forbid
the marriage, the law considered that he gave his assent.
In the early history of Rome, celibacy was considered
censurable. In fact, this is true in the early history of all
Celibacy at nations. But this view passed away toward the
*°me* end of the republic in the general degeneracy of

Roman manners, when the conduct of women of rank rendered
marriage exceedingly distasteful to men. Many efforts were
put forth to counteract this evil during the later republic
and the early empire. By the lex Julia et Papia Poppsea,
which contained several severe regulations against celibacy,
solid favors were, bestowed upon those who had a certain
number of children, three in Italy, or five in the provinces.
It seems, however, that little lasting benefit resulted from
these laws, which operated very unequally and sometimes
oppressively. The emperors themselves went far to defeat

356

Chap. ¥1 CAPUT (STATUS) FAMILLfi [| 129

the purpose of such legislation by bestowing the benefits of
the jus trium liberorum upon persons who had no children,
and even upon those who were not married. Constantine
abolished all the penalties of celibacy, and the rewards to in-
crease the number of children were discontinued.

A Roman marriage was at no time indissoluble, but it
was for life unless one or the other of the contracting parties
wished to terminate it.1 Divorce was always u*niaf
private and required no legal action whatever. T«mt-

However, persons who had been married by ■■*•*■

confarreatio had to be divorced by diffarreatio. A man
could be punished if he took advantage of divorce with-
out proper reason, yet his right was never questioned. Cicero
seems to indicate that all that was necessary in his time for
a man to divorce his wife was simply to say, " Take thy goods
and get thee gone." Romans generally took the ground that
as marriage was a mere mutual contract to live together, it
could be terminated by the determination of either party no
longer to live together in the bonds of wedlock. Marriage
could, therefore, be terminated at the will of either party,
A marriage could be dissolved by the woman's father if she
had not passed in manum and was still under his potestas.
Cicero in this manner divorced his daughter from her first
husband in order that he might subsequently marry her to
Dolabella. The above methods may be considered as volun-
tary. Marriage may be said to have been involuntarily termi-
nated by the death
los3 of liberty on tb
ties had fallen into
elapsed since the caj
might marry again '

5 130] A HISTORY OP ROMAN LAW [Part II

It was considered the duty of the father (or pater familias)
to give his daughter a marriage portion or dowry, in propor-
tion to his means.1 He might even be compelled

Dowry.

to do this. Such a dowry was called dos prof ectitia.
The Roman law imposed upon the husband (or the pater fa-
milias in case the husband was not sui juris) the burden of all
domestic expenses and the rearing and education of the child-
ren. It was doubtless this inequality of burdens that led
to the institution of the dowry, which was a contribution from
the wife or some one on her behalf toward defraying the ex-
penses of the marriage state. There could be no dower unless
the marriage entered into was a legal one. If the husband
was filius familias, the dower went to the father, on whom
the burden fell.

The general rule was that the dower existed so long as the
marriage continued and at the termination must be restored
to the woman or other person from whom it proceeded. An
action for the recovery of the dower could be brought in case
of divorce or repudiation on the part of the husband. The
hue band or his father had the sole management of the dower
and the fruits of it during the marriage. He could exercise
over it all the acts of ownership, so far as it consisted of
movables, but he could not alienate or incumber any part of
it which was immovable, or invested in land, even with his
wife's consent.

All children, whether male or female, that are in the po-
testas of a parent may be mancipated by him exactly in the
§ 130. same way as slaves. And so with persons in

Mandpiiim manu. for WOmen may be mancipated by their

(a Person ¥ r *

in Hand- coemptioners in the same way as are children by
<■*•)•' their parents. This mancipation was a sort of

1 Roby, 136-145 ; Mackenzie, 107-108. ' Roby, 73-76.

358

Chap. VI CAPUT (STATUS) PAMILLB [5130

imaginary sale, and the right to make use of it was peculiar
to Roman citizens. It was performed in the presence of at
least five Roman citizens of the age of puberty, called to-
gether as witnesses, and of another person of the same condi-
tion holding a pair of copper scales, who was a libripens.
The mancipee, or party taking mancipio, having hold of the
thing that is being transferred, says ; " I say that this slave is
mine in quiritary right, and be he my purchase with this as
and these copper scales." Thereupon he strikes the scales
with the coin, which he then gives to the mancipant or party
from whom the slave is being received, as if by way of price.

In precisely the same manner as above, free persons were
mancipated, as also were such animals as were mancipi,
among which were reckoned oxen, horses, mules, and asses.
Gaius further says; "Those in the position of mancipia,
being regarded as if they were slaves, become sui juris on their
manumission either vindicta, or through the medium of the
census, or by testamient." Persons so held were subject gen-
erally to the same disabilities as other persons alieni juris.
However, as they were not in the possession of the individual
to whose jus they were subject, it is doubtful whether they
could amass possessions on his behalf. If a person in man-
cipio was instituted heir or had a legacy left him by the person
in whose mancipium he was, it required to be accompanied
with freedom, otherwise he could not enter.

Persons in mancipio were relieved from it, just like slaves,
by manumission vindicta, censu, or testamento. But a
person in mancipio, being manumitted, did not become a
f reedman, but was still classified as a freeman.

359

CHAPTER VI

GUARDIAN AND WARD1

Persons became sui juris when they were released from
paternal power, but even then they, by reason of immaturity
§131. of age or mental incapacity, might need to be

TuteU. protected in the exercise of their legal rights. It
was upon this necessity that the law of guardianship or tutela
depended. Guardianship in Roman law was very closely akin
to trusteeship in English law. The person holding it was a
kind of joint administrator of the ward's estate, supplement-
ing by his own legal acts the incapacity of his ward. The
general idea of guardianship was expressed in the Roman law
by the word txdela. Justinian defines it as "the right and
power conferred or authorized by the civil law for the pro-
tection of an independent person, who is, by reason of age,
incapable of protecting himself." Servius Sulpicius defines
guardianship as "force and power (vis ac potestas) given
and allowed by the civil law over a free person to protect one
who on account of age is unable of his own will to defend
himself." The age of puberty was fixed in the Roman law
as that before which every independent person required the
protection of a tutor. In the early law women remained un-
der tutelage during their entire lives or until they married, at
which time they passed under the control of their husbands.
But the idea of female incapacity passed away in later legis-
lation, and virtual equality between the sexes was established.

* Mackenzie, 151-157 ; Roby, 92-107, 121-126.

360

Chap. VI] GUARDIAN AND WARD [§131

Tutelage was looked upon as a public trust and, therefore,
no one could fill the office of tutor till he was twenty-five.
For the same reason he could not refuse to act, if appointed,
unless he was relieved from the burden under certain excuses
that were specified by law. (See page 366.)

All males under the age of puberty and all females of what-
ever age, whether they were married or not, required a guard-
ian, if they were not under potestas or in hand or handtake.

Originally there were three kinds or classes of persons that
were placed under guardianship : pupils, on account of their
age ; women, on account of their sex ; incapables, ^^ of
on account of their deficiency in intellect or GwrdiMi-
physical incapacity by reason of disease, etc. p#

This gave rise to three kinds of guardianship : —

(1) Tutela mulierum.

(2) Tutela impuberum.

(3) Curatela.

(1) There is scarcely any trace of the tutela mulierum to
be found in the legislation of Justinian, but the discovery
of the Institutes of Gaius has thrown some light TtiteU

Upon this subject.1 MoHeram.

According to the ancient Roman law, a woman, throughout
her whole life, was placed under the guardianship of agnates
when she ceased to be under paternal power, or was not in
manu mariti. This, no doubt, had for its object the protec-
tion of the property of women, and the prevention of its being
withdrawn from the lawful succession of agnates. Of course
this rested upon the theory of the family ownership in common
of the property. It was for this reason that the nearest male
relations of women were appointed as their guardians or tutors.

1 Roby, 101-103 ; Mackenzie, 151-152.

361

§ 131] A HISTORY OF ROMAN LAW [Pabt II

They had no right of administration of the property, but only
the power to prevent the woman from disposing of her prop-
erty or undertaking any important obligation, without their
authority. By degrees this rigid control of women slackened,
and they were admitted to the full control of their own prop-
erty. By the lex Papia Poppeea married women were
released from this superintendence of their agnates, in case
they had borne a certain number of children. Later a law of
Claudius delivered f reeborn women from the lawful tutory of
agnates ; but a tutor-dative was still required iii order to vali-
date the more important acts of women in civil life. Various
devices were resorted to in order that women might escape
from the control of troublesome tutors and be placed under
the guardianship of those who would leave them at liberty
to. do whatever they wished. Vestiges of this guardianship
remained as late as the reign of Diocletian, but cannot be
discovered thereafter.

Tutela impuberum is that kind of guardianship which has
been defined by Justinian in the definition just given.1 Only
TuteU males could become guardians ; even the mother

Impoberam. was not qualified to act. A guardian, being a crea-
tion of the civil law, had a formal function and importance
irrespective of any practical counsel or management of affairs
which might belong to him. The interposition of his authority
was essential to the validity of his ward's acts, in so far as they
were a part of the civil law. This authority was given orally,
usually in reply to a question. Guardians were divided,
according to the method of their appointment, into three
classes : (1) Tutores testamentarii, (2) Tutores legitimi, and
(3) Tutores dativi a magistratibus.

(1) Tutores testamentarii or testamentary guardians were

1 Roby, 103-105 ; Mackenzie, 152.

362

.-J

Chap. VI] GUARDIAN AND WARD [§131

such as were appointed by the testament or codicil of the
father. The power thus to appoint tutors existed as early
as the Twelve Tables, and formed a part of the general law
regarding the disposition of the familia by the father's will.
For the appointment of such a tutor to be valid, the pupil
must have been under the potestas of the father at the time
of the father's death, and must become sui juris at the
father's death. There were two cases that came under this
head: —

(a) When the will was valid it was unnecessary for the

tutor to be confirmed by the praetor.

(b) In some cases, where the will was imperfect by reason of

the omission of some necessary word, the praetor in-
terfered and formally bestowed the guardianship
upon the person named in the will.

(2) Tuiores legitimi or legal guardians were those who, in
case no one had been named in the will, were called to the
office by operation of the law. "He who has the benefit of
the succession," says Justinian, "ought also to have the
burden of the tutelage." In accordance with this principle
the tutelage fell upon the nearest agnates, and failing agnates,
upon the gentiles. As the gens lost legal significance and the
distinction of agnates and gentiles was abolished, the tutelage
went to the nearest heir who was capable of fulfilling the re-
quirements. He was bound to accept the trust whether he
wished to or not.

(3) In default of testamentary tutors and tutors at law,
an authorized magistrate appointed certain persons to the
office who were for this reason called tuiores dativi a magis-
tratibus. Such a tutor might be appointed temporarily, in
case of delay in the assumption of office by the persons other-

363

i 131] A HISTORY OF ROMAN LAW [Pabt II

wise designated; or in case other tutors should become
incapable of fulfilling the duties incident to the trust.

A distinction existed between the power of the tutor when
exercised over a person who had passed the age of infancy,
Powers and and an infant. There were three well marked divi-
Dutietaf sions: (1) Infans, (2) Infantise proximus, and
Tutors. ^ Pubertati proximus.

(1) Infans (cannot talk). This period of the child's life
lasted for two years, during which it was in the custody of its
mother, and it was only in extreme cases that the tutor had
charge of the person of his ward.

(2) Inf antics proximus or that period nearest infancy when
the child can speak, but has not passed the seventh year.
During this period the tutor acted in his own name, but in
behalf of his ward. His chief duty was to preserve intact the
property, and to supply the necessities of the one placed in
his care.

(3) Pubertati proximus. When the pupil had passed the
seventh year, he acquired a greater degree of legal capacity.
In this period he is said to understand the language of the
law, but not to have judgment for settling legal questions
(intellectus sed non judicium). He could engage in legal
transactions in his own name, in so far as they were beneficial
to him, but no act of his own could operate to his prejudice.
"He could bind another, but could not himself be bound.'*
In order to make the acts of the pupil binding upon himself as
well as upon the other party, it was necessary for the tutor
to add his authority. The cooperation of the tutor converted
the natural act of the pupil into a judicial act, and so made it
enforceable by law. (In this case the tutor supplied the
judicium requisite for a legal act.)

In some cases the ward could not act even for his own

364

Chap. VII GUARDIAN AND WARD [§131

benefit without his tutor's consent. Of these there were
three: —

(a) He could not enter upon an inheritance.

(b) He could not seek bonorum possessio.

For all these limitations there were good reasons, as the
Roman law said ; " Wherever the benefits lay, there lay also
the obligations." The obligations in the cases mentioned
above might well exceed the benefits.

Unless he had a valid excuse, the guardian must take up
the administration of the affairs of his ward as soon as he
is made acquainted with his appointment. He had to act
with absolute good faith and bestow the same care upon the
affairs of his ward that a sensible man is expected to use in
his own affairs. The first duty that devolved upon him was
to make an inventory of all the assets and liabilities, deposit
all moneys with a banker, or in safe keeping, and sell all
perishable articles and things that were liable to deteriorate
in value by the lapse of time. He was expected to purchase
suitable lands with this money or else place the money at
interest in the hands of persons who were perfectly solid.
He was also required to resist all demands on his ward that
he did not deem righteous, bring actions, and enter into stip-
ulations on his ward's behalf. In addition to all these duties
he must provide a suitable home for his ward, supply his
bodily wants, and see to his proper education. This edu-
cation must be suitable to his rank and estate.

Guardianship might be terminated in various ways.1
The following were the ordinary methods : —

1 Mackenzie, 155; Justinian, 117.

365

i 131] A HISTORY OP ROMAN LAW [Part II

(1) By attainment of puberty.

(2) By the death of either the pupil or tutor.

Tutorship (3) Capitis deminutio. A capitis deminutio of
Termi- the tutor takes away his tutelage, but still leaves
n*t*d# the pupil subject to that of some one else. A capi-

tis deminutio of the pupil destroys all tutelage.
(4) If a person was appointed tutor by will, he terminated
the office by the fulfillment of the conditions; if
he were appointed for a certain length of time, he
laid down the office at the expiration of the time.

The post of guardian was regarded in Rome as a
Excuses part of the duties of citizenship and could not,

tUmfMmn therefore, be declined except on recognized legal

from
Guar*

■hip. grounds. These legitimate excuses were : —

(1) Having rendered a service to the public, or being

then in the discharge of some public duty : —
(a) Having a certain number of children living, i.e.,
three in Rome, four in Italy, or five in the
provinces. In these lists children who had
been killed in battle were counted.
(6) Absent from Rome on account of state business,
(c) Magistrates, military persons, or members of the
liberal professions such as law, medicine, or
teaching, were excused.

(2) Being in a position adverse to the pupil : —

(a) A creditor or debtor.

(6) Appointed by the pater through enmity.

(d) Having had his status questioned by the pater.

(e) The husband of a woman under curatela.

366

Chap. VI] GUARDIAN AND WARD [| 131

(3) Unable to perform the duties of guardianship : —

(a) By reason of poverty; not able to sustain the
expenses due to the performance of the duties
of guardianship.

(6) By reason of poor health.

(d) Over seventy years of age,

(4) Having already filled similar offices : —

(a) Having already held three unsolicited offices of

a similar kind.

(b) Having already acted as tutor to the person for

whom a curator was to be appointed.

Any guardian, no matter how appointed, could be removed
from office either by the praetor, provincial governor, or pro-
consular legate for good and sufficient reasons.1 The Re.
Any one could make the application for the moral oft
removal of a guardian. The following causes
were accepted as sufficient for the removal of a tutor : —

'u (1) If, being obliged to give security, he had entered upon
the administration of the tutorship without doing
so. In such a case he was compelled to produce the
necessary surety or relinquish the administration.

(2) If, after interfering in the administration, he refused

to continue, he could be removed.

(3) If he refused or neglected to give the pupil proper

maintenance out of the property under his control,
he could be removed.

(4) If in the administration of the property he acted with

deliberate disregard of the pupil in such a manner

» Roby, 119.
367

1 132J A HISTORY OF ROMAN LAW [Pabt II

as to amount to dolus (fraud), or with such gross
negligence as to be scarcely distinguished from will-
ful misconduct.

(5) General incompetency. This incompetency had to

be proved by means of a legal investigation.

(6) If the tutor had become hostile to the pupil during the

process of his tutorship, he might be removed.
Beyond these reasons given, any other, deemed
sufficient by the magistrates.

According to the old Roman law, a person sui juris, upon
passing the age of pupilage, acquired full legal capacity.1
i 13a. He therefore no longer required a tutor to supply

Canto!*. judicium. But it was still necessary to grant him
some kind of legal protection between the ages of fourteen
and twenty-five, at which time he was declared of age. This
necessity gave rise to the law of curatorship or curatela.
The Twelve Tables provided for the appointment of curators
(caretakers) over the insane and prodigals, but not over
minors. The first law for the benefit of minors was the lex
Pleetoria. This law was passed some time before the time of
Plautus, about 184 B.C. It is generally supposed that, among
other things, it allowed a minor to choose a curator (care-
taker) to advise and protect him in certain particular trans-
actions. This law held criminally liable those who de-
frauded persons under twenty-five years of age. The praetor
also interfered for the protection of the minor and, in case
he had suffered injury from any act of his, ordered a restitutio
in integrum by which he was restored to the position in which
he was before the unfortunate transaction occurred.

The office of the curator was in general to assist the minor

1 Justinian, I, 23.
368

Chap. VI] GUARDIAN AND WARD [§132

in the management of his estate and to sanction his legal
acts whenever it was deemed necessary. Without some
special dispensation, the curator held his position until the
minor had attained his majority, i.e., twenty-five. Curators
were appointed over : —

(1) Minors between the age of fourteen and twenty-five.

(2) Furiosi (madmen); authorized under the Twelve

Tables.

(3) Lunatics, the deaf, dumb, blind, and incurably dis-

eased.

(4) Spendthrifts (prodigi). Agnates had more than a

reversionary right, a kind of immediate interest
in the family property, and for this reason a person
was not allowed to squander in a heedless manner
the property which would ultimately vest in them.

(5) In certain cases, as when the statutory tutor was not a

fit person to manage the business, although no fraud
(dolus) was charged, a curator was appointed as an
associate to aid in the conduct of the more impor-
tant business.

Tutors and curators were required, in certain cases, to
give surety for their proper conduct of the affairs of the ward.
When such was the case, no act of theirs was
valid until this requirement had been complied
with.1

Legitimi tutores were regularly required to give security,
although there was one exception to this rule. When a
patron or his children acted as guardian or curator of a freed-
man who had very little property, while they had an abun-
dance, they were not required to furnish any security.

* Roby, 114.
369

§ 132] A HISTORY OF ROMAN LAW [Part II

Tutores dativi a magistratibus were not required to give
security after an inquiry into their condition had been made
and the court had accepted them. Otherwise they were
compelled to furnish security. This was a verbal promise,
fide jussio, of a person other than the tutor or curator to make
good any loss that was sustained by the pupil through the
misconduct of a tutor or curator, as the case might be. The
pupil was in this manner protected in four ways : —

(1) Remotio.

(2) Statutory restriction.

(3) Statutory hypothec over the tutor's property.

(4) Responsibility of others for the tutor or curator.

370

CHAPTER VH

CORPORATIONS1

Thus far natural persons alone have been considered, i.e.,
human beings with proprietary capacity. No other con-
cept of a person was known to early Roman law. . X33 Defi-
The jus privatum was throughout a law for the nitions and
individual only and, hence, as far as the old Witinct,0lis-
private law was concerned, there could be no subject of
rights and duties other than a natural person. Societies
had arisen, but these societies had never been invested with
any legal capacity. In case there was property * which
was designed for the use of a society, it had to be formally
vested in some individual member and treated as though it
was his private property. It is indeed true that the Roman
State (populus Romanus) had property and conducted all
the business pertaining to this property, but this property
and the juristic acts flowing therefrom were not governed by
the jus privatum, but by the jus publicum. It therefore
happened that the State never appeared as the subject of a
legal right and could not be summoned before a private law
court to make answer to any charge. The law was not
available against the State as it was against the individual.
The State conducted all its affairs and protected its property
by the administrative acts of its magistrates. In case a
private person had any grievance against the State, he lodged

1 Mackenzie, 161-166 ; Poste, 142-170 ; Hunter, 314-315, 799,
866.

371

5 133] A HISTORY OF ROMAN LAW x [Pabt II

his complaint at a public office and awaited the action of the
State authorities.

The conception of a collective juristic person as a possible
subject of private rights was not developed until towards the
close of the republican period, and was connected with the
rights of the system of municipal government. The property
of the municipium was brought under the private law, and
the municipium itself looked upon as a person and made
capable of private rights and duties. After this transition
had been worked out successfully, lawful societies (collegia,
sodalitates, universitates) were likewise acknowledged to
possess proprietary capacity in the domain of private law
and were thus clothed with person, having all the rights and
duties of a natural person. It was in this manner that by
slow degrees the conception of a juristic person arose and
obtained recognition in the Roman law of the empire.

"A corporation consists of a number of individuals united
by public authority in such a manner that they and their
A Corpora- successors constitute but one person in law, with
tion De- rights and liabilities distinct from those of its
individual members. Cities, colleges, hospitals,
scientific and trading associations, and societies for other
public purposes may be so incorporated." The corporations
of modern society were taken full-grown from the law of
Rome. The technical term in the Roman law that corre-
sponds to a modern corporation is collegium ; a still more
general term is universitas. A Roman collegium had to be
composed of at least three members who were said to be
corporati — habere corpus, but the existence of such a corpo-
ration might be continued by one member. It could hold
property in common and had a common chest. It subsisted
as an abstract legal person, though all its original members

372

Chap. VII] CORPORATIONS [§ 133

were changed ; it could sue and be sued by its agent ; could
elect new members from time to time; make by-laws for
the administration of its own affairs as far as not contrary
to the law of the land, and in fact could act in all respects
like any private person.

All corporate property and effects belonged to the corporate
body as distinct from the particular members of which it
was composed, and all debts due to the corpora- Corporate
tion followed the same law. In case the corpora- ****"•
tion owed debts, the individual members of which it was
composed could not be held responsible for any portion of
the same, nor could their goods be seized upon to satisfy
any claim held against the corporation.

The manner of voting at corporate meetings depended
upon the constitution. When the constitution said nothing
touching the matter, the will of the majority at a v ljt>
corporate assembly duly constituted, expressed Corporate
the will of the corporation and bound the minority M**tto«»*
as well as all absent members. But if the act of incorpora-
tion or the special constitution fixed what should be
necessary [to constitute a corporate assembly, whether as
regards the number of persons present or otherwise, this must
be followed implicitly.

A corporation came to an end by the expiration of the term
fixed by the constitution, when a definite period was named,
by the death of all its members when it had Termina-
for its object the personal interests of the in- ^corpora-
dividuals originally composing it, or by act of tion.

the legislature declaring it dissolved. It is impossible to
state with accuracy what disposition was made of the
corporate property when dissolution took place. It would
seem that when the corporation had been formed solely for

373

1 133] A HISTORY OF ROMAN LAW [Pabt II

the public benefit, property belonging to it fell to the State.
When it had been formed for personal advantage, then the
property belonging to it was distributed among the members
or heirs of members deceased.

In addition to the corporations where several members
were united into one body, and which in English law are
gpedai called corporations aggregate, the Roman law
Corporate recognized another class of artificial persons as
*** capable of rights and obligations. This class
bore some resemblance to the corporation sole of modern law.
To this class belonged the State itself ; the emperor, in so far
as he was regarded as the depositary of sovereign power;
every public office, considered with reference to the rights
and duties attached to it ; the public treasury or fisc ; and,
finally, the inheritance of a deceased person so long as it was
not taken up by any one as heir.

Every corporation was constituted by a law, by a decree of
the senate, or by an imperial constitution. It had to have
a name. It might have more than one name, but two cor-
porations could not have the same name. A corporation
could not change its name save by charter or some equivalent
authority. It regularly possessed a common seal, and all
corporate acts of any legal importance had to be performed
under this seal*

374

Book I. THE LAW OF THINGS (JUS DE REBUS)
Title 1. The Law of Property or Ownership (Jus in Rem)

CHAPTER VIH
OWNERSHIP IN GENERAL (JURA IN RE PROPRIA)*

' Every right, in its broadest sense, involves both a subject
by whom it is exercised, and an object with reference to which
it is exercised. A system of law must determine not only
who may be the subjects, but what may be the objects of
a right. It must detenpine not only the capacity of the
subject, but also the extent of legal control capable of being
exercised over the object. The consideration of rights thus
viewed with reference to their objective relations forms the
subject matter of the law of things (Jus de Rebus).

It is sufficiently clear that the legal right to control for one's
own benefit an external object involves a corresponding legal
duty on the part of others to respect that right. It will
appear on investigation that in some cases this duty is uni-
versal, binding upon all men ; in other cases it rests merely
upon some particular person. Rights, therefore, may, with
reference to things, be thus distinguished according to the
extent of their correlative duties. Thus the right of property
may be clearly separated from the right growing out of a
contract. Over against the right of property is a general

1 Mackenzie, 171-181 ; Roby, 408-431 ; Poete, 151-197 ; Moyle,
313-328.

375

i 134] A HISTORY OF ROMAN LAW [Part II

duty resting upon all men ; while the duty which stands over
against the right accruing from contract is specific, resting
upon some determinate person or persons. The one is called
a real right ; the other is called a personal right. This dis-
tinction is inferred rather than expressed in Roman law. It
was clearly indicated in the division of 'actions/ by which
rights were enforced. Those 'actions' which were em-
ployed to enforce a right availing against all the world were
called actiones in rem; while those which were used to
enforce a right availing against some determinate person were
called actiones in personam. Applying to rights the same
terms that the Roman jurist applied to their corresponding
actions, we may say that every right included in jus rerum
is either a jus in rem or a jus in personam. Therefore, the
law of things may be properly divided into the law relating
to real rights, and the law relating to personal rights; or,
in other words, the law of property and the law of obligations.

In dealing with the law of property the general order of
the Institutes is here followed. The way in which things
are viewed as the objects of ownership is considered, the
extent of the various principles which are involved in owner-
ship, and the different modes of acquiring ownership.

The term thing as employed in the Roman law has a
meaning as broad and flexible as the term person. As
the word persona designates every being capable
Legal idea of becoming the subject of a legal right, so the
of Res, or word ' res ' is used to denote anything capable of
becoming the object of a legal right. Thus the
word may be applied to a physical object, as a piece of land ;
it may also refer to any specific service or ' right ' in a physical
object distinct from the object itself, as the right of way over a

1 Mackenzie, 172.
376

Chap. VIII] OWNERSHIP IN GENERAL [|136

field. It may refer to an act on the part of one person, the
exercise of which is beneficial to another, as the obligation
due according to the terms of a contract. Ulpian says;
"Nominis rei appellatio ad omnem contractum et obliga-
tionem pertinet." But the word res is more often used in
a restricted sense to denote the object of ownership, or of a
real right.

Things were classified in the Roman law with reference
to different principles and were arranged in various antitheti-
cal groups.1 For the sake of convenience merely
in defining the various classes, this order is here cuwifle*-
preserved. According to this idea there are four tkm •*
general classes : —

1. Things as to their legal capacity.

2. Things as to their general qualities.

3. Things as to their mode of designation.

4. Things' as to their mutual relations.

1. Things as to their legal capacity.

According to Gaius the most important division is that
by which things are separated into (a) Res divini juris,
those which are subject to divine law, and (b) Res humani
juris, those subject to human law. To the former class
belonged res sacree, sacred things consecrated to the superior
gods, as temples ; religious things, res religiosae, those conse-
crated to the inferior gods, as burial places, and res sancte,
holy things, or those specially protected from desecration,
as the walls of the city. None of these things could become
the object of private ownership. Of the latter class, or res
humani juris, there were two divisions: (1) res extra patri-
monium, or extra commercium, regarded as incapable of in-

1 Gaius, II, 1-14.
377

1 135] A HISTORY OF ROMAN LAW [Part II

dividual ownership ; and (2) res in patrimonies or in com-
mercio, things over which the rights of property could be
exercised. In the former class were included things common
to all mankind (res communes), as the air and the sea ; things
belonging to all members of the State (res publico), as public
roads, rivers, ports, theaters; and things belonging to a
corporation of any kind, as warehouses, etc. In the latter
class (res in patrimonio) there was recognized up to the time
of Gaius the distinction between res mancipi and res nee
mancipi, but at the time of Justinian this distinction was
practically obsolete on account of the decay of symbolic
forms and the identification of legal and equitable ownership.
2. Things as to their general qualities.1
Things are classified according to their general qualities
into: —

(a) Res corporales, including all those objects which are
tangible, as land, houses, clothing, money, etc.,
and res incorporates, including all those objects
which cannot be touched, as certain claims,
privileges, or services which, though not tangible,
are yet capable of being made the objects of a
real right. Such are right of way, right of
aqueduct, right of using the fruits of some
corporeal thing, etc.
(6) Things movable and things immovable, according
as they can or cannot be transferred from place
to place without injury. This distinction was
primarily based upon the physical nature of the
things themselves; but the immovability of
certain things may depend upon their juridical
relation to other things. The whole subject of

1 Gaius, loc. ciL
378

Chap. VIII] OWNERSHIP IN GENERAL [§135

fixtures has been developed by the jurists
from this basis.

as they can or cannot be separated into parts
without destroying their essential character or
use. This principle of division was extended so
as to apply not only to a physical division into
definite parts, but also to a juridical division
into imaginary parts.

(d) Things consumable and things inconsumable. The

former class includes those which necessarily lose
their substance by use, as oil, wine, food, etc.
All things that do not lose their substance by
use are classified as inconsumable.

3. Things as to their mode of designation.1

Upon this was founded the division of things into those
which may be furnished in genere, and those which must be
furnished in specie. When a thing is generally designated in
a contract, any one of the kind may be furnished ; when a
thing is specifically named then the thing itself must be fur-
nished, and not some other thing similar in quality and value.

4. Things as to their mutual relations.

According to this classification, things were either principal
or accessory. A principal thing was by Roman law something
that could subsist by itself and was, consequently, viewed
as the object of a right. An accessory thing was by Roman
law one so joined or related to the principal that its legal
character was lost or merged in that of the latter.

The law of property in general determines not only the
various kinds of things which may be made the objects of a

1 Gaius, loc. ciL
379

§ 136] A HISTORY OF ROMAN LAW [Part II

real right, but also the. various kinds of real rights which
may be exercised with reference to things. The common
§136. The feature which characterizes these and distin-
Genmi guishes them from personal rights is the fact that
Ownership *key avail against the world at large. In defining
(Domin- the character and extent of real rights, a distinc-
hun^1 tion is to be drawn between those which one pos-

sesses in that which belongs to himself (jura in re propria),
and those which he possesses in that which belongs to another
(jura in re aliena). This gives rise to two divisions, jura
in re propria, and jura in re aliena. Attention will first be
given to the distinctive features of those rights which one
possesses in that which is his own. These rights involve the
highest and most absolute control which a person is per-
mitted under the law to exercise with reference to an object.
To this class of rights the Roman jurists applied the term
dominium — i.e., ownership in the proper sense of the word.
Property is no doubt primarily founded upon the instinct
to appropriate the necessary means of human existence and
Growth of happiness. Morally it has an ultimate basis in
gyj^JJJLl the nature of man. Looked upon from a purely
Bight legal point of view, it is immediately connected

with the evolution of civil society and the growth of State
power. This is clearly seen in the successive forms in which
property has been held and the modes in which it has
been protected. In the early stages of society the social
and the proprietary relations of men are so closely allied to
each other as to be governed substantially by the same prin-
ciples. The primitive form of property, especially as it re-
lates to immovables, partakes of the nature of communism.
In this form of property individual rights are merged in the

1 Poste, 14&-154.
380

Chap. VIII] OWNERSHIP IN GENERAL [|136

general proprietary rights of the group or gens, and what-
ever the individual acquires belongs to the common estate.
This growth of the importance of the individual in society
is accompanied by the growth of individual ownership. This
transition from collective to individual ownership of property
is an historical fact which has everywhere attended the
emergence of man from a state of barbarism. It is especially
marked in the history of Rome.

The growth of the legal idea of ownership is also associated
with the evolution of the State as the mediating power. In
primitive society the right of property is based upon force.
The right of the gens to that which it holds depends upon
its capacity to retain its goods against forcible dispossession.
With the growth of the State, the force necessary to protect
property is removed from the individual and the gens and
vested in the State. Parallel with this growth of the State
spring up common rules of acquisition which apply to all
and which are enforced by the sovereign power. The State
thus comes gradually to recognize principles that are based
upon an equality of rights, and in connection with the move-
ment whereby collective property is translated into individual
property, there is to be seen a movement whereby the sanc-
tioning power is transferred from the proprietors to the body
politic. The legal idea of property, therefore, which we find
in the Roman law is that of a right held by a person over a
thing, absolute with reference to all other persons, but relative
with reference to the State.

The right of dominium is the most extensive real right
which a person can legally exercise over a thing.1 Elements
It is, in general, indefinite as to its extent, un- involved in
limited as to its duration, and unrestricted as D"**1--

1 Roby, 413.
381

§ 136] A HI8T0RY OP ROMAN LAW [Pakt II

to its disposition. The owner, or dominus, can hold the ob-
ject to the exclusion of all other persons ; he can use it accord-
ing to his own free will ; he can reap all the benefits capable
of being legitimately derived from it, and can freely dispose of
it during his lifetime or at his death. Dominium includes : —

(1) The jus utendi, or the right of appropriating its use.

(2) The jus fruendi, or the right of appropriating its fruits

whether natural or civil.

(3) The jus abutendi, which involves- the right of destruc-

tion, consumption, and free disposition.

In connection with the simple idea of ownership just
described, there are certain special features relating to the
Different 'orm °' ownership, or the mode in which dominium
Forme of is exercised that should be noticed.1 (1) Romans
um* made a distinction corresponding in name to
legal and equitable ownership. This distinction was based
not so much upon the extent of the right as upon the kind of
sanction by which it was protected. Dominium referred
originally to that right of property which was protected
by the jus civile and was designated dominium Quiritarium.
The praetor assumed the authority to protect bona fide
possession even when all the conditions of the jus civile
had not been complied with. Such property was said to be
held in bonis, and this right was designated as dominium
bonitarium. By the assimilation of the jus civile and the jus
gentium these two rights became identical and were pro-
tected by the same court. (2) Dominium in one and the
same thing may be exercised by a single person or by two or
more persons. This gives rise to the distinction between
single and joint ownership. In the latter case no one of

1 Roby, loc. tit.
382

Chap. VIII] OWNERSHIP IN GENERAL [§136

the owners is entitled to the entire thing, nor indeed to any
separate part of it. (3) While dominium in the fullest sense
is an undivided and unlimited right, it may yet be qualified
in various ways without destroying the dominium. It is upon
this fact that the distinction between absolute and qualified
ownership, or free and burdened property, depends. When
all the rights are vested in the owner, the ownership is said
to be free or absolute. In this case it is known by the term
dominium plenum or plena proprietas. But when certain
subordinate rights are detached and transferred to another
person than the owner, the property is to this extent bur-
dened. The superior right which still remains with the owner
does not lose its essential character as dominium, but it is
now known as dominium minus plenum or nuda proprietas.
Besides the right of dominium, the Roman law recognizes
another real right, the right of possession.1 Possession and
ownership may, and generally do, coincide. But ^^^^^
as a person may be the owner of a thing and not and Hi
possess it, so a person may be the possessor *•>**» *>
of a thing and not own it. When the possessor
is not the legal owner of a thing, it is important to consider
to what rights he is entitled by virtue of his possession. Pos-
session, when considered as a mere fact, is simply the cor-
poreal apprehension of a thing, or the holding of a thing
under one's physical control. In order that possession may
have full significance as a legal fact, it must have been ac-
quired lawfully and in good faith. It is acquired lawfully
when it has been acquired through the forms of a legal title
and not in a vicious manner (vi, clam, vel prsecario). It is
acquired in good faith when the possessor believes that no
one has a better right to the thing than himself.

1 Mackenzie, 181 ; Roby, 451-458.

383

CHAPTER IX
THE ACQUISITION OF OWNERSHIP IN SINGLE THINGS

Having thus far considered the various kinds of things
that can be made the objects of ownership and the various
1 137, kinds of real rights that can be exercised with

Definition, reference to things, it is now necessary to consider
the various modes by which ownership in things may be
legally acquired. A mode of acquisition or title to property
refers to any fact or event by which the dominium becomes
legally vested in a determinate person. It applies alike to
the original acquisition of a thing, i.e., the transference of a
thing from one owner to another, whether the transference
is made during the lifetime of the previous owner or on the
occasion of his death. It applies to dominium only, and not
to the creation and transference of jura in re aliena. In their
arrangement of this subject the Roman lawyers made a broad
distinction between the acquisition of single things and the
acquisition of an entire estate. At the time of the classical
jurists, ownership in single things was acquired both by
natural and civil law. This gave rise to two grand divisions
of the modes of acquisition : —

(1) Modes of acquisition recognized by jus gentium.

(2) Modes of acquisition recognized by jus civile.

The modes of acquiring ownership are called 'original/
when they result in the independent creation of a new right
of ownership; when their effect, therefore, is independent

384

Chap. IX] THE ACQUISITION OP OWNERSHIP [§138

of the ownership of a definite third person. A derivative
acquisition arises when a person enters into the right of
property which had preexisted in another, and { I38.

derives the thing from him. In this class of Mod©* of
cases there is always a loss of property by the ^^Z^
third person, the owner, who makes it over to the by Jus Gen-
new proprietor. A person who acquires by an tl1im*1
original mode has no such third person back of him. Of the
original modes of acquisition recognized by jus gentium, the
following are ordinarily recognized : —

(a) Occupation

(b) Acoessio.

(d) Specification

(a) Occupatio.* Among the original methods of acquiring
property, occupancy is the most natural. This occupation
consists in taking possession of a thing over which no one
has a proprietary right with a view to its appropriation. The
rule of the Roman law is, res nullius cedit occupanti. There
are four conditions which must be fulfilled in order to give
to occupation its full legal significance : (1) The thing must
be a res nullius — that is, a thing which either never had an
owner, or, at least, has no owner at the time of its occupa-
tion ; (2) it must be a thing which is capable of ownership —
that is, res in commercio; (3) it must be brought into the
actual possession or control of the one professing to acquire
it; and (4) the person must acquire it with the intention
of assuming ownership in it — that is, possession must be
juridical. There are several applications of this title that

1 Hunter, 321-347.

* GaiuB, II, 68, 71 ; Poste, 183-191.

385

5 138] A HISTORY OP ROMAN LAW [Part II

are specified in the Roman law, of which the following are
the most important: —

(1) Wild beasts, birds, fishes, and, in fact, all animals

which are in their natural state of freedom become
the property of the captor. Such things, however,
must not be let go again. In case such a thing

be captured and afterwards regains its liberty, it
becomes the property of any one who thereafter
captures it. This law holds in regard to things
taken upon another man's land.

(2) Precious stones and gems in a state of nature become

the property of the finder; but this law does not
apply in the case of treasure trove. If treasure
trove be discovered upon land belonging to the
finder, it belongs to him in entirety, but if it be
found upon the ground of another person, then
it is equally divided between the finder and the
owner of the land.

(3) Things captured in war within the territory of bellig-

erents were regarded by the Romans as res nullius
and were the property of the captors.

(4) Things, the ownership of which has been abandoned,

are capable of occupation ; but this does not apply
to things thrown overboard from a ship in distress.

(5) Things found on the sea shore, having been cast up by

the sea, belong to the finder.

(6) Islands found in the sea become the property of the

finder.

' (6) Accessio.1 Another mode of acquiring property is by

accession. This can hardly be called a distinct mode of

» Gaius, II, 65-79.
386

Chap. IX] THE ACQUISITION OP OWNERSHIP [8138

acquisition. It is the process by which a person becomes
the owner of that which is legally united to that which already
belongs to him. There are two main classes of accessio :—

(1) Natural increment.

(2) Where the things of two owners have become mixed!
the law decides which one shall possess.

(1) Natural increment is the simplest mode of accession.
Of this there are several subdivisions: —

(a) Pructus is that by which a person acquires the right

to whatever is produced from that which he
already owns ; as the young of animals, the fruit
of trees, industrial products, revenues from prop-
erty, etc.

(b) Alluvio. The new soil gradually deposited by the

natural action of a stream or waters belongs to
the owner of the land upon which the deposit is
made. This does not include violent changes,
and when, in consequence of a sudden flood in a
river, a considerable portion of land clearly dis-
tinguishable is forcibly carried off from one estate
and addeda to another, either on the opposite side
or lower down the stream, the ground so severed
still remains the property of the original owner,
provided he asserts his right to it in proper time.

case the persons owning the property on each
side of the river own to a line in the midst of
the river, thus each receives a portion of the
island. Roman law vested the ownership of the
bed of the river up to the same line (admedium
filum), in like manner.

387

1 138] A HISTORY OP ROMAN LAW [Part II

(2) Where the things of two owners have become mixed
— Adjunctio. Things belonging to different owners
may become related as principal and accessory, and
the property of one owner is thus increased at the
expense of another. Here the principle of accession
does not apply if the things can be separated with-
out injury ; but if they cannot be thus separated,
then the accessory yields to the principal; the
less important yields to the more important. Of
this we may have many examples : —

(a) A tree belonging to A takes root in soil belonging

to B. In this case the tree belongs to B.

(b) Wheat belonging to A is sown on land belonging

to B. Sown wheat, like rooted trees, belongs to
the owner of the soil, B, but B can be compelled
to pay A for the wheat.

erty of B. In this case B owns the writing,
but if A is in possession, he can defend himself
against B's suit for possession by a plea of fraud,
unless B offers to pay for the writing.

(d) A paints a picture on a tablet belonging to B. Here

on account of the value of the painting the prod-
uct will belong to A. If B is in possession of
the painting, then A cannot get it without pay-
ing B for the tablet. If A is in possession, then
B can bring action for the tablet by offering to
pay A for the painting.

1 G&ius, loc. cit.
388

Chap. IX] THE ACQUISITION OF OWNERSHIP [§138

to transfer the ownership in the same. Among the de-
rivative modes of acquiring property are gift, exchange,
contract, succession, or other just titles, followed by posses-
sion of the thing. It is of the essence of property that the
owner of a thing should have the right to transfer it to an-
other by giving him possession. But it was an established
principle of Roman law that property could not be trans-
ferred merely by agreement. Delivery must also have
taken place. The transferrer must have put the transferee
in position to take possession of the thing transferred to
the exclusion of every one else. This was accomplished in
various ways. The actual transfer of physical possession
may have taken place, or without the actual change of pos-
session delivery might be brought about by placing the thing
to be transferred in sight and telling the transferee to take
it. This latter was called delivery longa manu. Another
method of transfer was the delivery of the keys of a house
which meant either the delivery of the goods within the house
or the building, as the case might be. This was known as
delivery breve manu.

(d) Specificatio is where one person has formed a new
species from the materials which belonged to another. It
is in the broad sense merely a portion or subdivision of
accessio, which has already been discussed. The Roman
jurists were for some time divided upon the question as to
whether the material or the product should be regarded
as the principal thing. The opinion seems finally to have
prevailed that if the product be capable of being resolved
into its original material without injury, then the material
is the principal thing, and the workman is entitled to com-
pensation for his labor ; but if the product cannot be thus re-
solved, then the product is regarded as the principal thing

389

1 139] A HISTORY OP ROMAN LAW [Part II

and the workman is liable to the owner of the material for
the value of the same, provided he acted in good faith,
or for the penalty of theft if he acted mala fide. Of spe-
cificatio we may have several cases : —

• (1) A makes a thing with materials belonging to B. If
the product can be reduced to the materials, it
belongs to B ; if not, then the product belongs to A.

(2) A weaves into a garment purple belonging to B. If

the product is separable, it belongs to B ; if not, it
belongs to A.

(3) Two owners consent to mix their materials. In this

case the product belongs to them in common.

(4) Materials belonging to two different persons become

mixed by accident. If separable, as two kinds of
wheat, each owns his share and no accession takes
place. If inseparable, they own in common.

' The following is the list of modes of acquisition recognized
by jus civile : —

I Z39. (1) Cessio in jure.

Modes of (2) Usucapio.

JSSS (3) Mancipatio.

by Jus . (4) Adjudicatus.

aTfl6-1 (5) Lex. (Ulpian's title for a legacy.)

(6) Jus accrescendi or right of accrual.

(7) Donatio.

(1) Cessio in jure was obsolete in the time of Justinian and
has been already sufficiently discussed.

(2) Usucapio or Prcescriptio is the acquisition of owner-
ship by possession for a certain length of time required by
law.2 It is made use of as a cure for defective title, and ex-

1 Post*, 159-169 ; Gaius, II, 15-26. * Gaius, II, 40-61.

390

Chap. IX] THE ACQUISITION OP OWNERSHIP (J 139

tinguishes claims which are not prosecuted within the legal
limits. Rights, therefore, are both acquired and lost by
prescription. To obtain ownership by possession, certain
specific conditions must have been fulfilled ; Gaius says that
prescription was established in order that the titles of
property might not remain uncertain. This possession was
considered of two kinds: (a) naturalis possessio, and (6)
civilis possessio.

. (a) By naturalis possessio a Roman understood the mere
physical apprehension of a corporeal thing, and
such a dealing with it as to exclude every one
else. For example, a person who has the key to
a granary has the means of going in, to the exclu-
sion of others.
(6) When to this naturalis possessio was added a funda-
mental element, namely, animus domini or sibi
habendi, i.e., the intention of the detainer of deal-
ing with the thing detained as owner and not as
a person to whom a thing has been pledged, it
becomes civilis possessio or legal possession, an
interest protected by special legal remedies called
interdicts. This civilis possessio was of great im-
portance and ripened into a perfectly good legal title.
The remedies or interdicts which were used to en-
force the civilis posse were merely announcements
of the praetor that he would act upon certain cases
directly without referring them to a judex. Of these
interdicts there were two kinds : —

(1) Interdictum retinendse possessions ; granted to a
person whose possessions had been threatened or
disturbed.

391

1 139] A HISTORY OP ROMAN LAW [Part II

(2) Interdictum recipiendse possessions ; granted to a
person who had been forcibly ejected from his
possessions.

The oldest form of usucapio known to the Roman law was
that recognized by the Twelve Tables. To establish usucapio
under the sanction of this civil law, four conditions must have
been fulfilled : —

(1) Possession for sufficient time.

(2) Bona fide et justa causa.

(3) Property acquired must be a res non vitiosa.

(4) There must be capacity for quiritarian ownership

both on the part of the person and the thing. In
other words, the thing must be a res intra commer-
cium.

In accordance with the law of the Twelve Tables, pos-
session, under the conditions named above, ripened, in case
of movables, into ownership in one year. Possession of
immovables ripened into ownership in two years. This
right by prescription proved to be very valuable in quieting
titles and, consequently, putting an end to numerous dis-
putes. It must be kept in mind, however, that Roman law
in this respect as well as in others was a manner of gradual
growth. The usucapio of the Twelve Tables was an insti-
tution of the jus civile and was, of course, confined to Roman
citizens, and was applicable only to such things as admitted
of quiritary ownership. Thus all provincial soil was ex-
cluded from its operation. As a peregrinus could not obtain
a thing by quiritarian right, he was excluded from the benefit
of usucapio. To meet this difficulty, the pretor invented
a new kind of usucapio, known as longi temporis prescriptio.
Of this there were two divisions : —

392

Chap. IX] THE ACQUISITION OP OWNERSHIP [J 139

(1) Occupation for ten years, if the parties lived in the

same province.

(2) Possession must have been nee clam, nee vi, nee pre-

cario as against the plaintiff. To illustrate this,
the following case may be cited : A has had land in
his possession, claiming it as owner, for a period of
eleven years ; B sues for the land, claiming that he
owns it. " Where were you living ? " asks the judge.
" In the same province with A," answers B. "Well,
then you are barred by lapse of time," says the judge.

Usucapio was made use of by Justinian in a somewhat
different sense. He extended the time of possession for
movables to a period of three years. For immovables,
provided the parties lived in the same province, he estab-
lished the time of possession as a period of twenty years.
If the parties did not reside in the same province, then the
period of possession was extended to thirty years. Justinian
confined the term usucapio to the possession of movables,
while to the possession of immovables he applied the term
proBscriptio. For prsescriptio, Justinian further enacted that
the possession of property, whether movable or immov-
able, for a period of thirty years, or in case of the property
belonging to the state or minors, for forty years, should
constitute ownership whether the property admitted of
ordinary usucapio or not.

(3) Mancipatio was already obsolete in the time of Jus-
tinian and has been sufficiently discussed.

(4) Adjudicate or Judicatum was a judgment rendered
against a debtor in accordance with the forms of the legis
actiones, and entitled the creditor to proceed against his
debtor by manus injectio, — arrest and imprisonment. In

393

§ 139] A HISTORY OP ROMAN LAW [Part II

the course of time this practice was abolished, and in its
stead was substituted an actio judicati against a debtor
who failed to satisfy a judgment that had already been
obtained against him. By this last process a debtor was
adjudged to his creditor to work off his indebtedness. But
in case he had funds, a real execution might proceed upon
the judgment after the expiration of sixty days of grace.

(5) Lex (Ulpian's title for a legacy). The discussion of
this topic is postponed until after the consideration of
testaments. (See Chap. XIII.)

(6) Jus Accrescendi, or right of accrual. Under the old
law when one of several testamentary heirs failed, his share
went to the others jure accrescendi. In case there were
several agnates of the same degree, and some declined the
inheritance, their shares went by accretion to those who
took under the law. This was a method by which a man's
property was sometimes added to by act of the civil law.

(7) Donatio. Among the special conventions which might
be enforced by a civil action in Roman law, donation was
included. Donation consists in one person giving some-
thing from a mere spirit of generosity, and without any
antecedent obligation, to another who accepts it. The
subject of the gift may be either movable or immovable
property, or anything having a pecuniary value, such as the
release of a debt. In order to constitute donation there
must be the animus donandi on the part of the donor, and
acceptance, or at least willingness to accept, on the part of
the donee. Acceptance, however, may usually be presumed
without any formal act. Although donation was considered
by Justinian as a distinct mode of acquisition, yet it was not
donatio alone, but donatio in combination with and serving
as a justa causa for traditio, exactly as an exchange or sale,

394

Chap. 1X1 THE ACQUISITION OP OWNERSHIP [J139

which confers dominium. Again it is not necessary that
donatio should take the form of conferring dominium ; it may
consist in the constitution of a jus in re aliena, the transfer of
possession the giving of an actionable promise, or the release
of a debt. Donation must voluntarily, gratuitously, and
intentionally improve the proprietary position of the donee
and actually diminish the property of the donor. These
three conditions being fulfilled, the donatio may take any
form given. There were two kinds of donatio : —

(a) Donatio mortis causa.
(6) Donatio inter vivos.1

(a) Donatio mortis causa is a gift made, in anticipation
of death and is revocable at any time before that event.
It stands halfway between a legacy and a gift inter vivos.
According to Justinian two essential conditions must be
fulfilled:—

(1) Donatio must be made with the view of meeting death.

(2) It must be made to take effect only in case of death,

revocable at any time previous, and if the recipient
dies before the giver the donatio is void.

(5) Donatio inter vivos is, as a general rule, irrevocable
unless the recipient proved ungrateful. Under such con-
ditions it might be recalled. A mere promise to give, with-
out the actual transfer of the thing given could be enforced
by an action, and Justinian said that delivery was not re-
quired for the perfection of a gift. Gifts were forbidden
by customary law between husband and wife, but some
modifications arose in the later empire.

A new donatio known as donatio ante or propter nuptias
was gradually developed. It is first heard of in a constitu-

1 Poste, 390.
395

§ 140] A HISTORY OP ROMAN LAW [Pakt II

tion of Theodosius II, where it is spoken of as already rec-
ognized by law. It was a gift on the part of the husband
as an equivalent to the dos on the part of the wife. A woman
had a legal claim against her husband or pater familias for
the donatio propter nuptias equivalent to the dos. During
the marriage the husband had control of this, but he could
not alienate land or houses contained within it, even with
the consent of his wife.

The usual method of acquiring property is through one's
own activity. Indeed, it was the general rule that a person
5140. sui juris could always acquire dominium by

Acquisition ftm^ but not through others. There were,

of Property m

through however, certain cases that were exceptions to
others,^ thfe rufe. These were : —

I. As to persons in potestas nostra.
(1) Whatever a Alius familias acquired was acquired for
the pater and came to him. Sometimes, how-
ever, the pater granted to the filius a small por-
tion of property called peculium. This peculium,
under the early Roman law, belonged to the
pater, but the son had control of it, and so long
as it remained in his possession it was his in so
far as it concerned a third party. He could sue
and be sued to the extent of his peculium. He
could even engage in business, using his peculium
as capital, and whatever he gained he gained
nominally for himself, but in the eye of the law
all this property belonged to the pater. About
the time of Augustus the son began to have pos-
sessions independently of his pater. This was

1 Justinian, II, 9 ; Gaius, II, 2-68.

396

Chap. IX] THE ACQUISITION OF OWNERSHIP [5140

the property given to the son upon his setting
out on a military expedition, together with all
he obtained in war. This he could dispose of as
he saw fit, and was known in the law as castrense
peculium.

(2) There was no further change made for nearly three

hundred years, but under Constantine a further
privilege was given to the filius familias under
the name of quasi peculium castrense. This was
an extension of rights similar to those of a soldier
to those in civil positions. This law applied to
the salary of an officer of the palace as well as
salaries and earnings in the learned professions.
In the time of Justinian the quasi peculium cas-
trense differed from the castrense peculium in
that it could not be willed, but only belonged to
certain persons. Justinian did away with this dis-
tinction and made this also disposable of by will.

(3) Peculium adventitium was established by Constan-

tine. This was everything belonging to a filius
familias by his mother's line, no matter in what
way obtained. Other emperors included in it
everything received either by succession or gift
from one married person to another (dos and
donatio propter nuptias). Justinian further in-
cluded in the peculium adventitium everything that
the filius gained in every way save from his father
(ex re patris). Thus it is seen that in the time of
Justinian a child might have rights over property
of three kinds: (a) one of which he controlled
absolutely; (6) the second one vested the nuda
propriatas in him, but the usufruct in the pater ;

397

J 1401 A HISTORY OF ROMAN LAW [Pabt II

and (e) lastly, the peculium profectitium or
property of the pater which could be resumed by
him at will and the use of which merely he had
granted to his son. In this last the son had a
right, but no legal one. If the son were eman-
cipated, the pater obtained, by the old law, one
third of the son's peculium adventitium. Jus-
tinian changed this, granting to the pater the
usufruct of one half, but still vesting the domin-
ium in the son.
II. Persons subject to manus or mancipium acquired
both dominium and obligatio for the person to
whom they were subject in any and every form
whatsoever.

III. Slaves in whom a person has the usufruct acquire

for such person in two ways : (1) Ex re nostra, i.e.,
by administering the property of the usufructuary ;
and (2) Ex operibus suis, i.e., by their labor.

IV, Slaves and freemen whom we have bona fide in our

possession are in the same position toward us as is
the servus to the usuf ructuarius in ' III/ When
they acquire by any other mode than the ones
mentioned, they acquire, the one for his dominus,
the other for himself.

' V. Slaves in whom a person has the nuda propriatas ac-
quire for that person all that is not fructus.

VI. Slaves in whom one man has bonorum possessio and
another man has dominium ex jure quiritium,
acquire for the person having bonorum possessio.

YU. Extraneae persons acquire by their own acts only
for themselves unless they act as agents for other
persons.

398

Chap. IX] THE ACQUISITION OF OWNERSHIP [5141

Alienation is the right or power to sell or dispose of any
property which a person has under his dominion. The law
in its ordinary course allows an owner to dispose f i4i.

of his property as he sees fit. However, there M******-1
are some conditions under which a person who is owner
could not alienate his property. A husband could not
alienate the immovables that formed a part of the dos of
his wife, although the ownership vested in him. The dos
which the wife brought to him as common stock belonged
to the husband. The lex Julia, a.d. 9, prevented a husband
selling immovables in Italico solo without the consent of
his wife, nor could he even place a mortgage on such property
without her consent. Justinian went further than this and
enacted that immovables wherever situated that formed a
part of the dos of the wife or the donatio propter nuptias
could not be sold or mortgaged by the husband, even with
his wife's consent.

The general rule was that no pupil of either sex could
alienate anything without the consent of the guardian, but
he could acquire property in anything transferred to him
by a third party.

A woman, in the time of Gaius, could not alienate res
mancipi without the action' of her tutor. This restriction
upon the power of a woman to alienate her property was
removed in the later empire, and she was permitted the
same freedom of alienation that belonged to a man.

A person not owner of property was sometimes able to
alienate it. An agent who was the curator of a lunatic
might alienate the property of his ward under the Twelve
Tables. An agent when he had vested in him the power of
attorney could sell the principal's goods. A creditor might

i Justinian, II, 8 ; Gaius, II, 62-85.

399

5141] A HISTORY OP ROMAN LAW [Pabt II

alienate the possession which had been pledged or mort-
gaged to him, although he was not the owner of it. Justinian
enacted that, unless persons otherwise agreed, the sale of
property held by pledge or mortgage should take place two
years after notice to pay had been made. In case no pur-
chaser could be found, then the creditor became the owner
of the thing pledged or mortgaged. Thus a perfected title
was obtained in a manner not unlike usucapio.

400

CHAPTER X

JURA IN RE ALIENA*

The varying conditions of human intercourse cannot be
permanently satisfied by ownership alone. It must be
possible for a person to deal in a manner au- |l4|a# jUI%
thorized by law with things which belong to in Re Alien*
others. This condition is in a measure satisfied
by the process of supplementing our own property by the
property of other persons without acquiring ownership in
their property. This has been done to a certain extent by
the development of obligations entered into with the owner,
such as agreement to let or to lease. But in all such cases
the right which we acquire is merely an obligation, and it
is available only against the person bound by the obliga-
tion. This is made clear by the following example: If
a lessee is disturbed in the possession and enjoyment of his
lands by a person other than the lessor, his rights as lessee
do not, in Roman law, entitle him to sue the disturber. He
can only address himself to the lessor, so that the latter may
interfere to prevent the disturbance and, if necessary, take
legal proceedings. In other words, the person granting the
lease is bound by obligation to guarantee the lessee in the
undisturbed possession of the thing leased. It will be seen
that this kind of a transaction is in effect merely personal
and is unsatisfactory to this extent.

* Poute, 164-157 ; Roby, 467-483, 490-506.

401

§ 143] A HISTORY OP ROMAN LAW [Pabt II

It was for the purpose of satisfying this want that real
rights in re aliena were developed. Rights thus established
in regard to the thing are stronger than those depending
merely upon obligation, because they are directly operative
and enforceable as against any third party. This chapter
has to deal with these real rights in re aliena. The common
characteristic, legally speaking, of all such rights, and that
which distinguishes them from ownership in general, is
this, that the rights of control over things which they confer
are limited in regard to their contents, even though they
are directly available against any other person who inter-
feres with them.

The jura in re aliena which have been developed in Roman
law are comparatively few in number. They are: —

(1) Servitudes.

(2) Emphyteusis.

(3) Superficies.

(4) Pledge.

"The object of servitudes is to enable persons other than
the owner of a thing to share in the benefits derivable from
1 143. the use °f th*t thing, while preserving the in-

8wi*rf«*» terests of the owner as fully as possible." By
this ownership is somewhat curtailed and is not left ab-
solutely free, though, at the same time, its economic effect
is not done away with. These may all be regarded as de-
tached fractions of property, portions of the right of dominion
taken from the proprietor and vested in another person.
But it must not be lost sight of that ownership is still the
dominating right. The only jura in re aliena known to
the early civil law were servitudes. All the others were

1 Moyle, 204-210 ; Justinian, II- V ; Poste, 155-168.

402

Chap.X] JURA IN RE ALIENA . [{143

developed at a later period in Roman history, either by the
praetor or by the legislation of the later empire. Whenever
the enjoyment of the owner was curtailed, his property was
said to be in servitude (res servit). Whenever the enjoy-
ment of ownership was in no way restricted, the property
was said to be free from any servitude. The restrictions
which were imposed upon servitudes in the interests of
ownership were twofold. In the first place servitudes
conferred upon the person entitled certain specific and
clearly defined rights of usufruct. Beyond these well-de-
fined limits the person enjoying the servitude could not go.
In the second place, servitudes were inalienable and non-
transmissible, being annexed to a definite subject whose
destruction entailed the destruction of the right. When
the person who possessed the servitude died, the servitude
also perished.

The subject of a servitude was determined in one of two
different ways. It was either a definite person, or it was
determined by reference to a thing. This gave rise to two
classes of servitudes : (1) personal servitude, and (2) prsedial
servitudes.

(1) Personal servitudes. A personal servitude was given
to an individual for his enjoyment, and died with him. It
was therefore a right enjoyed for a lifetime. The important
servitudes are: —

(a) Usus fructus.

(b) Usus.

(o) Habitatio.

(d) Opera servorum.

(a) Usus fructus. A usufruct is the right of using and
taking the fruits of anything that is not con-

403

1 143] A HISTORY OF ROMAN LAW [Part II

siimed by use during the lifetime of the person
receiving, unless another time is fixed. A person
having the ownership of property in which another
has a usufruct is called simply dominus, or more
properly dominus proprietatis nudee. A person
having the usufruct is called fructuarius, while the
property is called res f ructuaria. The fructuarius
was entitled by Roman law to choose whether he
would have the use and the fruits as they were or
the same in the shape of a money equivalent ; that
is, by selling or letting the exercise of the usufruct
to a third party. After the expiration of the
usufruct the thing had to be restored. As this
was the case, things that were consumable did
not admit of a usufruct.

A usufruct might be established not only in a
field or a house, but also in slaves and beasts, and,
in fine, in everything except what was consumed
by the very fact of use.
(6) A usus confers a real right to enjoy and take the fruits
of a thing not one's own, so far as is necessary for
the satisfaction of the usuary's personal require-
ments. This lasted at most for a lifetime. A
usuary was barred on principle from letting or sell-
ing. He had to give security that he would re-
store the thing after the expiry of the usus, and
that he would exercise care in using the thing,
with the alternative of paying whatever damages
were incurred.

It was understood that a person who had the use
of a house could dwell in the house himself, but
could not transfer this right to another. His wife

404

Chap. X] JURA IN RE ALIENA [{143

and children might dwell in the house with him, as
well as freedmen and servants, but he was not
permitted to entertain guests or lodgers.

(e) Habitatio is a real right, existing at most for a life-
time, to live in a house not one's own, but to live
there after the manner of a person entitled to
maintenance. Papinian observes that the right of
habitation is scarcely to be distinguished from the
right of using a house. Anciently it was supposed
to be a grant for one year only, but it was ulti-
mately put on the same footing as usufruct. A
usuary of a house had the right to determine for
himself in what manner and in what part of the
house he would live, while in the case of habitatio
it was the owner of the house who determined in
what manner and in what part of the house the
habitator should dwell. But the habitator was en-
titled to let out to others the rooms assigned to him
for habitation instead of occupying them himself.
He was, in other words, permitted to realize, in the
shape of money equivalent, the benefit which was
conferred upon him.

(i) Operse servorum was a limited right to the use of
another person's slave. It was, like habitatio, a
real right, at most for a lifetime, to make use of
the working powers of another man's slave, either
by accepting his services, or by letting them out to
others. This right was extinguished by the person
suffering a capitis deminutio minima.

(2) Prcedial servitudes,1 "A predial servitude is a defi-
nite right of enjoyment of one man's land by the owner

1 Porte, 154-157 ; Justinian, II, 1.

405

5 143] A .HISTORY OF ROMAN LAW [Part II

of adjoining land ; including in the term land also houses.
The land subject to this right is called predium serviens,
and the land to which the right is attached is called pradium
dominans." The name 'predial' is attached to these ser-
vitudes, because they cannot exist without landed estates.
No one can acquire a predial servitude in either town or
country unless he has landed estates, nor can a person
become subject to predial servitude unless he is the owner
of a landed estate. The lands must also adjoin each other,
or a predial servitude cannot exist, and a predial servitude
is restricted in its enjoyment to that to which it is attached.
Predial servitudes are divided for convenience into: (a)
rural servitudes, and (&) urban servitudes.

(a) Rural servitudes are for the most part rights of way,
rights of aqueduct, and rights of drawing water
on another's land.
(6) Urban servitudes are for the most part the right to
prevent buildings being raised above a certain
height on the adjoining land ; the right to place a
beam on which a story rests on a neighboring wall ;
the right to use a neighboring wall to support one's
own; and the right to let rainwater drop on a
neighbor's premises. In all these cases one piece
of land is said to 'serve' another. For this reason
the land on which the servitude is imposed is called
the predium serviens, and the land which has the
benefit of the servitude is called the predium domi-
nans. The situation of these lands must be such
that one can be of use to the other. It is also
required that the advantage which the predium
dominans derives from the predium serviens shall

arise from the permanent character of the latter,

406

Chap. X] JURA IN RE ALIENA [{143

and, conversely, that the benefits of the servitude
shall exist, not only for this or that owner, but for
every owner of the praedium dominans. There
cannot exist any servitude where the object is
merely to satisfy the wants of the present owner.
In accordance with the Roman civil law there is only one
way in which a genuine servitude can be created by agree-
ment.1 This is by in jure cessio, or, in other words, by a
fictitious vindicatio of the servitude followed by ^couWikm
a confession on the part of the fictitious de- ofSarri-
fendant, and an addictio of the praetor or judg- ******

ment of the judex in favor of the fictitious plaintiff.

According to the praetorian law of a later date no such
formal juristic act as that mentioned above was required.
It was sufficient, if the servitude were actually granted by
one party and exercised by the other. The forms of the
civil law were not available in this case, nor were they
called upon. The praetorian law was made use of chiefly
in the province where the soil did not admit of genuine
private ownership.

In addition to agreements, we also have the following
modes of acquiring servitudes : —

1. Legacy. The civil law required in this case that the

direct and solemn form of legatum per vindica-
tionem should be made use of.

2. Adjudicative*. This was made use of in proceedings

to partition an estate. An example of this would
be when a judge, for purposes of partition, awards
the ownership to one party and a usufruct to
another, or when he, in case of an actual partition

i Justinian, II, 4 ; Porte, 105-166.

407

1 143] A HISTORY OP ROMAN LAW [Part II

of the land, awards the respective owners mutual
predial servitudes.
3. Usucapio. The magisterial law extended the appli-
cation of longi temporis possessio to servitudes. A
servitude was acquired if exercised for ten years
inter presentes, or for twenty years inter absentee,
nee vi, nee clam, nee precario.

A servitude was extinguished:1 (1) by the death of
the person entitled to it, where the servitude was personal ;
Extinction (2) by confusio, when the person entitled to the
ofSarvi- servitude acquired ownership in the thing, or
todei* when the owner acquired the right of the servitude ;

(3) by release to the owner of the thing in servitude;

(4) by bequest of the exemption from the servitude; (5)
by non usus, i.e., non-exercise of the right per longum
tempus.

Servitudes were protected by means of the actio oon-
fessoria in rem.2 The plaintiff in this action was bound
Protection *° maintain and prove his title to the servitude,
of Serri- The condemnation ordered the disturber to pay

os* damages, to recognize the servitude, and to dis-

continue all further acts of disturbance. The owner could
employ an actio negatoria in order to stop any other
disturbance of his ownership. Particular servitudes were
protected by possessory remedies or interdicts granted with-
out proof of legal title, on the ground of the juristic posses-
sion of the servitude alone. Juristic possession was the
actual exercise of the servitude coupled with the intention
of acting as a person entitled to such servitude.

» Poste, 169-170.

1 Ibid., loc. tit.; Gaius, IV, 3.

408

Chap. X] JURA IN RE ALIENA [{144

The tenure which was afterwards called emphyteusis is
to be traced to the long or perpetual leases of lands which
had been captured in war, granted by the §144. Em-
Roman State. The word itself is from the Greek •*•«*
ifjuf>vT€v€iPy to plant, to cultivate. The expression as here
used occurs for the first time in a passage of Ulpian. The
rent given for such land was called vectigal and the land
itself ager vectigalis. The advantages of this perpetual lease
were appreciated by corporations, both ecclesiastical and
municipal. The governing bodies of towns let out in this
manner the lands which belonged to the community for an
indefinite term of years, subject to the payment of an annual
rent. Subsequently this system was extended to the vast
domains of the emperor, whenever it was desired to have
uncultivated lands made arable (emphyteusis). There
were at first doubts in the minds of Roman jurists as to
whether emphyteusis was a sale or merely a hire of the land.
This doubt was put to rest by an enactment of the emperor
Zeno to the effect that the agreement between the em-
phyteuta and the dominus was a special kind of juristic
act and was placed in a category by itself. Thus the legal
relationship created by emphyteusis was sui generis, and
was governed by rules of its own.

Though not the owner of the land, the emphyteuta was
nevertheless entitled to exercise all the rights of an owner,
so that, practically, he stands to the land, as Rightiof
long as his right lasts, in the same relation as •nEmrfiy-
though he were actually the owner. He had
the full right to take not only the fruits, but all the produce
of the land, and consequently also the right to make im-
provements and to change the manner of cultivation. These

1 Gaius, III, 145 ; Justinian, III, 24, 3.

409

§ 145] A HI8T0RY OP ROMAN LAW [Pabt II

features distinguish the powers of the emphyteuta from
those of the usufructuary, and the mere lessee for a short
term of years, as these persons did not enjoy the right to
change the method of culture. The emphyteuta might,
if he chose, sell the fruits of the field for a money equivalent,
or sublet portions of the land under inferior tenures. He
could enforce his rights the same as if he were the owner
by means of the possessory interdicts. In fact, his posses-
sion was in every way equal to that of the owner.

While the emphyteuta enjoyed the numerous rights given
above, he also had numerous duties devolving upon him.
Duties of These were as follows: (1) he must pay his
the Em- annual rent (vectigal) ; (2) he must not deteri-
*hjtttttt* orate or depreciate the value of the property;
(3) he is bound to give his landlord notice of his intention
to dispose of his rights as perpetual lessee, so that the land-
lord may, if he so wills, exercise his right of preemption.
If the emphyteuta failed in any of these duties, the landlord
might deprive him of his rights as perpetual lessee .and re-
let the property to another person. This, however, could
not be done without a fair opportunity being given the
emphyteuta to make good. For instance, he could not
be dispossessed for failure to pay his rent unless the rent had
fallen into arrears for three years.

Superficies stands in the same relation to houses that

emphyteusis does to agricultural land. In Roman law

1 145. 80- superficies is a perpetual lease of building land,

J*11*1*8-1 subject to the payment of an annual rent known

as solarium. Upon this land the superficiary erects a

house out of materials belonging to himself. By the rules

of accession, already explained, the ownership of the house

1 Poete, 157, 619.
410

Cha*.X] JURA IN RE ALIENA [5146

vests in the owner of the soil, since the land upon which the
house is built is deemed greater or more valuable than the
house. However, the superficiary is possessed of a real
right for himself and his heirs, to live in the house and ex-
ercise all the rights of ownership therein for the specified
term of years (as, for instance, three generations or ninety-
nine years) or forever, as the case may be. It appears from
this that the legal position of the superficiary is the same as
that of the emphyteuta. He enjoys the same legal remedies
as the owner, and his possession is expressly protected by
the same process of interdict as was that of the emphy-
teuta. He can execute all necessary repairs and alterations
in the house, provided he does not deteriorate the value
of the property. He has the control of the house, can sublet
it for a limited term of years, and, in fact, enjoys the juristic
possession of the house in precisely the same way as if he were
the owner. All the statements that have been made in ref-
erence to emphyteusis can be made with equal force touch-
ing superficies.

A right of pledge is a real right which enables the person
entitled to secure payment of a claim through the medium
of a thing. The early Roman law knew no such • ^

thing as a right of pledge in any modern sense of Pledged
the word. There were certain acts performed, Htotwyaf
the economic result of which was the creation
of a pledge; the securing of a claim by means of the
deposit of a thing which was considered of equal, or even
greater, value. But there was no juristic act the formal
object of which was to create a right of pledge over a
thing.

' Gaius, III, 203, 204, II, 64 ; Justinian, II, 8, 1, III, 14, 4, III,
19, 20, IV, 1, 14.

411

1 146] A HISTORY OF ROMAN LAW [Pabt II

In later times three forms of pledge were made use of.
Forms of These tfere; (1) fiducia, (2) pignus, and (3) hy-
*■■*■»• potheca.

(1) Fiducia. If a person wished to obtain credit by giving
his creditor security for his claim, he could accomplish his
purpose by mancipating a thing to the creditor, i.e., by con-
veying to him the ownership of the thing, subject, however,
to an understanding that as soon as he (the debtor) discharged
his liability, the creditor should reconvey to him the thing
pledged. The mandpatio was in this way a mancipatio on
trust (fiducia). By this process the creditor was made
absolutely safe, since the ownership of the thing deposited in
security was absolutely vested in him. He could deal with
it as he saw fit. He could sell it in satisfaction of his claim
against the debtor. But while the position of the creditor
was made secure, that of the debtor was unsatisfactory. He
might pay his debt in due time, but he could never be sure of
recovering the property he had parted with as security for
his debt. The creditor might have already disposed of the
thing either by sale or exchange. In such a case the creditor
was bound to compensate him for any loss sustained, but as
regards the thing itself that was pledged, the debtor had no
remedy. The dissatisfaction growing out of this gave rise
to a second method of securing creditors for their claims. This
was pignus.

(2) Pignus. The second method of granting security with-
out the transfer of ownership in the thing pledged was
known as pignus. This was accomplished by mere traditio
in such a manner as to confer on the creditor, not the owner-
ship of the thing, but simply the complete actual control
of the thing, juristic possession. Here the position of the
debtor was made satisfactory as well as that of the creditor.

412

Chap. X] JURA IN RE ALIENA [|146

He retained his ownership and, with it, a real right to recover
his property from any one who obtained possession of it. So
soon as he paid his debt, no one had the right to withhold
from him the thing pledged. In this case the position of the
creditor was not so satisfactory as under fiducia. He had,
indeed, actual possession of the thing, and the praetor pro-
tected him in this possession by means of the possessory inter-
dicts. But he had no real right in the thing, and could not,
therefore, make use of the ordinary actio in rem against any
third party. Moreover, he could not dispose of the thing
with a view to satisfying his claim. In case the debtor de-
faulted he could not sell the pledge and so recoup himself out
of the proceeds. Further, if the debtor preferred leaving the
thing with the creditor to paying his debt, the pignus was of
no use to the creditor at all. It became necessary, by reason
of this unsatisfactory side to pignus, to discover a new trans-
action under which, though the debtor retained the ownership
of the thing, and, with it, a real right to recover it from a third
party, the creditor could nevertheless acquire a right in the
thing, or remedy, if necessity arose, to realize its value for the
purpose of satisfying his claim, in a word, a right of pledge,
in the true sense of the term.

(3) Hypotheca.1 The difficulty which was involved in the
question of pignus was solved with the aid of the praetorian
edict. The debtor was able to enter into an agreement with
the creditor by the terms of which certain things belonging
to him (the debtor) could be made to serve the creditor as a
'hypotheca' ; that is, should serve as a means of satisfying the
creditor's claim in case the debtor failed to pay. Such a rela-
tion was called ' hypotheca/ which term was borrowed from
the Greek law. In the early republic such an agreement

» Gaius, IV, 147.
413

§ 146) A HISTORY OF ROMAN LAW [Pabt II

could never have been made, and had it been entered into, it
would have been legally void. But the development of the
praetorian edict made this natural sort of a compact legal.
The praetor enabled the creditor to obtain possession of the
things pledged by granting him the so-called ' interdict um
Salvianum,' as well as an ordinary legal remedy called the
'actio Serviana.' Protection was also extended to any per-
son to whom property had been hypothecated by another.
In this manner, in accordance with the praetorian law,
hypotheca gave the creditor, in the first place, a real right of
action, which enabled him, on non-payment of the debt, to
obtain possession of the thing hypothecated; and, in the
second place, it gave him a right of sale, i.e., a right to realize
the value of the thing for the purpose of satisfying his claim.
-Thus the creditor had all the rights he required, and at the
same time the interests of the debtor were protected by the
fact that he retained his ownership and, with it, the real right
to recover his property from any third party into whose
hands it might come. This was nothing more nor less than
the modern mortgage. No transference of the thing into
the possession of the creditor was necessary. The whole
transaction rested upon mutual agreement.

414

Title 2. Herediias or Inheritance
CHAPTER XI

HEREDITARY SUCCESSION1

There are two kinds of succession recognized in the Roman
law — testamentary and legal. When a person by a testa-
ment appoints heirs to succeed to his estate after . I47
his death, they are preferred by reason of this Kinds of
special destination of the proprietor ; this is called Socce,,ioJL
testamentary succession. If the deceased has left no will,
his estate is devolved upon his relations in a certain order
prescribed by law, from a presumption that they would have
been called by the deceased had he made a destination.
This is termed legal succession, or succession ab intestato.

The fundamental idea which lies at the base of proprietary
rights and proprietary liabilities is the idea of immortality.
An owner may die, but his ownership survives I x4*«

him ; a debtor may pass away, but his debt re- jmd Con-
mains. In this respect the rights and duties of caption,
private law differ from those of public and family law, as it is a
principle of the rights and duties incident to public and family
law that they perish with the person to whom they are
attached ; while it is a characteristic of a private right and a
private liability that they can survive their subject and can
pass to a new subject. This is but another way of stating that
property is not destroyed by the death of the proprietor.

1 Mackenzie, 273-284 ; Roby, 171-287 ; Hunter, 739-874.

415

$ 148] A HISTORY OF ROMAN LAW [Pabt II

This circumstance is explained by the fact that though the
individual may die, the family to which he belongs survives.
It has been shown in a previous chapter that in ancient times
the family was sole owner ; individual ownership was unknown,
and common ownership was the only recognized form. This
community of goods on the part of the family developed in the
course of time into the common ownership of the community,
on the one hand, and the private ownership of the individual,
on the other. The rights granted to the family in the law of
inheritance give clear testimony to the influence of this
original conception of family ownership on the law of private
ownership. The true owner of the property was not re*
moved by the death of the individual, because the family
continued to exist, and as they were coowners of the estate,
it might be that the property never changed hands.

As time went on, the idea of private ownership outstripped
the traditional conception of family ownership, and the indi-
vidual was allowed, through the medium of a will, to realize
his absolute right of disposition as against the family, even
after his death. It would appear from this brief sketch that
intestate succession must have been much older than testate,
and this is undoubtedly true. And yet testaments are of very
high antiquity and are mentioned in Roman law before the
legislation of the decemvirs. The Twelve Tables recognize
the power of the owner to dispose of his property by will in
these words ; " Uti legassit super pecunia tutelave suae rei, ita
ius esto." A testament is a declaration of the testator's last
will made according to the formalities prescribed by law, and
containing the appointment of a testamentary heir or exec-
utor. According to Modestinus ; " Testamentum est volun-
tatis nostra iusta sententia de eo, quod quis post mortem suam
fieri velit." Testate succession was allowed to take place

416

Chap. XI] HEREDITARY SUCCESSION [$149

only upon the failure of persons entitled to have the inherit-
ance by right of blood, whether genuine or fictitious, and,
consequently, testators were compelled to satisfy, to some
extent at least, the just demands of their nearest relations.
This was in the interest of the community, as it was a matter
of public concern that the nearest relations of the deceased
who depended upon him when alive for their sustenance should
not be deprived of his property without good and sufficient
reasons.

In Roman jurisprudence succession takes the form of
universal succession.1 When a Roman died, the heir or heirs
succeeded to all his property as a unit (hereditas) § x4*

with all its rights and liabilities. The institution Vf^£
of an heir in a testament was a formality that don.

could not be dispensed with. The testator might appoint

any number of heirs and divide his estate into as many parts
as he saw fit. The whole inheritance was called as, and
was usually divided into twelve parts called uncifle. Of
these unciee or twelfths : —

2 = sextans, sextantis.

3 = quadrans, quadrantis. ,

4 = triens, trientis.

5 = quincunx, cuincunctis.

6 = semis, semissis.

8 = hes, hesis.

9 = dodrans, dodrantis.

10 = dextans, dextantis.

11 = deunx, deunctis.

Hence the heres ex ase is heir to the whole of a man's prop-
erty, heres ex semisse, to the half, and so forth.

1 Roby, 171-175.
417

{ 150] A HISTORY OP ROMAN LAW [Pabt II

There were three modes of making wills in use among the
J 150. Romans in the earliest times.1 These were : (1)

Chronologi- v '

cai Order in wills made before the comitia calata ; (2) tes-

theDeI!lop" tamenta in procinctu facta; and (3) testa-
ment of Tea- # x '

tamentum. menta per ess et libram.

(1) The oldest of all wills were those made before the gen-
eral assembly of the people, called comitia calata, which were
Ancient held twice a year for the purpose. Aulus Gellius
Forms. ^yg . "This was the mode in which the patricians
made their wills before the time of the Twelve Tables. The
comitia calata consisted of the same members as the comitia
curiata, but were so called (from colore, to summon) when
convened by the pontiffs for the purpose of witnessing wills
and other business. In these early times, when the art of
writing was little known or practiced, the testament usually
consisted of an oral declaration, and it was therefore desir-
able that its tenor should be known to as many witnesses
as possible/' This was a legal act either when the testa-
tor had no heirs discoverable, or when they had waived
their claim.

(2) Testamenta in procinctu facta. These were wills made
by soldiers upon the eve of battle, as the army was about to
set forth to meet the enemy. They were made in the pres-
ence of their companions and were considered as perfectly
legal.

(3) Testamentum per aes et libram. This consisted of an
imaginary sale of the inheritance by the testator to the in-
tended successor, in the presence of the balance-holder and
five witnesses. As the name would imply, this method came
into use some time after the Servian reforms. There were
three forms of this testament in use : —

» Gams, II, 97, III, 82.
418

Chap. XI] HEREDITARY SUCCESSION [$150

(a) Originally a bona fide conveyance, taking effect in the
lifetime of the testator and giving the whole prop-
erty to the familise emptor. By this method the
inheritance at once vested in ^he heir. There was
no secrecy observed, and, in this way, many heres
obtained the entire property of the testator and
disposed of it in ways not at all conducive to his
happiness. It was doubtless for this reason that a
change was made.

(6) The conveyance was next made revocable and did not
take place until after the death of the testator, the
latter no doubt making a reservation of property
sufficient to support him during the remainder of his
life.

(c) Finally, the conveyance was revocable and did not take
place until after the death of the testator. More-
over, the f amilise emptor was a different person from
the heres and simply acted as his trustee. This testa-
ment was at first made orally to the families emptor,
who also made his responses orally. The responses
of a buyer in an ordinary mancipatio embraced two
main points : (1) the assertion on his part of abso-
lute ownership ; (2) an assertion of purchase for his
own benefit as his title to that ownership. The
responses of the familiee emptor were different from
this. In the first place, it was an assertion of trus-
teeship ; " I declare your patrimony and money to
be in my charge, guardianship, and property." In
the second place, it was an assertion of purchase
for a purely ceremonial object.

In the process of time the oral forms mentioned above were

419

1 1501 A HISTORY OF ROMAN LAW [Pabt II

superseded by the introduction of written wills properly
Wills in attested, which, after being recognized by the
Writing. praetors, were regulated by constitutions of the
emperors.1 These wills required to be signed by the testator,
pabt0m or some person acting for him, in the presence of
run Sealed ; seven witnesses, called together for the purpose,
who attested the same under their hands and
seals. Wills made in such a manner were called praetorian
sealed wills, as the praetor always enforced such wills. Moyle
claims that as these wills were not recognized by the civil law,
they cannot be classed as wills in any proper sense.

Besides the written wills already mentioned, there is
another kind given in Justinian which was ordained by
Tegta. Theodosius II and Valentinian III, although

mentnm it must have been in use some time before that
^p0**111- (439).2 This was commonly called testamentum
tripertitum. This testament had to be in writing, signed at
the foot by the testator and seven witnesses at one and the
same time and, lastly, had to be sealed by seven witnesses.
This ceremony passed the civil law universitas or hereditas,
and the person taking under it was heres and not merely
bonorum possessor, as was the case in that given above. It
was called ' tripertitum' because it was derived from three
branches of the law : (1) seven witnesses all present from the
civil law; (2) sealing and number of witnesses from the
praetorian law ; (3) signing by testator and seven witnesses at
foot from the Imperial constitution.

In the time of Justinian another form of will was intro-

Private duced. This was the private nuncupative will,

BfondpatiTe which was merely an oral declaration in the pres»

ence of seven witnesses. It was, apparently, only

1 Moyle, 236. * Gaius, II, 103-104.

420

Chap. XI] HEREDITARY SUCCESSION [{150

made use of in special cases, but it passed the civil law heredi-
tas, and the person taking under it was heres and not merely
bonorum possessor.

Shortly after the establishment of the private nuncipative
will, there was recognized the public nuncipative will, where
a person without any formality declared his last p^,, Run_
will and testament in the presence of a magis- dprtre
trate or had a memorandum of the same entered ^^

with the records of the court.

All written wills might be written on a tablet of wax or,
indeed, any substance capable of receiving legible characters.
Women and all persons under the power of the testators, the
heir and his family, were disabled from being witnesses to the
will.

Such were the formal testaments in use among the Romans.
But wills could be made without the formalities in certain
privileged cases.1 These were four in number and Privileged
are considered without regard to time. (1) Tes- Wflb"

tamentum militarium. It is impossible to tell at what time
the testamentum militarium came into use, but it was evi-
dently quite old. When military persons were engaged in
actual service against an enemy, they might make their wills
without any of the ordinary formalities. All that was re-
quired was sufficient evidence of their intention regarding the
disposal of their property after death. Such wills were only
valid for one year after the discharge of the testator from the
army.

During the prevalence of a pestilence or contagious disease,
the presence of all the seven witnesses at one time and place
was dispensed with. It was deemed sufficient if each witness
in succession attached his name and seal to the will.

1 Justinian, II, 11.
421

S 151] A HISTORY OF ROMAN LAW [Part II

• In rural districts, when seven qualified witnesses could not
be found, the number might be reduced to five, and one wit-
ness might sign for those who could not write. This latter
modification was introduced to accommodate the many per-
sons dwelling in the country who were unable to read or write.

If a will was made by a parent for distributing his property
solely among his children or other descendants, no witnesses
were required, provided the testator wrote the will himself, or
filled up in his own handwriting the date of its execution, with
the names and portions of the children. But a legacy left
to a stranger in such a will was necessarily void.

The legal validity of a testament depended upon the testa-
menti factio or legal capacity of those concerned in the pro-
5 151. duction and execution of the testament. This

Validity of k^a' caPac*ty may ^^ ^ considered in its rela-
Testa- tion to three persons: (1) the testator, (2) the

mwktB-1 heir, and (3) the witnesses.

(1) Testamenti factio activa, or legal capacity of the tes-
tator, involved domestic independence, the possession of a
mature and sound mind, and the exercise of free will. Per-
sons incapacitated from making a will were thus slaves, per-
sons under power, except as regards their peculium, pupils,
spendthrifts, and persons both deaf and dumb. There was
also included in this class persons who were not in the pos-
session of full consciousness and those who acted under re-
straint.

(2) Testamenti factio passiva, or legal capacity of the heir,
was less restricted than was 'activa/ as the capacity to receive
property is far more extended than the capacity to dispose of
it. The chief conditions required in order that a person might
be made heir in the time of Justinian were that he be specifi-

1 Justinian, II, 12, 1-4.
422

Chap. XI] HEREDITARY SUCCESSION [§152

cally appointed in the testament, and that he be capable of
holding property.

(3) Testament! factio relativa, or legal capacity of witness,
was possessed by all persons not expressly disqualified by law.
Persons thus disqualified were slaves, impubes, women, those
instituted as heirs, those under the power of the testator,
and persons deaf, dumb, blind, or insane. Women had full
legal independence and equality with men in nearly every-
thing else, in the law of Rome at the time of Justinian,
save this.

Some further modifications of the testator's power were that
he must be in the enjoyment of commercium and be sui juris
both at the time of making the will and at the time of his
death. The heres must be possessed of commercium and be
in the enjoyment of 'passiva' at the time of the making of the
will, at the time of the death of the testator, and at the time
of accession.

A testament made by a man in captivity was invalid, but if
he had made a will before he became a captive, it was valid
provided he returned. If he did not return, but died in cap-
tivity, the will was naturally voided, but was invalidated by a
deduction from the lex Cornelia de Falsis.

The validity of the Roman will depended not merely
upon the formal conditions just mentioned; §152.

there were besides certain conditions relating to N**"try

COllTeDtW Ok

the contents of the testament that must be ob- the Testa-
served. The provisions upon this subject relate meat*

to: —

I. The disherison of heirs.

II. The institution of heirs.

III. The substitution of heirs.

1 Mackenzie, 280-284.
423

1 152] A HISTORY OP ROMAN LAW [Pabt II

By the ancient law, if a father of a family wished to de-
prive his children of the succession, he was obliged to declare
I. Dig- I"8 intention by formally disinheriting them in
henson of his will. At first, sons under the father's power
were disinherited by name, so as to prevent any
error; but daughters and grandchildren might be disin-
herited in general terms (ceteri). This law was doubtless
based upon the fact that the children were, in a certain
sense, co-proprietors of the family estate and were, con-
sequently, at the death of the father, presumptively entitled
to succeed to the inheritance. This principle still retained
an influence upon the law even after the father had obtained
larger testamentary powers, so that if he desired to appoint
other persons as heirs, he could do so only by formally setting
aside those who had a natural claim to the estate. This pro-
vision was necessary to prevent the will from being void
from the beginning ; but it left open the question as to the
justness of the disinherison, and it did not, consequently,
prevent the will from being invalidated by an action. In
discussing the various classes that took under a will, unless
disinherited, we will first consider them under the laws gov-
erning prior to the time of Justinian, and then note the
changes made by him.

(1) Prior to the time of Justinian: —

(a) Sui heredes, or those who became sui juris at the father's
death, were in two classes : (1) filii familias, or sons in po-
testas, had to be disinherited by name (nominatim), other-
wise the will was void; (2) filiae familias, or daughters in
potestas, were disinherited in a general phrase and not by
name (ceteri). They were apparently not deemed of suffi-
cient importance to mention specifically. However, the

424

Chap. XI] HEREDITARY SUCCESSION [(152

will was not voided by their being passed over, but in that
case they took share and share alike with those properly
mentioned.

(6) Those who became sui heredes after the making of
the will must be disinherited by anticipation. Of these
there were two classes : (1) postumi proper, i.e., those born
to the testator after the will was made, and (2) postumorum
suorum loco, i.e., those adopted, and children legitimated
after the will was made.

(c) Filii familias and filise familias who "in sui heredes
locum succedendo — fiunt." "For instance, if a testator
had a son and by him a grandson or granddaughter under
his power, the son has the right of self-succession, though
the grandson and granddaughter are equally in the ancestor's
power. But if the son die in the lifetime of the testator,
or by any other means pass out of the testator's power, the
grandson and granddaughter succeed to his place and thus
acquire the rights of self-successors to the testator/' Male
postumi must 'be disinherited by a special form which was
invented by the jurist, Gallus Aquilius, for the express pur-
pose of providing for a son dying before the testator and then,
the testator dying, a son afterwards being born to the testa-
tor's son. This is the form : "If my son die in my lifetime,
if any grandson be born to me within ten months, let him be
my heir or (let him be disinherited)."

(d) Emancipated children. Under the old law emanci-
pated children did not share in the inheritance, so that it
was not necessary to name them as heirs or disinherit them,
in order to secure the validity of a will. They were simply
passed over. Praetorian legislation, however, admitted
emancipated children to share in the inheritance. If, how-
ever, emancipated children were passed over, the praetor,

^25

S 152] A HISTORY OP ROMAN LAW [Part II

instead of declaring the will void, granted them the right of
'possession contrary to the will' (bonorum contra tabulas).
Emancipated children had, therefore, to be disinherited by
special mention.

(e) Adopted children prior to the time of Justinian. The
general principle of disinherison was applicable to adopted
children. By the old law children by adoption acquired,
as a matter of course, the same legal position as children by
birth, but the tendency of later legislation was to lessen the
legal importance of adoption. Up to the time of Justinian
the adoptatus was cut off from any part of his natural father's
estate. By Justinian's laws he still retained a right to the
estate of his father and also acquired a right in that of his
adopted father only in case the latter died intestate. Prior
to Justinian, therefore, the adopted child had to be insti-
tuted heir or disinherited by special mention by his adopted
father ; after the time of Justinian, he had to be instituted
or disinherited by his natural father just the same as any
other child.

(2) After the time of Justinian : —

Justinian abolished all distinctions between males and
females and provided that all heirs must be disinherited by
name, and, further, the testament was rendered invalid by
the omission of any one of the heirs of any class.

According to the strict rule of the Roman law, no will was
effectual unless one or more persons were appointed heirs to
n. Legal represent the deceased.1 The testator might
Institution appoint one heir or any number of heirs. No
one except a soldier could die partly testate and
partly intestate. The heirs instituted might be either the

* Roby, 187.
426

Chap. XII HEREDITARY SUCCE88ION [5 152

natural heirs or, if these had been properly disinherited, any
other persons who possessed the proper legal qualifications
to hold, property. A master might appoint his own slave
as heir, but a mistress could not appoint a slave as heir
who had been accused of adultery with her till after he had
been acquitted. The institution of an heir is the pivotal
point of a will. In sketching the provisions of the law re-
lating to the institutions of heirs and its effect upon the
vesting of the estate, we must notice specially two points :
(1) whether the heirship is conferred upon one person or
upon more than one, and (2) whether it is conferred abso-
lutely or conditionally.

(1) If a single person is instituted heir, the estate remains
undivided and the entire ownership rests in the heir, after
the burdens resting upon the estate have been removed. If
more than one person has been instituted, the estate is shared
between them in the proportions indicated by the testator.
If the testator has made no provision, all will participate
equally in the inheritance. If it be the wish of the testator
that the heirs receive unequally, the estate is ideally divided
into certain aliquot parts as is indicated in the table already
given, and to each heir is assigned a greater or less number
of these fractional portions ; in the vesting of the estate they
all become joint owners to the extent of their several shares.
By law a man could not die partly testate and partly in-
testate. Therefore, if any part of the estate was unpro-
vided for, it was rateably distributed among the remaining
heirs in accordance with what is called a right of accretion
(jus accrescendi). If the shares of some are mentioned and
nothing said of others, they will be entitled to the remain-
der of the property undisposed of by the testator. Again, if
the number of heirs mentioned reaches eleven or thirteen

427

( 152] A HISTORY OP ROMAN LAW [Pabt H

unciae, then the 'as' is supposed to be divided into eleven
or thirteen parts, as the case may be ; but if he give part
to one and part to another and then mentions a third
person without designating his portion, recourse is had to
the normal number, and the last named receives one half,
the other two, each a fourth.

(2) If the heir is appointed unconditionally, his rights in
the estate date from the death of the testator. If he is ap-
pointed conditionally, his rights date from the fulfillment of
the conditions. Thus he may be required to pay legacies,
to enfranchise slaves, to build a monument, etc. The word
condition in this case is here used to denote some uncertain
event, as one of the examples above, or that he outlived his
grandmother, and not the arrival of a certain day. All con-
ditions which are impossible or contrary to law or good
morals are rejected pro non scripto without working any
voidance of the testament.

Closely allied to the institution of heirs is the substitu-
tion of heirs, i.e., the conditional appointment of certain
m. Legal persons to act as heirs, in case those first appointed
5°" should from any cause fail to act.1 The discredit

tion of *

Heirs. among the Romans attached to dying intestate

greatly increased the importance of substitution as a special
feature of the testament. There were three forms of sub-
stitution mentioned in Roman law: (1) substitutio vul-
garis, (2) substitutio pupillaris, and (3) substitutio quasi
pupillaris.

(1) Substitutio vulgaris, or ordinary substitution, is
simply the provisional institution of an heir or heirs to act
in case those first appointed fail. Of this, we have an ex-
ample in the Digest taken from Modestinus; "Lucius Titius

1 Justinian, II, 15, 6.
428

Chap. XI] HEREDITARY SUCCESSION [§153

heres esto ; si mihi Lucius Titius heres non erit, tunc Seius
heres mihi esto." The object of this was, of course, to avoid
intestacy. Any number of substitutions might be made.
One person might be personated for several, or several for
one ; or the original heirs might be substituted for each other,
so that in case one failed some other might succeed to this
share also.

(2) Substitutio pupillaris, or pupillary substitution, is
the conditional appointment of a person to receive the in-
heritance of a child in pupillage, in case said child die before
reaching the age of maturity. In this way a man may be
said to make a will for his son. But this pupillary substi-
tution for children was only effectual when the father made
a valid testament of his own. The substitutes, in this case,
took not only all the son received from his father, but what-
ever property he might have from any other source.

(3) Substitutio quasi pupillaris, or quasi-pupillary sub-
stitution, is similar to the preceding, except that instead of
applying to a child in pupillage it applies to any person of
unsound mind. This is equivalent to the father's making
a will for such a person to take effect at the latter's death.
This form of substitution, as well as the preceding, loses
its effect as soon as the circumstances on account of which
it was made, ceased to exist. This latter form belonged
to the time of Justinian.

A will which does not conform to the requirements already
mentioned is void, or invalid. Of these there §153.

are two divisions: (1) when the will is void ab M<*««in

which Tes-

initio, and (2) when the will is valid when made, t*ment»

but subsequently loses its effect. Voided.*

(1) Void ab initio. Such a will is one which does not

1 Qaius, II, 138 ; Justinian, II, 17.

429

i 1631 A HISTORY OP ROMAN LAW IPabt II

conform to the requirements already mentioned. Of this
there are two cases: first, where the will is injustum by rea-
son of lacking its formality! or the heir has not been properly
instituted; second, when persons who have a claim upon
the estate have not been properly disinherited. ,In this
latter case it is said to be nullius momenti.

(2) Valid when made, bid afterwards voided. Of this there
were' several cases : —

(a) Ruptum or broken, when rendered invalid by any of
the following ways: —

(1) By the subsequent agnation of a suus heres who

has not been mentioned in the will as being
either substituted or disinherited.

(2) By the making of a second will according to

proper legal forms.

(3) By the destroying of the will already made, by

tearing or defacing it, or by otherwise indi-
cating the wish on the part of the testator that
it shall no longer remain in force.

(6) Again, a testament is technically rendered ineffectual
(irritum) : —

(1) If the testator after making the will suffers a

capitis deminutio. In this case, however, if
the person recovers his legal capacity before his
death, the estate is generally granted to the
appointed heirs in accordance with cequitas.

(2) A testament is also irritum by reason of no one

entering upon -the inheritance.

430

Chap. XI] HEREDITARY SUCCESSION [§153

be set aside. In this case the will is not regarded as
void, but it is voidable by an appropriate action
(actio de inofficioso testamento). The mere fact
that a person has been disinherited in due form in
the will is not sufficient to debar him from his just
rights in the estate. The question whether this
deherison has been made on sufficient grounds can
be laid before the court and decided on its merits.
Hunter says that the duty of the testator to make
provision for his family is a moral rather than a
legal or technical one. When a testament was first
made, it seemed to be an invasion of family rights,
as has been previously stated. The community of
property was doubtless the idea back of this. As
during the lifetime of the testator, he was obliged
to provide for his family, but to no amount fixed by
law, so in leaving property he was left to his own
discretion. The provisions of the law were made
very specific by Justinian, and the reasons were
precisely stated, that were admitted as the only
proper grounds for disinherison. The persons who
were allowed to attack the will as undutiful are
the children, or the parents if there are no children ;
or the brothers and sisters, if there are no children
or parents, or if an infamous person has been insti-
tuted in their stead. In case the will is success-
fully attacked as inofficiosum, it is rendered entirely
void and set aside. In such a case the inheritance
passes according to the laws regulating succession
ab intestato. The will cannot be set aside as un-
dutiful only in case the persons above named have
been completely disinherited and nothing at all has

431

i 153] A HISTORY OF ROMAN LAW [Pabt II

been left to them. An actio de inofficioso testa-
mento could not be brought only as a last resort,
open to those who had no other. But the law
goes still further and protects them in their claims
to a definite portion (portio legitima) of the inher-
itance to which they are by presumption entitled.
This portion is one fourth of that which they
would have received by intestate succession. Jus-
tinian enacted that in the future no 'querela'
should be on any other grounds than that the com-
plainant had received nothing at all. If he had
received anything, be it ever so little, his proper
remedy would be the new actio ad supplendam
legitimam against the heir or heirs, which left the
will untouched. By these methods the legal and
worthy heir was protected in the Roman law from
any malice or caprice on the part of the testator.
(d) Finally, a testament may become invalid by the fail-
ure of all heirs appointed in the will, whether on
account of death or non-acceptance. An estate
might be of such a character as to render its
acceptance a burden instead of a benefit to the
heir; for example, if it were insolvent. With ref-
erence to the capacity to accept or refuse an estate,
heirs are considered as (a) necessary (necessarii),
(6) proper and necessary (sui et necessarii), and
(c) extraneous or voluntary (extranii, voluntarii).
A necessary heir is the testator's slave, who is obliged
to receive the master's inheritance and to pay all the
debts, being liable, however, only to the extent of
the estate. Proper and necessary heirs are the de-
scendants of the deceased, who are instituted heirs

432

Chap. XI] HEREDITARY SUCCESSION [(153

and become sui juris at the testator's death. They
are called necessary because they were originally
obliged to accept the inheritance with all its burdens ;
but the praetor afterwards gave them the benefit
of refusing (beneficium abstinendi), provided they
abstained altogether from interference with the es-
tate. Extraneous heirs comprise all other persons
who may be instituted. They are perfectly at liberty
to accept or refuse the inheritance. If, however,
they have once assumed it, they are not at liberty
subsequently to renounce it.

433

CHAPTER XII

INHERITANCE AB INTESTATO1 v

A person is said to be intestate who has made no will at
all, or one not legally valid, or one that has .become invali-
§154. D«fl- dated from any of the causes previously mentioned.
Bitions and Although intestate succession was the original
Distinctions. f0Tm 0f inheritance, it was after the development
of the will called into exercise only exceptionally, and in
the absence of testamentary heirs. The general character
of the law relating to this form of inheritance as it existed
at the time of the Twelve Tables, and also as it was modified
by praetorian legislation, has been previously considered.
Intestate succession was simply the succession of the indepen-
dent members of the family to the family estate ; the order of
legal heirs was determined by proximity or relationship to the
deceased as traced through a common potestas, the order
being sui heredes, agnati, and gentiles. Subsequently the
prsetor recognized the claims of the natural as well as the
civil family, by granting the right of possession to eman-
cipated children, and by substituting the cognates, or blood
relations, for the gentiles.

L ' Justinian made the most important changes in the law of
intestate succession in the 118th and 127th novels, when he
abolished all legal distinction between sui heredes and eman-
cipated children, and between agnates and cognates, and
recognized the principle of blood relationship in place of that

> Roby, 258-264 ; Mackenzie, 311-322.

434

Chap. XII] INHERITANCE AB INTESTATO [§154

based upon potestas. The Roman made no distinction
between real and personal property, between older and
younger sons, or between males and females. The right of
inheritance to the entire estate devolved, in general, upon
all persons according to the proximity of their blood rela-
tionship to the deceased. The order of succession may be
considered under three classes: (1) descendants, (2) as-
cendants, and (3) collaterals.

(1) Descendants are the first order of legal heirs. They
are those persons, male or female, of whatever degree, who
are descended lawfully in the direct line from the deceased.
Such persons exclude all collaterals and ascendants. De-
scendants of the first degree, i.e., lawful children, succeed per
capita; in other words, they share equally in the estate.
Descendants of a more remote degree succeed per stirpes,
or by representation. For example, if a son or daughter
die leaving lawful children, such grandchildren of the de-
ceased Receive among themselves the share of the estate to
which their parent was entitled before death. This right
of representation extends to the remotest degree. The
wife of the deceased inherits as a descendant, if she be with-
out dowry.

(2) Ascendants are the second order of legal heirs ; those
of whatever degree, male or female, from whom the deceased
was descended in direct line. Such persons exclude all
collaterals except brothers and sisters of the whole blood, and
children of the same. The nearer degrees exclude the more
remote, so that a father or mother alone excludes grand-
parents and all remoter degrees. If there are no parents
living, but several more remote ascendants of equal degree,
they receive the estate per lineas.

(3) Collaterals make up the third degree of legal heirs.

435

§ 154] A HISTORY OP ROMAN LAW [Part II

They are those persons not in the direct line of ascent or
descent who can trace their relationship to the deceased
through a common ancestor. The general principle that
governs the succession of collaterals is that the nearer de-
grees exclude the more remote. Specifically, brothers and
sisters exclude all other collaterals. Such heirs succeed to
the estate per capita, and their own children represent them.
In the next place stand brothers and sisters of the half blood,
and representation applies as in the preceding.

Finally, if all heirs fail, the entire property goes to the wife,
and if she fail, the property goes to the public treasury as
the ultimus heres.

436

CHAPTER XIH

LEGACIES1

In connection with the subject of inheritance, the Insti-
tutes treat of certain topics which, though not I 155-
strictly belonging to universal succession are yet DefcM3\^J
incidentally related to the transmission of prop- OmUied.
erty by inheritance. These are : (1) legacies, (2) fideicom-
missa, and (3) codicils.

(1) A legacy is a donation of a sum or subject which the
testator directs to be delivered after his death to the legatee.
Anciently there were four modes of leaving legacies in use
among the Romans : (a) per vindicationem, (6) per damna-
tionem, (c) per preceptionem, and (d) sinendi modo. To
each of these modes of leaving legacies was assigned a certain
form of words.

(a) The formula for per vindicationem ran; "I give and
r bequeath (do, lego) the man, Stichus, to Titius."

With small exception nothing could be given per
vindicationem which did not belong to the testator
ex iure quiritium at the time both of execution and
decease. Such dominium alone at time of death was
sufficient when the subject matter of the legacy was
anything appreciable by weight, number, or meas-
ure. The legatee at once became the owner.
[ (b) The formula for per damnationem ran : "Let my heir
be condemned to give my slave, Stichus, to Titius."

i Justinian, II, 20 ; Gaius, II, 191-245.

437

1 155] A HISTORY OP ROMAN LAW [Pabt II

The legatee did not by this legacy become at once
the owner of the subject matter of legacy, but had a
personal action against the heir to compel him to
give (dare) or produce (praestare) that which the
giver of the legacy had named. Anything could
be given by this method that could be the subject
of an obligation.

Titius hominem Stichum precipito." (Let Lucius
Titius take by prescription my slave, Stichus.) The
proper application of this formula was the giving
to a person, probably one of the heirs, something
which he was to receive before the division of the
property was made.

(d) The formula for sinendi modo ran; "Heres meus

damnae esto sinere Lucium Titium hominem Stichum

sumere sibique habere." This form was applicable

to anything belonging to the testator by any legal

form whatsoever. If the heir refused to allow the

legatee to take possession, he could be compelled

to do so by proper legal action. " Quidquid heridem

ex testamento dare facere oportet."

But all these distinctions which were worked out elaborately

by Gaius were abolished by the imperial constitution, and

Justinian ultimately reduced them all to one kind, which

might be left either in a testament or codicil. The capacity

to give and to receive by legacy is the same as that required

in the case of a testament. The largest liberty is also given

as to what may be left by legacy. It may be anything in

commercio belonging to the deceased; or it may even be

the property of another, since the testator can impose upon

the heir the obligation of purchasing something and of de-

438

Chap. XIII] LEGACIES [| 155

livering it to the legatee. If the same thing be left to two
or more persons, each takes an equal share, and if one of two
or more joint legatees die before the eommdn thing left to
them has been delivered by the heir, the share thus vacant
goes to the remaining joint legatees by the right of accretion.

The general rules for the interpretation of legacies, as of
wills, came to be, in the later Roman law, very liberal in
their character. For example, a mistake in the name of the
legatee does not vitiate the legacy, provided there is no doubt
as to the identity of the person intended. A legacy is ex-
tinguished by the death of the legatee, if the death occurs
before the property vests in him. It may also be extinguished
by the testator himself, either by revocation (ademptio) or
by the transference of it from the original legatee to another
person. A revocation of a legacy was accomplished by any
expression of the testator which used either directly contrary
words or an equivalent. For instance, if the testator dealt
with the property afterwards as if he had not already given
it away, as, "I give as a legacy to John my slave Stichus
whom I have previously given to Titius."

Certain provisions were made in order that the whole es-
tate might not be exhausted in legacies, and that there might
be, accordingly, some inducement for the heir to accept
the estate. Most noticeable among these laws was the lex
Falcidia by which the testator was prohibited from giving
away in legacies more than three fourths of his estate after
the debts were paid. Thus the fourth of the estate was
made sure to the heir and was called the Falcidian portion
(quarta Falcidia). In the early law a legacy was valid only
when embodied in the testament, so that if the testament
failed, the legacies failed with it. But Justinian assimi-
lated the law of legacies to that of fideicommissa and thus

439

i§ 156, 1571 A HISTORY OP ROMAN LAW [Pabt II

caused them to be independent of the will, and at the same
time be binding upon the heirs at law.

(2) Fideicommissa,1 or bequests in trust, are directions
given to the heir that he, on coming into possession of the

1 156. estate, convey the bequest to a third person or
Rdefcom- use it for the benefit of such person. They were
mtow" at first introduced to evade the civil law pro-
visions and to leave property to incompetent persons. Such
a trust depended solely on the honor of the heir until the
time of Augustus. He made this trust legally binding upon
the heir to execute. Soon afterwards a special prsetor was
appointed for this purpose, called prsetor fideicommissarius.
The civil law made the heir responsible for the debts against
the estate ; when the property was left in trust to a person,
the obligations were also transferred to him.

(3) A codicil in the Roman law was a written direction
to the heir requiring no solemnities, which expressed the wish

1 157. of the deceased regarding the disposition of the
c**1608- estate either by way of legacies or fideicommissa.
Augustus is mentioned as executing a trust by a codicil, and
in this way a codicil obtained legal validity. It was not, like
the English, a supplementary will, but it could modify any
or all of the conditions of the will except the necessary con-
tents. But in case no will was made, or the testamentary
heirs failed, the provisions of the codicil were binding upon
the heirs at law.

* Roby, 356-364.

440

Title 3. Obligations: Rights in Personam

CHAPTER XIV
GENERAL CHARACTER OF OBLIGATIONS1

This branch of the Roman law is, in some respects, the
most important of all, as it reveals, by comparison, a fun-
damental weakness of the early English law which \ i58. in-
was not plastic enough to accommodate itself to frodtwti<»*
the rapid growth which took place in commerce, and the still
more rapid changes which took place in civilization. This
portion of the Roman law was, therefore, very widely copied
in order to supply this lack, during the reigns of Henry II
and Henry III. This is shown conclusively in the works of
Glanvill and Bracton, where the Corpus Juris has been
brought over into English law without any change whatever
and without any acknowledgment. The relation between
ownership and obligations rests upon the distinction already
noticed between rights in rem and rights in personam. In
this discussion it was made clear that every objective right
refers to a certain degree of legal control which a person may
exercise with reference to some object external to himself.
This whole question is far better understood by modern
legal writers than it was by those who belong to the older, or
medieval, school. Modern writers make clear the Roman

'Roby, II, 10-212; Mackenzie, 204-211, 228-231 ; Gaius, III,
88-225 ; Justinian, III, 13-29 ; Austin, Province of Jurisprudence
Defined, 49 et seq.; Maine, Ancient Law, 460-465; Hunter, 451-
455.

441

S 150] A HISTORY OF ROMAN LAW [Part II

distinction between rights by comparing them with the ac-
tions by which they are enforced. To understand this we
will take a very simple example. If a man owns a house and
is deprived of his right, he brings, according to the Roman
law, an actio in rem, in which his right is merely asserted, as
such, without reference to the person who has deprived him
of it ; that is, the right is conceived as availing against the
world at large. But if he is deprived of the right due him
according to the terms of a contract, he brings an actio in
personam, in which must be named the particular persons who
have deprived him of the right ; that is, the right is looked
upon as availing against a determinate person.

It was in this way that the Roman jurists indicated the
distinction which they had in mind with reference to the
rights themselves. The rights involved in ownership of
whatever kind differ from those growing out of an obliga-
tion, in that the former avail against the whole world, while
the latter avail against some determinate person or persons.
Again, the duties corresponding to rights in rem are general
and negative, while those corresponding to rights in personam
are specific and may be positive as well as negative. The
latter class of rights and duties forms the subject matter of
the law of obligations.

A legal obligation must be distinguished, in the first place,
from those general negative obligations which are correla-
1 159# tive to the rights of property, and which rest upon

Nature of the world at large. It must also be distinguished
^? from those natural or moral obligations which,
■onai though they rest upon persons and sometimes

J*****-1 have a legal significance, are not enforced by a

legal action. A legal obligation may be defined as an agree-

1 Mackenzie, 205-210; Hunter, 452; Justinian, III, 13. 1.

442

Chap. XIV] CHARACTER OP OBLIGATIONS [J159

ment to make some payment, or to do or not to do some act,
conferring on the person in whose favor the agreement is
made a right by law to enforce performance of it. It is
defined in the Roman law as " a legal bond whereby, accord-
ing to the laws of the State, one person is bound to render
something to another." (Obligatio est iuris vinculum, quo
necessitate adstringimur alicuius solvendse rei secundum
nostra civitatis iura.) This involves both a right and a
duty; a right on the part of one person called the 'creditor'
to exact something, and a duty on the part of another per-
son called the 'debtor' to render something. The historical
origin of a legal obligation throws some light upon its nature.
We have already seen that the law recognized no contract,
but conveyance only. The second step was the enforcement
of a conveyance one portion of which remained executory.
This is clearly seen in the bond between the debtor and credi-
tor in the ancient nexum. The parties to such a transaction
were called nexi and were legally bound to each other until
the process was complete. At first every such transaction
per ses et libram was an interchange of property and price.
By a kind of fiction, however, a loan could be effected through
this process. The price was paid and the transference of
the property withheld until some future time. The idea
of an obligation as a legal tie (iuris vinculum) between debtor
and creditor thus arose in the civil law from the bond which
existed between the nexi and which was established, as has
been seen, through the forms of an incomplete conveyance.
These forms could be used for other purposes than for effect-
ing a loan, but in all cases they gave a compulsory character
to the obligations thereby established. The creditor still
retained his power over the debtor to the extent of enforcing
his claims by legal action, even after the old symbolism had

443

i 160] A HISTORY OF ROMAN LAW [Past II

decayed and passed away. The essential features of the
legal obligation, as conceived by the Roman jurists, may be
summed up as follows : —

(1) It involves a legal relation between two parties, a credi-

tor and a debtor.

(2) It involves, on the part of the creditor, a personal and

not a real right — a right which avails against the
debtor only.

(3) It involves, on the part of the debtor, a duty whereby

he is bound to the creditor, either to transfer some-
thing to him, to render him some service, or to
grant him compensation for some injury done to
him. In the concise words of Paulus.; "Obliga-
tionis substantia non in eo consistit ut aliquod
corpus nostrum aut servitutein nostram faciat sed
ut allum nobis obstringat ad dandum aliquid vel
faciendum vel prsestandum." (The essence of an
obligation consists not in this, that it makes a thing
or a servitude ours ; but that it binds another to
give something to us, or to do something for us, or
to grant us some compensation.)

The subject matter of an obligation, or the object for
which it is established, always involves some act on the part
§ x6o. The of the debtor, the performance of which will be
Subject beneficial to the creditor. The nature of this

Matter of

obiiga- &ct> however, may be negative as well as positive.
tionft.1 The obligation may require the debtor to abstain

from doing something, as well as to do something. Be this
as it may, the act of the debtor is always subject to the con-
trol of the creditor. The general principles which apply to

1 Justinian, III, 20.
444

Chap. XIV] CHARACTER OF OBLIGATIONS [J 160

the subject matter of an obligation may be described with
reference (a) to its essential, and (6) to its non-essential ele-
ments.

(a) The essential elements of a contract are those without '
which it could not exist. For instance, there can be no sale
without a thing to be sold and a price ; the transference of a
thing from the seller to the buyer; and the transference of
the price from the buyer to the seller. Thus every legal
obligation must possess certain elements which constitute
its essential or necessary subject matter. It is, therefore,
necessary to determine the validity of every obligation,
primarily with reference to the character of its essential ele-
ments. In this two general principles govern : —

(1) The essential elements of an obligation must not in-

volve anything that is impossible, illegal, or con-
trary to good morals. (Impossibilium nulla obliga-
tio est.) An obligation is null the primary object
of which is to require something in itself contrary
to law. The law cannot enforce what it prohibits.
That which is inconsistent with the public welfare,
or opposed to the general moral sense of the com-
munity, is by nature associated with the preceding.

(2) The essential object of an obligation must be deter-

minable, and of an actual pecuniary value. To
make the object determinable, it is simply neces-
sary that it shall be so fixed as not to depend upon
the arbitrary will of either of the parties. It need
not be particular, as one or more acts may be re-
quired either one of which will satisfy the claims
of the creditor. It need not be specific, as the
delivery of things in general may properly be re-

445

1 160] A HISTORY OF ROMAN LAW [Pabt II

quired. Thus the object may be certain (certum)
or uncertain (incertum); but it may not be so
uncertain as not to be determined by either party
to the obligation. Again, the object must be of
sufficient benefit to the creditor to have a value
estimable in money. Says Ulpian; "Ea enim in
obligatione consistere, quae pecunia lui prsestarique
possunt." This latter statement is made clear by
the fact that the obligation is made compulsory in
law by the debtor being compelled to pay to the
creditor a pecuniary compensation for the damage
resulting from his failure to perform his part of the
obligation. An obligation, the breach of which
caused no appreciable injury to the creditor,
would have no legal significance whatever.

(b) The non-essential or incidental elements of an obli-
gation 1 are those which are not necessarily involved in the
nature of the obligation, but which, being introduced, im-
pose additional or more specific duties upon one or the other
party to the obligation. Of these non-essential elements,
there are four: —

(1) Time (dies).

(2) Condition (conditio),
(a) Place (locus).

(4) Convential penalty (stipulatio pcenee).

(1) The time (dies) may be specified by the parties to an
obligation, or not. If specified, the performance
cannot be demanded before the time specified.
If not specified, the obligation must be performed
immediately. This time may be definitely fixed

» Poste, 343-345.
446

Chap. XIV] CHARACTER OP OBLIGATIONS , [§161

or dependent upon some future event, as the
death of a person. In either case the obligation
begins with the time of making the agreement.

(2) When the obligation is made to depend upon some

event which is uncertain as to time, and likewise
as to fact, — as the election of a certain person
to the consulate, — such an event is technically
called a condition. In such a case the obligation
does not arise, and is not enforceable until it is
ascertained that the uncertain event has happened.

(3) A specification may also be made with reference to the

place (locus) at which the performance must be
made. If, for any reason, the debtor is required
to perform the obligation elsewhere than the place
fixed upon, he is entitled to compensation for the
disadvantage thus incurred.

(4) A specific obligation may still further grow out of

what is called a stipulated penalty (stipulatio
poense) by which either party may bind himself
to forfeit a certain amount if he fails to perform
the principal obligation. In case of non-perform-
ance, the creditor can demand either the fulfill-
ment of the principal obligation, or the forfeiture of
the penalty, but he cannot demand both.

In addition to those rights and duties which grow out of
the nature of the obligation and which arise from the ex-
pressed will of the parties, are others which de- § 161.
pend upon the liability of either party to an obli- Accessory

LiftDuity in

gation, to make indemnity for an injury or loss obiiga-
occasioned to the other. They are those claims tioa*.1

1Morey, A History of* Roman Law, 348; Phillimore, Intro-
duction to the Study and History of the Roman Law, 231-233.

447

§ 1611 A HISTORY OF ROMAN LAW [Pabt II

which a plaintiff can enforce that were not in the original
object of the contract. This liability must be distinguished
from the principal obligation arising from a 'delict/ in that
the injury must be of such a character as to affect the obli-
gatory relations of parties who are already bound by a vincu-
lum juris. The party who occasioned such loss becomes
still further a debtor, and is bound to indemnify, while the
party who suffers such a loss becomes still further a creditor,
and has a right to claim indemnity. In order to produce
this new relation between persons already bound by an
obligation, it is necessary that one of the parties be injured
by the other to such a degree that the injury may be estimated
in money. The loss must further come within the scope of
the already existing obligation. The extent of the liability
is dependent upon various circumstances. Of these cir-
cumstances, the chief are the following : (1) dolus, (2) culpa,
(3) mora, and (4) casus.

(1) Dolus is where the party to an obligation maliciously

inflicts a loss upon the other party. He is
always responsible to the full extent of the in-
jury done (dolum praestare), an agreement to the contrary
notwithstanding.

(2) Culpa, negligence or fault, is where a loss is occasioned
by a party to an obligation, not through any malicious in-

tent, but through the lack of proper care or at-

Ctllptt*

tention. In fixing the liability for culpa, the
Roman law made a distinction between two kinds : —

(a) Culpa lata, or gross negligence.

(b) Culpa levis, or slight negligence.

(a) Culpa lata involves the person in liability under all
sorts of obligations, because, "culpa lata eequipara-

448

Chap. XIV] CHARACTER OF OBLIGATIONS [§161

tur dolo," so that it is placed in the same category
as fraud,
(ft) Culpa levis, or slight negligence, where the loss is oc-
casioned by slight neglect. Under such conditions
a party to an obligation is not, as a general rule,
responsible, unless he himself has derived some
benefit from the obligation. He is not obliged to
exercise more than ordinary care; i.e., more than
the attention which he usually gives to his own
business, — "talem diligentiam, qualem suis rebus
adhibere solet." Perhaps we may see this better
if we take an example. If a person receive a de-
posit, obtaining therefrom no benefit, he is obliged
simply to preserve it with the ordinary care which
he manifests toward his own property, and he is
not liable for loss not occasioned by the lack of
such care. But if a person receive a pledge as a
security for debt, since he obtains from it a bene-
fit, he is obliged to exercise extraordinary care ; if
any loss takes place which might have been pre-
vented by the greatest diligence, he is responsible
in full for all loss incurred.

(3) If a party to an obligation occasions any loss by
delay (mora) in the performance of the obliga-

tion, after the time for execution has arrived, un-
less the delay be unavoidable, he is obliged to make indem-
nity for the loss.

(4) A loss or injury occasioned by an unavoidable accident
can be attributed to neither party. Such loss, therefore,
cannot be indemnified, but must remain with the Casus,
person upon whom it is inflicted.

449

1 162] A HISTORY OF ROMAN LAW [Past II

Before passing to the consideration of the specific obliga-
tions which are described in Roman law, it is necessary to
life an- notice the various classes into which they are
■ificaiwm of grouped. These classes are based upon different
Obligations.1 principles, namely : (1) upon the legal significance
of the obligations themselves ; (2) upon the jurisdiction by
which they are enforced ; and (3) upon the modes by which
they are established.

(1) Obligations considered in regard to their legal sig-
nificance are divided into two kinds: (a) natural, and
(6) civil.

(a) Natural obligations are those where one person

is bound to another by the law of nature. Such

obligations are not enforceable by a civil ac-

Tlmi. 4 tion. They may be considered in two classes :

Obfift- reprobate, or those which the civil law absolutely

linn,

^^ reprobates, as for instance a wager or a gaming

contract; nuda pacta, or those upon which an
action cannot be founded, but which can be
used as a ground for equitable defense. Such
obligations have pact, but not contract An
exceptio could be pleaded,
(ft) Civil obligations are those which may be enforced by
civil action.

(2) With reference to the jurisdiction to which they are
subject, obligations are divided into civil, sensu stricto, and
praetorian. Civil obligations are those constituted by the
civil law and enforceable by a civil action. Praetorian obli-
gations are those enforced by an edict of the. praetor and en-
forceable by a praetorian action. By far the greater part
of the obligations of the Roman law were developed under

1 Mackenzie, 204.
450

Chap. XIV] CHARACTER OF OBLIGATIONS »162

the jurisdiction of the praetor and were, therefore, free from
civil law technicalities and complications.

(3) A still more important division is that based upon the
modes by which obligations may arise or become established.
Viewed in this light by the Romans, obligations are divided
into : (a) contracts and quasi-contracts, and (6) delicts and
quasi-delicts.

(a) Contracts were those obligations which were estab-
• lished by a voluntary agreement whereby one per-
son legally bound himself to render something to
another.
(6) Delicts, or private wrongs, were those obligations by
which one person was legally bound to make com-
pensation for the injury done by him to another.
Besides these two chief forms, obligations may arise from
other causes which are, however, from their peculiar features,
assimilated to those arising from contracts or those arising
from delicts. Thus we have the two sub-forms, quasi ex
contractu, and quasi ex delicto; but they really differ in
no essential characteristic from those already given. All
obligations may, therefore, be treated as arising from con-
tract or delict, either properly or fictitiously.

451

■ CHAPTER XV

OBLIGATIONS ARISING FROM CONTRACTS1

By far the largest and most important classes of obliga-
tions, or rights in personapi, are those which arise from the
1 163. legsii transactions called contracts. This portion

Contracts of Roman jurisprudence has survived in modern
European codes with the least alteration. We
must bear in mind that contract is not in itself an obligation,
but is simply the investitive fact which gives rise to an obliga-
tion. They stand related to each other as cause and effect.
A contract itself is a transaction by which a right and a duty
are legally established between two or more determinate
persons.

A contract is an agreement between two or more persons
which gives rise to a legal obligation. An agreement which
§164. does not produce a legal obligation is called a

J*"*"11*1 simple pact (nudum pactum) ; as has been pro-
of th« viously stated, it is merely an accord of two wills.
Contract' There must in the first place be policitatio, i.e.f
offer or proposal made by one, and conventio or acceptance
by the other. When this accord of two wills is such that
law adds a third element, namely, vinculum juris or obligatus,
we have a contract. This may be written in a formula : —

Policitatio + conventio = pactum.
Policitatio + conventio + vinculum juris or obligatus »
contractus.

> Mackenzie, 215-218. • Oaiua, III, 137.

452

Chap. XV] OBLIGATIONS FROM CONTRACTS [§164

In order to have the vinculum juris added, three conditions
must be fulfilled: (1) the pact must be made by parties
legally competent; (2) it must express an actual consensus
between the parties, and (3) it must be made according to
the forms prescribed by law.

(1) All persons are legally competent to make a contract
except those who are expressly disqualified by law.1 The
chief persons thus disqualified are infants, im- Putto
pubes (except to ameliorate their condition), legally
madmen, and lunatics, except in lucid intervals. Com*etent

(2) There must be a voluntary concurrence of will.2 This
concurrence of will must grow out of a free and intelligent
exercise of the will, and a contract is always void, voluntary
or at least voidable, if it is the result : (a) of force, Concurrence
(6) of fraud, or (c) of inexcusable error.

(a) An agreement is not binding if extorted by force (vis)
or fraudulent deception (dolus malus), or such an
intimidation (metus) as would cause a man of
ordinary firmness to do what he would not do of
his own free will.

(6) An agreement which has been obtained through fraudu-
lent deception, though not properly void at the
outset, is so. vitiated that it may be rendered void,
or its effect modified, by an appeal to the magistrate.

(c) An error bearing upon the subject matter of the agree-
ment, whether due to mistake or ignorance, with-
out which the agreement would not have been made,
furnishes a ground for modifying the effects of the
contract. An error is excusable only when it re-
lates to a matter of facts (error facti), as all persons
are presumed to know the law ; minors, women, and

1 Ibid., Ill, 163. » Ibid.. IV, 116.

453

S 165] A HISTORY OF ROMAN LAW [Part II

soldiers are allowed by Roman law to plead error
due to ignorance of the law (error juris).
(3) Finally, an agreement must be in accordance with
the prescribed forms of law in order to be a contract. These
Agreement forms are seen in the various classes of Roman
wtthma law into which they are divided. In the first
Form* of place, contracts are broadly separated into two

grand divisions : (a) nominate contracts, and (6)
innominate contracts.

(a) Nominate contracts (contractus nominati) are those
which are distinguished in the Roman law by spe-
§ 165. cud names- They are divided, in general, accord-

Nominete ing to the ways in which they are formed, into :
trtctl" (1) contractus ex re; (2) contractus ex verbis;
(3) contractus ex litteris, and (4) contractus ex
consensu.
(1) Contractus ex re, or simply 're,' are those in which
the binding force of the agreement is based upon the delivery
of something from one person to another, under certain
conditions. The obligation under a contract re does not
arise until the delivery has been made. The voluntary
acceptance of the property of another imposes upon the
receiver the obligation to abide by the terms of the contract,
whether expressed or implied, according to which the thing
has been delivered. There are four contractus ex re : (a)
mutuum (loan for consumption), (6) commodatum (loan
for use), (c) depositum (deposit), and (d) pignus (pledge). .
(a) Mutuum b a gratuitous loan of things intended for
consumption which are usually estimated by num-
ber, weight, or measure ; such as money, corn, flour,
wine, and the like. These are things that after
consumption may be restored in genere. From

454

Chap. XVI OBLIGATIONS FROM CONTRACTS [§165

the nature of the thing, the property passes to the
borrower, and, if it perish for any cause, the loss
falls on him. The lender becomes a mere creditor,
the obligation resting entirely upon the borrower.
Such a contract creates a unilateral obligation. In
the loan of money under mutuum the borrower
paid no interest, and an action to recover could
not claim any. In the loan of corn, wine, or other
articles of like nature, the borrower is required
to restore as much of the same kind and quality as
he received, no matter whether the price of such
article has in the meantime risen or fallen in the
market. Should he fail to satisfy his obligation, he
will be responsible to the creditor for the value
of the article, having regard to the time and place
when it should have been delivered. The name of
the action tot recovery was condictio certi, which
was strictly a personal action for the recovery of
certa pecunia only,
(ft) Commodatum, or loan for use, is a contract whereby
the owner of a thing lends it to another for a
certain use without payment, on condition that it
shall be restored after the purpose is served. It is
necessary that the loan be gratuitous, for if any-
thing be paid for the use, it becomes a contract
for hire. This contract is bilateral, imposing an
obligation on both parties. The borrower is obliged
to return the identical thing borrowed, whether it
be a horse and carriage, or a book, and not another
of the same kind. He is further required to return
the thing uninjured after the specified use (en-
forced by an actio directs). He is bound to make

455

1 165] A HISTORY OF ROMAN LAW [Pabt II

good all injury which befalls the thing while in
his possession, provided the injury was caused
by his fault, or might have been prevented by a
careful person. "In rebus commodate, talis dili-
gentia pnestanda est, qualem quisque diligentissi-
mus pater familias suis rebus adhibit." The
lender, on the other hand, has to pay for any ex-
traordinary expenses which the preservation of the
thing has required during its use (enforced by an
actio contraria).
(c) Depositum, or deposit, is a contract by which the owner
places a thing in charge of another to keep it
gratuitously and restore it on demand.1 The prop-
erty and the risk remain with the depositor, so
that if the subject perish accidentally, the loss falls
on him. This contract is also bilateral, creating an
obligation on the part of the depositary (deposita-
rius) to restore the thing on demand, and an obliga-
tion on the part of the owner to reimburse the
depositary for necessary expenses incurred in pre-
serving the thing. The thing in deposit cannot
be retained as a set-off for a debt or claim due to
the depositary by the owner. Again, he can make
no use of the thing deposited, and if he does, he is
guilty of theft. (This is not true in English law.)
Depositum miserabile, or necessary deposit, is where
sufferers from shipwreck, fire, or other calamity
have been compelled by circumstances to leave
their goods in the hands of persons wholly un-
known to them. In such a case a depositary who
proved unfaithful to his trust was liable to be sued

1 GaiuB, III, 90-01, 196, 207.
456

Chap. XV] OBLIGATIONS PROM CONTRACTS [§165

under a praetorian action for double the value of
the articles embezzled.

By an edict of the Roman praetor, the policy of
which has been adopted in modern Europe, Eng-
land, and the United States, shipkeepers, innkeepers,
and stablers are responsible for the luggage and
effects of travelers intrusted to their care, or
brought into the ship, inn, or stable. The follow-
ing are the words of the edict; "Nautae, caupones,
stabularii, quod cuiusque salvum fore receperint,
nisi restituent, in eos iudicium dabo." Under
nautse are comprehended all carriers by water;
but the principle has been extended very generally
to land carriers, whose responsibility is more
stringent than it appears to have been by the
Roman law. Caupones are keepers of inns where
travelers are accommodated with food and lodging.
On grounds of public policy they were held respon-
sible for goods deposited with them by their guests
< whether the damage or loss arose from acts of

servants or of strangers. A limit to the amount
of damage is generally set by law, varying in
different countries,
(d) Pignus, or pledge, is the delivery of a thing to a
creditor as a security for money due, on condition
of his restoring it to the owner after payment of
the debt, and with a power of sale in case the
debt is not paid.1 The present use of the word is
distinct from its Roman use as a real right which
* the creditor acquired in the thing itself and which
availed against all the world, enabling him to

» Gaius, III, 203, 204 ; Justinian, II, 8, 1, III, 14, 4.

457

§ 165] A HISTORY OP ROMAN LAW [Part II

recover its possession if lost. Here it refers to
the simple transaction which gives rise to personal
obligation between the debtor and the creditor,
with reference to the thing pledged. This con-
tract imposes a twofold obligation. The receiver
of the pledge is under obligation to restore it to
the debtor on payment of the debt; or, in case
of sale, to restore the surplus after subtracting
necessary expenses, together with principal and
interest. Upon the owner of the thing pledged is
imposed the duty of reimbursing the receiver for
necessary expenses incurred in its preservation.
Both debtor and creditor are liable to action for
failure to fulfill the legal requirements. The cred-
itor is liable for any injury to the pledge arising
in any way from his own carelessness or negligence.
The owner of the property must bear the loss if it
Happen through no fault of the creditor, or if he him-
self was party to the carelessness which produced it.
The right of pledge is terminated by the destruction of
the subject, by payment of the debt, by the creditor releas-
ing the debtor, and various other ways.

(2) Contractus ex verbis.1 The verborum obligatio of
the Romans was contracted by uttering certain formal words
of style ; an interrogation being put by the one party and
an answer being given by the other. These obligations
were called stipulations, and were binding even without
consideration. As the word itself would imply, stipula-
tions were contracts entered into by question and answer.
A mere promise given without an interrogation was
invalid, being looked upon as a nudum pactum. In the

1 Justinian, III, 15, 1.
458

Chap. XVI OBLIGATIONS PROM CONTRACTS [J 165

ancient civil law the question and answer must exactly
correspond, each one containing the words spondes and
spondeo. Afterwards other words were allowed without
vitiating the stipulation; as, promittes and promitto, or
dabis and dabo ; thus " Quinque aureas mihi dare,
spondes ? " — " Spondeo." " Promittes ? " — " Promitto."
" Dabis ? " — " Dabo." " Facies ? " — " Faciam. "

In the time of the emperor Leo, any form of words was
sufficient that clearly expressed the consensus of the parties.
These verbal contracts were not confined to any particular
kind of transaction. Any promise, whatever might be its
subject matter, could be made binding by being put into
the form, of a definite question and answer. Its essential
features were that the question and the answer be con-
secutive, and that they refer to the same thing. This kind
of contract was unilateral, creating an obligation upon the
promissor, or the one who answers the question in the
affirmative. Stipulations or contracts ex verbis may have
all the non-essential elements, previously described, attached
to the obligations arising from them. In other words,
stipulations may be made in three ways: (a) uncondi-
tionally (pura), (b) with reference to time (in diem), and
(c) with reference to a certain event (sub conditione).

(a) An unconditional stipulation, or stipulatio pura,

was where the interest in the thing stipulated for
passed at once to the stipulator, and he could
demand the performance (dies). "Cadit et dies
venit."

(b) Stipulatio in diem was when the interest in the

thing stipulated for passed at once, but the thing
could not be demanded till 'dies1 was passed.
" Dies cadit sed dies non venit."

459

§ 165] A HISTORY OF ROMAN LAW [Part II

(c) Stipulatio sub conditione. In this case the obligation
neither arises, nor can its execution be demanded
until the condition is fulfilled.

While the stipulation is essentially an oral contract, its
terms may be reduced to writing. But the writing is not
regarded as the basis of the obligation ; it merely furnishes
evidence as to the actual subject matter of the contract.

Fideusio was a contract by which a person bound himself
as surety to fulfill an obligation to another, in case of the
failure of the principal obligant. The obligation of the surety
which was usually entered into by stipulation, but might be
reduced to writing, extended not only to the surety himself,
but to his heirs. Sureties are entitled by the Roman law
to the benefit of discussion — that is, they may insist that
the principal debtor be first sued, unless the creditor can show
that it would be useless to do so in consequence of his insol-
vence or absence.

(3) Contractus ex Iitteris.1 A contract was said to be
ex Iitteris when it was based upon a formal record or entry
made by the creditor with the knowledge and consent
of the debtor. This was chiefly made use of in the case
of a money loan. Here the writing itself was the foun-
dation, and not merely the evidence, of the contracts. In
case of litigation the proper action was condictio in chiro-
grapho, and the parties to the contract could not go back
of the written record. The creditor could not sue upon
the note within two years from its date, without being ex-
posed to the requirement of proving that the money was
actually paid to the debtor. This plea called exceptio
non numerate pecuniae, could not be used after the lapse
of two years. This particular form of contract arose from

1 Justinian, III, 15, 2.
460

Chap. XV] OBLIGATIONS PROM CONTRACTS [§165

the ancient custom of the Romans of transcribing their
accounts from the daybook (adversaria) to the more
formal and prominent ledger (codex accepti et expensi).
This was done with great care and accuracy. Dionysius
says that every Roman had to make oath before the censor
that his bookkeeping was honest and accurate. Of these
contractus ex litteris there were three kinds : (a) expensi-
latio, (6) chirographum, and (c) syngrapha.

(a) ExpensOatio was merely the account kept, as pre-
viously stated.
(6) Chirographum early superseded the expensilatio.1
This was a mere written acknowledgment of debt
on the part of the debtor given to the creditor
(our note),
(c) Syngrapha was a written statement of debt signed

by both parties, and a copy kept by each.
All these forms had passed out of use at the time of Jus-
tinian, leaving no litteris in the strict sense of the word.
The cautio, or written acknowledgment of debt which was
then in use, was merely evidence of contract, and not the
basis of it.

(4) Contractus ex consensu.2 Consensual contracts are
those based on consent alone. Such a contract is complete
when a concurrence of will has been reached. It requires
no delivery of the thing; no special form of words; no
writing. It can be entered into by parties either present or
absent, through letters, or by messenger. They are usually
classed under four heads: (a) sale; (b) location or hiring;
(c) partnership, and (d) mandate.
All these were introduced by the praetorian legislation

* Gaius, III, 134.

* Ibid., Ill, 136; Justinian, III, 13, 2, III, 24, 1.

461

§ 165] A HISTORY OP ROMAN LAW [Part II

into Roman law, and were founded upon broader principles
of justice than were the other classes of contracts, but they
were considered contracts bonee fidei.

(a) Sale is a contract by which one person becomes bound
to deliver a subject to another with the view of
transferring the property in consideration of a
money price.1 When one commodity is given in
return for another, this constitutes exchange, not
sale. By the Roman law all contracts of sale were
good without writing, to whatever value they ex-
tended. Apart from the personal capacity to con-
tract, three things were required for sale : (1) a sub-
ject, (2) a price, and (3) the consent of the parties.

(1) The subject must be a thing in commercio, of a

determinable character, whether corporeal or
incorporeal, present or future, in genere or in
specie.

(2) The price must be a sum of money of legal char-

acter and definite in amount.

(3) The consent of the parties is regarded as con-

summated as soon as the price is agreed upon,
or when the writing (if the contract calls for
this) is completed.

' The obligation in sale is bilateral; it im-
poses upon the seller (venditor) the obligation
to deliver the thing itself to the buyer and to
give him lawful and undisputed possession ; to
guarantee the buyer against eviction by law
resulting from a defective title, given at the
time of the sale and to compensate him for
any loss sustained by such eviction. He must

* Gaius, III, 135 ; Justinian, III, 23.

462

Chap. XV] OBLIGATIONS PROM CONTRACTS [| 165

further warrant the thing sold to be free from
secret faults. This was done either by mak-
ing a satisfactory reduction, or by a dissolution
of the contract. This warrantee was implied
in every Roman contract. The buyer was,
on the other hand, bound to pay the price
fixed upon, to pay interest from the time the
price was due, and to compensate the seller
for necessary expenses in keeping the thing
prior to its delivery.
(6) Location or hiring.1 This contract is of two kinds :
the hiring of things, and the hiring of work or
service. The hiring of things is a contract by
which one of the parties engages to give the use
of a thing to the other for a limited certain rent
or hire. The hiring of work is a contract by
which one of the parties engages to do something
for another for a certain hire. In both cases the
contract is perfected by consent, and bears a close
affinity to sale. Further, the contract in either
case is perfected by the affixing of a price. One
person, called the locator, agrees to place something
at the temporary disposal of another person, called
a conductor, on the condition that the person
receiving the benefit of such disposition pay a
certain price to the other person. The character
of locario-conductio will be made more clear by
considering the different phases that it represents.
These are : (1) hiring of things (locatio-conductio
rerum), and (2) hiring of work or services (locatio-
conductio operarum).

» Gaius, III, 147 ; Justinian III, 24.

463

f 1661 A HISTORY OP ROMAN LAW [Part II

(1) All sorts of things which are the subject of com-
merce, whether movable or immovable, may
generally be let for hire. But things which are
consumed in the use made of them, such as wine
[ and vegetables, are not suitable for hiring, though
they may be bought and sold. The chief phase
of this kind of contract is seen in the leasing of
houses and lands. Leases of houses and lands
are granted for a limited term agreed upon be-
tween the parties. Among the Romans the
usual term for a lease of land was for a lustrum or
five years. The lessee or conductor was called
a colonus. But whatever be the particular
thing leased, the lessor (locator) is bound : to
put the lessee in possession ; to deliver the prop-
erty in a proper state of repair, and to main-
tain it in such a condition as that it shall be fit
for the purpose for which it is let ; to guarantee
the peaceable enjoyment to the lessee during
the term agreed upon. The lessee is also bound :
to use the subject well ; to preserve it in good
condition ; to put it to no other use than that
for which it was let ; and to restore it at the end
of the term agreed upon. In this matter he is
liable for culpa levis. The principal obliga-
tion of the lessee is to pay the rent or hire at
the stipulated time. Payment may be either
in money or a portion of the fruits or prod-
uce.

The contract of hiring usually came to an
end at the expiry of the stipulated term. If the
tenant was allowed to continue in possession

464

I
I

Chap. XV] OBLIGATIONS PROM CONTRACTS [§166

after the term, it was construed into a renewal
of the lease.
(2) Hiring of work or services. Most of the general
principles which regulated the hiring of things
applied likewise to the hiring of work or serv-
ices. The locator agreed to place his work or
services at the disposal of the conductor upon
the receipt of some fixed price or wages when
the work or service was completed. To dis-
tinguish between hiring and sale in this matter,
Justinian laid down the rule that if a work-
man furnish all the materials, as well as the
work, for a certain price, as, for instance, if a
blacksmith furnish the material and make a
plow at a certain price, this would be sale and
not hiring ; but if he were furnished the mate-
rial and he gave the work only, this would be
Iocatio operis. Again, if a builder contracts to
erect a house on your ground and furnish the
material, this would also be Iocatio operis be-
cause the ground which is the principal sub-
ject belonged to you, and the building follows
it as accessory — sedificium solo cedit. The
person who undertakes to perform a piece of
work must do it in a proper manner and within
the time agreed upon ; he is bound to bestow
upon it due time and skill, and if from any
negligence or ignorance the work is defective
or useless, he is liable in damages to his em-
ployer. No man should undertake a work
which he is not qualified to perform.

As to the hiring of common laborers little

465

1165] A HISTORY OP ROMAN LAW [Part II

need be said. Their rights and obligations, and
the kind and quantity or work to be required
of them, involve many particulars which must
be determined, in great measure, by custom,
unless expressly fixed by contract,
(c) Partnership (societas).1 Partnership is a contract
whereby two or more persons agree to combine
their property or labor in a common stock for the
rirtAm ^ sake of sharing the gain. The contract requires
Partner- that there be some contribution on the part of
**" each of the parties, whether this be equal or

unequal, alike or unlike. The contract is perfected
by consent. If there be no especial agreement to the
contrary, the shares of profit and loss are divided
among the partners equally, but this is almost
always provided for by contract. There are two
kinds of partnership: (1) general, and (2) special,
according to the extent and purpose of the con-
tributions.

(1) General contracts of partnership may be
either those in which everything belonging or
in any way accruing to each of the partners
is held in common by them all, or those in
which everything arising from the gains of a
mercantile or professional business is contrib-
uted to the common stock.

(2) Special partnerships are those formed
either for a single transaction or for joint owner-
ship in a particular thing.

A partner is bound to exercise the same care
and diligence in the business of the company as

iMorey, 368; Mackenzie, 243-248.

466

Chap. XV] OBLIGATIONS FROM CONTRACTS [(165

he does in his own private affairs, and he is
ij^mii— answerable to his copartners for loss arising from
otPartnm. negligence. He is further bound to furnish

what he agrees to furnish, to pay his share of
the common expenses and losses, and to grant
to the others their shares of the common gains.
These mutual obligations are enforced by the
actio pro socio. The acts of one partner are
not binding upon the rest, if he acts without
authority or beyond the scope of the partnership.
Partnership is dissolved by the expiry of the
time for which the contract was made; by
mutual consent of the parties; by one of the
partners retiring, especially when no term is
fixed by law, provided this is not done fraud-
ulently or in a way to injure others; and,
lastly, by the death or bankruptcy of any of
the partners,
(d) Mandate. Mandate is a contract by which one person
confides the management of some business to an-
other, who undertakes to perform it without pay
or reward. He who gives the commission is called
mandator (mandant), and he who undertakes the
commission is called manditarius. It is essential to
this contract that it should be gratuitous, because,
if any remuneration is given to the agent for his
services, the contract is not mandate, but Iocatio
operare.

A mandate may be constituted verbally or by let-
ter, and it may even arise where one person permits
another to transact his business for him. The man-
datory is not bound to undertake the business, but

467

i§ 166, 167] A HISTORY OP ROMAN LAW [Part II

when he does so, he must perform it in the terms

of the order given, otherwise he will be liable for

neglect. He is answerable not only for fraud,

but also for slight neglect.

Innominate contracts are those which have no special

designation in the law, but which comprehend transactions

§ x66. in- involving the mutual consent of the parties fol-

nominate lowed by part performance. The execution of

Contract*.1 ^ ag^m^t by one party is looked upon as

forming a consideration sufficient to make the execution
compulsory upon the other party. These contracts involve
the various kinds of exchanges whether of things or of serv-
ices. They are summed up by Paulus as follows; "Aut
do tibi ut des ; aut do ut facias ; aut facio ut des ; aut facio
ut facias." In other words, if I give something to you on
condition that you give something to me, the very fact that
I have executed my part of the agreement places you under
legal obligation to execute your part ; and the same principle
applies to all the other forms.

Certain engagements are formed by implication from cir-
cumstances, without express agreement, on the part of

. * ^ either party. Quasi-contracts are constituted,
§ 167. Ob- . 7 .

ligations without convention, by one of the parties doing

Quad ex something that, by its nature, either binds him

to the other party or the other party to him; of

this kind of obligation Roman law specifies five : (1) Nego-

tium gestio; (2) Indebiti solutio; (3) Hereditatis aditio; (4)

Tutelae administrate, and (5) Rei communis administratis

(1) Negotium gestio is the assumption on the part of one

person of the business of another person who is

1 Digest, IX, 5, 5 ; Morey, 371.

1 Morey, 372 ; Mackenzie, 227 ; Hunter, 540-545.

468

Chap. XV] OBLIGATIONS FROM CONTRACTS [§167

absent, without any express mandate. If made in
good faith, the law recognizes the acts of such a
person and renders them legal.

(2) Indebiti solutio, or payment by mistake of money not

due either by natural or legal obligation. This im-
poses upon the person receiving it the duty of res-
toration.

(3) Hereditatis aditio. The acceptance of an inheritance

imposes upon the heirs the obligation to divide it in
accordance with the terms of the will.

(4) Tutelae administrate. The administration of the

estate of a ward imposes upon the administrator the
duty of administering the estate in accordance with
the terms governing his appointment.

(5) Rei communis administrate, or the administration

of a common thing, creates an obligation whereby
two or more persons are each liable to the other for
its proper division.

469

Title 4. Civil Procedure

CHAPTER XVI

PROCEEDINGS IN A CIVIL ACTION1

The first step to be taken by a person who deemed him-
self aggrieved by the conduct of another was to bring that
f 168. The person before a court of justice. In modern
^""J™0^ times this process is performed by the State

(in Jut Yo-

catio). as a matter of course and with so little diffi-

culty that it entirely escapes the notice of the casual
observer. We have long been accustomed to yield un-
qualified obedience to the State's authority, and its pressure
causes us no discomfort or inconvenience. .But this was by
no means the case with the men who laid the foundation
of Roman greatness. This accepted authority on the part
of the State came only through centuries of development.
Looking at the subject historically, three epochs are easily
distinguished: (1) the law of the Twelve Tables; (2)
the edicts of the praetors ; and (3) the imperial constitu-
tions.

Summons according to the law of the Twelve Tables was
(1) The a private act of the complainant, and failure to
according °b$y was not looked upon as an offense against
to the Law the law. The entire length that the Twelve
_JV Tables went in the matter was ; " If the complain-

TabiM. ant summon the defendant before the magis-
trate, he shall go ; if he do not go, the plaintiff may take
a bystander to witness and take him by force."

Thus the State legalized the exercise of force by a com-

» Ortolan, 23&-280; Hunter, 968-1060; Sohxn, 148-163.

470

Chap. XVII PROCEEDINGS IN A CIVIL ACTION [§ 168

plainant to drag an unwilling defendant before the court.
This mode of summons reached to the empire and beyond,
as we find in Plautus, Terence, and Horace examples of the
formal summons.

It appears, by the law of the Twelve Tables, that the
defendant could resist arrest without exposing himself to
any punishment, and this was, no doubt, often resorted to
if the defendant was a powerful man, or had friends who
were able to help him. Moreover, the complainant was
entitled to use force only when witnesses were called to give
testimony to the refusal of the defendant to obey the
summons.

A person on being summoned could avoid an immediate
appearance before the court by giving bail for his future
appearance. The person going surety was called the vin-
dex, and, by taking upon himself the responsibility of the
defendant, released him from arrest. A freeholder, or tax-
payer whose fortune was estimated at not less than 1500
asses, had to furnish a freeholder as vindex. In case the
accused was a mere workman, any one could act as his vindex.

When the praetorian edicts came into use, they left the
mode of summons as regulated by the Twelve (2) Sum-
Tables, but introduced the following important ■*"■ ■*■
changes:— Mtennl

I. The pretor made it an offense for a person
who was duly summoned to refuse to obey.1 He could
not plead that the court had no jurisdiction as a sufficient
reason for his non-appearance; such a plea could be made
only before the court itself.2

II. The pretor made it an offense to rescue a person
summoned, or in any manner to cause his escape, or to delay

1 D., 2, 5, 2, 1. ' Ibid., 2, 5, 2; 5, 1, 5.

471

5 168] A HISTORY OP ROMAN LAW [Paht II

the appearance of the defendant so as to cause the plaintiff
to lose his suit by prescription. This eliminated the inter-
ference of friends and aided the cause of justice.1 The
penalty for interference was the payment of the plaintiff's
claim as estimated by himself.2

III. Under praetorian jurisdiction the practice was to
have a cautio judicis sisti instead of the vindex. The cautio
was the giving of security for the appearance of the defendant.
In case the complainant was satisfied therewith, a mere
promise of the defendant to appear by stipulation was deemed
sufficient. Any one could act as a cautio judicis sisti who had
the means to answer the defendant's default, no matter
whether he was a freeholder or simply a proletarius.*

IV. The praetor made it possible for a complainant to
get justice when the defendant kept out of the way in order
to avoid a summons. This was a long step in advance of
the primitive law of Rome, which furnished no remedy in
such a case. This was because the ancient law recognized
no litigants until they were actually in the presence of the
magistrate and had invoked his interference; a condition
but one step in advance of 'faustrecht.' The law went
no farther than to allow the exercise of force in order to
bring a wrongdoer into court. Again, it was characteristic
of early Roman procedure that the tribunals did not attempt
to lay hold of the property of any one, but only of his person.
No magistrate gave execution against a man's property,
but only against his person. In case the wrongdoer kept
out of reach of his adversary, the only remedy open to him
was the seizure of his goods. This the praetor allowed, and
so introduced execution against property. He simply in-
serted in his edict a notice to the effect that if a defendant

* D., 2, 7, 4, 2. » Ibid., 2, 7, 5, 1. » Ibid., 2X 6, 1.

472

Chap. XVI] PROCEEDINGS IN A CIVIL ACTION [§ 168

concealed himself in order to evade a summons (latitare
fraudationis causa), he would order his goods to be seized
and sold.1

The praetorian edicts, by making neglect or refusal to
obey a summons an actionable wrong, rendered it hence-
forth unnecessary to drag a defendant into (j) sum-
court by the neck (obtorto collo), but still the manM imder
summons remained a private act of the aggrieved constftu-
person. The change from the private summons tfou.

to that of the public summons was brought about in
the course of three centuries and involved four steps : —

I. The ancient practice of oral summons, followed by the
acceptance of a vindex, already discussed, gradually gave
way in favor of the vadimonium. This may be described
as a reciprocal promise of two persons having a dispute with
or without sureties, to appear on a given day before a magis-
trate to adjust their differences. The terms vades and sub-
vades are said to have been contained in the Twelve Tables,
the first used to designate the sureties given by defendants,
the second, the corresponding sureties given by complainants.
Gaius describes vadimonia as the means of securing the ap-
pearance of both parties in court after the first appearance.
By the end of the republic vadimonia seems to have been a
regular way of beginning a civil suit.

II. According to Aurelius Victor * vadimonia were abol-
ished by Marcus Antoninus and a new system introduced
called denuntiandcs litis. This was a movement in the direc-
tion of simplicity. According to this the complainant simply
gave notice of his demand to the defendant, and a day was
appointed for their appearance before a magistrate. This

» D.f 42, 4, 7, 1 ; 42, 4, 7, 13.
1 Aurelius Victor, De Crosare, 16.

473

§ 160] A HISTORY OF ROMAN LAW [Pabt II

still remained a private affair, but a penalty was attached
to the non-appearance of either party ; the complainant for-
feiting his claim, and the defendant paying a fine.

III. Constantine, in 322 a.d., required that the denuntiatio
litis take place before a judge and notice of the demand be
sent to the defendant by a public officer. This was a formal
procedure and somewhat cumbersome, but it introduced the
State and limited the activity of the individual.

IV. By the time of Justinian the procedure established by
Constantine disappeared and the written summons (libellus
conventionis) came into universal use. This written sum-
mons contained a precise statement of the demand of the
complainant, signed by himself, and requiring an answer
in five days. This time was subsequently extended by
Justinian to twenty days. The complainant was permitted
subsequently to amend the statement which he made in
his summons. The officer who served the summons was paid
according to the amount of the demand. By this plan the
presence of the defendant in court was secured without
any effort on the part of the complainant.

The fundamental characteristic of Roman civil procedure
and that which distinguishes it from that of any other nation
1 169. Pro- was the division of all judicial proceedings into
cewiinfi in two sharply distinguished sections : the proceed-

e' ings 'in jure/ and the proceedings 'in iudicio.'

Hunter, commenting upon this peculiarity, says; "This
division of labor which some modern writers have shown
the disposition to exalt as a highly scientific arrangement,
but which may be viewed rather as an imperfect and in-
choate form of civil procedure, lasted until the reign of
Diocletian, who made the immense change of committing
the trial of civil causes to State-paid lawyers. This step

474

Chap. XVI] PROCEEDINGS IN A CIVIL ACTION [§ 160

was in harmony with the whole course of development of
Roman civil procedure; it was one of the steps by which
the State assumed to itself the exclusive control from first
to last of civil causes/' The proceedings 'in jure' were the
proceedings before the magistrate or judicial officer, the
organ and representative of the sovereign power of the
State. It passed through two stages: in the earlier stage
the preparation of the case and its reference to arbitration
was wholly oral; in the latter, it was written. To the first
stage belonged the legis actiones — the actio sacramenti, the
actio per judicis postulationem, and the condictio. To the
second stage belongs the formula. The object of the pro-
ceedings 'in jure' was, in the first place, to ascertain whether
the complainant had a claim which was admissible and, if
so, to determine the nature of this claim and to fix the con-
ditions subject to which it could be asserted. The pro-
ceeding in jure culminated in and terminated with the litis
contestatio, which was the formulating of the legal issue in
such a manner as to supply a foundation for the 'judicium/
and thus to obtain a final decision of the case. The grant-
ing of the litis contestatio by the magistrate was equivalent
to a decision (decretum) on his part, that the complainant's
claim was admissible in itself and ought to be enforced, sub-
ject to such limitations as resulted from the contents of the
litis contestatio. At this stage the case passed out of the
hands of the magistrate who formulated the case merely,
to be passed upon by the judex or private individual who
was chosen for this special task. Our interest in the first
stage, that of the legis actiones, is purely historical and
has been already sufficiently discussed (see pages 144-148).
Of the legis actiones Gaius has this to say ;* "Of the legis

1 Gaius, 4, 12.
475

§ 169] A HISTORY OP ROMAN LAW [Paht II

actio there were five forms: sacramento (by wager),
per judicis postulationem (by demanding a judex), per
condictionem (by formal notice), per manus injectionem
(by laying hands on a man), and per pignoris capionem (by
taking a pledge)."

"The proceedings called legis actiones could be conducted
only between Roman citizens; aliens, unless by special
favor (as some Latins), could neither sue nor be sued.

"The parties could not appear in the formalities of the
legis actiones by agents or procurators, but must themselves
perform the ceremonies. This is another characteristic of
the old jus civile, the refusal to allow one freeman to rep-
resent another in a legal transaction.

" The system was marked by a rigorous pedantry, in which
form was everything and substantial justice nothing." *

The second stage in the proceedings 'in jure/ the for-
mulae, seems to have owed its origin to the necessity which
the praetors were under of devising a method of civil trial
for peregrini. In the legis actiones the alien had no part.
But in the complex life which had been brought about by
Roman conquest the necessity arose of providing a means
of determining disputes in which an alien was a party. Hie
pnetor peregrinus devised a scheme to meet this need. He
followed the essential features of the Roman system
(jus civile), but modified it when necessary and thus brought
about a reform of Roman procedure by reason of his im-
perium. He formulated, as heretofore, the litis contestatio
and passed the case on to be determined in judicio. Here
is where the chief departure from the old system took place.
The magistrate wrote out his directions to the judex whom
he appointed instead of merely giving oral directions as

1 Hunter, 979.
476

Chap. XVI] PROCEEDINGS IN A CIVIL ACTION [§ 169

heretofore. Moreover, the judex was no longer a Roman
senator, but any person upon whom the litigants could
agree.

The chief thing to be noticed in this new form of procedure
is that it contained no positive assertion of any right in the
plaintiff, but proceeded at once from a recital of the facts
constituting the complaint to give the arbitrators power to
award damages. A slight modification of the written
formula made it possible to introduce an agent or attorney
either for the plaintiff or defendant. In this manner; "If
Dio has received in deposit a golden vase of Agerius, and
refuses to give it up, let the recuperatores order Dio to
pay to Negidius the value of the vase." *

The next step in the history is the introduction of formulae
in civil cases between citizens. The lex iEbutia is gener-
ally thought to have this as its object. Certain it is that
formulas were first brought in for the use of citizens in the
case of actiones in personam and were but a modification
of condictio, which was in turn but a modification of the
sacramentum. The fundamental difference between them
was the omission of the reciprocal wagers that formed an
indispensable preliminary to the condictio.

The steps by which the formula was adapted to actions
for property can be traced with certainty. In the sacra-
mentum the question finally submitted for trial was not,
which of the claimants was owner of the thing in dispute,
but which was right in his wager (sacramentum esse justum
vel in justum). It is the truth of an assertion and not the
justice of a demand that is at issue. The State does not
yet assert a claim to civil jurisdiction. From the sacra-
mentum is only a step to trial by sponsio or wager.

1 Hunter, 981.
477

§ 169] A HISTORY OF ROMAN LAW [Paht II

"In a sponsio we proceed thus. We challenge the op-
posite party by a sponsio such as this, — ' If the slave in
dispute is mine ex jure Quiritium, do you undertake (spondes)
to give me twenty-five sestertii?' Next we put forth a
formula, in which the statement of claim is that the amount
thus undertaken for ought to be given us; and in this we
win if we prove that the thing is ours." x

Gaius thus shows that the sum of the wager is nominal,
and the wager itself is introduced merely to give jurisdiction.

In the next stage, the condictio, the wager is for a sub-
stantial sum — one third of the amount claimed. In the
case of interdicts and the actio de pecunia constituta, the
praetor, while making use of the condictio, made the sum of
the wager sufficiently serious to act as a penalty. Here
the question referred to the judex was not the mere truth of
an assertion, as was the case in the sacramentum, but whether
the complainant had a right to the thing claimed. This
is a step in advance, but the action is still, strictly speaking,
in personam.

In the third stage, the fiction of the wager is dropped and
the right of the complainant is submitted directly for the
judgment of the judex. Here we have for the first time
reached a true actio in rem.

"An action for a thing is twofold ; for it can be brought
either by formula petitoria or by a sponsio. If, then, it is
brought by a formula petitoria, the stipulation called judi-
cation solvi (that what the judex awards shall be paid)
finds a place; but if by a sponsio, that which is called pro
prode litis et vindiciarum. A petitoria formula is one in
which the plaintiff alleges in his statement of claim (intentio)
that the thing is his." 2

1 Gaius, 4, 03. > Ibid., 4* 91-92.

478

Chap. XVI) PROCEEDINGS IN A CIVIL ACTION [§ 170

We have now reached the second stage of a Roman civil
procedure. The case has passed into the hands of the judex.
It is first necessary to consider his liability. Says 5 170 p^
Justinian ; * "The very first thing he ought to ob- ceedings in
serve is this, not to judge otherwise than is laid °*

down by the statutes, by the constitutions, and by custom."

"If a judex makes himself liable in a case by a wrong
decision (litem suam fecerit) it is not strictly an obligation
ex maleficio that he seems to incur. But it is liability
not an obligation arising from contract, and there <* Judex,
is understood to be wrongdoing on his part, although it
may be only through want of judgment. He seems, there-
fore, to be liable quasi ex maleficio, and will have to bear
such penalty in the matter as shall seem fair to the sense of
duty of the judex that tries him." *

"A judex, if required by the formula either to give plaintiff
a definite sum or to acquit defendant, who gives plaintiff a
different sum, makes the cause his own, and must make good
the loss." 8

" In like manner, if the reference permits a judex to condemn
defendant up to a certain amount, and not beyond, if he gives
more, the defendant may reclaim the excess from the judex." 4

Prior to the adoption of formulae by the praetors, reference
to a judex was always oral and had to be attested by wit-
nesses. Exactly the same procedure was adopted Procedure
whether the case was referred to a judex, arbiter, to Jodicto'
recuperatores, or centum viri. Says Gaius ; 6 "They came to
receive a judex. Afterwards, when they came back, a judex
was given them not before the thirtieth day. This was done
through the lex Pinaria ; Iqr before that statute a judex was

» Justinian, 4, 17. > Ibid., 4, 5.

* Gaius, 4, 52. ' Ibid., loc. cit. * Ibid., 4, 15.

479

§ 170] A HISTORY OP ROMAN LAW [Pabt II

given at once. This we have understood from the foregoing,
that if the action was for less than 1000 asses, they used to
contend with a sacramentum of 50 asses, not of 500. After
a judex had been given them, however, they gave formal
notice to one another to come before him the next day but
one. Then when they came before him, before they fully
plead their case in his hearing, they used to set the matter
forth to him shortly, and as if by way of index. This was
called causae conjectio (throwing the case together), as being
the gathering together (coactio), so to speak, of their case into
short compass."

Under the formula system the parties appeared before the
judex or other referee and presented a brief statement of the
Procedure nature of the case referred. This was followed
under the by longer pleas delivered by the contending parties
0011 - or their advocates, stating the facts involved.
Then followed the examination of witnesses and the pro-
duction of any written documents deemed of value in se-
curing a just decision. In the presentation of evidence
there was no fixed rule. Witnesses were examined on oath.
When the evidence was all in, the parties to the suit or their
advocates summed up their case. It was then ready for
judgment. An adjournment could be taken in case the judex
had not made up his mind, and further discussion could be
called for. The judex was permitted to ask the opinion of
the trial magistrate on a point of law, but not on a question
of fact.

A judex or other referee could not render his judgment
except in the presence of both parties, and, in later times,
a direct and summary process of securing the attendance of
these persons was adopted through the intervention of the
court. The judgment had to be pronounced in the regular

480

Chap. XVI] PROCEEDINGS IN A CIVIL ACTION [§ 171

manner on pain of being null and void. There must have been
an opportunity given to each side to present and argue its
case. The judgment was given orally to the parties and
could not be delivered in writing. The usual plan was for
the judices to retire after hearing the case and to dictate their
judgment to a clerk. This written statement they then
read to the contending parties. The Latin language was
regularly made use of, but Arcadius and Honorius permitted
judgments to be rendered in Greek. In case there was more
than one referee, all had to be present when the judgment
was pronounced, but a majority of votes was sufficient to
support the judgment. In case the judges were equally
divided, the decision was for the defendant.

An order for execution did not necessarily follow the
decision of the judex, although this was the usual procedure.
When a plaintiff obtained a judgment in his '§ 171. New
favor, he was compelled to go back to the praetor Trial*,

with the judgment in his hand, and to ask his authority for
proceeding further upon it. This gave an opportunity for
the defendant of calling in question the justice of the decision
on various grounds. It might happen that the praetor would
refuse to give any effect to the judgment, thinking it erro-
neous. In the same manner, if the defendant succeeds
before the referee, the complainant might, under certain
circumstances, treat the decision as null and void, and go
again to the praetor for a new formula and another judex.
But this questioning of the decision of the judex could not
take place upon frivolous or inadequate grounds, and judg-
ment was not set aside save for good and sufficient reasons.
These were : —

1. When the judgment had been pronounced and sub-
sequently an error in law appears in the face of it. In such

481

§ 171] A HISTORY OP ROMAN LAW [Pabt H

a case it is wholly void and a new trial is the remedy. Many
cases may be cited as examples of this. For instance : —

"A person is required to be a tutor, and he pleads as an
excuse that he is beyond the age of compulsory service.
The referee, however, held that no excuse was admissible.
His decision is null and void without appeal. (Quum de jure
constitutionis, non de jure litigatoris, pronunciatur.) If, how-
ever, the referee admitted age as a ground of excuse, but
held that the tutor had not proved himself beyond the proper
age, his judgment could be upset only by regular appeal." *

" In a testamentary suit, a referee supported a will on the
ground that a boy under fourteen could make a will. The
decision is null." 2

"A judge condemned a defendant in the amount claimed,
with a sum in addition that represented compound interest.
But compound interest is illegal. Nevertheless, as the judg-
ment did not bear this fact in its face, it was valid, unless
upset on appeal." *

2. If a judgment has been rendered by the judex on the
strength of false documents and the falsity of the documents
has been subsequently proved in criminal proceedings, the
judgment is held to be void.

3. A judgment was held null and void if it exceeded the
terms of the reference, unless with the consent of the liti-
gants.4

4. If it be shown that the referee accepted a bribe, the
judgment is null and void.

5. Finally, a judgment was null and void if it had not been
pronounced in open court in proper form, or if either party
was absent on excusable grounds, such as sickness.

1 D., 49, 8, 1, 2. » DM 42, 1, 27.

* Codex, 7, 64, 2. « Ibid., 5, 1 ; 74, 1.

482

Chap. XVI] PROCEEDINGS IN A CIVIL ACTION [§ 172

Under all such conditions a new trial was allowed as the
proper remedy.

It may be stated that the judgment of the judex was the
natural termination of a Roman civil trial. This trial began
in a feigned quarrel and, the judgment having . I7J g^
determined which one was right and which was ration of
wrong, nothing remained. If the defendant re- J«**»«rt-
fused to obey the judgment of the judex, another suit became
necessary for the enforcement of the decision. The plaintiff,
in this case, went again to the praetor with the complaint
that the defendant refused to satisfy the judgment that he
had obtained against him. Upon his satisfying the magis-
trate that the judgment had been righteously obtained, the
latter granted him an actio per manus injectionem, which
was merely a legalizing of the arrest of the defendant by the
plaintiff and the compelling of him either to satisfy the judg-
ment or to go with him as a prisoner.1 So long as the legis
actiones were in use the proper procedure in execution of
judgment was the actio per manus injectionem. Gradually
there developed a method of seizing the property of the
defendant instead of his person to satisfy judgment against
him. In this development there were three well-marked
epochs: —

1. A debtor was allowed thirty days in which to discharge
his judgment debt before he could be arrested. If he did
not pay or find a vindex to dispute the judgment,
he was carried off by the creditor in chains. He (x) £MCI1.
was kept in this manner for a period of sixty tfon tgiinst
days, during which time, on three successive mar- the PerWML
ket days, the creditor was required to bring his debtor be-
fore the praetor and proclaim the amount of the debt, in

i Gams, 4, 21. ]
483

1 172] A HISTORY OF ROMAN LAW [Pabt II

order to give an opportunity to his friends to discharge
the debt and release him. On the third occasion the debtor
was either killed or sold into slavery beyond the Tiber.

Throughout this entire period the State only interfered
to soften the severity of the individual, who was ever the
active prosecutor.

About B.C. 326-313, an act was passed commonly called
lex Poetelia Papiria, abolishing the nexum and establishing
the rule of law that liberty is inalienable. The debtor could
no longer be sold into slavery. Instead he was imprisoned
in a public prison. Imprisonment for debt was finally abol-
ished by Constantine in 320 a.d.

When it was no longer legal to seize the person of a judg-
ment debtor, or when the debtor kept out of the way of the
(a) Bank- creditor so that he could not be taken for the
ruptcy. debt, the praetor granted to his creditors an entry

on his property (missio in possessionem). This was an arrest
of property in lieu of the owner. It cut off the debtor from
all right to enjoy his property.1 The creditors had a right
to administer the property as if it was their own, to receive
all moneys and increase of every description, but they were
simply in the place of mortgagees and not owners. They had
to give an account of all receipts and expenditures and, in
case the debtor should find security to contest the claim,
must abide by the decision of the court. In case the prop,
erty was forced to sale, the debtor was thereby released
from all past debts and could neither sue nor be sued for the
same. But he was rendered infamous by this bankruptcy and
could no longer defend any suit unless he could find sureties.

A lex Julia, generally attributed to Julius Csesar, enacted
that debtors should get rid of their debts by transferring

\ D.f 42, 4, 7.

484

Chap. XVI] PROCEEDINGS IN A CIVIL ACTION [§ 173

their property to their creditors in lieu of ex- Bankruptcy
ecution against their bodies. Such surrender ctttoo ^
did not entail infamy, but it did not release the Bankrupt*,
debtor from liabilities in case he could afterward pay with*
out leaving himself in want.1

Thus far the Roman law had provided two modes of en-
forcing the collection of judgment debts — imprisonment
and bankruptcy. These means were for many ^ Bxecu-
centuries efficient because, if the debtor con- tton against
cealed himself so that his creditor could not im- per^'

prison him, he could be made a bankrupt and whatever
he had, divided among his creditors. At length, in the time
of Antoninus Pius, a more expeditious method was devised,
and one that lacked the cruelty of the older procedure.
To satisfy a judgment debt a debtor's goods were taken pos-
session of by the officers of the State and sold. The money
thus obtained was paid over to the creditors, only a small
reduction being made for expenses. This method quickly
became the regular way of levying execution for debt. Any-
thing belonging to the debtor could be taken in execution
except slaves, oxen, or implements of agriculture, but it was
necessary first to exhaust animals and movables before levy-
ing upon the land of the debtor.

The sale of goods was conducted by the officers of the
court, and if this sale was in any way defeated by the debtor,
the creditor had the goods adjudged to him as his property
unless they were of greater value than the debt.

During the period of the republic, Roman magistrates
were looked upon as representing in their persons § 273. Ap-
the sovereignty of the people. They were, conse- i*ais.«

quently, completely independent of one another, no one

* D., 42, 3, 4. * Hunter, 1044-1048.

485

§ 173] A HISTORY OP ROMAN LAW [Pabt II

having any power or authority only as he received it from
that sovereign body. This being the case, there was no
I Appeals subordination of one body of magistrates to
during the another; no superior and inferior courts, and,
Republic. consequently, no challenge of the judgments of
a lower court in that of a higher. So long as there were no
subordinate magistrates there could be no appeal. While
this was the case during the entire republican regime, there
were, nevertheless, two institutions that somewhat imperfectly
supplied the need of a regular system of appeal, the pro-
vocate and the appellatio.

Very early in the history of Rome it came about that a
person who had been condemned by a magistrate (a criminal
(z) Pro- court) could appeal (provocare) from the decision
TOC*tio* to the Roman people gathered in the comitia
centuriata. According to Cicero this right of appeal existed
in the time of the kings, but a text of Pomponius states that
the right of appeal was introduced on the expulsion of the
kings, as a limitation on the powers of the consuls, who could
not touch the caput of a Roman citizen without the sanction
of the people (see lex Publilia, page 103).1 Later criminal
justice was administered by commissions (qusestiones per-
peture) composed of private citizens who were selected by the
praetors. The appeal to the comitia centuriata gradually
fell into disuse as the quaestiones were delegates of the people,
and there was, consequently, no longer fear of the arbitrary
power of the magistrate.

The early Roman constitution developed another marked
and peculiar characteristic, — the right of veto which one
(a) Appei- officer had over the official act of another officer
toti0* even of a higher rank than himself. It became

iD., lf 2; 2, 16.
486

Chap. XVI] PROCEEDINGS IN A CIVIL ACTION [§ 173

a maxim of the Roman law with reference to partnerships,
that in a dispute between two partners (as, for instance,
consuls or tribunes), that one who said "No" was to have
his way.1 In like manner, a magistrate could be stopped in
any official act by the veto of any other magistrate of equal
or higher rank. Such a veto was called intercession and the
formal demand for it by a private individual, appellatio.
The tribunes were most active in the use of such power and
frequently vetoed the acts of consuls and pretors. The
effect of the veto was purely negative ; it stopped for the time
being the forbidden act, but it suggested nothing in its place.
It could not, therefore, be considered an amending power,
but merely a check upon unconsidered or arbitrary acts.

Throughout the early days of the empire the old system
continued in force. The theory of the Roman government
was ever that of a limited monarchy. The latter n xppatb
days of the republic reveal a gradual passing over during the
of power from the 'people/ where it was thought BmPire-
to reside, to one man. This is clearly seen in the disturbances
under the Gracchi and the party struggles between the
Optimates and Democrats under the leadership of Sulla and
Marius. It culminated in the struggle between Octavius
and Antony. The complete transformation from republican
into imperial institutions was brought about by Octavius
when he either assumed or had bestowed upon him by a sub-
servient people, the imperium; the title of Augustus; tri-
bunician, proconsular, and consular powers; supervision of
the laws and the office of pontifex maximus. The emperor,
by becoming a multiple magistrate and supreme leader in all
matters of State, arrogated to himself all State functions.
Thus the emperor, by virtue of being made tribune for life,

1 Hunter, 1045; D., 5, 1, 58.

487

S173] A HISTORY OP ROMAN LAW [Part II

could veto the acts of any magistrate in Rome or Italy. In
the imperial provinces the emperor governed by his lieuten-
ants. Of course an appeal lay from these to him. In those
provinces which were reserved for the senate and which had
governors appointed by that body, the emperor could inter-
fere in his capacity of proconsul and veto any act of a governor
that was contrary to his wishes. A system of appeal was in
this way inaugurated in the administration of justice from
the fact of the emperor combining in himself all ministerial
functions. Augustus followed with scrupulous care all repub-
lican forms ; still, as a matter of fact, the establishment of the
empire meant the abolition of all the independent and rival
magistracies of the republic and the substitution of a single
sovereign. Even the forms of the ancient republican consti-
tution were abolished by the next generation of emperors.
The want that had certainly been felt during the republican
period of a proper court of appeal was now met by the em-
perors making themselves a supreme appellate tribunal from
all courts throughout the Roman world.1

At first the only court from which no appeal lay was the
emperor, but from the time of Constantine, the praetorian
prefects gave final decisions.2 These courts might, however,
be asked to rehear a cause. The emperor could also, in ap-
pointing a judge to determine any cause, provide that his
decision should be final. Generally appeals from magistrates
in Rome, and from the judges in certain provinces, were
carried, in the first instance, to the prefects of the cities,
and from the presidents of provinces to the praetorian prefect.
While no regular appeal could lie beyond these courts, the
emperor might be asked in certain cases for mercy. This was
simply in the nature of a pardon rather than an appeal.

1 D., 42, 2, 1, 2. * Codex, 7, 62, 19.

488

INDEX

ACCENSI, 83
ACCESSIO,

a title of jus gentium, 386 seq.
ACTIO, 137

legia, 87, 142, 144 seq.
publication of, 163

8acramenti, 146
ACTION,

aqua pluvi® areenda, 132

furti eonoepti, 133

furti oblati, 134

of distress, 136
ACTUS, 66
ADJUDICATUS,

a title of jus civile, 393 seq.
ADOPTION, 140, 169
ADROGATION, 169
ADULTERY, 75, 76
JBDILES,

plebeii, 190, 141, 159

curules, 159

minores : see Plebeii
^ELIUS, SEXTUS, 22, 279
jBMILIUS, 116
AFFRONT, 132
ACER PUBLICUS, 45, 47, 50

alienation of, 52

division of, 53, 110, 177, 184 aeq.

reservation of, 52
AGER ROMANUS, 5, 44, 192

early extent of, 5
AGNATI, 29, 174

succession of, 68, 129, 174
AGRICULTURE, 58 seq.
AGRIMENSOR, 66, 67
ALEXANDER SEVERUS, 276

489

INDEX

ALIEN, see Foreigner
ALIENATION,

of ager publicus, 52

mortis causa, 92
ANTONINUS PIUS, 285

constitution of, touching the murder of a slave, 329
APPEAL, 485 seq.

during the republic, 486 seq.

during the empire, 487 seq,

right of, 135, 144

to Centuriata, 101, 104

see Law of Appeal
APPELLATIO, 486
APPIUS CLAUDIUS, 22
ARBITER, 143

ARSA, C. TERENTIUUS, 121
ARSON, 75, 133
ASSERTOR LIBERTATIS, 147
ASSOCIATIONS, 134

see Corporations
AUCTORITAS, 48

patrum, 37, 99, 100, 103
AUGUR,

as surveyor, 67

office of, opened to plebs, 161
AUGUSTUS,

title given to Octavius, 264

right given by, to respond, 276
AULUS GELLIUS, 282 aeq.
AUSPICIA,

maxima, 141
AVENTINE,

conveyance to plebs, 117, 118

BAIL, 145

fraudulent, 134
BANKRUPTCY, 484
BARBARI : see Foreigners
BILLS,

before senate, 40

before tributa, 154
BONI MORES, 11

definition, 12
BOUNDARIES, 131

490

INDEX

BRIBERY, 135
BRUTUS, M. JUNIUS, 164
BURGUNDIANS, 306

code of, 307
BURIAL, 135

CjBRE, 192

OE8AR, OCTAVIUS,

reforms under, 264 aeq.
OESO, PABIUS, 116
CALENDAR, 15, 147

publication of, 163
CAMILLUS, 182
CANULEIUS, CAIUS, 155
CAPACITY,

jural : see Caput
CAPIO,

pignoris, 71, 147
CAPITO, CAIUS ATEIUS, 281 aeq.
CAPUT, 168
CASSIANI, 282
CASSIUS, SPURIUS, 110 aeq.

Caius Longinus, 282
CATO, M. PORCIUS, Sr., 22, 164

M. Poroius, Jr., 164, 279
CATTLE RAISING, 63, 65
CELIBACY, 356

CELSUS, PUBLIUS JUVENTUS, 284
CENSORS, 99, 141, 156, 159
CENSUS, 79
CENTUMVIRI,

court of, 144
CENTURIA,

as a measure of land, 66

as military unit, 83
CESSIO IN JURE,

a title of jus civile, 86, 131, 390
CHILDREN,

legitimate, 129, 139

posthumous, 139

succession of, 68
CHIROGRAPHUM,

a title of contractus ex litteris, 461
CITIES, 187, 188 aeq.

free, 190

491

INDEX

CITIZEN, 192, 336

land rent charged to, 53

privileges of, 43, 46, 48, 137, 337

enrollment of, 80, 113, 123
CITIZENSHIP, 48, 80, 187 aeq.

acquisition of, 337 seq.

loss of, 169

municipal, 191

private, 188

public, 188
CIVES: see Citizen
CIVITAS, 34

absque suffragio, 188

foederata : see Towns, allied

libera : see Towns, free

libera foederata : see Cities, free
CLANS : see Gens
CLASSES,

of citizens, 157

according to wealth, 80
according to land, 82

of persons, 192
CLIENTS, 18
CLUBS : see Associations
CODE,

Gregorian, 23

Hermogenian, 23

Napoleonic, 49

Theodosian, 23
CODEX : see Code
CODICILS : see Legacies
COEMPTIO, 89
COHABITATION: see Usus
COINAGE, 88
COLONI, 330
COLONLB : see Colonies
COLONIES,

burgess, 54

Greek, 54, 55, 56

Latin, 56, 189
Phoenician, 55, 56

Roman, 54, 57, 188
COLONISTS,

Roman, 192, 193
Latin, 192, 193

492

INDEX

COMITIA,

calata, 36, 178
centuriata, 83, 98

elective authority of, 98
judicial authority of, 100, 144
legislative authority of, 99
dismissal of, 102
in later republic, 243
place and time of meeting, 101
curiata, 34, 36, 99
tributa, 86, 149

elective authority, 151
judicial authority, 152
legislative authority, 152
in later republic, 243
under Augustus, 269
COMMERCIUM, 137, 187, 189
COMMODATUM, 455

a title of contractus ex re, 454 seq,
COMPOUNDING INJURY, 195
CONCILIUM, patrum : see Senate
CONCUBINATUS, 350
CONDICTIO, 167
CONFARREATIO, 4, 32
CONNUBIUM, 137, 187
CONQUEST,

right of, 51
CONSIDIUS, GAIUS, 116
CONSTITUTION,
imperial, 272
Servian, 20
CONSUETUDE, 246
CONSULS, 97, 141, 156, 157, 178

of colonies, 188
CONTIO, 76, 150
CONTRACT, 70, 130, 165, 452
breach of, 71, 130
publication of, 92
essential features of, 453 seq.
ex consensu, 454, 461 seq.
ex re, 454 seq.
ex verbis, 454, 458 seq.
innominate, 468
nominate, 454 seq.
CONVEYANCE : see Cessio, in jure ; Mancipatio ; Actio, legis

493

INDEX

COPYHOLD : see Lease
CORPORATION, 372, 374

powers of, 373

termination of, 373

voting in, 373
CORPUS JURIS CIVILIS, 11, 148
COUNCIL,

of kinsmen, 4

of elders, 36

see Senate
CRIME, 71 %eq., 75

see Law, criminal
CUJAS, 309
CURATELA, 317

application for, 369

cause for, 368

surety for, 369 aeq.
CURIA, 34
CURIALES, 190
CURIO, 34, 35
CUSTODES LEGIS, 8
CUSTOMS OF THE PEOPLE, 24

see Consuetude

DAMAGE,

accidental, 132

action for, 71, 73
DEBT,

due deceased, 129

on death of debtor, 171

remission of, 108

see Debtor, 177
DEBTOR,

liberation of, 108

procedure against, 74, 127

punishment of, 92, 128
DECEMVIRI LEGIBUS SCRIBUNDIS, 99, 121

litibus judicandis, 141, 182, 183
DECUlllANS, 190
DEFENDANT, 73

see Trial
DEMINUTIO,

capitis, 30, 168

maxima, 169, 322

494 ' %

INDEX

media, 169

minima, 160

modes of suffering, 323 $eq.

under Justinian, 324 seq.
DEP08ITUM, 456 seq.

a title of contractus ex re

see Saeramentum
DICTATOR, 106, 141, 159
DIES,

comitialis, 36

fasti, 36

non fasti, 36
DIFPARREATIO, 139, 357
DIGEST : see Codex
DIOCLETIAN

edict on Price of Salable Articles, 64
DISHERISON, 173, 423 seq.
DISTRICT, levy : see Tribe
DIVORCE, 32, 138, 357
DOMAIN LAND : see Ager Publicus
DOMINIUM, 49

ex jure quiritum, 188, 190 192
DONATIO,

a title of the jus civile, 394 seq.
DOROTHIUS, 298
DOWRY, 358
DUUMVIRI, 93, 182, 188, 190

EDICTA PRINCIPUM, 23
EDICTUM,

perpetuum, 200 eeq.t 273

repentinum, 200

translatum, 200

of magistrates, 244

common use of, 245

Publicianum, 251
ELECTIONS,

by oenturiata, 101
EMPEROR : see Imperator
EMPHYTEUSIS,

a title of jura in re aliena, 409

rights and duties, 410
EMPTOR FAMILLE, 91, 172

495

INDEX

ESTATE,

preservation of, 69
ETRUSCANS, 3, 4
EXECUTION, 127
EXPANSION, commercial

influence on Roman law, 197 seq.
EXPENSILATIO,

a title of contractus ex lit tens, 460

FABIUS, AMBUSTUS, 181
FABROT,

published the Basilica in 1647, 305
FACTIO TESTAMENTI, 187, 189
FAITH: see Fides
FAMILY or FAMILIA,

at death of pater, 29

change of, 169

ownership of, 68

rights, 139
FAS, 11

FATHER : see Patria Potestas
FICTION, 202

FIDEICOMMISSA : see Legacies
FIDES, 70, 91
FILIUS FAMILIAS, Filia familias,

powers of pater familias over, 347 aeq.

capacities and incapacities of, 348

property rights of, 348
FINANCE, 153
FINES, 152

value of animals in, 64

limit on imposition of, 121
FLAMEN CURIALIS, 34, 35
FLAVIUS, CNjEUS, 163, 279
FOOD, 62, 63

flesh as, 65

distribution of, 121
FOREIGNERS, 192, 193, 198

punishment of, 104

title to property, 130
FRANKS, Kingdom of the, 306
FREEDMEN, 19, 20
FREEDOM, 168

from patria potestas, 128, 139 seq.

496

INDEX

question of, 130

loss of, 169
FREEMAN,

two classes of, 327
FUNERALS,

regulations governing, 135

G
OAIU8, 284 aeq.

Commentaries of, 125
GALLUS, C. AQUILIUS, 164

JSlius, 164
GENS, 30

inheritance of, 68, 129, 174

criminal jurisdiction of, 94

rights of, 138
GENUCIUS, TITUS, 116
GLOSSATGRES, 300 acq.
GNOMA, 66
GUARDIAN: see Tutor
GUARDIANSHIP: see Tutela
GUILDS, 33

H
HEIR, 171 seq., 202, 423 seq.
HEREDES SUI, 174
HEREDITAS, 317
HEREDIUM, 58, 65

produce of, 38, 62, 63

arrangement of, 66
HERNICI, 56, 111
HOMICIDE, 105

accidental, 134

see Murder and Manslaughter
HOSTIS, 48, 193

see Foreigners
HUSBAND,

power over wife, 32
HUSBANDRY,

Roman pastoral, 58

I
ICILIUS SPURIUS, 114

Lucius, 117
IMPERATOR,

title given Octavius, 264

497

INDEX

IMPBRIUM, 141, 142
INCANTATION, 132, 134
INHERITANCE, 129

ab intestato, 434 seq.

of children, in potestate, 68

of plebeians, 69

see Succession
INJECTIO MANUS, 71, 74, 147
INJURY,

civil, 71, 72

compounding, 95

personal, 132

self-redress of, 71

see Tort \

INTERCESSIO, 141, 142
INTERDICT, 201
INTERMARRIAGE,

of patricians and plebeians, 136, 155
IRNERIUS, 308

JUDEX, 143
JUDGMENT,

execution of, against person, 483

execution of, against property, 485
JUDICIUM, 143
JUGERUM,

definition of, 66

produce per, 60, 61
JUXIANUS, SALVIUS, 284
JURA,

in re aliena in general, 401 aeq.
JURISPRUDENCE, Roman,

beginnings of, 278

definition of, 311 seq.

remains of, 289 aeq.

rival schools of, 281
JURISTS, 164
JUS, 11, 12, 143

accrescendi ; title of jus civile, 394

iElianum vel Tripertita, 274

civile, 17, 22, 49, 148, 187
Papirianum, 10
Flavianum : see Jus Flavianum

civitatis, 190-194

498

INDEX

Gentium, 22, 197

Honorum, 55, 187

in re, 49

Italicum, 190

Latii, 189

Latinitatis : see Jus Latii

novum, 291 seq.

optimum, 187

protorium, 23

quiritium, 17, 49

respondendi, 289

suffragii, 55, 187

vetus, 291 seq.
JUSJURANDUM: see Oath
JUSTICE,

court of, 93
JUSTIN, 293 seq.
JUSTINIANUS, FLAVIUS ANICIUS, 293 seq.

Corpus Juris of, 295

Codex (Digest or Pandex), 296

Institutes of, 298

commission of ten of, 295

KING,

attempt at power of, 103

and plebeians, 120

as judge, 73, 75, 93, 95

election of, 35

exercise of power at death of, 38

position and duties of, 18, 41

qualifications of, 42

LABEO, MARCUS ANTISTIUS, 281 seq.
LAND,

allotment of, 52, 57, 58, 65

joint possession of, 57

measurement of : see Survey

see Property, landed
LATINI, 3, 11, 46, 56, 192, 193, 320
LAW, 99, 120, 137

agrarian, 52, 111 seq.

administration of, 140, 142

499

INDEX

burial, 7, 135
codification of, 121
criminal, 71

substantive changes in, 246
decemviral: see Twelve Tables
English Common, 124
faotors of in later republic, 243 seq.
justice and, 312
natural and positive, 313 seq.
of appeal, 104, 131

exceptions to, 104, 105
of citations, 289
of contract, 70, 253 seq.
of procedure, 318
of real property, 131

substantive changes in, 250
of succession, 170, 261 seq.
of the Twelve Tables : see Twelve Tables
private, 24, 162, 187, 243, 316

divisions of, 316 seq.

see Commercium, Connubium, Factio, Testamenti
public, 24, 135, 162, 318
quiritarian : see Jus Civile
repeal of, 137
Roman,

civil, 42, 148

early, 137

fate in the East, 305

fate in the West, 306 seq.

revival in Europe, 307 seq.
sacred, 24, 135
sources of, 293
study of, 163 seq., 304
teaching of, 299 seq.
LAWYERS: see Jurists
LEASE,

emphyteutic : see Emphyteutic
quinquennial, 52
LEGACIES, 137 seq.
LEGATI CiESARIS, 266
LEGES,

XII. tabularum : see Twelve Tables
regiiB, 10, 12
Valeria, 103
sacro, 109

500

INDEX

LEX,

Ulpian's title for Legacy, 394
LEX,

jElia Sentia, 271

Calpurnia, 167

Canuleia, 155

Cassia, 110

Cornelia (de Edictis Perpetuis), 201

Decemviralis : see Twelve Tables

de plebiscite : see Lex Valeria-Horatia, Publilia, Hortensia

de provocatione, 100

Gabinia tabellaria, 101

Hortensia, 162

Icilia, 117

Julia de adulteriis, 269

Julia et Popia-Poppaea, 270

Junia-Norbana, 271

Licinia, 157, 175

Ogulnia, 153, 161

Petelia Papiria, 160

Publilia,

de plebiscitis, 111, 161

opening censorship to plebs, 159

on bills brought before centuriata, 161

Sempronia-Tiberiana, 229 seq.

Silia, 167

Thoria, 233 seq.

Trebonia, 151

Valeria, 152, 154

Valeria-Horatia, 161
LIBEL, 132
LIBRAPENS, 87, 88
LICTORS, 41
LOAN,

action for repayment of, 73

see Commodatum
LOCATION or HIRING,

a title of contractus ex consensu, 263 seq.
LUCERES : see Etruscans

M
MiBNIUS, CAIUS, 113
MAGISTER,

equitum, 106

pagffi, 85

501

INDEX

populi, 38

vici, 85
MAGISTRATES, 99, 108, 122, 140 $eq.

authority of, 104, 105

election of, 99, 100
^functions of, 141
MAJESTAS, 100
MANCIPATIO,

a title of jus civile, 58, 86, 131, 172, 393
MANCIPIUM,

a person in handtake, 358 seq.

how created, 359

legal effect of, 359
MANDATE,

a title of contractus ex consensu, 454, 461 seq.

definition of, 467
MANILIUS, M„ 164
MANSLAUGHTER, 75, 76, 134
MANUMISSION,

how effected during the republic, 331

modifications of, by the lex jElia Sentia, 332

modifications of, by the lex Junia-Norrana, 333

changes made by Justinian in, 333

informal modes of,

vindicta, censu, and testamento, 334 seq.
MANUS, 317, 326, 348
MARCUS AURELIUS, 287
MARRIAGE, 31, 70 seq.

definition of, 349

father's consent to, when necessary, 356

kinds of,

oonfarreatio, coemptio, usus, 349 seq.

of plebeians, 351

terminated, 357

impediments to,

rank, public policy, relationship, 356
without means, 351

see Connubium
METCECI 20

MISSIO IN POSSESSIONEM, 484
MODESTINUS, 23
MONS SACER : see Avantine
MORGEN : see Actus
MUNICIPALITIES,

Latin, in Spain, 28

502

INDEX

MUNICIPES, 192, 193
MUNICIPIA, 190

political organization of, 191
MUTUUM,

a title of contractus ex re, 454

N
NEXUM, 92, 107, 160
NOVELL, 293
NUNCUPATIO, 92, 172
NUPTiB JUSTjE, 33

O
OATH, 70, 95

OBLIGATIONS,

accessory liability in ; dolus, culpa, mora, and cassus, 448 &eq.

arising from contracts, 452 aeq.

classification of, 450 aeq.

essential features of, 444

general character of, 441

quasi ex contractu,

negotium gestio, indebiti solutio, hereditatis aditio, tutefo
administrate, and rei communis administratio, 468 aeq.

the subject matter of,

essential and non-essential elements, 445 seq.
OCCUPATIO,

a title of jus gentium, 385
OPILIUS, AULUS, 164
OSTROGOTHS, kingdom of,

founded legal code, 306
OVILE, 101
OWNERSHIP or DOMINIUM, 130

acquisition of, in single things, 384

alienation of, 399

different forms of, 382

elements involved in, 382

growth of, as a legal right, 380

in general, 375 seq.

modes of acquiring, recognized by jus civile; cessio in jure,
usucapio, mancipatio, adjudicatus, lex, jus accre-
scendi, and donatio, 390 seq.

modes of acquiring, recognized by jus gentium; occupatio,
accessio, traditio, and specificatio, 385 seq.

quiritarian, 382

the acquiring of, through others, 396 aeq.

503

INDEX

P
PANDECTS: see Codex
PAPINIANUS, iBMILIANUS, 23, 287 aeq.
PAPIRIUS, SEXTUS, 10
PARDON, 75

PARENTS, moral obligations of, 27
PARRICIDIUM: see Homicide
PARTNERSHIP, 461

a title of contractus ex consensu, 461 seq.

forms of, 466

liabilities of, 487
PASTURAGE, 58, 63, 65, 132, 178
PATER PAMILIAS, 26 seq., 340
* as judge, 94

independence of, 104

powers of, 340 seq.
PATRES CONSCRIPTI, 38
PATRICIANS, 17

and ager publicus, 53, 111

and plebeians, 96, 107, 110 seq., 153, 155, 163

in comitia centuriata, 98

in comitia tributa, 154

landed property of, 46, 49

marriage of, 32, 136, 155

monopoly of offices by, 107

of early republic, 96
PATRON, 18, 19, 134

succession of, 129
PAULUS, JULIUS, 23, 288
PEACE,

breach of, 75

sanctioned by curiata, 37
PECULIUM, 58
PECUNIA,

certa credita, 167

see Wealth
PEGASIANI, 282
PEGASUS, 282
PERDUELLIO: see Treason
PEREGRINUS, 48 aeq.

see Foreigners
PERSONA, 169, 192, 320

classification of, 320

juristic, 372
( public and private, 72 seq.

504

INDEX

PETILIUS, 119
PIGNUS, 411

a title of jura in re aliena, 401 seq.

forms of, 412 seq.
PLAINTIFF: see Trial
PLEBEIANS, 18

and ager publicus, 53, 111

and kings, 120

and legis actio, 144, 147

and patricians : see Patricians

and senate, 38, 102, 153

become citizens, 89

divisions of, 176

in oomitia tributa, 150

landed property of, 46, 51 seq.

magistracies opened to, 99
censorship, 159
consulate, 155 seq., 177, 184
dictatorship, 159
pontificate and augurship, 161
pretorship, 180

marriage of, 33, 98, 107, 136, 155

of early republic, 96

on the Aventine, 117, 118

private life of, 107

retirement of, 108

right of appeal of, 104

succession of, 69, 174

testaments of, 71, 171
PLEBISCITUM, 23, 150, 153, 161 seq.

Licinian : see Lex Licinia

Ogulnian : see Lex Ogulnia

Ovinian, 153
PLEDGE : see Pignus, also Capio, pignoris
POISONING, 134
POLICE, 109, 159
POLICY, Roman foreign, 186

in relation to cities, 188

in relation to persons, 192

in relation to soil, 192
POMPONIUS, SEXTUS, 282, 285

writings of, 9 seq.
PONTIFEX MAXIMUS, 36

title given to Octavius, 265
PONTIFFS, 8, 13 seq., 35

505

INDEX

college of, 4, 14

office opened to plebs, 116
PONTIPICIUS, 115, 116
POPULATION OP ROME, 80
POPULUS, 35, 98
P088ESSIO, 49

bonorum, 202

of ager publieus, 53
POSSESSION, 130

wrongful, 136

see Possessio
POSTULATIO, judiois, 146
POTE8TAS, 141 seq., 317, 341

destroyed, 345

over children of another, 343

patria, 3, 8, 28, 128, 139

privileges under, 347 seq.
PRiBPECTUS, 172

annonarum, 266, 268

protorius, 266 seq.

urbi, 266 seq.

vigilum, 266 seq.
PILETOR, 99, 141, 158

authority of, 201, 203

office opened to plebs, 160

peregrinus, 199

urbanus, 158, 199
PREFECTURES, 192
PRICES, of salable articles : see Diocletian, edict on

Roman, 63, 64

supervision of, 139
PRIESTHOOD : see Pontiffs
PRIEST8 : see Pontiffs
PRIMOGENITURE, 69
PROCEDURE, judicial : see Actio, legis

under the formula, 480 seq.
PROCEEDINGS IN CIVIL ACTIONS, 470 seq.

in jure, 474 seq.

in judicio, 479
PROCONSUL8, 141
PROCULIANS, 281
PROCULUS, 282

PROCURATORES OESARIS, 266 seq.
PRODITIO, 72 : see Treason
PROLETARII, 83

506

INDEX

PROPERTY,

and family, 160

immortality of, 67

individual, 43

landed, 42 aeq., 48, 50, 57 «eg.

private, 43

real, 131

stolen, 133
PROPRiETORS, 141
PROVINCLE, 203

Csesaris, 265

populi, 266
PROVOCATIO, 486
PRUDENTE8, 25

PUNISHMENT, capital, 35, 75, 100, 106, 135, 152
PUPILI, 32

QILESTORES, CANDIDATI PRINCIPIS, 266 seq.

paricidii, 93, 105, 135
QUATUORVIRI, 190
QUINQUEVIRI, 188
QUIRITES, 17

RAMNIANS : see Latins

RAPE, 75

RECEIVING STOLEN GOODS,

punishment for, 174
REGULA CATONIANA, 164
RELIGIOUS INSTITUTIONS, 5, 12
REMANCIPATION, 139
REPUBLIC, establishment of, 92
RES or THING,

the legal idea of, 376

classification of, 377

mancipi, 87, 129

nee mancipi, 88
RESPONSA PRUDENTUM, 23, 275 8eq.
REVENUE, 160
REVOLUTION,

political, 96
REX : see King

sacrorum, 97

507

INDEX

RIGHT,

legal, 316

political, 187

quiritarian, 95

three distinct elements of,
legal capacity, 316
legal control, 316
legal authority, 316

with reference to the person, 317

of accrual, 318
ROADS, 131, 159
ROBBERY, 94
ROMAN LAW,

divisions of, 20

original documents of, 9

religious source of, 8
RUFUS, P. RUTILIUS, 164

Servius Sulpicius, 164
RUTILUS, CAIUS MARCIUS, 159

8
6ABINES, 34
SABINIANS, 281
SABINUS, MASURIUS, 23, 282
SACRA,

publica, 14

family, 11, 14
SACRAMENTUM : see Actio sacramenti
SACRATIO CAPITIS, 94
SALE,

a title of contractus ex consensu, 461 seq.

denned and discussed, 462

public, of land, 52
SALVIUS JULIANU8, 201
SC.EVOLA, Q. MUCIUS, 164, 280

Publius Mucius, 164

Q. Mucius Jr., 164, 286
SCIPIO NASICA.276
SECURITY, 70, 126, 161
SEDITION, 134
SELF-REDRESS, 71, 75, 76, 94
SENATE, 36, 102

adjournment of, 40
administrative power of, 151
controlling business of, 40

508

INDEX

•

convening of, 39, 98, 150

legislation of, under Augustus, 269

meeting-place of, 39

nomination to, 153
SENATOR,

insignia of, 30
SENATUS CON8ULTUM, 40, 100, 103

in time of later republic, 243
SENATUS DECRETUM, 40
SEPTA, 101
SERFS : see Coloni
SERVICE,

military, 80, 81
SERVITUDES,

a title of jura in re aliens, 403 aeq.

acquisition of, 407

extinction of, 408

how created, 408

nature of, 402

personal : ususfructus, usus, habitatio, and opera, 402-408

servorum, 403 seq.

predial : rural and urban, 406

protection of, 408
SERVIUS TULLIUS,

election of, 78

reforms of, 78 seq.
SERVUS,

condition of, at Rome, 328 seq.

definition of, 321

had no rights, 321

origin of, 328
SEXTUS, Lucius, 175
SLAVE : see Servus
SPECIFICATION

a title of jus gentium, 386
SPONSIO : see Stipulation
STATUS,

definition of, 321

divisions of : libertas, civitas, and familia, 322

law of, 321 seq.

see also Caput
STATUTE-PROCESS : see Actio, legis
STIPENDIUM, 266
STIPULATION, 165, 167

a title of contractus ex verbis, 458

509

INDEX

unconditional, 459

in diem, 459

sub conditionem, 459
STUPRUM or PROMISCUOUS INTERCOURSE, 350

See Marriage
SUBVADES, 127
SUCCESSION,

defined, 415

kinds of : intestate and testate, 68, 69, 170 seq.y 203

foundation and conception of, 415 seq.

order of : agnate and gentile, 68, 129, 174

plebeian, 69, 91

universal, 417
SUIT,

see Damage, action for

see Loan, action for repayment of
SUMMONS,

according to Twelve Tables, 470 seq.

according to edicts of praetors, 472

according to imperial constitutions, 473
SUPERFICIES, a title of jura in re aliena, 410 seq.
SURETY,

rights and liabilities of, 369 seq.

see Tutela
SURVEY,

method of, 66
8YNOGRAPHA,

a title of contractus ex litteris, 461

T
TARQUINS, 105
TAX,

poll, 79, 85

by reforms of Servius, 85
TENURE,

of patricians, 49

of plebeians, 49
TE8TAMENTUM : see Will
THEFT, 76, 94, 127, 136

punishment for, 74, 133
THEOPHILUS, 298
TIBERIUS CORUNCANIUS, 276

Emperor, 282
TITIES : see Sabines
TITLE, prescriptive, 130

510

INDEX , '

•

TORT, 71 seq., 132
TOWNS,
free, 189
allied, 189
TRADITIO, 388
TREASON,

punishment for, 51, 72, 75
TREBONIU8, LUCIUS, 151
TRIALS, 73, 127

adjournment of, 127
before centuriata, 144
new, 481 seq.

preliminary proceedings in, 126, 145
TRIBES, 84, 149, 157
urban, 85, 157
rural, 85, 157
TRIBUNES,

military, 99, 156, 178, 181
of the plebs, 108, 115, 141, 148 9eq.
number increased, 121
TRINOCTIUM, 91, 130, 138
TRIPERTITA, 276
TRIUMVIRI, 188
TUTELA, 129, 360 aeq.
excuses from, 366
impuberum, 32, 362
mulierum, 29, 32, 69, 129, 361 scq.
powers and duties of, 364 seq.
terminated, 366
TUTOR, 365

removal of, 134, 367
TWELVE TABLES, 120 aeq.
burial laws of, 9
character of, 137
copies made of, 9, 10
on foreigners, 48
origin of, 120
reconstruction of, 124
sequence of, 124 seq.
- sources of, 123
text of, 126 seq.

ULPIANUS,tDOMITIANUS, 23, 288
URBS, 42

511

INDEX

USUCAPIO, 136, 175, 390 aeg.

a title of jus civile, 148, 187
U8URY, 134
U8U8, 91
UTILITAS PUBLICA, 203

VACARIUS, 308
VADES, 127
VALENTlNIAN,

laws of citation of, 219
VALERIUS, 116
VARUS, ALPENUS, 164
VECTIGAL, 204
VEII, war with, 116

VENGEANCE, private : see Self-redress
VETO, 141

of tribunes, 98, 108, 115, 180
VINDEX, 126
VIRGINS, Vestal, 129
VISIGOTHS, Kingdom of, 306

legal code of, 306

VOCATIO IN JUS : see Summons
VOTING,

by the Servian reforms, 79

in contio, 150

in comitia centuriata, 83, 101

in comitia curiata, 34

in comitia tributa, 155, 193

in senate, 40

see Jus suffragii

WAGER : see Sacramentum
WAR,

sanctioned by curiata, 35

summons to, 84
WEALTH, 57, 68
WEIGHTS AND MEASURES,

supervision of, 159
WIDOW,

succession of, 68
WIFE,

status of, 31 seq.

512

INDEX

WILLS, 170 seq., 187, 416

ancient forms of, 418

formal validity of, 422 seq.

in comitia calata, 170, 418

in procinctu factum, 170, 418

in writing, 420

necessary contents of, 423

per aes et libram, 170 seq., 193, 418

praetorian sealed, 420

private nuncipative, 420 seq.

privileged, 421

public nuncipative, 421

tripertitum, 420

voiding of, 429 seq.
WITNESS,

false, 75, 134

refusing evidence, 134

summoning, 126

to testament, 172 seq.
WOMEN,

guardianship of, 29, 129

marriage of, 31

position in family, 27

succession of, 69
WRONGS,

private, 94 seq.

513

EYLSVCWt)

A IUPKhj Of FlQfflwl IVw

3 6105 043 634 000

*■

Internet Archive Audio

Featured

Top

Images

Featured

Top

Software

Featured

Top

Books

Featured

Top

Video

Featured

Top

Mobile Apps

Browser Extensions

Archive-It Subscription

Save Page Now

Full text of "A history of Roman law with a commentary on the Institutes of Gaius and Justinian"

See other formats