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Full text of "Early Roman law : the regal period"

EAELY ROMAN LAW. 



THE REGAL PERIOD. 



BT 



E. C. CLARK, M.A. 

OP LINCOLN'S INN, BAERISTER-AT-LAW, 

LECTURER IN LAW 

AND LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE. 



MACMILLAN A^ 
1872. 

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INTEODUCTION. 



THE beginnings of Roman law are only noticed inci- 
dentally by Gains or his paraph rasers under lustinian. 
They are, however, so important and at the same time so 
difficult a subject that the attempt to set forth what is 
known or may be inferred about them, in a continuous 
form, needs no apology. With the execution of the task 
I fear it may be different: and a crossfire from jurists 
and historians might not unreasonably assail an encroacher 
on the debateable ground between the two provinces. 
Still, a careful collection of the best known original autho- 
rities on early Roman law may not be without use, even 
though the theory should prove erroneous upon which, as 
framework, our scattered fragments of knowledge are put 
together. From one source of error — the retailing of quo- 
tations — I trust this book will be found free. Most of 
the passages cited have been arrived at by independent 
reading of the original authority: the few others have 
been carefully verified. 

As regards scope, it was my intention to have in- 
cluded the Twelve Tables : but I have found the subject 
of the Regal Period, little as we know of it, to require so 
much reading that I am obliged to postpone the Decem- 



IV Introduction. 

viral legislation to a time of greater leisure. There must, 
however, occur here, as a matter of course, many detached 
references to a code which was in great part merely 
a ci>llection of previous laws or customs. 

T\\ii method which I have adopted has been to 
furnish, a** far as possible, in the text of each section, a 
tolerably continuous account of the subject in hand, re- 
legating (|uotation8 and references to the notes. For 
those readers who may wish to acquire any substantial 
knowletlge of the subject I need not mention that here, as 

Aa Peree do Caaanbon, 

La sauce vaui niifux quo le poisson, 

the fish l>eing my own, the sauce that of Varro and Festus. 

In the matter of orOwgraphy I must aiK)logize for 
certain inconsistencies. In all continuous Latin I have 
adopte<l the principle of making no 8ymlK)lic distinction 
between the palatal vowel (I) and palatal spirant (some- 
times written J), or b»'tween the labial vowel (U) and 
labial spirant (often written V). Such a distinction I 
believe to he not only destitute of gooil authority, but 
misleading. I should have preferred to employ the same 
symlK)l for the capital as for the small writing, both of 
labial and palatal : but V capital and n small seem too 
firmly cstabli.Hhe<l in good modern editions for me to dis- 
turb them. 

Whore detached Latin words occur, particularly in 
the text as distingui.shed from the notes, I have felt a 
great difficulty and ultimately moved in a strange diagonal 
which may possibly please no one. 

With words docked of their terminations, which there- 
fore may fairly Ix; regarded as naturalized English, I came 



Introduction. v 

at once to the conclusion that it was best to spell them in 
the usual English manner altogether. Vergil for Virgil 
or Quid for Ovid seem to me as bad as Livom would be 
for Leghorn or Firence for Florence. But where a word 
has been taken unchanged, except in the symbol for 
vowel or spirant, the matter is not so simple. I must here 
plead guilty to the weakness of retaining our English 
form of very familiar words such as Nerva, Juno, Servius, 
Flavius, decemvir, &c. 

The spelling is intended to be that of the Ciceronian 
period. 

The dates are those of the dty {KN.Q,) according to 
Zumpt's Annates. Where an event is not mentioned in 
that chronology, its date is here fixed by reference to the 
consulship under which it happened and the year given 
by Zumpt for that consulship. 

The only references which do not speak for them- 
selves are those to Corssen's Aussprache,Vokalismus, und 
Betonung, in which the pageing of the second edition, and 
those to Ortolan's Explication Historique des Instituts, in 
which the numbering by sections of the eighth edition, 
is followed. To the interesting and valuable work last 
mentioned I may here testify my very deep obligation. 



CONTENTS. 



PAGE 

Introduction . . iii 

§ 1. Sources. Original Documents. lus Papirianum ... 1 

§ 2. Sources. Historians, Jurists, Antiquarians .... 4 

§ 3. Origin, Custom 11 

§ 4. First customary rules mainly religious 12 

§ 5. Gentes. Sacra. Paterfamilias. Confarreatio. Arrogatio . 22 

§ 6. Offences within the family. First sanctions . . . .34 

§ 7. Extension of family law to offences without the family . . 41 

§ 8. Crimes and wrongs. Eemis>sible penalty .... 46 

§ 9. Crimes and wrongs. Few property offences . . . .51 

§ 10. Early legislature and judicature. Kings. Pontiffs . . .54 

§11. The Story of Horatius .60 

§ 12. The Duumviri 63 

§ 13. The right of appeal . 66 

§ 14. The King's supreme judicial' power 68 

§ 15. Eight of appeal imperfect 70 

§ 16. Perduellio 72 

§ 17. The quaestores parricidi 75 

§ 18. Early civil procedure. Sacramentum . . . . .87 

§ 19. Early civil procedure. Vindicatio. In iure cessio . . .92 

§ 20. The Servian reform. Criminal and civil law . . . .96 

§ 21. Indices. Legis actiones. Centumuiri 99 

§ 22. Mancipium. Nexum 108 

§ 23. Testamenta calatis comitiis: testamenta per aes et libram .116 

§ 24. Testamenta in procinctu 122 

§ 25. Emancipatio. Noxae deditio. Adoptio .... 125 

§ 26. Original legal position of women, and its modifications . . 128 

§ 27. Commencement of the republic 136 

Index 148 



EARLY ROMAN LAW. 

EEGAL PERIOD. 

§1- 
Sources. Original Documents. Ius Papirianum. 

TT is scarcely necessary to say that no original documents 
, of legislation during tlie regal period at Rome have 
come down to us. Assuming that the early laws were re- 
duced to writing and were even engraved on oak, as we 
are told by Dionysius of Halicamassus, we could not ex- 
pect that much survived the destruction of Rome by the 
Gauls. In fact, Livy expressly states that the military 
tribunes of the following year (v.c. 365) ordered all the 
treaties and laws which were in existence to be sought out, 
and that these last were the Twelve Tables and some laws 
of the kings ^ 

Nor are we more fortunate in the possession of copies, 
at least in any regular and perfect form. What seems to 
have been the only collection of regal law known to Ro- 
mans of the literary period was mythical in its origin and 
perhaps also limited in its scope. Sextus Pomponius 
asserts all the laws introduced by the kings to have been 
extant at the time when he wrote, in a collection made by 
Papirius, a contemporary of the last king^ Pomponius, 
R. L. A 



2 Early Roman Law, 

whose Enchiridion is preserved in the first book of the 
Digest (Tit. 2. 2.), appears to have written in the time 
of Hadrian (870 — 891 v.c), whom he stylos optimus, 
but not, as he does Hadrian's near predecessor Nerva, 
diuos''. The book to which he refers was called, it seems, 
iM* ciuih Papirianum — the collection or body of law 
edited by Papirius. It has been pointed ouf* that the 
form, or title at any rate, of ins — a hod}/ of law — is later 
than the regal period. Individual laws were probably 
entered, as they were enacted, in those commentaries of 
the pontiffs which appear to have been the first Roman 
records: a code, for the times to which it is attributed, is 
an anachronism both in a philosophical and literary point 
of view. Some of the pontifical records may have escaped 
the general conflagration, others would be re-written from 
memory. Out of these, in later times, a collection was 
probably made and dignified with the name of some le- 
gendary celebrity — perhaps originating in a real personage 
— whether the Gains Papirius who collects Numa's laws 
nftir the expulsion of the kings, the Manius who becomes 
the first rex sacrontm'', Pomponius' Publius who collects 
the royal laws, or the Sextus of the same authority who 
contrives to exist in the times of ' Supcrbus the son of 
Demaratus the Corinthian'^ 

The source here ascribed to the ?'//.<? Papirianum tallies 
with a bri<>f in<lication of its contents given by Servius the 
<M)mmentator on Virgil. ' The poet,* says he, ' in the ex- 
pression vinrrtn ritusque saci'onnn has used the very title 
of the Icr Papiria, which he knew was pul^lished on the 
subject of ceremonial ritual*.' Against a lex Papiria of 
early times there is not the same objection, in point of 
anachronism, as against a i\ts Papirianum : though the 
term would more naturally mean a statute carried under 
Papirius' auspices (compare our 'Lord St Leonards' Act/ 



Regal Period. j 

* Locke King's Act,' &c.) than a statute edited by Papirius. 
The ambiguous word puhlicatam adds to the difficulty. 
Its most proper meaning is divulged, of something before 
kept secret. Now it is worth remark that Pomponius 
makes Publius Papirius the instructor in law of Appius 
Claudius the Decemvir, proceeding directly afterwards to 
mention Appius Claudius the great reformer, who made 
public the Potitian rites ^ and, through his dependent 
Flavins, the grand pontifical secret of the fasti \ May it 
have been possible that the so-called Papirian law was 
the work either directly or indirectly of the latter of these 
two early Claudii, whose true political character is conclu- 
sively shewn by Mommsen^? If there should be any 
truth in this suggestion, it is quite conceivable that even 
the aspiring Gn. Flavins, who dared to let the newer legis 
actiones come forth under his own name, might yet think it 
wise to seek an ancient title for the more revered though 
less important relics of royal times ^ Zumpt argues from 
the term lex that there were several subdivisions of the 
ius Papirianum, to one only of which Servius here refers^. 
Mackeldey considers lex to be used for ius, and the whole 
work to have been confined to religious matters'". 

The supposition of the former author is very probable, 
that the Papirian collection, whatever its antecedents or 
contents, was mainly known to our authorities by the 
edition of Granius Flaccus, who wrote under Caesar's dic- 
tatorship". To this source we should refer the fragment 
cited by Macrobius as part of the ivs Papirianum^ ; and 
from this, rather than from any remains of the original 
pontifical books, is most probably derived all that we know 
of resral lesfislation. 



a. Livy, 6. 1. foedera et leges — erant autem eae xii tabulae et qnaedam 
regiae leges — conquiri quae comparerent iusserunt. 

A2 



Early Roman Law. 



b. DigMt. 1. 2. 2. 8 2. 

c. ib. §S 32. 47. 

d. Zaiapt. Criminal-rocht, Absch. 1. c. 8 and Anmcrkk. 

e. DioDvsius Antiqq. 3. 3G: 5. 1. 
/. Digest. 1. 2. 2. §§ 2. 36. 

g. Servius on Virg. Aen. 12. 83C. quod ait fS'ergilins) morrm riUuqtm 
sacTvrum ipso titulo legis Papiriae nsus out qnam Bciebat de rito 
' sacrorum publicutam. The passage docs not appear in all editions, 
e.g. the Baiilo Virgil uf I5C1. 

K Livy, 9. 29. 

I. id. 9. 46. 

k. See the masterly Appendix to Vol. 1 of hiB HiRtory. 

/. Livy, 9. 46. Digest. 1. 2. 2. § 7. Cicero do Orat. 22. i. 41. 186. 

m. Lchrbuch dcs Romischcn llcchts, § 21 Aumerk. f. 

«. PftuluH in Digest. 50. 16. 144. 

o. Macrob. Satumn. 3. 11. See too Heineccius Antiqq. Prooem. 2. not. 
c. I scarcely understand Scholl's condemnation of Wesseling, 
Dirksen and Schwcglcr, who, ho says, attribute this fragment to 
(tranius Flaccus 'without any sufficient reason.' All that can be 
meant by them is that the j^assago in question (beginning ' ut in 
templo' inquit ' lunonis Populonino augusta mensa est') is no 
original document, but the illustration of a comparatively recent 
writer, who is perhaps m«ro likely tt) have been Granius Flaccua 
than any ouo elm. bee, however, Bchull. Legis xu Tabb. Keliqq, 
p. 61. u. 3. 



§2. 

Sources. Historians, Jurists, Antiquarians. 

In* the absence eitlicr of original documents or full 
copit'8, we niu«t fall back in the first place upon such 
qnotatiotis as bear evidence of at least high antiquity 
and are reputed fragments of regal legislation. It need 
bcarcely Ix) said that professed imitations, such as those 
in Cicero's treatise de l^gibus, must be entirely excluded 
except as evidence of the views received in the imitator's 



Regal Peiiod, ^ 

time. Even reputed quotations must be looked on with 
suspicion when they shew traces of comparatively modern 
phraseology. The mere attribution, however, of a frag- 
ment of legislation evidently old, to a fabulous or half- 
fabulous author should not invalidate the fragment itself, 
but is rather useful as giving us a traditional date, which 
may be correct, if not absolutely, at least relatively to 
other fragments. We may, for instance, disbelieve the 
very existence of Romulus, Numa or Tullus, but if we 
find three fragments attributed respectively to these three 
personages, we shall not, perhaps, be wrong in believing 
that there was at least some real ground for the frag- 
ments being placed at a very remote period and in a 
certain order of time. 

As a secondary source of our knowledge on the 
present subject I regard the statements made by ancient 
authors about the first beginnings of Roman law. This 
latter source, though more plentiful, must be considered 
far inferior in purity to the former. Had they even 
possessed the means, writers of antiquity rarely possessed 
the inclination for the close critical enquiry into early 
history which has only reached its full developement 
in very modern times. It may seem strange to place 
our means so high in comparison with theirs, when so 
many works on history and anliquities have totally 
perished and others have only reached us in a muti- 
lated condition. But, fragmentary as our authorities are, 
it must be remembered that they extend over the whole 
period of ancient intellectual activity, so that we have, 
at least in this respect, an advantage over all but the 
very latest ancient writers. In all points, too, connected 
with words or phrases which were obsolete at the Greek 
or Roman literary period, we are aided by the entirely 
modern science of comparative philology; while, with 



6 Early Roman Law, 

the ancients, the false derivations and spurious antiques 
whicli this knowledge enables us to detect, undoubtedly 
led to much erroneous speculation and possibly to some 
garbling of facts. 

The inclination for critical enquiry seems generally to 
have been stronger in Greek than in lloman writers. 
It is very evident in Herodotus, Thucydides and Poly- 
bius, and more so, as it seems to me, in the despised 
Dionysius than in Livy. But in neither of the last 
two writers — our principal authorities for early Roman 
history — is it at all strong in com|>arison with a contrary 
tendency from which neither historians nor jurists have 
ever been free ; I mean that of unconsciously attributing 
the principles and procedure of the writer's period to the 
men of an earlier day: a tendency which, while at some 
times it will merely produce anachronous detail in an 
account mainly true, will at others give rise to stories of 
institution and enactment entirely false. We have the 
more harmless result in those picturesque touches which 
make Livy so charming and those speeches and sermons 
which make Dionysius so dull : the more tlangerous one 
is to be feared in constitutional history proper, to which 
the latter author devote-s much more attention than the 
fonner. The above remarks of course apply not merely 
to the regal period but mutatis mutandis to the whole 
history of the lioman law. For the early republic, in fact, 
while we have more information, we have also very evi- 
dently a new source of error in the \mfair and exaggerated 
family records from which our historians have probably 
in great part drawn their accounts*. In this very respect, 
however, any connected liistory stands higher than bio- 
graphy pro])er, which is, beyond question, the least trust- 
worthy of authorities. There is much less scruple in 
attributing exploits of peace or war to the hero in hand 



Regal Period. '7 

when his life stands to a certain extent detached, than 
when it has to be woven into a continuous account, the 
parts of which must be respectably consistent. From 
the classical jurists we should have expected fuller and 
more trustworthy records of ancient legislation than we 
actually find. They, however, wrote mainly for present 
practice ; and, as the old law had been to a great extent 
superseded by what we may roughly call equitable modi- 
fications, the references to the former are occasional and 
slight. Moreover the theory of a law of nature, which 
entered so largely into their conception of a ius gentium, 
was not perhaps entirely without influence upon their 
treatment of the ius ciuile ; it being probably found more 
agreeable and easy to connect even their old national law 
with supposed original principles of morality than with 
actual ancient customs or records. Still we owe a great 
deal of valuable information upon the present subject to 
Gains and the Digest, though more perhaps to other 
sources. 

It is on the antiquarians that our principal reliance 
must be placed: a class of men with whom 'form is of 
greater importance than matter, who quote rather than 
paraphrase, who are more interested to preserve an an- 
cient relic intact, than to make a picturesque story, to 
develope a moral theory, or to glorify a noble family. In 
the note to this section a brief account is given of our 
principal authorities of this kind, as of the too little 
known Dionysius^ Since the works of these authors, 
though extremely interesting, do not seem to come much 
in the way of ordinary readers, the necessary quotations 
from them will generally be given, in the notes, somewhat 
fully. 

a. This fact has long been recognised in the case of Livy. It is 
ahnost equally clear with Dionysius. See, inter alia, his referenca 



6 Ecu-li/ Roman Law. 



to certain TtfirrriKd irvofjunifiara, wbioh were evidently privaU 
family histories. Antiqq. 1. 74. 

Dionyiiu* of Ilalicamattua. Wrote hi« Pw/uitVi} ^KpxoLiokorfladiVaxng 
the 22 years following his arrival in Italy, which seems to hare 
been shortly after the battle of Actitim. See Antiqq. (Antiquitates 
Itomanne, the Ltatiu style of his work under which it will be here- 
after referred to) 1. 7. itora»X<wyoi tlx 'IroX/aF ifia tow KaroXi/^Trcu 
tAt ifupv\io¥ ir6\tfio9 vro roO — f,^a<rTow Kadaapot, <r.T.X. 

Zumpt {Criminal recht der Ilomischcn Ilepublik, Einleitung, 
p. 9) allows this author much more credit than is usually given 
him. DionysiuH hotl, no doubt, as ho tells us, read all the histo* 
ries extant in his time, as well as accumulated much information 
from private family records. Being a faithful reporter of legends, 
many of which have some literary, though little historical, value, 
be is not, except in the article of speeches, quite such dreary read- 
ing as has been represented by Lord Macanlay and others. He 
does not impress one as often guilty of direct invention; but his 
small critical power and consequent inability to sift his mntcrials 
acc<irding to their value, and his inveterate tendency to moralize, 
render him undoubtedly an untrustworthy authority. It is in the 
rri;al and first republican p«ri<Hl that this tendency appears the 
most: HO much so that at times wo mi^ht almost suppose ourselves 
to be reading a T.Urmaque of loss inventive power than Fenelon'n 
but about the same historical value. It was perhaps a similar 
de!«pair of a decayed f;4>ciety felt by ])ureminded and eonscientious 
men which dis|>osed Ixilh atithors to attribute so much to the 
heroic worthies of half-fabulous times. 

Of Liry of course I need say nothing but that he wrote after 
the triumph of Augustus, A.v.r. 725 (as ap|>ears from 1. 19. of his 
bi»U>ni'), and died according to Kusebitis a.v.c. 770. 

I'fttuM (Sextus romp<iuM), the epitomizer, writing in the 2nd 
or 3rd centurj* after CbriHt, of a lost work 'on the signification of 
words* by M. Verrius I'Maccus, an author of Augustus' time. Flac- 
cus is mentioned by Varro («ee below), quoted in Macrobius' Satur- 
nalia, 1. 15. 21, as iuris pontifici peritissircum. This Epitome it 
only known to us by the still briefer one of Paulns made in the 9th 
century, which api>ears to have Bupplante<l the original, and by a 
fragmentary copy of the latter, now in the library at Naples. 
There seems, however, no reason to think either of the editors of 
Haccus* work diiposei! (or perhaps qualifietl) to tamper with the 
fragments of old I>atin, which may therefore be regardeil as 
genuine antiques, or at least so considered in the time of Augus- 
tus. Of OUT two sources, the Kaples fragment is evidently the 



Regal Period. 



more valuable as far as it goes : Paulus occasionally substituting 
the views of Festus for those of Flaccus without remark. Thus, 
we read in the fragment, Sas Verrius putat significare eas...cum 
Buas magis uideatur significare. Paulus, who quotes the same 
authority for the meaning (a passage of Ennius), writes at once 
sas suas. On the next word, sam, he retains the error ' philoso- 
phiam,' though he omits the words 'sapientia quae perhibetur,' 
which point to the right reading : — 

nee quisquam sophiam sapientia quae perhibetur 
in somnis uidit prius quam sam discere coepit. 

From these and similar instances one would conclude that 
Paulus represents Festus pretty faithfully, and when he misrepre- 
sents him does so only by way of omission. As to Festus himself, 
the frequent 'Verrius putat' of the fragment certainly shews a 
conscientious reproduction of the original even when the epito- 
mizer does not agree with it. I have used the edition of Mllller. 

Varro (M. Terentius) a Pompeian, after the battle of Pharsalas 
taken into favour by Caesar, and devoting his life thenceforth to 
laborious study. See Cicero, Ep. ad fam. 9. 6. ad Atticum, 13. 12. 
His proscription and escape from it, under the second triumvirate, 
as well as the voluminousness of his works, appear from a quota- 
tion by Aulus Gellius, Noctes Atticae, 3. 10. in which Varro men- 
tions his having attained a twelfth hebdomad of years and written 
seventy hebdomads of books, many of which had disappeared on 
the pillage of his library after he was proscribed. It is the extant 
part of his treatise de lingua Latina, which is most cited in the 
present work. Whether this treatise was sent (dedicated) to 
Cicero, and therefore completed before 711 v.c, is not certain, 
though Milller apparently thinks it probable. See Praefatio ed. 
1833. I have used his edition. 

Auhcs Gellius, the author of the well-known Attic Nights, was 
when young a pupil of Fronto (who was Consul Suffectus a. v.c. 
896 in the reign of Antoninus Pius) N. A. 19. 8. He is supposed 
to have died before 917 v. c. Many valuable records of legal 
antiquity are to be found in his work, particularly in the last 
(20th) book. 

Servius Maurris Ilonoratus, the Commentator on Virgil, is 
introduced by Macrobius (Sat. 1. 2. 15) as an interlocutor with 
Symmachus, Consul under Theodosius and Valentinian, a. v. 
1144, and the well-known champion of the old religion against 
Ambrose. In the gathering of Savons which forms the subject of 
the Saturnalia, Vettius Praetextatus is the first host, who would 
appear from an inscription to have died a.v.c. 1140. Serviua 



10 Early Roman Law. 



\A represented in tbo above-cited pasRago of MncrobiuB to hare 
recently come fortb as a critic, wbeu the RuppoBcd social gathering 
took place; which Rtatement, coupled with the 'charming modesty' 
whiih is there attributed to him as well as 'wonderful learning,' 
will perhaps justify us in considering him to have been a man of 
middle ape about the end of the 4th century of our era. Many 
intori>olationB are supposed to liave been made in his commentary, 
but there is no mistaking the tone of the principal writer in it, by 
which one may toll with some confidence whether a particular 
note has the Ser\'ian ring or not: I mean the extraordinar}- talent 
for finding obscure and mystical meanings in the plainest poa- 
Bagos, to which a perfect mo<lern parallel is furnished by Landino'a 
commentary on Dante. A Ppocimen occurring early in the Ec- 
logues is HO exiiuisitely amusing that I may perhaps be pardoned 
for adding it below. However, the desire of Servius to make every 
incident and epitliet in Virgil emblematic of nome (dd Roman 
custom or belief has preserved to us a most valuable and interest- 
ing bfidy of antijuities. 

On Kcl. 'A. 90. 07 ho writes :—7'(/i/r<* pascrntr* a flu mi nf reice 
cnjuHaM, id est, O Mantua, noli modo uello aliquid agere dc rope- 
tenilis agris, nam cum opportunum fuerit r<jo omum htuaho id 
est jtnrgiibo aptul Caesareui cum de Arlioco proelio rouersus fuerit. 
et bene in ft>iitr, ipso enira per amicos Cuesaris agrum meruerat 
reoipero tanquam per riuolos quondam, nunc autem Muutuonis 
benrficium dirit so ab ipso Imperatoro meritunim. 

Of MacrohiuA Ambrotiiui Throflnfiuii, if that was his name, the 
author of the most interesting ancient work on anti<|uities extant, 
we know little but that he must have lived at lea.Mt not before 
Traetextatus and Synunachus, whom he introduors in his Satur- 
nalia. He neems to have \>con Contuhrin, a title which in lato 
times did not necessarily imply the l)earer to have bt^en ("onsul, as 
indee<l Macrobiu.s' name do<'s not appear in the Fasti. This 
honour, however, conferred ui>on a man who can scarcely have 
embraced the new faith, is well nrged by L. lahn (Prolegg. v.) as 
a reason for not placing ^facrobius much later than the inter- 
locutors in his supposed dialogue. 



Regal Period. ii 

§3. 

Origin, Custom. 

The late Mr Austin, in his Province of Jurisprudence, 
lays considerable stress upon the correct apprehension 
of the term customary law in its strict sense : in the 
sense, namelj, of a rule which has at some time been 
set, either directly or indirectly, by a political superior, 
whatever be the anterior circumstances by which the rule 
has been suggested or its enactment rendered possible^ 
The soundness of this view is beyond question as far as 
regards the law proper of an established and regularly 
constituted state. It might, however, give rise to an error 
(from which the writer in question is doubtless free) as 
to the historical origin of the earliest laws in infant com- 
munities. In many cases these laws, improperly so called 
according to Mr Austin, appear to have existed as rules 
of conduct dependent upon custom, long prior to any official 
enactment ^ Individual legislators have indeed been as- 
signed or invented for the oldest rules which have de- 
scended to us, whether they have actually remained in 
the form of custom or been re-cast in the mould of law. 
Thus Dionysius makes Eomulus institute the patria po- 
testas, the relation of patron and client, &c. ^ : and the 
fragments which Verrius Flaccus has preserved are attri- 
buted by him, or his compiler, to Romulus and Tatius, 
to Numa, to Servius. But we have a surer guarantee 
than these venerable names, for the antiquity of a custom, 
in the evident deduction from it of historical constitu- 
tional usages, and for that of a fragment, in its own 
language, viewed by the light of comparative philology. 
For full information on the latter head, reference must 



12 Earli/ Roman Law, 

be made to the labours of Corssen and Mommscn ; but 
a compendious and accessible collection of early Latin is 
also contained in the late Dr Donaldson's interesting 
Varroniamis'^. We arc here concerned less with form, 
except a.s evidence of antiquity, than with matter; 
from a consideration of which it would appear that 
the earliest Roman Maws* were embodiments of cus- 
tom, generally bearini^ a religious or quasi-religious 
character, and often referring specially to that system of 
the family common to all infant states, yet nowhere 
attaining such wide developcment and lasting influence 
as at Rome. 

a. Anstin'g Jnrigprndonco, Loot. 1. pp. 103—5, od. IftCO. 
h. Heo Maine's Ancient Law, ch. i. pp. 7, 8. 

c. Antiqcj. 2. 10. 2G, 27. 

d. SiHoially C'orRson'H Boi- und Nach-triij?o zur Latoinischcn Formcn- 
Irbre. DoDoldson's Vorroniauuti, ch. C. 



FriLST Customary Rulics mainly RELKiioTia. 

It may be urged with justice that otir picture of the 
earliest Roman law must be entirely colored by the 
source from which our materials are derived — that is, in 
all probability, the books of the pontiffs. These officers, 
it may be said, would naturally only record what enact- 
monts affected their own province, and the preponderance 
of the quasi-religious clement is therefore no proof that 
legislation on that subject came first. In reply, the fol- 
lowing points are to be considered. First, the priority of 
rules of conduct (one can scarcely call them laws) upon 
religious matters is in analogy with all that we know of 



Regal Period. 13 

the early history of other nations. Second, the college 
of Pontiffs, having undoubtedly at a later period custody 
of the forms of secular law*, is not likely, at an earlier, 
to have excluded this important subject from its books. 
Third, some of the most important and lasting principles 
of the Roman law of persons can be distinctly traced to 
a religious origin, and were, to the last, under the guar- 
dianship of religious officers. 

Sacred law being, in the present point of view, only 
considered as furnishing the source of secular law, matters 
of mere ceremony and religious usage may be passed over 
very briefly. The Litanies, for instance, of the Arval 
and Salian religious guilds, interesting as they are from 
being probably the oldest extant specimens of Latin, do 
not here concern us. The imperatives addressed to human 
beings which occur in these Litanies are merely rubrical 
directions to the officiating brethren^ The 'law of the 
spolia opimaj' perhaps attributed to Numa and most pro- 
bably taken from the pontifical books, merely states the 
sacrifices to be made and the scale of reward to be given 
on occasions so rare that but three are recorded °. More, 
no doubt, of that generality of scope which characterizes 
a law, is found in the following fragments, also coming to 
us under Numa's name. ' Let no one quench a funeral- 
pyre with wine'*^. 'Let not a pellex touch an altar of 
Juno : if such a one shall touch such an altar, let her, 
with loosened hair, sacrifice to Juno a she-lamb '°. 'If 
the lightning of Jove has killed a man let no one raise 
him above the knees {i.e. of those around ?).' Of which 
the following is perhaps an explanation — * if a man has 
boen killed by lightning no funeral rites ought to be 
performed for him'^. 

These and the like, extracted doubtless from the pon- 
tifical books, are rather maxims than laws. They are 



14 Early Roman Law, 

more statements of the religious feeling and sentiment 
current upon the matters to which they refer, and have 
scarcely a more authoritative aspect than those curious 
prohibitions which occur in the latter part of Hesiod's 
Works and Days^. Express sanction there is none : a 
practical one probably operated partly in fear of divine 
displeasure, partly in reluctance to incur the disapproval 
and lose the religious fellowship of the society in which 
one lives. It seems, however, not unlikely that some 
of the prohibitions, originally dictated by a purely reli- 
gious feeling, came in later times to do dut}*, by formal 
enactment, some as sumptuary, some as sanitary laws, 
some as minor regulations for public order and decency. 
This certainly appears to be the case with much of the 
burial law of the Twelve Tables, which may be noticed 
here, as having but little bearing on the ordinary province 
of law, and as being also, perhaps, the mere regulation 
and reduction within due limits, of customs far older than 
the time of that legislation. 'Let no one bury or bum 
a dead man in the city'**. 'Let no one make more* {ado, or 
perha|)s, sacrifice^ if faccre be taken in its technical sense) 
'than ti»is' (doubtless some ceremonial previously speci- 
fied): * let no one smooth a funeral-pih' with the adze'.* 
'After cutting down,' says Cicero, 'all pomp to three 
mourning-hoods and one stripe of ptirplo and ten flute- 
players, the law d<ws away also with hnnentatum' (formal 
manifestation of female sorrow). ' Let not women tear 
their cheeks nor make wailing for a funeral ''.* In another 
passage from the same author, * Let no one gather a dejid 
man's bones wherewith in after-time to make a funeral''. 
In one from Pliny, an exception which ha.s alone been 
pn-Herved shews us the rule — a sumptuary law, forbidding 
decoration of the corpse. 'Whoso winneth a crown, he 
or his chattel (i.e. a slave or horse), for merit, if such 



Regal Period, 15 

crown shall have been put on him or his father, let that 
be without prejudice™.' Closely connected with the last 
passage is the following very curious testimony to the 
advanced civilization of the Decemviral epoch. There is, 
by the way, some consolation in finding that the de- 
generacy of the modern, or (what is the same thing) the 
superiority of the ancient, in the article of teeth, may not 
be so certain as is often supposed. * Neither let any one 
put gold on (a corpse). Whoso shall have his teeth joined 
with gold and one shall bury or bum him with it, let that 
be without prejudice".* Last come two prohibitions, of 
which Cicero has preserved us the matter but not the 
exact words, one forbidding the erection of a new pile or 
sepulchre within sixty feet of another's house, unless by 
the owner's consent ; the other excepting the entrance to 
a sepulchre or the sepulchre itself from usucapion". 

Most of these directions and prohibitions refer to 
matters in which the laity could take some part : a much 
more extensive range was doubtless reserved by the reli- 
gious colleges to themselves, and regulated by their own 
bye-laws. The management of the Calendar, for instance, 
we know to have been long kept in the hands of the 
pontiffs, whose sole knowledge of court-days and days 
proper for public business was a considerable source of 
political power if not of emolument. The ancient treat- 
ment of this particular subject is shewn, not merely by 
traditional institutions of Numa or Eomulus^, but by 
the formula of the Pontifex minor which Varro has pre- 
served. * For five days I call on thee,' or ' for seven days 
I call on thee * (as the Nones were on the fifth or seventh 
day), ' luno Couella*^.' These words were said, on the 
new moon being descried, by the Pontifex minor to the 
people 'called' for the purpose to the 'Court of Calling.' 
So that the first day of the month is said to have received 



1 6 Early Roman Law, 

its name from this 'calling* of the Nones which settled 
its main suMivisions and its duration : there being thence 
eight days to the Ides and sixteen after'. The identifica- 
tion is certain of * luno Couella* with the * hollow moon ' 
{KoiKfj aeXrivrj), halfway between new and full. The time 
must have been early in which the great Roman goddess 
Juno was recognized, not by the speculations of philo- 
sophers but by the simple expressions of national religion, 
as an elemental deity. Without this clue, however, it 
would not be so easy to connect the name of * the shining 
one' (Lucina)" with her province — the period namely of 
gestation, reckoned in those divisions of time which aie 
marked by the planet. 

o. Pomponius, Digest, 1. 2. 2. 6. Livy, 9. ACu 

b. See for the Arvalian Litany Donaldson Varronianns ch. R. § 2, for 
the frapments of the Salian hymns, ib. § 4. I do not bind mysolf 
to the interpretations there given. 

C. Festua. Opitna npolia. 

.... M. Vurro ait...teHtinioDio esse libroB pontificnm in qnibnB sit 
pro primis Hpoliin bone pro secundin fiolitaurilibus pro iortiis agno 
jmblice fieri debere; esse etiam Tompili repirt (emendation for 
compelli rrfjes) legem opimorum spoliorum iaiem, &c. 

d. riiny, H. N. 14. 12. 

Vino rogum no respergito. See Fefitus Renparitum uinum, \rhich, 
according to Ursinns' probable emendations of the Farnese frag- 
nient, means ninum rogo inspersum. A greater extravagance 
Bcems to have followed, in the murrata pntio, the pouring of which 
over the dea<l was snbsofiucntly forbidden by the Twelve Tables as 
Festus (h.v.) tells us, quoting Varro's Antiquities. See below 
(note o) for Cicero's tumptuom rcitprrtio. 

r. Festus VelUcen .... antiqui proprie earn pellicem nominabant 
quae uxorem habenti nubebat. cui generi mulimim etiam poena 
conf»tituta est a Numa Pompilio hac lege, pellrx aram ItinonU tie 
tnnrfito, *i tangrt...Iunoni crinibus drmigtis agrtam fcminamcafdito. 
I know no English word exactly rendering the old meaning of 
prUrr according to Flaccns, 'quae uxorem habenti nubebat* (Seo 
too Digest. 60. 16. 144.) Though (like latro and gcurra) clearly 
holding a better i)osition in early than in late times, a peliez 



Regal Period. 17 



« 



would naturally, in either, be obnoxious to the matrona 
luno. 

Zumpt (Anmerkk. p. 408) casts some doubt on the quotation 
under pcllices, in which he recognizes the developed Latinity of a 
later period. It is quite possible, however, that the phrase to 
which I imagine his objection applies {crinihus demissis) may have 
been an interpolation, and the rest genuine. 
/. Festus. Occisum... in Numae Pompili regis legibus scriptum esse, 
si homincm fulmen louis (Scaliger for /u/mimfcws) occisit ne supra 
genua tollito. Et alibi, liomo si fulmine occisus est ei ixista nulla 
fieri oportet. 

Gifanius changes the words et alibi to id est. The latter pas- 
sage is evidently of later date than the former. See Pliny H. N. 
2. 54, 55, and generally the word bidental in lexicons and indices. 
fl. Opera et Dies. 695—762. 
h. Cicero de Legibus 2, 23 § 58. Hominem mortuom, inquit lex in 

XII, in urbe ne sepelito neue urito. 
i. Cicero de Legibus 2. 23. § 59. 

lam cetera in xii minuendi sumptus sunt lamentationisque 
funebris translata de Solonis fere legibus. hoc phis, inquit, ne 
facito: rogum ascia ne polito : nostis quae secuntur: discebamus 
enim pueri xii ut carmen necessarium, quas iam nemo discit. ex- 
tenuate igitur sumptu tribus riciniisf et uinclaf purpurae et de- 
cem tibicinibus toUit etiam lamentationem : mulieres genas ne 
radunto neue lessum funeris ergo habenfo. 

The ablative tribus riciniis, &c., must be instrumental and 
mean ' by (leaving) only three, &c.' I do not see the necessity for 
SchoU's interpolation relictis. For the untranslateable et uincla 
Orelli proposes et uinclis; Eubenius (de re uestiaria), cum clauis ; 
Scholl, very ingeniously, et una clauo. Compare Festus ' Recinium 
omne uestimentum quadratum ii qui xii interpretati sunt esse 
dixerunt fuir toga mulieres utebantur praetextumf clauo purpu- 
reo.' The corrupt passage is admirably emended by Lipsius, uer. 
(i.e. Verrius) togam qua, and Ursinus, praetextam. 

Varro (de Lingua Latina 5. 132) derives the same word thus: — 
quod eo utebantur duplici ab eo quod dimidiam partem retrorsum 
iaciebant ab reiciendo ricinium dictum. It was palliolum breue 
according to Nonius. Corssen makes it ausgedehnte. ' Petit 
(Leges Attica, elib. 6. tit. 8) takes these ricinia and the Ifidria 
mentioned in Plutarch's Solon (see next note) to have been for 
the corpse, but this view scarcely suits the Latin context, and Plu- 
tarch as probably means three flounces to the dress of each female 
mourner. 

R. L. B 



1 8 Early Roman Law. 



See tbo qnoUUon in note i. Among the interpretations given in 
his time of the obsolete lr$»um Cicero prefers that of L. AcUuh: 
'lugnbrcra oiulatioucm:...quod co magift iudico ucnim C88e qoia 
lex Solonis id ipsum uctat.' His authority appears in § 64. posiea 
qaam ut 8cribit PhaUrnts, snmptaosa fieri funcra ct lamcntabilia 
coepisscnt, Solonis lege Bublata sunt: qnam legem eisdcm prope 
nerbis nostri docem uiri in decimam tabnlam conioccrunt ; nam de 
tribus riciniis et pleraqno ilia Solonis sunt, do lamentis uero 
cxpressa nerbis sunt muliirrg, kc. A better authority for the mean* 
ing of Ussitm is Plautus' line (True. 4. 2. 22), Thetis quoquo etiam 
himentando lessum fecit filio. Fecit helps us to the meaning of 
httb<re in the law, \rhero it is doubtless used as in the expressions 
habere iter, dialoguni, Ac. 

To revert, however, to this alleged law of Solon, which is inter- 
esting as forming almost the only link between, what we know of 
Athenian legislature and that of the Twelve Tables: — Demetrius 
rhalcrens left Athens, in the same year in which Appius Claudius 
Caecus was consul, for Kgjpt. It was possibly during his compa- 
rative leisure in the latter country that his works were written, 
amongst others five Iwoks wtpl rrji ^A0^<ri ifonoOecrlat (Diogenes 
Laortius 5. 5). He was himself, we are told by Cicero, the enactor 
of a snniptuar)' law on funerals: 'suraptum minnit non solum 
|>oena sod etiam tempore, ante lucem enim iuBsit efTerri.' His 
treatise would no doubt contain recent as well as ancient legisla- 
tion on the subject: nur is it to be supposed thnt he was more free 
than others from the invariable tendency to attribute as much as 
possible of extant law to some time-honored legislator. How much 
of what is Commonly attributed to him can bo connected, on his- 
torical grounds, with our own Alfred? 

Demetrius' work has not conje down to us, but it must have 
been in Cicero's hands, and it is clear that some sumptuary law 
therein containc<l must have coincided, in matters of minute detail, 
with the burial law of the Twelve Tables. The statement of Plu- 
tarch on the subject of Solon's law is as follows:— ^W<rTi7<re W Ktd 
(6 2^o\v*') rait i^6Soix rur yvraiKU'y xal Toit Wr^ecri kcu rait iopreut 
r6fioy iwtlpyorra rd iraKTOf Kal d.K6\aaT0¥' i^Urai fxiv IfiarlutP rpiusp 
n)\ irXiQV ^xo*'*'** Kt\tv<ra% nrfii ^pwrbv i\ worbr ir\e/orot ^ 6po\ou 
^fpofxivrjv fJitfik KoiyriTa wrjxvalov fidj^oya fiyjH PVKTup ToptinaOai 
w\rj¥ ifid^Tj KOful^OfiivTiv Xi^vov irpo<f>aii>orTOt. i/n'X^t 8^ KOtrronivw 
jcai rh dpTfvtIp ir€Ton)fx^rci Kcd to KUxiKiy a\\op iv TO^tui iripuw 
6.^i\(v. iva'ylitip ii fiovv ciV ttaatv ovSi awriOivai wXiop Ifiariur 
Tpi<l¥ oi'3' ^t' oXAdr/xa ^Tj.uora (iaSij;-tiv X'^P^f ^kkouiStjs. 

The great historian whose loss we are now deploring (Mr Orote) 



Regal Period. tg 

takes the whole of this passage to refer to funerals (History of 
Greece, pt. 2. ch. 11). I do not think it certain that the first 
clause {i^Upai /ji,itf...irpo(f>alyovTos) may not belong rather to the 
subject of festivals. As to the latter clause (dfxvxds 8k...iKKoni6TJs) 
there is no doubt. Plutarch's lawgiver forbids, at funerals, disfi- 
gurement of the face, singing of composed dirges, wailing for a 
stranger (? hired lamentation), expensive sacrifices, extravagance 
in dress, and going to others' sepulchres, except for the actual 
carrying out of the corpse. 

Very little of this appears in the law quoted by Demosthenes as 
Solon's (in Maoart. 1071), iK<f>ipeiv top dirodavbvTa t^ varepalq. 5 dv 
wpod^vrai irpip t)\iov ^^^xeii'. /SaStfetv 5^ toi>s AvSpas TrpdaOev Srau 
€K<pip(t}VTat Tos 8i yvpoLKas diriadev. yvvcuKa 8i /xtj i^eivai, tlaiivai *t5 
TO. Tou diToOa.vhvTos' /xTjS' dKoKovdiiv dirodavbvTi Srav e/s rd arjiiaTa 
&yr]Tai, evrdj c^tj/coj't' eVwv yeyovviav irXrjv 6crai eVrds dve\pi.a8tiv elai' 
fji.r)d' els rd tov diroOavovToi elaiivai tTdddv i^evex&V ^ p^kvs yvvaiKO. 
ixride/dav irXrjv 5aai ivros dp€\pia8(2v daiv. 

This law, contained in a speech which was most likely com- 
posed before 354 b.c, therefore 36 years before the legislation of 
Demetrius could have commenced, includes a regulation (irp\p rjXiop 
i^^X^ip) attributed by Cicero to him. 

On the other hand it does not include the particulars in which 
the coincidence of the Solonian law, as reported by Cicero (from 
Demetrius), with that of the Twelve Tables is so remarkable. 
Upon the whole, I am inclined to believe, bold as the supposition 
may seem, that the particulars came from Roman to Greek rather 
than from Greek to Eoman legislation. The comparative proba- 
bility of the former nation borrowing from the latter or the latter 
from the former I must leave a matter of opinion ; merely remark- 
ing that any supposed improbability of interchange of ideas on 
law-making at all at this early period makes as much against the 
common theory as against that here advanced. If, then, Deme- 
trius introduced in his legislation, or in his treatise, some of the 
Eoman law, part of this may possibly have been attributed by him 
to Solon, and very probably by his readers Plutarch (Solon c. 23, 
p. 91) and Cicero, of whom the latter did, as we have seen, wrongly 
attribute a prior regulation to Demetrius. Should this view be 
correct, the otherwise remarkable coincidence in detail (e.g. be- 
tween the tria ricinia and the rpla IfidTia) is no proof of a Greek 
origin for the Twelve Tables. 

Cicero de Legibus 2. 21. § 60. Cetera item funebria quibus luctus 
augetur xn sustulerunt. homini, inquit, mortuo ne ossa Icgito quo 
post funus faciat. excipit bellicam peregrinamque mortem. This 

B2 



20 Early Roman Law. 

prohibition pocms to bo diroctod against the practice of 'taking 
out of the ground' (excipere) remains supposed not to have been 
buried with due solemnity, in order to hold a solemn funeral after- 
guards. In this case a mere covering with earth (in proper form) 
sufliced to purify the family, which was, until such covering, 
funrxta. Fttnun, strictly, is either incense-offering for the dead 
^Corrsen Beit. 17i>). or burning of the corpse. See Servius on 
Aen, 2, 539: 3. G2. His notes on the whole account of Poly- 
dorus' burial are very interesting. An exception might natu- 
rally be made of those who had been laid in forrign earth or 
• shovelled up into a bloody trench.' On the 'covering with earth' 
see Cicero de Icgibus 2. 22 § 55 and Varro do Ungua Latina 5. 23. 
Si OS excoptum est mortui ad familiam purgandam, donee in 
j)urgando humo est opertus (ut pontitices tlicunt quoad inhumatus 
hit) f am ilia funesta manct. 

Schiill takes the passage quoted by Cicero to be against the 
viultiplicadon of funeral rites, reading, with Schimmnn, after 
fiuiat, the words (which in the MSS. of the i\v logilms come a little 
lower) credo quod erat factitntum ut uni plura fiorent lectique 
plures sterncrtntur : id quod no fiorct lege sanctum est. In favour 
of this view is perhaps Digest. 11. 8. 44. Vnius sepultnra plura 
sei)ulcra efticerc non iM)te8t. 
VI. I'liny H. N. 21. 5, 7. Ad certamina in circnm per Indos et ipai 
desrendebant et sernos suos ecpiosquo mittebant. inde ilia xii 
tabularnm lex, qui corottam paril ipfe prcuuiaur eittx uirtutig rrrio 
tluiiur ri. quam serui equine meruisf-ont pmniia pnrtmn lege did 
nenjo dubituuit. quia ergo honos? ut ipsi mortuo parentibusque 
eius dum intus positus esset forisue fi>rretur sine fraude esset im- 
pftsita. riiny here gives the most probable interpretation of the 
curious expression prcuniaur eius. Of course this rendering is 
fatal to the altemativo being l>ctween prrunin an<l uirtu*. Tlie 
reading uirlutitur must therefore be explained by inserting with 
Scholl hniwrit (se<> T'cstus nnder Krgo 'honoris uirtutisuo ergo'), 
or, which swms sinjider, by supposing the ur to have been the 
addition of name e<q>ier wIjo imagined pecnnia and uirtus to be 
here eonneoJed. Tlie latter word, of course, means i>ersonal merit 
or conduct, os <listinpnisl)cd from luck: a very common use in 
riautus. The following difficult word dnitur may perhaps, on the 
f-trenpth of the MS. reading ar^uitur, be altcretl to arduitur, though 
some instance of what Peems an unnecessary dissimilation should 
l>€ foiuid, before the occurrence of or for ad before d can be con- 
»^idere«l satisfactorj*. Fortunately the preposition is not essential 
to the sense of the passage, duitur in point of verbal stem agrees 



Regal Period, 21 



with creduas, perduint, &c. As to its temporal and modal part 
SchoU justly objects to the emendation duitor, partly because the 
MSS. afford no foundation for this reading, partly because the 
imperative passive is not used in the simple style of the Twelve 
Tables. We are then driven to a conditional sentence, the inser- 
tion of si and the addition of words which certainly seem required 
both by the above-quoted passage of Pliny and the parallel one of 
Cicero. [Si] arduitur (or duitur) ei [parentiue eius sefraude esto.] 
Compare Cicero de Legibus 2. 24. § 60. Ilia iam significatio 
est laudis ornamenta ad mortuos pertinere quod coronam uirtute 
partam et ei qui peperisset et eius parenti sine fraude esse lex im- 
positam iubet. The arduitur or duitur of the protasis Scholl 
takes to be a perfect future passive, comparing the rare forms fax- 
itur, iussitur, turbassitur and mercassitur, and plui, lui, &c. from 
pltio, liio. See his very learned disquisition Legis xii Tabb. Ke- 
liqq. pp. 80 — 89. Corsseu makes it present indicative. Ausspr. 
2\ p. 402. 
n. Cicero de Legibus 2. 24, § 60. Qua in lege cum esset, neue aurum 
addito, quam humane excipit (Orelli for excipiat) altera lex: 
cui auro dentes iuncti esunt, ast im cum illo sepeliet uretue, se 
fraude esto. 

Scholl's emendation of the MS. sepelleturetue appears certain. 
For the MS. essent I prefer Klotz' esunt (erunt) to his ' inchoative 
with future signification' escunt. See however Scholl's note, pp. 
98-100. 
0. See Cicero de Legibus 2. 24 § 61. also Pomponius in Dig. 11. 8. 3. 
I may here remark that I have omitted to notice other points of 
extravagance, mentioned by Cicero as forbidden, but for which he 
does not, as in the instances above cited, appear to quote the 
words of the Twelve Tables. De Legibus 2. 24. 60, Haec praeterea 
sunt in legibus : seruilis unctura tollitur (not tolHtor, an attempt 
of Manutius to turn this into a verbatim quotation) omnisque 
circum potatio ; quae et recte toUuntur neque tollcrentur nisi 
fuissent. nee sumptuosa respersio nee longae coronae neo acerrae 
praetereuntur. (Bake for ne..,no.,,nec...praetereantur,) 
p. Livy 1. 19. 20. Plutarch Numa 18--20. Macrobius Saturnalia 1. 

12. 13. 
q. Varro de L. L. 6. 27. Primi dies mensium nominati Calendae ab 
eo quod his diebus calantur eius mensis Nonae a pontificibus 
quintanae an septimanae sint futurae, in Capitolio in Curia Cala- 
bra sic : dies te quinque calo, luno couella. septem dies te calo, 
luno couella. 
r. See last note; also Macrobius Satt. 1. 15. 7. 



2 2 Early Roman Law, 



Varro (de L, L. 6. 69) tolls U8 that the Moon is calletl luno Lncina 
by the Latins, Etymologically the Btem Iun<m- points to lou- 
(loui) non-, and therefore cannot be culled exactly a sister form of 
lanas, though the two deities are certainly regarded as bearing a 
very close relationship to one another by Roman writers. See a 
quotation from Varro preserved in the Saturnalia 1. 9. 16. In 
sacris...inuocamus Ianum...Iunonium, quasi non solum mensis 
lannari sed mensium omnium int^jessus tenentcm: in ditione 
autem lunonis sunt omnes Kalendae, undo et Varro libro qtiinto 
rerum diuinarum scribit lano duodccim aras pro totid*'m raensi- 
bu8 dedicatas. Tho moon is lana in Varro's Res Rust. 1. 37. 3. 
And Nigidius Figulus (Mucrob. Salt. 1. 9. 8.) makes lana and 
Janus respectively moon and sun. The ancient and highly honored 
worship of the latter deity in Italy is well known. He is tho • god 
of gods' in the Salian hymns. Macrob. Salt. 1. 14 Saliorum quo- 
quo antiquissimis carminibus deorum dens canitur. Ho belongs 
too to an element-worship as ' lord of day in whom is the rising 
and tho setting' (Servius on Aen. 7. 607), whence doubtless come 
all his associations with opening and shutting. By liis creative 
and vivifying power ho becomes an all-connecting all-embracing 
principle of Nature herself, binding the discordant elements toge- 
ther. So sings tho augur Mcssalla, on this cherished natii^iial sub- 
ject almost a poet. Marcus etiam Messalln, (In. Domiti in con- 
i<ulatu collega, idemcjue per annos LV augur, do lano ita incipit: 
•«l«ii cuncta lingit eadtmquo regit, aquao terraeque uim ac natu- 
ram graucm... ignis atquu animao leucm...copulauit circumdato 
caelo.' Varro do lingua Latina 7. 27. 



Okntes. Sacra. Paterfamilias. Confarreatio. 
Arrooatio. 

The ccromonial itself of tlic first Romans has pcrliaps 
little more than antiquarian interest: but the feeling 
with which that ceremonial was regarded, and the 
moans employed for its maintenance, have exercised the 
most important influence on Roman legal institutions. 



• Regal Period. 23 

Some of the oldest religious guilds were clearly con- 
nected with particular localities ; there were, for instance, 
the Salii Collini and the Salii Quirinales, both mentioned 
in the ancient Salian hymns*. Equally clear is it that cer- 
tain rites were connected with particular gentes: the wor- 
ship of Hercules with the Pinarian, originally associated, 
apparently on inferior terms, with a Potitian gens extinct 
at or at least after the time of Appius Claudius Caecus^; 
the ancient shepherd's festival of the Lupercalia with the 
Quinctian or Quinctilian gens of the Palatine and the 
Fabian gens of the Quirinal. The peculiar worship of 
Minerva was preserved, according to Servius and Varro, 
by the Nautii ; that of the Sun is said by Flaccus to have 
originally appertained to the Aurelii^ In these cases 
it is, of course, possible that public or general sacra may 
have been committed to the charge of a particular gens, 
which is expressly stated of the Aurelii (see end of note 
a): but the probability seems at least as great that the 
public sacra were, at any rate in part, a developement or 
collection of the gentile. The institution of gentes, which 
we find at full growth in the earliest historical times, is 
a singular result of the Eoman principle of family. We 
find a number of families (in the modern sense of the 
word) not merely bearing the same name but united by 
the tradition of a common ancestor, acting together in 
politics, going forth bodily on a colonizing expedition, 
involved in one common sentence of exile ; above all, con- 
nected by peculiar and distinctive religious ceremonies, 
which the universal commonwealth, so far from discourag- 
ing, makes it an especial object to perpetuate. The 
impossibility, even in the earliest periods, of tracing any 
actual relationship between all the members of a gens 
seems to me shewn, by the ancestors whom tradition has 
reported to us. The Aemilii come from Mamercus the 



24 Early Roman Law. 

son of Pythagoras or Aemilius the grandson of Aeneas ; the 
Antonii and Fahii from a son of Hercules; the Caecilii 
from a son of Vulcan ; the Calpumii from a son of Numa; 
lulus, Fusus, and Vulesus are the very obvious ancestors 
of the lulii Furii and Valerii. It is scarcely possible that 
the fiction cannot have been patent to any Roman who 
ever devoted a thought to the subject. But it was a 
fiction dcstineil to exercise a more powerful influence than 
many truths. 

The real derivations of the nomina (gentile names) arc 
very doubtful. In some ca.se.s, perhaps, the small associations 
which were to form the elements of a future community 
may have derived their name, as did, according to Thucy- 
dides, tlie Hellenes, from a ix)werful chioftiiin round whom 
they congregated ; in some, fn)m their locality ; in some, 
from a s[)ccial pursuit or article of protluction''. Among 
many other circumstances which point to unity of residence 
as an essential characteristic of tin* earliest geutes is that 
among the names of the Curiae, or wards, containing it is 
said ten geniea each, some are clearly Icx-al while others 
are as clearly gentile". I<or c^in one see a better reason 
for the gentile names of many of the rustic tribes, than 
tliat the lands of the gens lay mainly together and in that 
partindar district. But wliatcver the circumstances were 
which brought it together or gave it a name, it is clear 
that the original gens was not considered to have suffi- 
cient coheixncc unless united by the fiict of a common 
worship and what must in most cases have Ix^en tlie 
fiction of a common descent. With later incomers the 
same feeling might not exist, or, if it did exist and did 
lead to the similar formation of newer societies, these 
would naturally be kept to a certain extent on a lower 
footing by the older, which must soon have assumed tliat 
aristocratic character whereby, in historical times, we 



Regal Period. 25 

know tliem so well. This is at least a possible way of 
accounting for the existence of Greater and Lesser (or 
perhaps Older and Younger) patrician, and some few 
plebeian, gentes. These distinctions perhaps indicate two 
successive barriers drawn round a privileged class. The 
first, however, disappeared at a time of which we have no 
authentic record, while the breaking down of the second 
forms one of the most interesting chapters of history. 
From the influx of persons having no genfi^, perhaps from 
the emigration, too, of original members, the locality of 
gentes would naturally become less definite, and the sacra 
— bond and sign of the immemorial aristocratic relation- 
ship — more prized. So we find their maintenance watched 
over by the gentile assembly of the Curiae, or their 
religious officers, with the most jealous care. The obliga- 
tion to their periodic performance must have been con- 
sidered as resting upon each familia (or body of persons 
who really could trace their descent from some actual 
common ancestor) ; upon each head of a household who 
had no lineal ascendant living ; possibly even upon each 
male member^. 

It may perhaps have been partly from his responsible 
position as joint depositary of the sacra, that the Head 
of the Family {'paterfamilias) came to exercise the asto- 
nishingly despotic power known as the patria potestas. 
This relation, though founded upon patriarchal principles 
common to all infant nations, reached at Kome such un- 
usual developement that it seems to have borrowed both 
in spirit and terminology from the idea of capture in war. 
This w^as, indeed, in all probability, with the warlike 
Nation of Spearmen (bellicosi Quirites) the fundamental 
idea of property generally. As the spear was a symbol, 
so was the strong-hand a name of their rough legal owner- 
ship: and this expressive designation of forcible posses- 



26 Early Roman Law. 

811)11, wliith remained technical in the case of the wife, 
was doubtless originally applied to the whole of the family 
as well''. At any rate the power of a patei'familids^ 
whencesoever derived, appears at first to have differed 
but little from that of an owner over chattels, and more- 
over to have been generally indestructible except by 
death'. Its determination by three sales was probably 
a later iimovation sanctioned by the Twelve Tables : the 
still later dispensing with two of the sales in the case of 
descendants other than sons was effected by a strict in- 
terpretation of the word filium in the clause referred to, a 
general extinguishment of patemal power by sale being 
assumed, which was certainly not law in the oldest times^. 

His extreme rights, however, can scarcely have be^n 
exercised by the father who had allowed the son to con- 
tract legal marriage with a free woman, though for a 
formal enactment on the subject we liave mere tradition*'. 
Again, it was obviously necessary, to avoid the clashing 
of two authorities, that a daughter who passed into the 
marital passed out of the jiatenial ])ower. 

Mitrriar/e was doul)tless, in the oldest times, looked 
upon mainly as the means of producing those descendants 
of pun» blood who should perpetuate the sacra. Accord- 
ing to the principles of the close aristcxjracy that we are 
now considering, principles which lie deep in the founda- 
tion of Roman law, it is probable that no union was re- 
garded as a proper marriage unleas each party belonged to 
sf)me fjens. Practice would, of course, tend to break down 
this hard rule, but it was certainly the subject of an 
cnartmcut in the Twelve Tables subsequently repealed 
by the rogation or plebiscitum of Canuleius'. Such an 
enactment can have been no new idea, but rather an 
attempt to erect into law a customavif barrier which was 
crumbling away. It is interesting to remark that it ia 



Regal Period, 27 

the interference with public and private ceremonial rites 
likely to result from unions between a patrician and a 
plebeian which was, according to Livy, alleged as a reason 
for this prohibition™. 

We are therefore prepared to expect that connection 
with the sacra which we find in the oldest form of mar- 
riage. A genuine custom is no doubt here preserved to 
us by Dionysius under the pretended form of a law of 
Romulus^ — 'that a woman uniting herself in marriage 
with a man according to the sacred laws becomes a sharer 
in everything, property and sacraV This 'sacred mar- 
riage' he explains to be the Roman confarreation. It was 
an emblematical partaking together by the bride and 
groom of the simplest form of food, perhaps a wheaten 
cake, under the officiation of the Pontifex Maximus and 
Flamen Dialis''. The use of certain solemn words was 
necessary in this ceremony, as also the presence of ten 
witnesses, who are, with great probability, believed by 
Mommsen to represent the ten wards {Curiae) of the 
oldest Roman constitution^. Similarly the thirty lictors 
of far later times appeared for the thirty Curies ^ and the 
five witnesses to mancipation, in all probability, for the 
five classes'". 

In connection both with the sacra and the subject of 
marriage, viewed with reference to its original object 
(liberum procreandorum caussa),ihere remains to be noticed 
the important principle of representation of a deceased 
person. It was obviously desirable, to prevent the me- 
mory of the sacra perishing by the death of the pater- 
familias'', that he should leave behind him some one to 
fill his place and perform his duties. With the duties 
were naturally associated the means of the deceased ; and 
there is little doubt that the succession was originally 
regarded as matter of public concern, to be settled by 



28 Early Roman Law, 

recon^iizod customary rules and not by the wish of any 
iniliviiliial. In tlie language of later writers, the first 
heredes were lefjitlmi rather than testamentarii. We are 
dealing, in fact, with a period when there was no testa- 
ment at all. Those who having been in the power of the 
pate r/a mi lias, hccmnQ, on his death, sui iuris — under their 
own control — were also the sui heredes, * takers by their own 
right' of his rights, his obligations, and his means. These 
successors, if minors or females, were protected, and at 
the same time prevented from squandering the fiimily 
inheritance, by a 'surveillance' {tutela) of those next en- 
titled, older in all probability than the law of the Twelve 
Tables in which it was recognized and regulated. Whether 
there was ever one principal * taker' or ' master' we cannot 
say: no distinct traces of primogeniture appear in our 
authorities*. 

It was where there was likely to be a failure in the 
succession, an extinction of a family and consequent di- 
minution of the means or agi^nts for perpetuating the 
8 tcra, tliat the wishes of the childless master of a Ikuiso- 
hold were first recognized. By a vote of the gentile 
comitia curiata he couM, subject to the sanction of the 
pontiffs, arrorfate, or take to himself by question put", any 
youth iiaving attained puberty and not subject to the 
p itria potestiis, to be his own son. Enquiry was made as 
to the age of the arrogator and the non-probability of his 
having issue of his own body : also as to the fortune of 
the person taken in arrogation, which would, it nmst be 
r<*membered, become the property of his new fathor. No 
o'>jection having been raised by the assembly — including, 
of course, those interested in the natural succession to the 
arrogate — or by the presiding pontiffs, it was put and 
carried in the form of a regular bill that e.g. * L. Valerius 
should be in law as completely the son of L. Titius as if 



Regal Period. 29 

born of L. Titius as father (and his wife as) mother of a 
family, and that Titius should have over Valerius power 
of life and death as a father has in the case of his son^.' 
The perfect substitution, in a Roman mind, of the legal 
relation arising from arrogation or adoption, for the na- 
tural one, which gives rise to many expressions familiar 
enough to the reader of Tacitus but sounding strangely to 
modern ears, is here expressed in plain words ^ 

This subject of arrogation is very interesting, on the 
one hand as being so clearly connected with the gentile 
system, and especially (since under the pontifical sanc- 
tion) wuth the preservation of the sacra; on the other, 
as perhaps leading the way to the earliest allowed will- 
making. For the testament made in the comitia calata 
tallies so closely in point of the assembly where its first 
and commonest execution took place (see below § 23), as 
well as of the presiding authorities, with arrogation, that 
one cannot but regard it as a result or development of 
that ancient practice. It is, however, more convenient to 
treat the testamentum calatis comitiis in a subsequent 
section, together with the form of testation by which it 
was ultimately superseded (§ 23). 



a. Servius on Aen. 8. 284. 

h. Id. Aen. 8. 270. Festus Potitium et Pinarium. Macrobius Sa- 
tumn. 3. 6. 12—14. 

c. Mommsen Hist. 1. 4. (p. 55 n. of tr.) Servius Aen. 5. 704 * Turn 
senior Nautes.' Festus Fauiani, [Quinctiliani Luperci], and 
A ureliam. 

d. Thuc. 1. 3. Association round a powerful protector was certainly 
the original relation of clientes to their patronus. Nor is it impos- 
sible that such was the origin of those gentes whose names denote 
a personal pecuharity or quality, which may have characterized 
their founder. Instances are Albia, Opimia, Flauia, Fuluia, Hel- 
uia, Liuia, Nacuia, Catia, Canidia, Claudia, Licinia, Aquilia, 
Duilia, Silia, Tui-pilia. The numeral names too, ranging from 



30 Early Roman Law. 



fifth to ninth and perhaps la$t (Quiiictia, Nonia, PostumU), may 
indicate the foundation of new families by cadetn of onterprifie. 
The Fabii, Cornificii, Fabricii, Porcii, Fiirnii, Faloidii, Ve rii, 
Hortensii must surely have been named from occupation or pro- 
duct (see Pliny H. N, 18. 3.). This view is quite consistent with a 
determinate locality, which each trade usually has in infant states. 
Names directly from locality are Pontius, Marius, perhaps Tigel- 
lius, and others of which we might have more satisfactory et^-mo- 
logies if we knew the topography of early Rome better. The Fla« 
minii and Antiatii must have been priestly families. The Aurelii 
were supposed, according to Flaccus, to have been named from 
the sun, because a place was publicly assigned to them by the 
Roman people in which to make sacrifice to the sun. It was from 
this, he says, that they were called Axiseli. (Festus Aureliam) 
The word may be traced to the same root -nn from which comes 
Aurora (Curtius GrundzUge 612, p. 371). This is an instance of 
a plebeian gens, perhaps later incomers, (familiam ex Sabinis ori- 
undam Festus loc. cit.) traditionally connected with special sacra 
which had been made matter of public interest. 
Mommsen Hist. 1. 5 (p. of tr. 73). It is tnie that the identity of 
the decuriae with gentet is anything but certain. This, however, 
docs not affect the inference drawn from the names of the Curiae, 
which may be re-stated as follows:— Some names of Curiae are 
gentile, others local; it is probable that the same principle would 
be followed in naming all; therefore it is probable that at least 
tho.se grntes had a definite locality. The word Curia itself means 
nothing but house (Corssen, Ausspr. 1.'353) — the house, doubtless, 
of meeting and worship common to eacli small original associa- 
tion (see Festus, Curia). Here, as elsewhere, it will be seen, that 
agglutination is considered as the more probable order of things 
than subdivision, in the infancy of a state. Besides the evidence 
of antiquity and inferences drawn from analogj-, to this effect, it 
may fairly be asked what possible object could the traditional 
founder have in splitting up his little kingdom? 
Livy 10. 8. Semper ista audita sunt eadem, penes nos anspicia 
esse uos solos gentem habere. 

Heiueccius Antiqq. L. 1. c. 1. App. 71. Livy 5. 46. Sacrificinm 
erat statum in Quirinali colle genti Fabiae. ad id faciendum O. 
Fabius Dorso Oabino cinctu sacra manibus gerens .... in Quiri- 
nalem collem peruenit. The Dorsones cannot have been the lead- 
ing family among the Fabii — compared, for instance, with the 
Vibulani. Nor is it likely that the individual (called by Camillus 
c. 52 adolesceng) was even head of this particular family. 



Regal Period. 31 



As the son Ttianu mittebatur it is fair to conclude that he must at 
some time have been said to be in the manus, as well as the wife. 
On the subsidiary ceremonies of marriage indicative of capture 
(see Festus Bapi, and the 4th explanation of Coelibari hasta) I do 
not lay any special stress. They are paralleled by the oldest cus- 
toms in this behalf amongst most nations. 

The hasta was the well-known symbol of Quiritarian ownership 
in the old Centumviral Court, as was its representative in the actio 
per sacramentum (Gains, Comm. 4. § 16). With regard to Quiritet 
I very much prefer the view accepted by Mommsen (Hist. 1. 5 tr, 
pa. 78 n.) to any other, viz. that they were the individual warriors 
as distinguished from the collective populus. In this view populus 
Bomanus [et] Quirites and the crux populus Romanus Quiritium 
are both quite intelligible ; as is the pathetic funeral proclamation 
' that warrior is given to the land where all things are forgotten ' 
(see Festus Quirites... dUua Quiris leto datus, and Letum). There 
seems no objection to the derivation from CxLris, a spear, which 
need not involve belief in an intermediate town Cures or hero 
Quirinus (Festus Curis, Ovid Fasti 2. 477). I am glad to find Mr 
Seeley (LiAry 1. p. 72) agreeing with the spearman derivation of 
Quirites, though the support which he apparently claims from 
Festus' Pilumnoe poploe... \elni pilis uti assueti...is not unquestion- 
able. See Curtius Grundziige 260. Corssen (Ausspr. 2. 357) pre- 
fers the derivation from Cures. 

Dionysius probably gives a true account of the old patria potestas, 
though he attributes its institution to Eomulus. Antiqq. Eom. 
2. 26. diracrav ws diretv iduKep i^ovclav irarpi Kad^ vlov kuI irapik 
irdvTa rhv rod §Lov xP'^fof' ^^v re etpyeiv idv T€ fiajTiyovv idv t« 
d^ff/xiov iirl tGiv Kar'' dypov (pyuu Karix^LV idv re diroKTivpivai 
irpoatpijrai. 

He makes the same authority place a restriction upon the 
exposure of sons and first daughters (2. 15). This practice, with 
regard to female infants, must have obtained, quite as a matter of 
course, to near the time of Terence (Hautontim. 4. 1. 13—24), 
Instances of nearly every kind of severity mentioned by Dionysius 
will be found in the biographies of the Manlii, who seem to have 
anticipated the 'Fairchild Family.' Civil death and the few 
other ways (besides emancipation) by which the patria potestas 
came to be terminated will be found in Gaius Comm. 1. 128 — 131. 
lustin. Instt. 1. tif. 12. On the patria potestas see generally 
Mommsen's Hist. 1. 5. and Maine's Ancient Law, ch. 5. 
Gaius Comm. 1. 132. filius quidem ter [mancipatus sui iuris fit, 
ceteri] uero liberi sine masculini sexus £iue feminini una manci- 



32 Early Roman Law, 



patione exeunt do parcntimn potentate: lex cnim xii tantmn in 
porsuna fill dc tribus maucipatiouibuB lotiuitur [his] uerbis: $i 
paUr Jilium ter tunum. duuit JUiut a patre liber esto. c£. Ulpian. 
£r. 10. 1. 

k. Dion. Antiqq. 2. 27. iv oTj (sc. roit roO "Sofi^ v6fi(n%) . . . ovtw yt- 
ypavrat iav xarrjp vl(^ ffvyx'^P'^^^11 yvvaiKa iyay^ffdau kolvuspop ieofU- 
vrjv l(pQv T€ Kol XP'JMttTWJ' Kara. Toin ySfiovi fiiiKiri Ti)P i^ovffiar thuu 
T^i rarpi rwXety tqv vibv. For, says Plutarch, hnvov i\ytiro rkp lit 
4\(vOfp(^ yeyaixi^H-evrfP yvptuKa iovXifi vwokKiiv. Numa 17. 

/. Livy 4 : 4, G. Dionys. Antiqq. 10. 60. Cicero de Rep. 2. 37. § 63. 

m. Livy 4. 2. colluuiouem gentium i)erturbationem aufipiciorum publi- 
corum priuatorum(iue afferre (Canuleium). 6. interroganti tri- 
buno cur pleljcium consulem fieri non oix)rteret, ut fortasse uere 
sic parum utiliter in praesena certamen respondit (alter e consuli- 
bus) quod nemo plebeius auspicia halxiret, idooquc Xuiros conn- 
bium lUrcmisse, ne incerta prole auspicia turbarentur. 

n. Dion. Antiqq. 2. 25. ^v Si Toi6<r5e o p6fioi yvva^Ka yafi,fTi}p Kara POfiovt 
Upoin <rvp(\Oov<Tap dfSpi koipwvop airdvTWP tivat x/'1A'<*''w«' re Kal 
UpQv. iKaXovp 5i toiH Upovs ol iraXaiol 7ayoi>j 'Pw/Mii\-^ Tpoariyopl^ 
Tipi\apLfia.vovT(s ^a^jxiKia ivl t^i Kotrwi'foi rov <f>a^p6i 6 Ka\ovfi«p 
rifji(7s reap. cf. Pliny hist. nat. 18. 3. Tucit. Ann. 4. IG. 

0. See last note, also Servius on (leorg. 1. 31. tribus niodis apnd 
netorrs nuptiae fiebant, usu... , farre cum per pontiticom maximum 
ot dialcm tlaminem per fruges et raolam salsam coniungobantur, 
undo confarreutio appollabatur, ex quibus nuptiis patrimi et ma- 
triiui nascobantur, A'C. The prartestati purri who escorted a 
bride to her new homo were (or should be) patrimi ot matrimi 
wliose parents wore living. See Fcstas Patrimi. 

p. Mommson Hist 1. 5. tr. p. 73. n. 

*/. Festus Trifjinta lictorei. 

r. Sec below, § 21. 

#. Cicero do I>3gibus 2. 19. Hinc inra pontificura anctoritato conw- 
cuta sunt ut ne morte patris familias sacrorum mcmoria ocoidcret 
iis esifcnt ea adiuncta ad quos eiusdem niortc pocunia ncniret. 
liake's roatUng, who, I think, satisfactorily defends tliis passage 
against Madvig, The desire to secure persons rjMl mcra facerftit 
is made by Gains (Comra. 2. 62, 65) the reason why possession 
with knowledge of another's right was allowed to constituto usu- 
capio of an inheritance. 

t. Flaccus may connect h/rr* ('apud anticpos pro domino ponebatur ') 
with hrrujt ; but nothing very certain as to the original idea of the 
word can Ikj inferred from Plantus Menacch. 3. 2. 12. Dr Donald- 
son's hcr-cd- from haer-uad- (Umbrian here 'iake\ Skr. hrl, and 



^ Regal Period, 33 

uad- 'bail') is perhaps fanciful as to the second part. Corssen 
does not offer an explanation of the d, which he merely compares 
with that of merce-d- and of the common suffix do. As to the 
first part of the word he agrees with Donaldson, considering heres 
to be "Eixh-nehmer (Ausspr. 1. 468) from the same root as hems (ib. 
101), the old Latin Mr (cf. Lucilius cited by Cicero, de Finibus 2. 
8. § 23) and the Sanskrit har • nehmen.' 

As to the equal sharing of heredes see Gaius, Comm. 3. 1 — 8, 
lust. Instt. 3. Tit. 1, and Dionysius 2. 25 where he speaks of the 
wife's right to succession as a daughter, making her take an equal 
share rots iraiatv, as if these also took equally. 

M. Gaius, Comm. 1. 99. popuU auctoritate adoptamus eos qui sui uiris 
sunt, quae species adoptionis dicitur arrogatio, quia et is qui 
adoptat rogatur id est interrogatur an uelit eum quem adoptaturus 
sit iustum sibi filium esse, et is qui adoptatur rogatur an id 
fieri patiatur, et populus rogatur an id fieri iubeat. The last is of 
course the true reason for the word. 

to. Aulus GeUius Noctt. Att. 5. 19. Arrogantur hi qui cum sui iuris 
stmt in alienam sese potestatem tradunt eiusque rei ipsi auctores 
fiunt. sed arrogationes non temere nee inexplorate committuntur : 
nam comitia arbitris pontificibus praebentur quae curiata appel- 
lantur, aetasque eius qui arrogare uolt, an liberis potius gignundis 
idonea sit, bonaque eius qui arrogatur ne insidiose appetita sint 
consideratur . . adrogari non potest nisi iam uesticeps. (Festus 
B. V.) arrogatio autem dicta quia genus hoc in alienam familiam 
transitus per populi rogationem fit. eius rogationis uerba haec 
simt: uelitis iubeatis uti L. Valerius L. Titio tam iure legeque 
filius siet quam si ex eo patre matreque familias eius natus esset 
utique ei uitae necisque in eum potestas siet uti patri endo filio 
est. haec ita uti dixi ita uos Quirites rogo. 

No woman could be arrogated quoniam cum feminis nulla 
comitiorum communio est. ib. 

X. e.g. of Augustus 'multa Antonio dum interfectores patris ulcisce- 
retur . . concessisse.' The pater is the 'mightiest Julius.' Ann. 
1. 9. Tiberius, too, asserts (se) de honoribus parentis consultu- 
rum (Ann. 1. 7), where the parens is Augustus. 

y. Cicero pro Domo Sua 13. § 34 on Clodius* adoption, or, strictly 
speaking, arrogation, ' quae . . caussa cuique sit adoptionis, quae 
ratio generum ac dignitatis, quae sacrorum, quaeri a pontificum 
collegio solet . . . quid sacra Clodiae gentis cur intereunt, quod in 
te est? quae omnis notio pontificum, cum adoptarere, esse debuit.' 



E. L. 



34 Early Roman Law, 

§6. 

Offences within the Family. First Sanctions. 

The customary law which has been hitherto considered, 
whether remaining mere custom or formalized into the 
few quasi-statutory maxims which have come down to 
us, alike lacked that important element of law proper^ 
an express sanction. There are, however, other ' laws* 
in which a sanction is expressed though not clearly de- 
fined. The reputed authors of these fragments, if of little 
value in fixing an exact date, may yet perhaps justify us 
in referring the latter generally to the regal period, when 
backed by the surer evidence of antiquity of form. Aa 
to the relative priority of these * laws,' which must to a 
certain extent enter into our consideration of them, it is 
most difficult to avoid that besetting sin of all antiqua- 
rians, historical or philological, to make order of time and 
intrinsic antiquity alternately prove one another. Keep- 
ing the latter as much as possible distinct, we find that, 
in respect oi form, there are in the fragments attributed 
to the Kings two instances of Indo-Germanic terminations 
all but unique in Latin and foreign to our remnants of the 
Twelve Tables". Doubtless the latter, as being in prac- 
tical use, may have been altered to at least a more 
modem spelling than that of their enactment : but the 
non-alteration of the former is in itself an evidence of 
their more venerable and therefore more antique cha- 
racter. The inflexibility of religious formularies or dicta 
is well known. Here, too, subject-matter affords us inde- 
pendent evidence of relative antiquity. The earliest 
historical views that we can get of the Roman people 
coincide with their most permanent usages and most 



Regal Period. 35 

venerable constitutional forms in pointing to one con- 
clusion — that religion^ connected with or rather inclusive 
of the idea of family relationship, was the first bond 
between the small associations which united to form 
Borne. It is in accordance with this general conclusion, 
and moreover with what we know of the earliest history 
of other nations also, that we shall be disposed to consider 
those penal enactments the earliest, in which crimes and 
offences are regarded as sins, and in which the penalty is 
religious in form — though doubtless in effect it differed 
widely from the hrutum fulmen of a modern ecclesiastical 
sentence. This view of priority will be confirmed if we 
find that the offences themselves which are thus pro- 
hibited are those committed against the quasi-religious 
parental authority which lies at the very root of the 
oldest Koman institutions. The nascent criminal legis- 
lature, however, to which I refer, must be clearly dis- 
tinguished from any purely patriarchal jurisdiction. At 
the earliest period of which we have any knowledge, the 
community was in existence as well as the family. Of 
any regular parental judicature we must agree with 
Mommsen that there is not a trace to be found*. Tra- 
dition has doubtless recorded several instances in which 
the paternal power was exercised in accordance with what 
would probably have been the sentence of a judge proper. 
But such proceedings were clearly of an arbitrary cha- 
racter, depending entirely upon the irresponsible will and 
pleasure of the offender's owner, i.e. the paterfamilias. 
The latter is, of course, at once distinguished from a 
judge by the fact that it was in his option whether he 
should take any proceedings at all. Thus, to anticipate 
for a moment the typical case of Horatius, we may admit 
a prior quasi-jurisdiction over the case of sister-murder, 
appertaining to the father^; but, as there is no security 

C2 



36 Early Roman Law. 

to the public for its exercise, so, even when exercised, it 
is no bar to a public trial. Whereas, in the fragments 
about to be cited, it is evident that the parent (who may 
of course even be a paterfamilias) is the complainant and 
that the sentence is the sentence of the community, 
whether a gens or an association of gentes. 

Festus, in illustration of the word plorare, which 
he says among the ancients evidently signified to com- 
plain, quotes as follows: — In the laws of Romulus and 

Tatius 'If a son's wife let her be devoted to the 

deities presiding over parents.' Among the laws of 
Servius Tullius is this, * If a son beat a parent and the 
latter shall have complained, let the son be devoted to 
the deities presiding over parents'".* Then follows a fur- 
ther explanation of the word plorassit, which, though 
mutilated, shews the complaint here mentioned to have 
been considered by the writer as equivalent to a formal 
indictment in later times. 

In the first of the two quotations the offence of the 
son's ^^^fe may be assumed similar in character to that of 
the son, and Dr Donaldson supplies the laeuna accord- 
ingly**. Both prohibitions therefore are directed against 
purely family offences, and both are furnished with the 
same sanction, devotion to the gods of the family. What 
this Sdcratio amounted to we have to learn from other 
sources. Dionysius, who, as we have seen, makes the 
patria potestas originate in an enactment of Romulus, 
would appear to leave violations of filial duty for the 
cognizance and punishment of the paterfamilias, sup- 
ported or at least unopposed by popular feeling*. In 
relations, however, between patron and client — a connec- 
tion which had nothing to do with community of descent, 
and which is also attributed by Dionysius, in substance 
as well as in accidents, to Romulus — he represents 



Regal Period, 37 

breaches of duty as checked by a mere public sanction. 
If either patron or client were convicted of committing 
any one of certain specified offences he was liable to 
Romulus' law of treason. There is an interesting analogy 
between this view of such offences and that taken by our 
own common law in cases of murder when the murderer 
owed a special private allegiance to the victim. Murder 
by a servant of his master, by a wife of her husband, by 
an ecclesiastical person of his superior, was petit treason 
and visited with severer penalties than the ordinary 
crimed 

For the less serious offences, enumerated by Dionysius, 
between patron and client * the convicted person might be 
killed by any that would, as a sacrifice to the infernal Dis. 
For it was a custom with the Romans, when they willed 
any to be killed with impunity, to dedicate their bodies 
to some of the gods, especially to those of the infernal 
regions^.' A modern British practice, well known at least 
to our charitable neighbours, was apparently visited by 
Roman law with the same penalty as above mentioned. 
Romulus enacted a law, says Plutarch, that the man who 
sold his wife should be sacrificed to the infernal gods^ 

A great deal of Dionysius and a great deal more of 
Plutarch comes doubtless from the love of moralising about 
good old times which never existed ; still we cannot refuse 
to see some core of reality and some practical effect in the 
sacratio when we find it used as an important political 
expedient in undoubtedly historical transactions. Passing 
over the law which Livy says was directed against attempts 
to revive monarchy ' by devoting the life and goods ' of the 
culprit*, we come to the sacrosanct tribunes of the first 
secession^ who, whatever the date of introduction or tech- 
nical meaning of this term, were undoubtedly protected by 
a sentence of ipso facto outlawry against any one who 



38 Early Roman Law, 

violated their person or privileges. This scnt<jnce, Livy 
says, originally depended upon religion, but was made on 
the expulsion of the decemvirs a legal enactment'. A law 
passed with this particular sanction was a lex sacrata, of 
which Livy gives us other instances". Cicero distinctly 
recognises this penalty in two passages °. 

The best authority, however, is that of Festus, who 
tells us that sacratae leges are those in which it is pro- 
vided that whoever shall have done any thing against 
them be devoted (sacer) to some of the gods, with his 
family and property : and that a homo sacer is * he whom 
the people hath sentenced for a crime ; neither is it right 
for him to be sacHjiced, but he who slayeth such a one 
is not found guilty of parricide (see below, § 7), for it is 
provided by the first tribunician law, that if any shall 
have slain him who is sacer by this plebiscite the slayer be 
no parricide °.* 

Mommsen takes the sncratio to have been, in the case 
of the tribunes, a real outlawr}' : whoever laid hands upon 
them was regarded not merely as forfeited to the ven- 
geance of the gods, but also as outlawed and proscribed 
among men''. But as to the older sentence his opinion 
is different. 'Not that the person accused (sacer) was 
outlawed ; such an outlawry, inconsistent in its very 
nature with all civil order, was only an exceptional occur- 
rence in Home — an aggravation of the religious curse at the 
time of the quarrels between the orders. It was not the 
province of the civil authorities, still less that of the indi- 
vidual burgess or of the wholly powerless priest, to carry 
into effect the divine curse ; the life of the person accursed 
was forfeited not to man but to the godsV 

Zumpt, also, admitting that there may have been a 
time when the sacratio capitis was more than a mere sen- 
tence of excommunication, places that time at the safe 



Regal Period, 39 

distance of a 'pre-Roman period'/ I cannot reconcile 
tliese views with the cumulus of evidence above- quoted ; 
or help believing that the sentence sacer esto involved 
more than religious penalties even when it only existed — to 
borrow Livy's phrase — religione, not lege. That it was 
originally a religious sentence there is little doubt — pro- 
claimed probably by the chief priests either solely or as 
presidents of a burgess-assembly, on complaint by the 
injured member of a family. The latter seems more pro- 
bable, as answering to the * sentence of the people ' men- 
tioned by Festus, on which the property of the sacer was 
considered as confiscated and his person placed out of the 
protection of the law. For the final words of the plebiscite 
are surely not so much the creation of a new as an affirma- 
tion of the old impunity for a slayer of the sacer, which 
impunity might possibly have been regarded as taken away 
by an intermediate statute against homicide in general. 

It must be remembered, as against the objection of 
Mommsen, that this rough execution of justice dates from 
the very earliest times, when that developed civil order, 
with which it is no doubt inconsistent, had as yet no exist- 
ence. Probably the sentence in practice only amounted to 
exile : but, even if taken in its harsher sense, the general 
right, in all persons belonging to a community, patriarchal 
or otherwise, of putting to death an outlaw, is not without 
parallel either in our own traditional common law, or in 
the reputed statute law of Athens, or in the oldest extant 
history of a capital crime'. 

a. Mommsen Hist. 1. 11. pp. 157 — 8 tr. 

6. Zumpt Criminal-Becht des Rom. Republik. Absch. 1. c. 7. p. 91. 

c. Plorare flere nunc significat et cum praepositione implorare id est 
inuocare. in regis Eomuli et Tati legibus si nurus... sacra diuis 
parentum estod. in Serai Tulli haeo est si parentem puer uerherit 
ast olle plorassit puer diuis parentum sacer esto, id est, inclamarit 
dix...[erit diem according to Muller's most probable restoration.] 



40 Early Roman Law. 

In the first quotation the final d of the 3rd sing, imperative is 
a mark of antiquity almost unique in Latin, though instances are 
found in the Oscan estud factud licitud of the Bantine tablet. Com- 
pare the Vedic tarpaUU {rtpiriTu) Bopp, Vergl. Gram. § 470. The 
second quotation, it will be observed, wants the d, as do the imper- 
atives of the Twelve Tables. 

In the second quotation uerherit, which Miiller apparently 
takes to be present subjunctive, is, I think, better regarded by 
SchoU (xii Tabb. Reliquiae, p. 83) as present indicative of the 3rd 
conjugation. Ast is of course equivalent to autcm (Festua a$t. 
Labbaeus = ^ov 5^), see Plautus Capt. 3. 5. 25. 
Si ego hie peribo ast ille ut dixit non redit 
at crit mi hoc factum mortuo memorabile. SchoU. p. 111. 

d. Varronianus, c. 6. § 5. Dr Donaldson restores what may have 
been the old spelling, tei nuros parcntcm [urrbesit ast ole plora$i(\ 
sacra, &c. It seems, in my present point of view, safer and better 
to give these fragments merely as they occur in good editions of 
the authors by whom they are quoted. MuUer's remark is not a 
bad one, ' oleum et operam mihi pcrdidisse uidentur qui regum 
legibus antiquitatis illam robiginem reddere studuenint quam iam 
turn detcrsum esse apparct cum in Papirianum ius reciperentur.' 

«. Antiqq, Rom, 2. 20 end. 

/. Stephen's Blackstone 6. 4. Hale, 1 P. C. c. 29. See 25 Edw. 3rd, 
Bt. 5, c. 2. 

g. Antiqq. Rom. 2. 10. This chapter contains an interesting ac- 
count of the reciprocal rights and duties of patron and client. 
Tlie relation bears an obvious parallel to that of lord and vassal. 
Stephen's Blackstone, 2. pt. 1. ch. 2. 'of Tenures.' In both cases, 
doubtless, the n: )mbers of the privileged class gathered round 
them and attached to them tlie non-privileged as long as they 
could. Wlien too numerous to be attached, the latter became a 
definite political order, with a grievance. 

As to breaches of duty in this relation Dionysius says, tl J^ rti 
i^eXcYXOfi^V TovTwy ri diaTparrdfitvos (yoxoi rj" ^V y6fxtfi rrjs xpoicxrlat 
dy iKvpuffey 6 Pw/zuXot. rby ii dXoi^o t<J» ^ov\ofiiy(^ xTtlytiv 6<rioy ijr 
wi OCfxa Tov KaraxOoyiov Ajoj lOot yap Vwfialoit 6<Tovi i^ovXoyro 
yrjiroiyl rtdyivai to. rovruy auifjMTa OtQiv 6T(i>Si^Tiyi fidXicrra di roit 
Karax^oyloit Karoyofia^eiv. 

h. Plut. Romulus 32. roy 8' iiroSofxfyoy yvrcuKa ((0riK€ po/jmp) OveffBcu 
xGoyioit Otois. 

t. Liv. 2. 8. See too 3. 55. 

ifc. Liv. 2. 33. 

I. Liv. 3. 55. Cum religione inulolatos eoi torn lege etiam fecenmt 



Regal Period. 41 

sauciendo ut qui tribunis plebis aedilibus iudicibus decemuiris 
nocuisset eius caput loui sacrum esset familia ad aedem Cereris 
Liberi Liberaeque uenum iret. See too Dionys. Antiqq. 6. 89. 

m. Liv. 3. 32: 7. 41: 9. 39: 36. 38. 

n. Pro Balbo 14. 33. Sanctiones sacrandae sunt aut genere ipso aut 
obtestatione legis aut poenae cum caput eius qui contra fecerit 
consecratur. Frag, pro Tullio 5. 47. recitauit... legem antiquam 
de legibus sacratis quae iubeat impune occidi eum qui tribunam 
pleb. pulsauerit. 

o. Festus Sacratae leges and sacer mons. At homo sacer est is quem 
populus indicauit ob maleficium ; neque faf est eum immolari sed 
qui occidit parricidi non damnatur; nam lege tribunicia prima 
cauetur, si quis eum qui eo plebei scito sacer sit occiderit, parricida 
ne sit. 

p. Mommsen's Hist. 2. 2. tr. p. 282. 

q. ib. 1. 12 tr. p. 184. 

r. Criminal-recht Absch. 1. p. 128. Cf. 3. 5. p. 393. 

s. See Blackstone 4. c. 24, on the other hand Hale P. C. 1, c. 42. 
The original source of Blackstone's statement I do not know. It 
is not Coke on Lytt. § 128. For Attic law, compare Demosthenes, 
3rd Philippic, p. 122. Kal dn/xos, (py^al, Tedvdrw tovto 8k X^yei 
Kadapov Tov tovtuv rivd diroKTelvavTa elvai. See too Genesis iv. 14. 
' Every one that findeth me shall slay me.' The private blood- 
revenge of Numbers, c. xxxv., is different. 



§7. 

Extension of Family Law to Offences without 
THE Family. 

The duties, breaches of duty, or offences, as between 
man and man, which have hitherto been noticed, are 
all connected with the family or with that relation which 
the Romans must have regarded as analogous to a fa- 
mily one, from their use of the word patronus\ The 
following fragment is of much importance, as shewing not 
only the origin of criminal justice, but also a great increase 
in its scope and improvement in its application. 



42 Early Roman Law, 

We find in Fcstus this article : — Parricidi qtuiestores 
was the name given to officers wont to bo created for 
the investigation of capital offences. For the word par" 
ricida did not in every case mean such person as had 
killed a parent but (also him who had killed) any man 
soever uncondemned. That this was so is shewn by a 
law of King Numa Pompilius framed in these words: 'If 
any shall have done (lit. given) to death a free man wit- 
tingly and with malicious purpose let him be paricidas^. 
It is with the latter part of this passage that we have at 
present to do; postponing consideration of the quaestors, 
whose institution need not necessarily, though it may, 
have been contemporaneous with the enactment of the 
law. 

It is evidently necessary first to determine the exact 
meaning of paricida, which M. Ortolan and Sir Patrick 
Colquhoun derive in a manner fatal to the conclusions 
that I venture to think may be drawn from this law. The 
latter author draws a distinction between paricide with 
one r and parricide with two, tlie former from parem and 
caedo signifying the murder of an equal, i. e. a fellow- 
citizen, not a slave; the latter from patrem and caedo 
with a 'softening of the t,* signifying the murder of a 
fatlicr. 

Ortolan attributes to parricidium at least the signi- 
fication of ' paris-cidiinn* without any distinction be- 
tween the single and double r, and translates the word 
*mcurtre do son semblableV ^ 

No such distinction as that drawn by Sir P. Colquhoun 
is to be found, to my knowledge, in any ancient writer. 
^loreovcr, if the law be quoted * verbatim et littcratim,' as 
the uni(|ue retention of a nominative ending in the a-de- 
clension indicates, the single r goes for nothing, double 
letters not being written before 200 B. c. The invariable 



Regal Period. 43 

length, however, of the first syllable is irreconcileable with 
a derivation from ^ar, paris, especially when we compare 
homicida, where a lost syllable {-m-) might have produced 
compensatory lengthening, but has not. 

The meaning, moreover, as given by Ortolan, is too 
philosophical for an early age, and, as given by Colquhoun, 
reduces the law to a definition-clause little more than 
tautological. - 

The difficulties of the ordinary deriva+ion are consider- 
able. At least I know no instance where, in a Latin 
word, t is assimilated to r. On the whole, though the 
loss (of nt-) is considerable, I am disposed to trace the 
word to parenticida with a compensatory lengthening of 
the a in pdridda. Plautus' comic perenticida is an argu- 
ment for parenticida having existed, as there is nothing in 
pera to suggest the nt. 

Yerrius Flaccus is apparently in favour of parenticida 
(non utique is qui parentem occidisset). Quinctilian (Inst. 
8. 6. 35) ofpatricida. 

Mommsen calls these quaestores Hrackers of malicious 
homicide ' (Spiirer des argen mordes), an expression point- 
ing rather to the law quoted by Festus than to any deri- 
vational meaning of Paricida. 

We find in later times the signification of parricidium 
extended to cover many cases of murder between relations 
but not murder generally'*, and there is, I think, on the 
whole, little doubt that the old word paricida meant 
strictly murder of a parent. 

If this be the case, the law quoted by Festus involves 
an important step in criminal legislation. This is no 
definition of an ill-understood term but the application of 
a well-understood penalty to a new case. It is not neces- 
sary that parricide proper should have been a common 
crime : merely that its prohibition was already recognized 



44 Early Roman Law. 

under known sanctions, religious no doubt in origin though 
perfectly practical in effect*. We have then, probably, 
here a type of the origin and growth of criminal law, in 
the utilization of a penalty upon homicide within the 
family, for the prohibition of homicide within tlie com' 
munity. The words paricidas esto do not call a murderer 
a parricide, as Plutarch absurdly fancies', but, by means of 
a legal fiction, treat him as one. That this way of dealing 
with murder continued to be intelligible and practical 
down to the times of the Republic is shewn by the negative 
clause (parricida ne sit) in Flaccus 'first tribunician law' 
(§ 6. note o). 

As to the manner of enactment of this primitive crimi- 
nal istatute, the procedure under it, the court where such 
procedure took place, we are alike destitute of any trust- 
worthy information. 

It is clear that no merely family tribunal could have 
been competent to deal with offences beyond the pale 
of the family ; nor is it likely that the delivery of sen- 
tences so much connected with the peace of the com- 
munity could have been left to a general gathering, or 
their execution to Lynch law. A priori reasoning would 
therefore seem to lead us, in accordance with consistent 
tradition, to the king as a permanent ex officio judge. 
Necessity also must soon have been seen for the appoint- 
ment of regular subordinate officers to apprehend and 
arraign offenders. 

a. Fcstus, Prtfr[onus a patro cur ab antiqais dictas] sit manifostmn 
quia [ut libori sic etiam clientcs] numerari inter do[mu8 fnmiliam 
quodammodo possunt]. The restorations are those of Miiller and 
Ursinus, Servius on Aon. fi, G09. Tatroni quasi patrcs. 

6. rarrici[di] quacstores appellabantur qui Bolebant ereari canssa 
rernm capitaliura quaerendarum. nam parricida non utique is 
qui parentom occidisset dicebatur Bed qualemcnnqne homincm 
iudemnatum. ita faisse indicat lex Nomae Fompili regis bis com- 



Regal Period, 45 

posita uerbis si qui hominem liherum dolo sciens morti duit pari- 
cidas csto. 

Duit is, I think, rightly considered by Scholl to be future per- 
fect. Compare Festus ' duis duas habet significationes. nam et 
pro dis ponebatur et pro dederis,' and Plautus Amphit. prol. 67 
Bqq. where duint stands in juxtaposition with uiderint, ambisset, 
ambiuerit. 

The very rare s as a nominative ending in the first declension 
has been remarked. 

If the translation of rerum by offences requires justification, see 
Festus on ' quadriplator qui...eas res persequerentur quarum ex 
legibus quadrupli erat actio.' Whether rei is or is not etymo- 
logically connected with 0. H. G. racha (caussa), which Corssen 
(Beit. 25) denies, this is an unquestionable meaning of the word, 
from which reus surely comes. See Corssen, Ausspr. 1'. 477. 
Colquhoun's Summ.ary of the Boman Civil Law, pt. 1. § 40. Or- 
tolan, Histoire de la Legislation Eomaine, § 95. (Explication His- 
torique, 8""*' ed.) 

See lustin Instt. 4. 18. § 6. on the Lex Pompeia de parricidiis 
which deals with * any one that has hastened the death of parent 
or son or generally of that class of relations which is comprised 
under the name of parricide.' The list is given by Marcianus, 
Digest. 48. 9. 1. 

The traditional punishment, which is described in the last-quoted 
passage of the Institutes, is stated by Modestinus (Dig. 48. 9. 9. pr.) 
to have been instituted ' more maiorum,' an expression pointing 
to at least considerable antiquity. See Dionysius 4. 62, who there 
makes Tarquinius Superbus sew up in an ox-hide and cast into 
the sea *as a parricide' one M. Atilius, a faithless custodian of the 
Sibylline books. This tallies with Cicero's ' insui in culeum atque 
in fluuium deici' (pro Sexto Eoscio, 25. 26. §§ 70. 73). So too the 
Auctor ad Herenn. (1. 13. 23) quotes the 'law' under which Mal- 
leolus suffered as follows : ' qui parentem necasse iudicatus erit ut 
is obuolutus et obligatus corio deuehatur in profluentem.' This 
sentence, though inserted sandwich-fashion between two fragments 
from the Twelve Tables, is, in form at least, clearly of later date. 
In the passage copied by Cicero (De Invent. 2. 50. § 143) from this 
last, only the fragments from the Twelve Tables occur, though 
mention is made (§ 149) of certain laws under which the particular 
criminal suffered this penalty. 

Valerius Maximus gives the same story about M. Atilius as that 
given by Dionysius, adding that the punishment was ' non multo 
post' (with a variant * multo post'l) legally enacted for parricide. 



46 Early Roman Law. 



rintarch (Rom. 32) makes L. Hostios ' after the Hannibalian 
war' the first parricide. 

Pablicius Malleolus, above-mentioned (a matricide), is said by 
Floms (Epit. Liv. 66) to bave been the first sewn in a leathern 
sack and flung into the sea. 
/. Plutarch, Romulus 32. Ho evidently refers the law to this hero. 
Ihiop 5i TO /jLTjSffdaw biKTjv Kara -raTpotcropuv 6pl<rarra xS/tcw ii^po^o- 
vlav raTpoKTOrioM irpoaeivtlv wr tovtov fiiv trroi ivayoxJi iKclvov 5^ 
Hvydrov. 



§8. 

Crimes and Wrongs. Remissible Penalty. 

Whatever were the penalties involved in the sen- 
tence paiicidas esto there seems no reason to believe 
that they could be remitted at the option of those most 
nearly affected by the murder. Otherwise in Horatiua* 
case, to be shortly noticed, the whole machinery of the 
trial perduellioms is unnecessary: the hero might have 
been at once put upon his trial for murder and discharged, 
on the father (as the person damnified by his daughter's 
murder) expressing a wish to waive the charge. The 
present section will be devoted to other grounds for be- 
lieving that when the law attributed to Numa (.91 quia... 
paricidas esto) was passed, the proper distinction had 
already been drawn between a public and private offence. 
The inexactness of Blackstone's definition of a crime as 
differmg from a civil injury has been well shewn by Austia 
from whose 17th lecture (p. 417 ed. 18G9) I quote the 
following passage. 'The difference between crimes and 
civil injuries is not to be sought for in a supposed differ- 
ence between their tendencies, but in the difference be- 
tween the modes wherein they are respectively pursued or 
wherein the sanction is applied in the two ca.ses. An 
offence which is pursued at the discretion of the injured 



Regal Period, 47 

party or his representative is a civil injury. An offence 
which is pursued by the sovereign or by the subordinates 
of the sovereign is a crime.' If we substitute for 'sove- 
reign, &c.' the words * any member of the state ' we arrive 
at the definition given in the Institutes of ' Public Suits/ 
so called ' because, generally speaking, any of the people 
may prosecute them*.' E converso, in such cases, no private 
individual can remit the penalty. But a different case 
was probably recognised by the very same law which we 
are now considering, in early Roman times; a case where 
the wrong was merely the private concern of the parties 
suffering it, and the penalty might be remitted at their 
pleasure. I must premise that the point in question 
depends partly on an emendation though one generally 
received. 

* It was provided,' says Servius, ' in the laws of Numa, 
that, if any had unintentionally killed a man, he should, 
for the life of the slain man, present to the agnati of 
the latter a ram in public meeting ^ This passage, 
though not coming to us with the same internal evidence 
in its favor as the law quoted by Verrius Flaccus, certainly 
seems from its subject-matter and language to contain 
part of a subsequent paragraph of that very law. If so, 
we have involuntary homicide recognised as an injury 
merely to the family of the deceased and which might be 
condoned by them. The formal tender however of com^ 
pensation must have been made and accepted under cir- 
cumstances of publicity {in contione). Nor does there 
appear any great anachronism in putting upon contio 
here the interpretation given by Flaccus elsewhere. 

' Contio signifies a meeting, but only a meeting which 
is called together by a magistrate or public priest V Pos- 
sibly we may have here the. first trace of a court of bur- 
gesses held, at least, for purposes of record. Such a 



48 Early Roman Law, 

meeting is not to bo confounded with the chanc* spec- 
tators who side with this or that disputant ia the well- 
known Homeric trial-scone'*, before the regular court 
(there judicial) is assembled. Thofact, however, at issue 
in the Greek case — the payment or non-payment of com- 
pensation for homicide — affords an interesting parallel to 
the similar practice of which we have this slight trace in 
early Roman times, and which is to be found to a much 
greater extent in the infancy of most northern European 
nations. It docs not follow that the exaction of blood- 
revenr/e for murder was allowed among the Romans at any 
time of which we have knowledge*, or, on the other hand, 
because no composition is oftered in Horatius' case, that 
therefore none existed in cases oiinvoluntary homicide'. 

It was premised that the main point in this passage — 
of compensation for or at least condonation of involuntary 
homicide — depended on an emendation. The words trans- 
lated *to the agnati of the slain man in public meeting/ 
agnatis eius in contione, run in the original 'et natis eitts 
in cautionc* The last words, which Schiill appears to 
retain (Reliqq. 150), might bear the meaning 'by way of 
security/ i.e., for further or other pa^Tnent, though one 
would have expccte<l in cauticmcyw. This meaning is by 
no means adverse to the general aspect of the transaction, 
for the ram is more likely to have been a mere eaniest or 
formal tender than an actual compensation. The words 
et natis appear to me totally unintelligible here, and may 
have arisen very easily from agnatis through ac natis. 
The verb offerre, too, used by Servius, indicates a presen- 
tation or tender to some human being, and is therefore in 
favor of agnatis. The absolute sense of offering a victim 
(to Heaven understood) is late, or at least not Servian. 

The view then here taken of involuntary homicide as 
a private injury, condonable by those interested, seems 



-' Regal Period. 49 

clearly made out. That the transaction took place under 
religious am^ices is highly probable; the 'public priest,' 
who could call the contio, would doubtless preside over it. 
And, as the wrath of heaven as well as that of man had 
to be appeased, the earnest of compensation might well 
become the vicarious victim or purificatory sacrifice. This 
meaning, though foreign to offerre, may be gathered from 
other expressions of Servius as well as of Flaccus^. The 
Athenian law tallied in both points with the Roman ; the 
homicide must be purified, but he must first get the 
consent of the slain man's relatives*". 

Finally, it should not be overlooked that in the ancient 
fragment (si qms... dolo sciens...) preserved by Flaccus, 
and its probable sequel (si Q{yxh...imprudens...) para- 
phrased by Servius, we have not only a real distinction 
drawn between crimes and wrongs, but a clear definition 
of murder as characterised by that malice prepense which 
still constitutes the grand criterion of the same crime in 
our own common law. The same distinction and the same 
procedure in case of involuntary homicide was preserved by 
the Twelve Tables. *To fling a weapon,' says Cicero, *is a 
jxatter of intent; to hit the man whom you do not wish 
to hit, a matter of chance. Hence the substitution (perhaps 
'vicarious slaughter') of that ram in your legal proceed- 
ings, if a mans weapon hath flown from his hand rather 
than he hath flung it '.' The italicised words are quoted by 
the same author elsewhere^ as a law of the Twelve Tables. 
The coincidence in kind of the Roman vicarious sacrifice 
with that mentioned in Genesis xxii. 13, though curious, 
can scarce be more than accidental. 



a. lustin. Instt. 4. 18, 1. Publica iudicia dicta sunt quod cuiuis ex 

populo executio eorum plerumque datur. 
h. Servius on ipse...anea Eel. 4. 43. Sane in Numae legibus cautum. 

R. L. D 



50 Early Roman Law. 



est nt si ^uis imprudens occidiR8ct hominem pro eapite oocisi 
agnails eias in contione ofiferret arietem. 
<•. FestoB 8.V. contio. 

d. Homer, Iliad, 19. 497—508. 

e. Mommsen, Hist. 1. 11. (p. 158. n. tr.) 

/. as Zumpt argues Absch. 1. Cap. 9. p. 127. 

g. Scrvius on another ipse arie$ Geor. 3. 387. bene ipne addit, qaaRi 
qui aut dominus grcgis est ant qui contra pro domino capital dari 
consueuerat. nam apud maiores bomicidi poenam noxius arietis 
danino luebat, quod in regum legibus legitur. The passage in 
Festus is mutilated, but may be restored with tolerable certainty 
' Snhici ar[ies dicitur qui pro occiso datur] quod fit ut ait Cincius 
[in libro de officio iuris-J-consnlti exemplo At-[-hamanti8 ex quo or 
-heniensium apud quos] expiandi gratia aries in-[-igitur ab eo qui 
inuitus 8ce-]-lu8 admisit, poenac p[endondae locoj. For MuUer's 
inujitur Mercklin reads m-actatur. inigitur seems the better on 
account of the following passage in Festus. Suhiffere arietem An- 
tistius epse ait dare arietem qui pro se agatur cacdatur. The last 
explanation is doubtless correct, gub as iisnal in composition mean* 
ing substitution, and suhipi to bo led as a substitute for one*s self, 
being written tuhici from the old unity of symbol for c and g and 
after confused with a compound of icerr or iacfrr (see note i.) 

h. Demosthenes c. Aristoc. G43. 4. rl ovv 6 yhfioi Ki\(\>(i\ rhp dXiJrra 
iw^ i,Kovffi(fi <f>6tKf)...<p€vytty lus iv aibiariTai tii tCjp iv -yiyti tow 
TtToyOoTot TTfviKaiiTa 8' iJKeif iihuKtv (any 6y rporoy — o6x ^ 'i*' 
TUX?? — i^^tt ''oi 9v<rai k.t.X. ttprfxey A xph Toj^ffai. 

There is an interoHling variant aibicnral nya. recognised by 
Harpocration (\liiaaaOax...iy rif xqt' ^ApiaroKpaTovt dyrl row i^iXd' 
aafOai kolI wtiffai) which might ]K>rhnp8 mean (like iri6avfid(tiy^ 
Aristoph. Nubes 1117) to compliment by a present. The law, 
however, quoted by Dem. adv. Macariatus is in favour of the con- 
struction ^firitt given above, 

t. Cicero Topica 17. G4. nam iocerc telum uoluntatis est, fcrire qnem 
nolucris fortunae. ex quo aries illc subiicitur in ucstris actionibns 
fi tchini mnnti fufjit Jtiagin quam iccit. 

j. pro TuUio 21. 51. Lex est in xii tabulis «t telum manufugit tnagU 
quam iccit. 



ilegal Period. 51 

§9. 

Crimes and Wrongs. Few Property Offences. 

It does not of course follow, from the fact of a distinc- 
tion having been drawn between crimes and wrongs, that 
particular offences were classed under the one head or 
the other exactly as we should class them. In fact it is 
more than doubtful whether at the early period we arc 
considering, the law yet took cognisance of civil injuries 
as exclusively matters for compensation at all. Only, a 
number of actions being recognised as prima facie penal 
(and that most likely at first because violations of divine 
law), it was understood that the penalty might in some 
cases be remitted by private persons and in other cases 
not. The religious origin of Roman law produces a. 
curious result in the way in which most offences against 
property and many against the person are treated. Not 
only cases of ordinary theft but even robbery and assault, 
all of which are of course with modern nations matter for 
indictment, were not so with the Romans, but simply con- 
stituted an obligation ex delicto which might or might not 
be enforced at the pure option of the sufferer alone. The 
reason probably is that these offences did not attract 
legislative notice until the time was past for identifying 
them with breaches of religious duty. The difficulty of 
such identification is doubtless one reason for the paucity 
in early legislation of rules relating to property. Another 
is that which is alleged by Mr Maine in the 10th chapter 
of Ancient Law, and which is specially applicable to 
Rome — the small proportionate number, in an infant com- 
munity, of persons between whom any dispute as to pro- 
perty could arise. There could be neither offence nor 
contested claim between members of a family as to goods 

D2 



52 Early Roman Law, 

or lands which were in the eye of tlic law exclusively 
owned by the head. Accordingly the few property of- 
fences noticed by regal law are encroachments upon the 
family inheritance as a whole, or its prodiice : and these, it 
must be remarked, are not treated, in accordance with the 
spirit of later legislation, as subjects for civil action but a« 
crimes, prohibited by religious sanctions of the usual tre- 
mendous kind. 

Such is the enactment attributed to Numa that he 
who ploughed up a lamlmark shoiild be devoted to the 
gods, himself and his oxen*. Examples will at once occur, 
from the Old Testament, of the same feeling of sanctity 
attached to boundaries and to patrimony generally**. It is 
possible moreover that the lands of a genu, which no doubt 
lay together, were divided into family portions by no njore 
substantial boundaries than the imaginary lines drawn 
from post to post, which still with us often serve to divide 
small holdings of garden-ground : in which Ciise the 
boundary stone assumes an imjwrtance scarcely intelligible 
to the owners of fenced and hedged estates. 

With this lK)undary law may be ranked, in the charac- 
ter of its sanction and probably in the antiquity of its* 
origin, an enactment of the Twelve Tables against noctur- 
nal theft ; in the latter ])(jint, one against the charming 
away of a neighbour's crop. Whoever should have been 
guilty of the second offence was liable doubtless to some 
penalty, but what, Pliny does not tell us''. The offence 
of grazing or cutting a crop on arable land by night wa,"* 
anciently capital, the culprit being hung up as a victim to 
the goddess of harvest, and so slain: a mitigation of this 
law in the case of juvenile delinquents is, from mention of 
the prater, probably later**. The supposition, indeed, of 
a date prior to the Twelve Tables for the two last-men- 
tioned enactments is a mere supposition, dependent ou 



Regal Period, v 53, 

subject-matter and the archaic character of the Sanction. 
Nor have we even this last reason for referring to the 
regal period the laws punishing an incendiary with burn- 
ing and a false witness with hurling from the Tarpeian 
rock ; though there is certainly ground for attributing high 
antiquity to them if not, with Mommsen, royal origin*. 

a. Festus: Termino sacra faciebant quod in eius tutela fines agrorum 
esse putabant. denique Numa Pompilius statuit eum qui termi- 
num exarasset et ipsum et boues sacros esse. 

Dionysius Autiqq.' 2. 74. d 84 ti$ a.<pavUT€t€v ^ fi€Ta6eir) roiis 
6povs Up6v ivofioS^rjaev (6 No/fas) elvai rif) deifi {Ad 6pi({}) tov tovtui* 
Ti diairpa^d/M€vov, tva t«J> poiiXofjUvcfi KTeiveii/ ainov ws Upoavkov ij t€ 
dffipdXeia Kal to Kadapov fudap-aTOi dvai vpoay. 

h. Deuteronomy xix. 14: xxvii. 17. Ruth iv. 3—8. Numbers xxxvi, 
7. 1 Kings xxi. 3. Sec. 

c. Pliny Hist. Nat. 28. 4. 17. Quid? non et legum ipsarum in xir 
tabulis uerba sunt qui fruges cxcantassit. See Servius on Eel. 8. 
29 (atque satas alio nidi traducere messes) magicis quibusdam. 
artibus hoc fiebat. unde est in xii tabulis neue alienam segetem 
pellexeris quod et Varro et multi scriptores fieri deprehensum ani- 
maduertunt. The alleged fragment from Seruius is, in spite of 
the technical-looking word pellicere, justly regarded with suspicion 
by Schiill (Eeliqq. 49) because of the use of the second person in 
the prohibition and the conjunctive for the imperative mood. 

d. Pliny H. N. 18. 3. 12. Frugem quidem aratro quaesitam furtim 
noctu pauisse ac secuisse puberi xii tabulis capital erat suspen- 
sumque Cereri necari iubebant grauius quam in homicidio conuic- 
tum: impubem praetoris arbitratu uerberari noxiamve duplio- 
nemue decemi. 

noxiam decerni most probably means an order for the giving-up 
of the delinquent to the person aggrieved. 
<?. Mommsen Hist. 1. 11. p. 158 tr. The punishment of the incen- 
diary is quoted Dig. 47. 9. 9. from Gains on the Twelve Tables : 
but there is nothing in the quotation to shew that the law comes 
from them. 

The punishment is said to have been retained in later times. 
So Callistratus in Dig. 48. 19. 28, 12. 

The passage in Aulus Gellius' Attic Nights, which is our au- 
thority for the punishment of false witness, seems rather to place 
it be/ore the time of the Twelve Tables. 20. L 53. 



54 Early Roman Law, 

An pntas, Pauorine, si non ilia etiam ex xii tabnlis de tostimo- 
niis falsia poena aboleuisset et si nunc quoque ut antea, qui falsum 
testimonium dixisse conuietus esset, e saxo Tarpeio deiiceretur, 
tuentituros fuisse pro testimonio tarn mnltos quam uidraous? 
The word etiam indicates, I think, a different and milder penalty 
in the Twelve Tables. 



§ 10. 

Early Legisiature and Judicature. 
Kings. Pontiffs. 

In the so-called laws hitherto cited whether we coDsider 
«hity, offence or sanction, as also in the oldest customs of 
the Roman people, a religious origin is apparent. It is, 
in fact, this prevailing, religious character, wliich, coupled 
with the reverent retention of very old linguistic forms, 
seems to justify us in dating these fragments before those 
of the Twelve Tables. A slight degree i»f weight may 
also be given to the names with which the former are 
traditionally connected. But of their regular enactment 
by a civil authority, as of the procedure^ under them and 
the execution of their sentences, we know next to nothing. 
Our historical authorities refer the first Ii*>man laws as well 
as the oldest Roman customs, civil or religious, to one or 
other of the well-known kings. These may possibly have 
been real persons, with the exception of Romulus, wlio is 
a mere eponymous hero. A Numa, TuUus, and Ancus 
may have been actual chieftains of the Pomponii, Hostilii, 
and Marcii, who afterwards claimed them as ancestors*. 
As to the author of the Servian reform, there is sucli a 
uniform persistent and peculiar character in the traditions 
And usages connected with him, that it is difficult to avoid 
believing him to be a real person, in spite of the miracu- 



Regal Period, 55 

lous stories clearly arising from his first name. The 
sovereignty of the Tarquinian family, their oppressive rule 
and total expulsion have never been successfully called in 
question. 

As a record, however, of actual facts, it has now come 
to be generally agreed that the history of the regal period 
possesses little value. It is sufficient here to refer to the 
continual admixture of the supernatural element and to 
the unparalleled average length of the reigns. And this 
was not a hereditary monarchy where a king may ascend 
the throne very young, like George the third of England 
and Lewis the fourteenth of France. Each king of Rome 
must have at least attained early manhood before royalty, 
and moreover the career of these wonderful men was in 
four cases cut short by a violent death and in one by 
deposition ^ 

The facts, however, narrated by the historians of the 
regal period, may, where they involve any legal or consti- 
tutional point, have some value as typically though not 
actually true. They will at least be likely to have been 
invented in accordance with what was believed to be 
ancient practice. The some remark applies to general 
statements of old constitutional principles. And if we find 
that our conclusions drawn from these grounds tally with 
what is, though scanty, tlie best evidence of all — the 
formulas and customs preserved by antiquarians — we 
may perhaps hope that we have attained something like 
truth. 

The legislative power — at least that of j)roposing laws 
^ — is generally represented as vested in the king, the senate 
being merely a body of advisers chosen at the king's plea- 
sure, while the function of the burgess-assembly (in this 
respect) is restricted to the ratification of laws which the 
king prepares and propounds". 



56 Early Roman Law. 

We should rather have been disposed, from the cha- 
racter of the earliest laws, to attribute them to the pontiffs, 
whom on other grounds we know to have exercised powers 
and discharged duties of secular as well as religious 
importance. 

We have seen how their superintendence of the gentile 
sacra gave them the control of the important business of 
arrogation. They had the management of the Calendar 
with all the political influence flowing from exclusive 
knowledge of the times when public business could pro- 
perly be transacted. It seems strange at first sight to 
find these depositories of sacred lore overseers of works as 
well as days. But they were undoubtedly from time im- 
memorial connected with the construction and repair of 
the bridge which formed the communication between 
Home and the Gate fortress (laniculum) on the Etrurian 
side**. On Mommsen's hypothesis, that pons in this word 
means not merely 'bridge,' but, according to the most 
probable etymology, * way * generally (Curtius, Grundzuge 
pa. 2.53), the occurrence of pontiff's in other old Latin 
communities not connected with any river is explained, 
and the great importance is evident of an ofiice which 
superintended the means of communication between the 
originally detached clan-settlements*. 

The author first quoted recognizes the great part which 
these authorities played in early Rome, attributing to 
them, among other things, the fixing and promulgating of 
* the general exoteric precepts of ritual which were known 
imder the name of the royal laws.* A similar conclusion 
drawn from the originally religious character of these laws 
lias been hinted at above; but their subsequent develope- 
mont and application must be ignored before they can be 
barely described as 'precepts of ritual.' 

Whether the complexioQ of the first laws came merely 



Regal Period, 57 

from the influence of the pontiffs with the king or whether, 
as I believe, the regal power itself was in its remote origin 
a developement of the pontifical, I must leave to the 
reader's decision'. 

As to the carrying out of law, the old authorities in 
general attribute supreme judicial and executive power 
to the king: such power if occurring in other hands is 
only either permitted or delegated by him. Thus Diony- 
sius tells us that it was part of Romulus' prerogative to 
decide upon the most serious cases himself while he en- 
trusted the minor ones to his senators^ ; Pomponius, that, 
as to magistracy the kings had, in the commencement of 
the Roman polity, the whole power, &c. &c.^ 

The above and similar passages prove a received tra- 
dition of respectable antiquity, borne out to some extent 
by what we know in more historical times of the dictator- 
ship, an office which the Romans regarded as closely 
resembling the kingl3^ It is not however so much from 
general statements about the early constitution of Rome 
that we derive our most trustworthy information as from 
slight references to practice — the safest perhaps when un- 
designed — in the accounts of early cases. Of these, what 
have been reported by the historians are of course only 
such as were remarkable for some matter of great public 
interest. To us, they have a different value as preserving 
relics of ordinary practice ; and, in this point of view, the 
legendary character of the facts is of little moment, pro- 
vided the legend be old. Such is Livy's account of the 
trial of the surviving and victorious Horatiusfor his sister's 
murder'. 

Whether we consider the whole story of the Horatii as 
a fiction or not, it is clear that the latter part contains the 
facts and formulae of a very old procedure referred by our 
best historical authority to the first century of Rome's 



58 Early Roman Law, 

existence. The narrative of the punishment of Mcttius, on 
the otlicr hand, contains no remnant of antiquity, and 
would, moreover, constitute, at best, merely an instance of 
military imperium. 



NVM. POMPIL. is read in the exergue of a denarius figured by 
Patin. Obverse L. POMPON. MOLO. This, however, being an 
equestriftn family is not likely to have belonged to the old aris- 
tocracy. Pavor and Pallor, to whom Tullus vows a temple (Livy 
1. 27) are supposed to be represented on denarii of L. Hostilius 
Saserna. On both brass and silver coins of L. Marcius Ccnsorinus 
appear heads of Numa and Ancus. (The latter was said to be. the 
son of Numa Marcius by Pompilia, daughter of king Numa.) 
Dionysius (.\ntiqq. 1. 75) soberly reckons up the years of the 
seven reigns. The total is 244. Even the utterly improbable 
Bupposition of a year of 10 months during the whole of the regal 
period only reduces the numlior to 203. This is within 7 years of 
the first seven kings of .Jjidah who begin with three reigns of 48, 
31 and 40 years, and are moreover hereditary after tho first two 
reigns. The tremendous reigns of Lewis the fourteenth and 
fifteenth of France only raise tho number of years from the ac- 
cession of Charles the ninth to tho execution of Lewis the sixteenth 
to 2.33 years. There are here three violent deaths, though not of 
young men: but it must be remembered that the monarchy was 
hereditary and of the two princes first mentione<l the one ascended 
the throne at 5 and the other at If) years of ago. No selection of 
consecutive reigns in English history comes to any thing like 
even this. 

Dionysius Antiqq. 2. 14. T<p ii ir)noTiK<^ rXiJ^fi rpla ravra (o 
'PufxvXoi) ir(Tp(yi/tv d/)Xatpf<r«offti» re koI vbnovi iiriKvpovv koX xtpl 
vo\(fJiov SiayiyyuffKttv dray 6 (ia(ri\(i>i i<f>^, see too 4. 13. Tacitus 
Ann. 3. 2(\. Nobis Romulus ut libitum imperitaverat : dein Numa 
religionilms et diuino iure populum deuinxit, repertaque quacdam 
a TuUo et Anco, sod praecipuos Seniius Tullius sanctor legum fuit 
quis etiam reges obtemperarent. Tho last words point of course 
to a narrowing of the royal power which will be noticed liereafter. 
Zumpt nrguos verv strongly for a narrowing of the royal legislative 
power from the earliest times by the necessity for consent on the 
part of the comitia curiata, Erster Absch. Cap. 2. He relies 
mainly upon passages of Dionysius such as that above quoted, 
4. 13, Tout vSfxovs (oToi/XXtoj) ... iKvpdiac toTj ^pdrpais &c., and upon 



Regal Period. 59 

Pomponius (Dig. 1. 2. 2. 2), leges (Roiaulns)...curiatas ad popnlum 
txtlit. tulerunt et sequentes reges. 

Festus. laniculum dictum quod per enra Komanus populus pri- 
mitus transient in agrum Etruscum. The road lay in the reverse 
direction to Porsena : and it "was doubtless originally for the 
security of Rome that this bridge was always to be of wood and 
easily destructible. Dionysius Antiqq. 3. 45. Kal tttiv ^vXlvrjv 
yi<f>vpav 7JV dvfv x^-^ko^ ft" ffiS^pov di/xis vir^ avrCv diaKpaTuaOai tuv 
^i>\u)v ^KfTvos (6 ''A7KOS) iTidelvai t^ Ti^^pei TiiyeTai. t)v dxpt "raC 
vapovTOi 5ia<pv\dTTov<Ti.v lepav tlvai vo/xi^ovTes. el 54 Tt irovi^aei^v 
avTTJs fJiipos ol lepocpdvrai depairevovai. 

The mutilated words in Festus (s. v. Sii)lirium) ne inrumpendi 
p. (for inrumiendi) sublioibus cauata...are, as it seems to me, more 
likely to have been p[otesta8 sit] than (as Miiller) p[ontis sublici]. 
Dr Donaldson gives a strange meaning to pons (a weight laid 
down) in pontifex, holding this word to describe ' the functions of 
the priest who settled the atonement for a specific fault by the 
imposition of a fine &c. &c.' Yarronianus 13 § 9. Varro's 
derivation is surely safer, ' ego a ponte arbitror, nam ab his (pou- 
tificibus) sublicius est factus primum ut restitutus saepe, cum in 
eo sacra et uls et cis Tiberim non mediocri ritu fiant. 

The passage in Mommsen is 1. 12. (pp. 178, 9 of tr.) The 
pontiffs might not ride on horseback but only in a carriage. Could 
this have been meant to bring the state of the roads home to 
them ? See, for the fact, a magnificent specimen of Servius, (on 
exsortem Aen. 8. 552,) accounting for the apparently unclerical 
conduct of Aeneas, who is well known to have been a pontiff. 
The tradition about the typical prince Aeneas is really somewhat 
in point. More so, is the retention, in republican times, of the 
proscribed title rex in connection with the sacra alone, see Diony- 
sius Antiqq. 5. 1. Li\'y's account clearly contains some truth. 
Et quia quaedam publica sacra per ipsos reges factitata erant... 
regem sacrificulum creant (primi consules) 2. 2. id sacerdotium, 
adds Livy, pontifici subiecere, differing from Flaccus who gives 
the order (s. v. Ordo) thus. Rex, Flamen Dialis, Flamen Mar- 
tialis, Flamen Quirinalis, Pontifex Maximus. The cognomina 
Rex and Regulus may have indicated tradition of sacerdotal 
functions. The former was borne by a (plebeian ?) branch of the 
Marcii, the alleged descendants of Numa and Ancus : the latter by 
a branch, also said to be plebeian, of the Atilii, one of whom is 
made out, it will be remembered, by Dionysius to have been a 
custodian of the Sibylline books. Reginus, a cognomen of the 
Antistii, may perhaps have a local meaning. It is unnecessary 



jM Early Roman Law, 



to qcote instanced, from other nations, of the eonnection and 
frequent identity of king and priest in early times, which is one 
of the commonplaces of history. 

Antiqq. 2. 14. fiaffiXfi nii> ovv i^iprrro rdSe t4 y^pa ...rtiif aiiKft' 
ficLTur ra fj^fyitrra fity aiTbv iiKa^fiP to 5i iXdrrofa roit fiov\€VTtut 
iiriTp4ireiP. See also 2. 29. 

Digest. 1. 2. 1. 11 
Livv. 2. 23. 



§11. 

THE STORY OF HORATIUS. 

The part of the story with which we are concerned 
commences with Horatius being raptus in [iiis (the regu- 
lar phrase of a later period) ad regem — haled off to 
the king's court. If any stress is to be laid upon this 
expression it must almost imply the existence of regular 
police officers, for who else would be likely to arrest 
Horatius? Scarccdy the people who afterwards acquit 
him": certainly not the king, who shuns the odium of such 
atrial and actually suggests a way of escape to the accused. 
If there were such officers in the time at which the stoi^ 
is placed, they would in all probability be the quaestores 
parricidi before mentioned — the ' trackers of murder' not 
to l>e identified with the duumviri, but, according to 
Mommsen's correct view, "standing deputies, whose pri- 
mary duty was to search for and arrest murderers, and 
who therefore acted as a sort of police ^" To proceed, 
liowcver, with the story. "The king, to avoid giving his 
personal sanction to a sentence so sad and so unpopular, or 
to an execution in pursuance of such sentence, summoning 
an assembly of the people, says : I create, according to 
law, two commissionera to decide the charge of perduellio 



Regal Period ^ 6l 

ill the case of Horatius. This law was one of direful 
strain*'. 'Let the two commissioners decide the charge of 
perduellio. If he (the accused) shall have appealed from 
them, let him contest the case with them on the appeal. 
If they shall prevail, veil his head, hang him by a rope to 
a barren tree^ scourge him either within or without the 
pomoerium.' Accordingly, when the commissioners created 
under this law, who did not consider themselves competent, 
under the law, to acquit even a guiltless homicide, had 
found Horatius guilty, 'Horatius,' says one of them, 'I 
decide the charge of perduellio against thee. Go, lictor, 
bind his hands/ The lictor had approached and was 
casting on the noose. Then Horatius, at the instance of 
Tullus, a merciful interpreter of the law, says * I appeal.' 
So the case was contested on the appeal before the people." 

Then follow the speech of the father Horatius at the 
historical Horatian Trophy; the acquittal of the son, con- 
ditioned on the expiation of his blood-guiltiness at the 
public cost; the institution of the traditional purificatory 
rites of the Horatian gens; and the erection of the Sister's 
Beam, ever after repaired at the national expense, beneath 
which the brother is sent, with veiled head, in nominal 
execution of the first sentence. 

With the origin of the legend, as a matter of fact, I 
liave not here to do, so that I need not pause to trace the 
three Roman champions (as possibly the three later de- 
fenders of the bridge), to some surname of the Horatian 
family ; nor the rest of the story to the peculiar Horatian 
sacra, the Horatian pillar, and the Tigillum Sororium, 
under the title of which la^t another account appears in 
Festus®. Whether founded in fact or not, the nan-ative has 
too poetical and dramatic a form to be much relied upon for 
our present purpose. It is different with the professed 
quotation, the antiquity of which there seems.no reason 



%2 Early Roman Law, 

to doubt. From this we gather the existence in the n^al 
period of a commission to try perduellio, an appeal from 
the commissioners' decision, and a definite public penalty 
assigned in case of that decision being supported. For all 
else we have to depend upon the statements of later 
historians and orators, and the illustrations afforded by 
subsequent practice. The latter class of authorities will 
be noticed as they apply; to the former belong the account 
of Livy given above, that of Flaccus", and one by Diony- 
sius which is appended hereto'. 



a. Dionysius (Antiqq. 3, 22) says rrpjffipxovTu (t<J) fia9i\(i) rtUr roXt- 

tikQv &v8pfi ovK d<f)avtii top 'Opdriov iyofres uvo SiKtiv. 
h. Mommsen Hist. 1. ch. 11 (p. 159 tr.). See generally below § 18. 

c. Dr Donaldson, who detects the Saturnian metre in this formula, 
apparently gives carttwn what is generally conceived to be its ori- 
ginal sense. This, however, is not necessarily connected with 
tunc or metre, as the word cannot, in accordance with analogy, l>e 
derived from cano, though, of course, connected with Canicna 
(Casmena). (See Corssen Ansspr. 1». 005 n.). Carmen is moro 
probably used here merely in the sense of a repeated or re- 
curring form of words. Compare, inter alia, Livy 3. 64. recita- 
bat rogationis carmen and Kaschig's note on 1. 24 and 26 of the 
same author Carmen omnis sollemnis formula a>pellainr. 

d. Festus. FcUrr* arbores Cato dixit quae fructum forunt, infflicei 
quae non forunt. So, too, the word is used by Livy 5. 24. Ma- 
crobius (Satunin. 3. 20) seems to make inftlicfs out to be black- 
fruited trees. 

c. Festus. Kororium tigillum appellatur hac de caussa. ex connen- 
tione Tulli Hostili regis et Metti Fufiti duris Albanorum trige- 
niini Horatii et Cnriatii cum dimicassont, nt uictores sequeretnr 
imporium, ct Horatius noster exsuperasset uictorquo domum rener- 
teretur, obuia soror cognita morte sponsi, sui fratris mann occisi, 
aucrsata est eius osculum, quo nomine Horatius intcrficit earn et 
quanquam a patre absolutus sceleris erat accusatus tamen parri- 
cidi apud Duumuiros, damnatusque prouocauit a<l popnlum, cuius 
iudicio uictor, duo tigilla tertio superiecto, quae pater eius consti- 
tuerat, uelut sub iugum missus subit, consecratisque ibi aris 
lunom Sororiae et Xauo Curiatio liberatus omni noxia fceleris 



Regal Period, 63 

est auguriis adprobantibus, ex quo sororium id tigillum est appel- 
latum. 

Dionysius 3. 21 mentions the two altars still remaining in his 
time built apparently into the opposite house-walls of a narrow 
street, the beam being let into the walls above;— in the forum, an 
angular pillar on which the spoils of the Curiatii had been fixed. 
The spoils have disappeared, says Dionysius naively, through 
length of time, but the pillar preserves its title of ' the Horatian.* 
/. Dionysius 3. 22. The part relating to the trial. 

vpoaipxoyrai (ry /3a<rt\ci) t(3u iroXiriKwy dudpui/ ouk i4>ave?s rhv 
^OpaTLov Ayoirres vrrb SIktiv uis oi KaOapov ai/xaroi ip.<pv\iov 5cd top rrjt 
d^(X(prjs <p6vov...Toi)% POfxovs ra/oexoMfoi toi>j ovk iwvras aKpirov diro- 
KTelveiv ov8ipa Kal rd irapd twv 6eQv /j.rivifjiaTa...bu^i6vT€S. 6 dk irarijp 
dir€Koy€iTo...Ttp.usplav ov <p6vov dvaL to vpax^kv Xiywv, biKaaTrjv re 
avTOv d^Luv ehai tcJc IUujv KaKuv diKporipwv yevo/xfvov iraTipa... 
voWrj TOP /SacrtX^tt /caTcixc o/iT;xo»'ta...fiXXws re /cai tov Trdrpos avTov 
dvoXvopTos TT}i ahiat <j5 tt^p irepl rijs Ovyarpoi dpyrjp ij re <f>6<Tii dire- 
Sldou irpuTii) Kal 6 p6fj.os...TeX€VT(3p KpdriaTOP eJpai diiypu Tip Srifitp 
rT}P didypwaip iirirpiireip. yepofiepos di 6apa.Tr]<p6pou Kpiaeus Tore 
irpwTOP 6 'FupLaiwp dijpos Kvpios dwoXvci tov <p6pov top &pdpa. 



§12. 



The Duumviri. 

It is not clear from the quoted words duumuiri. . Audicent 
of Livy or the statement accusatus . . .apud duumuiros of 
Festus, whether this was a standing court or an extra- 
ordinary commission. But the latter is certainly intended 
by the narrative of Livy. And this fact is borne out by 
the indications, slight as they are, to be found in subse- 
quent practice. In one account of the condemnation of 
Manlius duumuiri are " created to investigate the case of 
perduellio^," an expression which could scarcely have been 
used of a standing tribunal. In Rabirius' case the ap- 
pointment must have been- special, for it is stigmatized 



64 Early Roman Law. 

as irregular, and made with a hostile intent against the 
particular defendant ^ 

We may then assume the duumuiii jto have been spe- 
cially appointe<i. Their appointment in the case of Hora- 
tius would appear, at first sight of Livy's words, to have 
been the sole act of the king. Zumpt, however, gives very 
good reasons for believing that the king merely gives the 
power of electing and that the duumuin are actually 
elected by the assembly, i.e. the comitia cuHata, with 
which lie, I tliink correctly, identifies Livy's concilium 
pojyuli aduocatum°. This view, also, accords perfectly with 
the words secundum legem facio, if those words refer to a 
previously existing enactment wliich probably specified 
the manner of creation of the duumuiri as well as the 
procedure to be followed after their creation. An entirely 
different view is taken of these Words by the higli modern 
authority just cited, from whom 1 have the misfortune, on 
this last point, to differ toto caelo. 

Cicero refers to the formal words quoted here by Livy, 
when addressing the accuser of llabirius, — "Tiiose word.s, 
which so charm your merciful and popukir taste, 'Go, 
lictor, bind the hands !* are not only no words of our pre- 
sent freedom and humanity, but they are none even of 
Romulus' or Numa's. To Tanjuinius, proudest and cruel- 
lest of Kings, belong those formularies of torture, which 
you, in your mild and popular disposition, repeat with 
such unction. ' Veil his head — hang him to a barren 
tree,* — words, gentlemen, long ago obscured not alone by 
the shades of antiquity but also by the light of liberty'*.** 
Dr Donaldson took these words to shew that Cicero 
referred the law to the legislation of Tarquinius*. Zumpt, 
in his note 6.9, p. 42.3, takes a somewhat similar view, 
supposing Cicero to have confused the imposition of a 
different punishment by this lex with the reputed institu- 



Regal Period. 65 

tion of tying to the stake and flogging with rods by Tar- 
quinius'. This interpretation of the passage is quite 
tenable and consistent with the historical inaccuracies 
found elsewhere in Cicero's works. To myself it seems 
easier to take the whole passage as an oratorical flourish, 
meaning that, though this enactment was perhaps at- 
tributed to Romulus or Numa, its spirit was much better 
suited to Tarquinius, the proud and cruel. But the very 
last inference one would have thought of drawing from 
Cicero's language is that the lex was enacted by Tullus. 
This is, however, the inference of Zumpt, whereupon is 
based a great part of the arguments from which he ulti- 
mately concludes that the lex mentioned by Livy was 
merely the commission given by the king to the duumuiriy 
answering, in fact, somewhat to the Praetor's formula of 
later days^. It is scarce necessary to go into these argu- 
ments, because the position of the words secundum legem 
appears fatal to the conclusion drawn. Had these words 
belonged to iudicent they must surely have stood before it : 
where they do stand, they can only refer to facio ; and 
secundum legem facio, * I make in accordance with law,' 
must mean in accordance with a law previously existing. 
We should not gather from Livy's account that the law 
obliged the king to appoint this commission ; merely that 
it specified the manner of such appointment, if made, and 
the subsequent procedure. 

a. Livy 6. 20. 

6. Dio Cassius (xxxvii. 27) says of these commissioners in that case 

KaTe\l/T)<f>l<TavTO avTov koutoi fii} irpos toS di^fjLov kotci rd xdrpia, dWd, 

vpos avTov Tov OTparriyov ovk i^ou aXpedivrts. 

c. Criminal-recht Absch. 1. Cap. 7. pp. 92, 3, Anmerk, 64. p. 419. 

d. Cic. pro Rabirio 4. § 13. 

e. Varronianus 6, § 6. 

/. Dio Cassius xxiii fr. 4. 

g. Absch. 1. cap. 7. p. 96. •' . . . 

R. L. E 



66 Early Roman Law. 

§ 13. 
The Right of Appeal 

The next point to be noticed is the appeal. That tins 
was to the people, (i. e. at the time in question, to the 
comitia curiata,) is a fact which, being supported by the 
later use of the word prouocatio, may fairly be believed 
on the testimony of Livy, Festua, and Cicero*. 

In neither of the two former writers is there any hint 
at restriction upon the right of appeal, unless this is to 
be gathered from Livy's expression auctore Tullo. The 
strict technical meaning of these words is perhaps rather 
with the sanction than at the instance of Tulhis ; and a 
permission which had to be granted might be refused. 
So too clemente legis interprete possibly means that it lay 
with the king to decide whether the law allowed an 
appeal or not, in such a case as the present one. (See, 
however, end of § IG.) 

Such an interpretation is quite compatible with the 
view that the duumuiri were elected by the assembly 
of burgesses, but that it lay in the king's option whe- 
ther he would call together the assembly for that pur- 
pose or not. If they were, on the other hand, the king's 
mere delegates, not simply appointed but selected at his 
own will and pleasure, an appeal, as of right, from them 
to the assembly clearly limits the king's supposed supreme 
judicial authority. And that this was the view main- 
tained in some traditional account of the affair of Ilora- 
tius may appear from the words represented by Livy to 
have been addressed to the dictator Papirius by the old 
M. Fabius A.V.c. 430. "I will see whether thou wilt 
yield to that appeal to which the king of Rome, Tullus 
HostiliuH, yielded ^ These words, while they imply that 



Regal Period, 67 

the right of appeal was a moot point, imply also that this 
Was regarded as being virtually an appeal against the 
king himself. They do not appear to me capable of the 
construction which Zumpt puts on them, that this was the 
first case of appeal. The lax flourish of Cicero* would 
prove that this was the first case of a capital sentence at 
all: unless we are to put, in a purely oratorical pas- 
sage, upon the word iudicium the technical and (here) 
forced meaning of sentence by iudices to whom the magis- 
trate has referred the case, as distinguished from sentence 
by that magistrate himself. Dionysius (above § 11 note f) 
expressly represents this as the first appeal. The point 
now in question, however, is whether appeal was allowed 
as of right in the regal period, not at what date of that 
period it became established. 

Valerius Maximus expressly states that Horatius, after 
being condemned by King TuUus, was, on appeal to 
the people, acquitted*'. And Cicero, in one passage, main- 
tains, on the authority of the pontifical books, that appeal 
was allowed even from the kings, which is scarcely recon- 
eileable with the view that the king could limit the right 
of appeal from the duumuiri, whether these were merely 
his delegates or no**. 

Lastly, the idea that the duumuiri could be allowed to 
give a final sentence seems unreasonable in the face of 
that limitation of their functions which is clearly implied 
in Livy's words : — * who did not consider themselves com- 
petent under that law, to acquit even a guiltless homi- 
cide.' That is, (as Gruter long ago saw,) who held that 
a mere finding of fact fell within their province, not a 
consideration of extenuating circumstances. Zumpt ac- 
cepts this as the result of the lex, though he takes the 
latter to be only the special commission of Tullus for the 
particular case®, 

£2 



68 Early Roman Law. 



a. Cicero pro Milone, c. 3. In qua tandem urbe hoc homines stultia- 
simi disputant? nempe in ea quae primum iudicium de capite 
uidit M. Horati...qui nondum libera ciuitate tamen populi Romani 
comitiis liberatus est. Livy 1. 26. Certatum ad populum est. 
Festus. 1. c. prouocauit ad populum. 

h. Livy 8, 33. Videro cessurusne prouocatione sis cui rex Bomanos 
Tullus Hostilius cessit. 

c. Valerius Maximus 8. 1. Absoluti 1. M. Horatius interfectae 
Bororis crimine a Tullo rege danmatus, ad populum prouocato 
[? iudicio] absolutus est. 

I do not set much store by the evidence of this gossiping 
writer. His date is fixed by a dedication to Tiberius, of suffici- 
ently nauseous character. ' Cetera diuinitas opinione coUigitur, 
tua praesenti fide patemo auitoque sideri par uidetur... A:c,' 

d. Cic. de Eep. 2. 31 § 54. Prouocationem autem etiain a regibns 
fuisse declarant pontificii libri significant uostri etiam augurales. 

e. Criminal-recht Absch. 1. Cap. 7. p. 97. 



§ 14. 
The King's suproie Judicial Power. 

Some of these passages undoubtedly make against the 
generally received opinion of the royal judicial autho- 
rity as supreme in all cases. On the same side may 
be reckoned Cicero's description of the changes introduced 
on the expulsion of the Tarquins. " Then came," says 
Scipio in the dialogue De Republica, "appeals in every 
casej' words certainly capable of the interpretation that 
appeals had existed before, at least in some cases*. Dio- 
nysius represents the kings as availing themselves in their 
judicial capacity of the services of the senators as dele- 
gates or counsellors'', and Livy blames Tarquinius Su- 
perbus for neglecting, in capital cases, to consult such a 
consilium" (which Zumpt identifies with that of the ju- 
dicial functionaries under the republic'') ; but none of the 



Regcd Period, 69 

passages in the last two authors go so far as to make out 
a court of appeal or even of concurrent jurisdiction. 

On the other side : Cicero himself compares the au- 
thoirity of a king with the imperium of a dictator in time 
of war*, from which it is certain that no appeal lay'. And 
Pomponius makes appeal from capital sentences the limi- 
tation of consular as distinguished from regal power^. 
The power of the dictator, without special reference to 
war, is said by Cicero to be nearest to the likeness of the 
royaP. This remark is made of T. Lartius, the first 
dictator, whose appointment, says Livy, was so formidable 
to the plebeians because there was no appeal from him*. 
The question, however, of appeal under the republic does 
not properly arise here. 

Dionysius, in the case of Horatius, makes it appa- 
rently, an entirely voluntary action of the king to refer 
the matter to the peopled This is in accordance with the 
other passages in the same author, which leave the su- 
preme judicial authority of the king entirely unrestricted 
except by his own act. Dionysius, however, answers 
elsewhere the query of Zumpt — If appeal were from the 
king to the assembly, who was to summon this assembly ? 
The deus ex machina to solve this constitutional knot is 
the serviceable Brutus, created Trihunus Celerum, on ac- 
count of his stupidity, by the last Tarquin^ 



o. Cic. de Eep. 1. 40. 62. turn prouocationes omnium renim. 

b. Dionysius 2. 12, pa(Ti\eT...i^-^pr}To (6 'Pt6;ttuXos) rdSe t4 yipa... 
iravrbi rov Kard (pvaiv ^ Kardi avvO-f]Ka$ SiKalov irpopoeiv, tuv tc dSi- 
Krj/xaTwy rd fiiyiffra fikv ainov diKd^eiv rd 5' iXdrrova tois /SouXeurat j 
iirirpiireiv. TuUus takes counsel in the case of Mettius 3. 26. 

c. Livy 1. 49. Cognitiones capitalium rerum sine consiliis per se 
solus exercebat. See too Dionysius 4. 42. 

d. Criminal-recht Absch. 1. c. 9. p. 123. Mommsen (Hist. 1, 6. 
p. 72) takes much the same view. , ' ; 



70 Early Roman Law, 



e. De Rep. 1. 40. 63. noster populuB in pace et domi imperat et ipsi^ 

magistratibus minatur, recusat, appellat, prouooat; in bello sie 

paret ut rcgi. 
/. See the episode in Livy 8. 30 — 35. 
g. Dig. 1. 2. 2. 16. qui (Consules) tamen ne per omnia regiam poteo* 

tatem sibi uindicarent, lege lata factum est ut ab iis prouocatio 

esset, neue possent in caput ciuis Eomani animaduertere iniussa 

popnlL 
h. Cic. de Hep. 2. 32. 56. Atque his ipsis temporibus dictator etiam 

est institutus decem fere annis post primes consules T. Lartius ; 

nouomque id genus imperi uisum est et proximum similitudini 

regiae. 
i. Livy 2. 18. 
j. Dionysius 3. 22. iTopo6fi€vos...Kpa,Tt<rToy ehai SUyvu) T<Ji i-fifuf nji» 

Sidyvuffiv iiriTpireiy. 
k. Dionysius Antiqq. 4. 71. 



§ 15. 
Right of Appeal imperfect. 

On the whole the greater weight of trcodition is un- 
doubtedly in favour of the supreme and irresponsible 
character of the royal jurisdiction. This is also the view 
taken by most of the best modern authorities. It is tliat 
of Zumpt and that of Mommsen. Of the former, the 
fourth chapter of the first section of the Criminal-recht 
may be consulted with advantage. Mommsen phvces the 
kingly power almost higher than Zumpt. In a most in* 
teresting parallel drawn between the position of the king 
in the state and the jmterfamilias in the household he 
says of the former, * He had the same right as a father had 
to exercise discipline and jurisdiction.... He sat in judg- 
ment in all private and in all criminal processes, and 
decided absolutely regarding life and death as well as re- 
garding freedom... When he had pronounced sentence 
of death he was entitled, but not obliged, to allow an 
appeal to the people for pardon*.' 



Regal Period, 71 

Now, that the offences first taken cognizance of by 
Roman judicature were derived from the idea of the 
family and punished by quasi-religious penalties connected 
with the same idea, I fully believe ; but that the chief 
magistrate at Rome was ever entrusted wdth the full 
patriarchal power, is surely open to question; especially 
when we remember that the peculiar developement of the 
latter at Rome is considered with good ground ** as a mere 
result of Quiritarian ownership, which could scarcely have 
been attributed to the king with respect to all the citizens. 
There are traces of sentence by the people in the old 
meaning of sacer (above § 6) ; of a meeting of burgesses 
for a quasi-judicial purpose in the Contio (§ 8); and the 
lex quoted by Livy as regulating procedure in perduelliOf 
is in favour of appeal to the people as of course. 

May we infer some right of a burgess, even though an 
imperfect right merely dependent on custom, to be tried 
upon certain charges by his peers ? If so, the arrogation 
by a king of the power of adjudicating upon all cases 
without appeal, would justly be regarded as unconstitu- 
tional, and may have been one of the causes for the 
abolition of the regal power °. So that the lex Valeria, 
which had to be twice re-enacted, was possibly not so 
much the creation of a new constitutional right as the 
recognition and extension of an old one. 

a. Momtnsen Hist. 1. 5 (p. 67 of Dickson's translation). 

b. Heineccius Elementa luris Civilis § 136. 

c. It is only fair, however, to add that the very faint indications of 
what is regarded as arbitrary conduct of the king in passing capi- 
tal sentences, have been explained as mere neglect to consult a 
consilitim. Nor are all the offences stated as cases of perduellio. 
Dionysius makes it one instance of the w/iOTTjj attributed to Bomu* 
lus that he iK^Xcvaev <Saai Kard Kpij/j-vov '?03fxaiup rivas evl "KinffTdq. 
Twv v\riffLOX'^p<^v KaTTjyopridiirrai . . ,riiv Hktjv outos /xo'j'os diKciaas 
(Antiqq. 2. 56). The same author speaking of Tarquinius Super. 



7? Early Roman Law, 



bos and his delatorea (to put in word Dionysias' anachronism of 
fact) says (Antiqq. 4. 42) ol 3* i!nro'7oi^«j avrois e/t rds Sixas AWovt 
ct' dXXatj \j/(vSi<ny a/Wati fidXiffra 8' fTrifiov\€Vfiv ahubntvoi t<jj /Sa- 
ci\ei KaTTjyhpovv «ir' oury 3t*fa<TT^. d 3^ twv /u^v Bavarov KartUxa^ 
Tuw U ipvyiiv K.T.\. Superbus, says Livy (1. 49), cognitiones capi- 
talium rerum sine consiliis per se solus exeroebat. 

See too Zumpt Criminal -reoht Absch. 1, Cap. 9. p. 123. Momm- 
sen Hist. 1. 5. p. 72 translation. 



§ 16. 
Perduellio. 

It remains to consider what was the offence or class 
of offences for which this earliest recorded procedure was 
established. 

Perduellio or perdiiellis was no doubt derived from 
per and duelluni the old form of helium. Flaccus evi- 
dently regards the prefix as being nothing but the prepo- 
sition per in an intensitive sense*. It is more likely that 
we have here that " depreciative " or condemnatory per 
(Donaldson Varron. 10 § 7) which occurs in periuruA and 
perjidus, and which certainly corresponds curiously in mean- 
ing with some uses of the Greek irapa- and the German ver- 
(Gothic fair). In this point of view comes naturally 
enough the meaning 'he who wars wrong,' or, 'on the 
wrong side,' i. e. enemy, which Flaccus tells us was the 
old meaning of perduellio^ a statement borne out by the 
testimony of Gains as to perduellis and the use of the 
latter word by Plautus and Ennius^ 

As applied to a citizen, we should expect this word 
to mean, 'an enemy of his country,' and the concrete 
perduellio, that species of treason which mutatis viutandis 
answers to our * levying war against our lord the king in 
his realm.' (25 Edward 3. c. 2). And this seems to be 



Regal Period. : 73 

the idea, somewhat vaguely expressed, of Ulpian, when 
he tells us that not every man who is accused under the 
Lex lulia Maiestatis, and dies while subject to the charge, 
forfeits his property, but only he who is accused of per- 
duellio as animated with a hostile mind against the 
commonwealth or emperor". And those condemned for 
perduellio are coupled with hostes, as persons for whom 
mourning is not to be made**. 

Like our own * treason ' the word perduellio seems to 
have come to be taken in a conveniently extensive sense. 
This was the form of indictment probably brought against 
Sp. Cassius (a. v. c. 268), destroyed on the ground of 
attempting to make himself king® : against Gn. Fulvius 
for bad management and cowardice in military command 
(a. V. c. 541)': against Ti. Gracchus and G. Claudius, for 
breach of the respect due to a tribune (a. v. c. 583)^: 
against G. Rabirius for the slaughter of the tribune Sa- 
turninus, thirty-seven years after the event; Saturninus 
being killed A. V. C. 654", and Rabirius defended by Cicero 
A.v. c. 691^ In later times, from the cases of Fulvius 
Gracchus and Claudius, it would appear that any violation 
of a high constitutional principle or any gross dereliction 
of duty in a public officer could be brought under this 
compendious form of accusation. 

The coup d'etat, too, in which Saturninus fell, might 
naturally be treated from its magnitude and tumultuous 
character as not an ordinary murder. But it is difficult to 
understand how the mere parriddium of Horatius could 
be considered as a state offence: nor can I see any reason 
for his being represented as charged with the latter crime, 
but the prevalent tradition that the accused of treason had 
that right of appeal, which is made available for the hero's 
escape. Nor is it impossible that in writing the words 
clemente legis interprete, which have not a very satisfac- 



74 Early Roman Law. 

tory sense if only applicable to the place where they stand, 
Livy may have had some thought of the merciful con- 
struction that treated a clear case of murder as a doubtful 
one of treason upon which the popular accused was sure to 
be acquitted. (See, however, as to these words § 13.) 
Zumpt, too, if I understand him rightly, takes this view of 
Tullus' conduct as described by Livy; with the exception 
of considering that tliere was previously no general enact- 
ment as to treason, and that Tullus' ' merciful interpreta- 
tion ' consisted in the issuing of a special mandate for this 
particular case, by which an appeal was allowed'. My 
objection to this last point has been stated above (§ 12) on 
the words secundum legem. 



a. FestuB. 7)»«'//Mm...p€rduellio, qui pertinaciter retinetbellum. 

b. id. Ilostis apud antiquoB peregrinus dicebatur et qui nunc hosiis 
perdufllio. See Corssen Beitrage p. 218 ed. 1863. Gaiua in 
Digest 50. 16. 234. pr. quos noH hostcs appoUamus cos uctcres 
jhrdurllfg appcllabant per earn adiectionem indicantes cum quibua 
bellum esset. Plautus Amphit. 1. 1. 97. Miles 2. 2. 69. Peen- 
dolus 2. 1. 11. Ac. Knnius ap. Varronem do L. L. 7. 49. 

The original meaning of prr- was probably othrriciMe (i. e. than 
the right way). See Corsuen Ausspr. 1'. 776. Compare too the 
(ireek dWut. 

r. Ulpian, Digest 48. 4. 11. 

d. Ulpian (quoting Neratius), Digest 8. 2. 11. 3. Non solent ... 
Ingcri . . . hostes acl perduelliouis damnati. 

r. Livy 2. 41. 

/. Id. 26. 8. 

p. Id. 43. 16. 

//. Cicero pro Rabirio, argnmentnm. 

i. Criminal-recht Absch. 1. Cap. 7. p. 96. 



Regal Period. 75 

§17. 
The Quaestores Parrictdi. 

The question whether the quaestores parricidi were 
ordinary officers or extraordinary commissioners, and 
generally whether there was or was not in early times the 
institution of police and public accuser, is of so much 
interest that one is scarce free to avoid what must be 
confessed to be a very difficult and unsatisfactory subject. 
The name, of course, means investigators (trackers, spurer 
is Mommsen's word). We may advert for one moment, 
by way of illustration, to the modern word detective. They 
were originally called quaestors, says Ulpian, quoting older 
authorities, 'a genere quaerendi, from that class (of their 
duties) which consisted in investigation*.' If these words 
are to have another meaning, i.e., 'from the species of 
investigation which they conducted,' the first part of the 
sentence should have run 'they were called quaestores 
parricidi or quaestores aerari, according to the species, 
&c.' The whole passage of Ulpian is appended^ So, 
too, Varro derives the name from their duty of searching 
out public moneys and crimes, which last, he says, 'are 
now sought out (or investigated) by the Tresuiri capitales^. 
This confusion of functions is the principal source of 
difficulty throughout the subject. 

First, as to the time when the office of quaestor came 
into existence; all the authorities of Ulpian recognize 
this office as established in regal times, not later than the 
reign of Tullus. The opinion of ancient writers cited by 
this jurist that Tullus first introduced quaestors into the 
state, may be, but is not necessarily, a confusion of 
quaestores with duumuiri. "We have the authority of 
Tacitus also that quaestores were instituted even during 
the royal domination, which fact is shewn^ he proceeds to 



76 Early Roman Law, 

tell us, hy tulex curlata ah Z. Bruto repetita". Tlie quota- 
tion from Festus given above ( § 6, note c.) is in favour of 
high antiquity for quaestores parricidi, who vmi/ have 
been contemporaneous with the enactment containing the 
words jpaHcidas esto. At least, the term parricidium, 
used in an improper sense, seems scarce likely to have 
been chosen for the distinctive appellation of an office, at 
a time very much later than the act of legislation by 
wliich that sense was given. 

I proceed to consider the authorities which appear to 
make in favor of a Jirst appointment of quaestors in rc- 
])ublican times. 

Livy places in the mouth of G. Canuleius (A.V.C. 309) 
an argument in favor of throwing open the consulship 
to the plebeians, drawn from the various changes and new 
offices which had already been introduced into the consti- 
tution. After enumerating the pontificate and augurate 
(here attributed to Numa), the census of Sorvius, the 
consulship, and tl^e dictatorship, he proceeds: 'Tribunes of 
the plol).s, Aedilos, Quaestors there wore none; it was 
ord.iint'd that they should be made. Decemvirs for draw- 
ing up laws we liavo within these ten years created and 
abolished from our state •*.* There is an unmistak cable 
order of time in the greater part of this pa.ssage. The 
decemuiri probably do not come into that order, because 
they are honored with special mention as holding an 
office which had not only been newly introduced but also, 
unlike the others, abolished. But Canuleius is clearly 
made to place the institution of the quaestorship at least 
after the time of the first secession. Nay, if the close 
coupling of the three last-named offices goes for anything, 
we should have expected the quaestors to bo plebeian 
officers, or at least not exclusively in the patrician interest; 
yet down to A.v.c. 333 they were patricians'. 



Regal Period, 77 

Qtidestores are first mentioned by Livy as indicting 
Sp. Cassius on a charge oi perduellio, A.V.C. 269', where 
they are clearly official accusers and acting in the patrician 
interest. The same is the case with the quaestors who 
indict M. Volscius (a.v.c. 295, 6) for false witness^. The 
quaestorship in question is there shewn to be a yearly 
oflSce. 

Qvbaestores appear for the first time in Livy's history, 
as connected with the treasury, A. v. C. 308 ^ The Falis- 
can booty' is brought into their hands, A. v. C. 360, whereas 
in the year of Sp. Cassius' accusation, by quaestor es, it is 
the consul who sells the booty and brings the proceeds into 
the public treasury''. These treasury quaestores would 
seem, however, to have been confined to home affairs until 
A.V.C. 333, when the proposal is made that beside the 
two city quaestors two should attend upon the consuls to 
assist them in war. The number is accordingly doubled, 
the office being thrown open at the same time to the 
plebeians'". 

Plutarch, in his life of Publicola, attributes to that 
worthy the institution of a treasury and two treasurers 
from the younger members of the community ^ 

The testimony of Zonaras is only valuable so far as it 
may be regarded as practically that of Dio Cassius. His 
statement about the same Publicola is certainly of interest, 
if it can be depended upon, and is capable of the following 
interpretation, which appears to me the only one con- 
sistent with common sense. 'The management of the 
funds, too, he assigned away (from the chief officers, now 
consuls) to others, on which occasion the treasurers (Ta^lai) 
first began to exist, but were called by the name of quaes- 
tors, which (quaestors) first used to adjudicate on capital 
charges, whence, in fact, they have got this title, on 
account of their investigations and the search of the 



78 Eai'ly Boman Law, 

truth from these investigations; but afterwards they 
received tlie task of managing the common funds, and 
were called by the additional name of trea.su rers(? = a«- 
raini). Subsequently the courts were entrusted to another 
body, and the former officers were only managers of the 
funds™.' 

Lastly, PomponiuR, after mentioning the institution of 
the right of appeal from the consuls, and several other 
matters, not here material, proceeds: *At the time of the 
secession of the plebs from the patricians, the former 
created tribunes for themselves, and also two officers from 
the plebs who were called Aediles. Subsequently, when 
the public treasuiy had begun to increase, that there 
might be officers to preside over it, quaestors were consti- 
tuted to preside over the money, so called because created 
for the purpose of seeking out and preserving money. 
And because, as we have said, the consuls were not allowed 
by law to give sentence on the life of a Roman citizen 
without order of the people, therefore quaestors ttsed to be 
appointed (constituebantur) by the people to preside over 
capital charges. These were called quaestores 2^(i^cidi, 
and are moreover mentioned by the law of the Twelve 
Tables".' 

The principal objection to a pre-republican appoint- 
ment of quaestors lies evidently in the pa.ssage last quoted, 
for the appointment mentioned by Pomponius is clearly 
subsequent to the passing of the Valerian law de provoca" 
tione. The usual plan followed with this author has been, 
where expedient, to reject his testimony altogether, on 
account of the inaccumcies which it no doubt contains. 
Zumpt justly protests against such a proceeding, and gives 
a key to the expLanation of Pomponius' statement in his 
very acute and scholarlike notice of the tenses employed 
by that author. Constituebantur must, he says, meaa 



Regal Period. 79 

occasional not periodic appointment when regarded by the 
side of constituti sunt (Consuls and censors), creauit sihi 
plebs (tribunes), constituerunt (aediles), constituti sunt 
(quaestors of the treasury) ; but the masters of the knights, 
an occasional office, iniungebantur dictatoribus, and the 
perfect used of the dictators themselves is qualified by an 
inter dunfi°. There is a slight weakness in the last point, 
and it might be said, too, that the perfects are all descrip- 
tions of the first institution of an office, -while the two 
imperfects do not take that point of view; iniungebantur 
meaning 'used to be added' to the dictators already men- 
tioned, constituebantur 'used to be appointed,' whether 
occasionally or periodically. Still the imperfect will un- 
doubtedly bear Zumpt's interpretation, which is, I think, 
confirmed by the word praeessent, describing the functions 
of Pomponius' quaestors. There is no evidence of any 
weight shewing that the province of the older quaestors 
in criminal matters extended any further than the inves- 
tigation of crimes, perhaps the apprehension of accused 
person?, and the promotion of charges ; and praeesse capi- 
talibus rebus would be a somewhat incorrect term to apply 
to such functions. On the other hand it is the exact term 
employed of the later occasional quaestors appointed to 
investigate and adjudicate upon particular criminal cases. 
►Such was the appointment of the consuls to investigate 
the murder and sentence the murderers of Postumius, 
A. V. c. 341 P, of the dictator C. Maenius to investigate and 
try the cases of treason in Capua, and subsequently Rome 
A. V. C. 44)0'^. It is worthy of remark that Livy in the 
latter case uses the coordinate form quaesitor, which (with 
quaestio) seems to have become appropriated to the crimi- 
nal as distinguished from the fiscal business {quaestura). 
The former may have been the first appointment of an 
occasional quaestor with judicial powers; it is at least 



8o Early Roman Law, 

significant that it comes so near the doubling of the 
number of regular quaestors and the throwing open of 
that office to the plebeians, A. V. c. 333'. But whether the 
institution of occasional quaestores is to be placed between 
333 and 341, or even earlier, I am convinced that. we have 
in them the second class of officers mentioned by Pompo- 
nius who were appointed occasionally by the jxjople to 
preside over capital charges, and who would very naturally 
be confused with earlier quaestores parricidi, whom they 
probably superseded. 

For those yearly patrician quaestors who are so useful 
in removing obnoxious plebeians do not appear in the 
case of Sp. Maelius (a. v. C. 314), or at all, to my know- 
ledge, after that of M. Volscius Fictor, A. v. c. 29G. Here 
comes in an important piece of evidence from Tacitus, 
who tells us*^ ' that the power of selecting quaestors re- 
mained to the consuls until the people took upon them- 
selves the appointment to that office as well as to others. 
And there were created for the first time (i. e. of such 
creation) Valerius Potitus, and Aemilius Mamorcus in the 
sixty-third year after the expulsion of the Tarquins (A. v. C. 
307) to accompany the military operations. Subsequently, 
business increasing, two were added to take charge at 
Kome.' Valerius Potitus is doubtless the peacemaker of 
A. V. c. 305, and the Valerius Poplicola Potitus successful in 
the same year against the Aequi and Volsci ; Aemilius 
Mamercus possibly the military tribune of that name, 
A. V. c. 310, victorious, as dictator, over the Veientes and 
Fidenates next year. I mention these particulars as partly 
in confirmation of Tacitus' statement that the quaestors 
of 307 A.v. c. (the first quaestors, according to him, 
elected by the people) were military officers, in which he 
differs from Livy. But whether we suppose the fiscal or 
military functions of these quaestors to have been prior,' 



Regal Period. 8r 

in importance or time, the accounts of both Livy and 
Tacitus are perfectly consistent with the idea of a great 
change in the office of quaestor, A. V. C. 307. No longer 
in the consul's nomination, it ceases to be the organ of 
patrician impeachment, that is, the old quaestores parri- 
cidi, the right of nominating whom descended to the 
consuls from the kings, here come to an end ; it is of the 
later regular quaestors, fiscal or military, that Canuleius 
speaks two years later, whom, as elected by the people, he 
treats as the only quaestors worth considering, and couples 
with the tribunes and aediles. 

The later quaestors mentioned by Pomponius have 
been identified with a third class, the specially-appointed 
judges no doubt referred to by Varro, as those qui quaes- 
tionum iudicia exercerent^ : the earlier quaestors of Pom- 
ponius are fiscal authorities created subsequently to the 
first secession". Plutarch^ and Zonaras™ attribute the in- 
stitution of officers of the treasury to Publicola ; the latter 
author, I think, implying that the officers to whom this 
charge was given existed before, under the name of quaes- 
tors, derived from their function of investigating criminal 
cases. Plutarch's statement that Publicola 'gave to the 
people the power of appointing two of the young as trea- 
surers * is highly improbable in itself, supported, as far as 
I am aware, by no evidence, and directly contrary to the 
assertion of Tacitus. Dionysius recognizes officers of the 
treasury {rafiiai) as existing at the end of the war with 
Porsena**. He also speaks of Sp. Cassius' accusers as r-qv 
rafMieuTLKrjp i^ovcriav €j(pvT€<i\ While not setting great 
store by the four last-mentioned authorities, I think they 
may represent a fact : — that on or shortly after the abo- 
lition of royalty, some public funds were intrusted to the 
care of the old quaestores ^, This was natural enough if 
the capital penalty in cases of which they had the in- 



82 Early Roman Law. 

vestigation were occasionally commuted to a fine: and 
their charge of this source of public revenue might 
easily be extended to others. At the same time Livy's 
silence i« remarkable, and may indicate that the fiscal 
functions of these officers were regarded as unimportant 
compared with their criminal ones. Zumpt considers the 
quaestorship of the treasury', introduced by Pul^licola, to 
liave been an extraordinary office until the fall of the 
decemvirs. For this view, we must assume two pairs of 
quaestors during the period in question; an assumption 
surely unsupported by evidence \ But whatever may 
have been the origin of the treasury quaestors, I hope 
it has been sufficiently shewn that there is no insur* 
monntable objection to the statements by Tacitus and 
Ulpian of the existence of quaestors in the regal times, 
nor to the identitication of these with the patrician 
accusers mentioned by Livy and with the quaestores par- 
ricidi of Festus — a distinctive title which could scarcely 
have first originated with the appointment of the latter 
occasional quaesitores. Neither is the discrepancy as to 
the mode of election, between Tacitus and Ulpian, more 
than ajiparent. According to the former the power of 
selecting quaestors survived to the consuls from the kings 
and the appointment was in some manner connected with 
a le.r curiata. According to the latter (or rather his 
authority, Junius Gracchanus) Romulus and Numa had 
each two quaestors whom they were in the habit of cre- 
ating not by their own voice but by the vote of the 
people. A more prevalent tradition, adds Ulpian, ascribes 
the introduction of quaestors to Tullus, in whose reign 
they certainly existed. I have not the slightest hesitation 
in accepting the reconciliation of these two statements 
given by Zumpt: that the quaestors were selected of 
nominated by the kings, which nomination was afterwards 



Regal Period. 83 

fconfirmed, and the royal nominees formerly created by a 
lex curiata, i. e. by the vote of the people, as Gracchanus 
says, assembled in the only assembly of those times, the 
comitia curiata. And this particular lex curiata becoming 
no doubt a common statutory form, was on the abolition 
of royalty repeated or revived by the consuls in the case 
of the quaestores whom they first nominated after the 
example of the kings. Perhaps the actual terms were 
preserved till later times, and bore express reference to 
kingly institution : perhaps it was the fact of this having 
been a lex curiata, backed of course by the tradition of 
revival by Brutus, which Tacitus regarded as proof that 
quaestors existed under the kings. Whether the early 
republican quaestores parricidi were, in their police func- 
tions, considered as endowed with a sort of imperium must 
be mere conjecture ; but leges curiatae were principally 
employed, in the republican period, for conferring im- 
perium. 

This quaestorship was, as we have seen, in the repub- 
lican times, annual: what it was in the regal times can 
only be inferred from the language of Tacitus and Ulpian. 
The expression used by the former 'quaestors were/ or *the 
office of quaestor was instituted (perfect) even under the 
domination of the kings,' seems in favour of a standing 
office rather than an occasional commission. Ulpian's 
statement, that Romulus and Numa 'had two quaestors 
each whom they were in the habit of creating, &c.', also 
supports the idea of a standing office and, perhaps, periodic 
appointment. 

The offences which came within the province of these 
officers were probably at first all murders of a free man 
uncondemned, but afterwards all matters of capital charge. 
Both these inferences may be fairly drawn from the words 
of Verrius Flaccus (above, .§ 6, note c). Nor could the 

F2 



84 Early Roman Law, 

impeachment of Jilanlius and Volscius by the quaestors 
parHcidi be otherwise explained, for neither of these was 
accused of any act of bloodshed. Thus every case of per^ 
duellio would be a proper one for the quaestores to pro- 
secute, though of course every case of parricidium would 
not be one oi perduellio. (See below, § 16.) 



a. Dig, 1. 13. pr. § 1. Origo quaestoribus creandis antiquissima est 
et paene ante omnes magistratus. Graccbanus denique lunius 
libro Hcptimo de potestatibus etiam ipsum Romulum et Numam 
rompilium binos quaestores habuisse quos ipsi uon sua noce sed 
populi suflfragio crearent refert. sed sicuti dubinm est an Romulo 
et Nnma regnantibus quaestor fuerit ita TuUo Hostilio rege qoaes- 
tores fuisse certum est. sane crebrior apud ueteres opinio est, 
Tullum Hostilium primum in rempublicam induxisse quaestores. 
et a genere quaerendi quaestores initio dictos ct Junius et TrebA« 
tins et Fenestella scribunt. 

h. Varro de Ling. Lat. 5. 14, Quaestores a quaerendo qui conqaire* 
rent publicas pccunias et malcflcia quae tresuiri cnpitalcs nunc 
conquirunt. ab his postea qui quaestionum indicia cxcrcerent 
quaestores dicti. 

c. Tacitus Ann. 11. 22. Scd quaestores regibus etiam turn imperan- 
tibus instituti sunt: quod lex Curiata ost^ndit ab L. Bruto repe. 
tita, mansiUpio consulibus potestos dcligcndi donee eum quoqne 
honorem poi)ulas mandaret. creatiquo primum Valerius Potitus 
ct Aemilius Mamercus sexagesimo tcrtio anno post Tarquimos 
exactos ut rem militarcm comitarentur, dein gliscentibus nego- 
tiis, duo additi qui lloraae curarent, mox duplicatus numcrus 
(A.V.C. 489). Florus Epit. Liv. 15 quaestorum uumorus ampliatus 
est ut essent octo. 

d. Livy 4. 4. At cnim nemo post regcs exactos de plebe consul fait. 
quid postea? ...pontifices, augures, llomulo regnante, nulli erant: 
ab Numa Pompiiio creati sunt, census in ciuitate et deecriptio 
ccnturiaram classiumque non erat: ab Sen Tullio est facta, con- 
sules nunquam fuerant: rogibus exactis creati sunt, dictatoris 
ncc iraperium ncc nomen fucrat : apud patres esse coepit. tri- 
buni plebis acdiles quaostoroa nulli erant: institutum est ut fie- 
rent, deceniuiros legibus scribcndis intra decern Los anuos et 
creauimus et e republica sustulimus. 

r. Liv. 4. 4.3. 

/. liiv. 2. 41. Sunt qui patrem aact^rem eias tupplici ferant: enm 



Megal Periods 85 

cognita domi causa uerberasse et necasse peculiumque filii Cereri 
consecrauisse ; signum inde factum esse et inscriptum * ex Cassii 
familia datum.' inuenio apud quosdam idque proprius fidem est 
a quaestoribus K. Fabio et L. Valerio diem dictam perduellionis 
damnatumque populo iudicio, dirutas publico aedes. 

g. Liv. 3. 24. A. Cornelius et Q. Seruilius quaestores M. Yolscio, 
quod falsus baud dubie testis in Kaesonem exstitisset, diem dix- 
erant. 25. in quaestoribus nouis maior uis maior auctoritas erat, 
cum M. Valerio . . quaestor erat T. Quinctius Capitolinus qui ter 
consul fuerat. 29. Confestim se dictator abdicasset ni coniitia 
M. Volsci falsi testis tenuissent: ea ne -mpedirent tribuni dicta- 
toris obstitit metus. Volscius damnatus Samnium in exsilium 
abiit. 

h. Liv. 3. 69. Signa eo ipso die a quaestoribus ex aerario prompta. 

t. Liv. 6. 26. 

k. Liv. 2. 42. 

I. Plut. Publicola c. 12. rafxie^ov dir^Sei'^e rbv roO Kpouov vaov <? n^xpf- 
vvv xp^H^^oi 8iaTe\ov(Ti rafilai di tQ d'^jxip 56o twv vioip iduKcv diro- 

Plutarch's date is towards the close of the first century of our 
era. 

m. Zonaras 7. 13. Kal rriy tup XPW^'''^* hdKtjaiv AXKois diriveifiev , 
t¥a fiT^ to6tu)v iyKpareis 6vt€s ol virarevovTes fieya hwdivrat.' Sre vpio- 
T0¥ ol TUfilai iip^avTO ylvecxdai Koalffrupas 5' iKciXovv avrovs. ot irpQ- 
rov p^p rds Oayaal/xovs dlKas idiKa^oy, Sdev Kcd tt^u TrpocTfyoplav raiJTijv 
8ia ras dvaKpicreLS ia'x'^Kaa-i. kuI ttjv ttjs dXrjOcias iK tcSv dvaKplcreu^v 
^■qfftv va-repov ok Kal ryjy tuv Koivuiv xrvP-o^tuv SiolKrjffiv fKaxov Kal 
rap.lai irpo<xuvop.da9r)<Tay. p-erd raura 5' hipois p.kv ixerpaTrr} rd Stfca- 
CT'f)pia iKeivoi 8k tuv x/'W^^wi' rjaav SioiKTjral. 

Zonaras wrote the XpoviK6v, in his monastic retirement at 
Mount Athos, about the beginning of the twelfth century a.d. 

«. Dig. 1. 2. 2. 16- Exactis regibus, consules coustituti sunt duo... 
lege lata factum est ut ab iis prouocatio esset . . 20. iisdem tem- 
poribus cum plebs a patribus secessisset . . tribunes sibi . . crea- 
vit. 21. item que . . duos ex plebe constituerunt qui etiam aedilea 
appellati sunt. 22. deinde cum aerarium populi auctius esse 
coepisset, ut essent qui illi praeessent, constituti sunt quaestores 
qui pecuniae praeessent ; dicti ab eo quod inquirendae et conser- 
uandae pecuniae caussa creati erant. 23. et quia, ut diximus, de 
capite ciuis Romaui iniussu populi non erat lege permissum con- 
eulibus ius dicere, propterea quaestores constituebantur a populo 
qui capitalibus rebus praeessent. hi appellabantur quaestores par- 
ricidi quornm etiam meminit lex duodecim tobularum. 



86 Early Roman Law. 



A similar statement is attributed to Gaius by Lydns. ^GoinB* 
testimony would stand high at first hand: strained through this 
■worthless medium it scarce deserves quotation. 

Tcuoi Toiyvy 6 vo^ii>(6t ip n^ iiriypa<f>ofjUp(f) xap* avroO ad legem XII 
Tabularum . . avrcis p»J/ua<rt irpds ipfiijutiav raOra <f>rf<riy... 

ixeihrj 8i irepl K(«pa\iKrjs Tinojplii ovk i^rjv toTj Apxown (rorti 'Pa^• 
ficuov ttoXItov \^i)<piaa<Tdai vpoi^X-ffirjcav KvaiffTiopt^ wa^^KlSioi (sic) 
uffavtl KpiTod Kcd StKaarad rdv iroXlras iytXdyruv. De magistratibus 
1.26. 

On this passage Fuss remarks, Forsitan et hie Lydus errauit 
ac Tomponi uerba (Digest. 1. 2. 2.) Gaio tribuit. 

0. Criminal-recht Abtheil. 1. Aum. 41. 

p. Livy 4. 61. Senatus consultum factum est ut do quaestione Pos- 
tumiauae caedis tribuni primo quoque tempore ad plebom ferret 
plebes(iuo praeficeret quaestioni quom uellet. a plebe consensQ 
populi consulibus ncgotium nmndatur. 

q. Liv. 9. 26. quaestiones decrctao dictatoremquo quaestionibus ex- 
ercendis dici placuit...uersa Romam interjjrotando res: non nomi- 
natim qui Capuae sed in uniuersum qui usquam coissent couia- 
rassentuo aduersus rempublicam quacri senatum iussisse. . . inde 
nobilitas (qucri) ipsos . . dictatort'ni majjistrumquo equitum reos 
magis quam quaesitores idoneos cius criniiiiiH esse. 

r. Livy 4. 43. in url)e . . molos discordianun inter plelx>m ao patres 
exorta est coepta ab duplicondo quaostoruni numcro, quain rem, 
praoter duos urbanos (luacstoros ut duo consulibus a<l ministcria 
belli praesito essent, a consulibus rclntam cum et patrcs summa 
opo approbassent, consulibus tribuni plobis certainon intulerunt 
ut pars quaestorum (nam ad id tempus patricii creati erant) ex 
plebe fierot. 

The discord is allayeil by the recommendation of the intcrrex 
L. PajiiriuH Magillanua ' mediis oopularent couoonliam patreg 
paticndo tribunos militum pro consulibus fieri, tribuni plebis non 
intercedendo quo minus quuttuor quaostoros promiscue de plebe ao 
putribuH lilx-To sufTragio jiopuli lierent. 

«. Dion. Halic. Antiqq. 5. 34. W»j\w(re 8' ^ irpdcris rjw ixoi^cun-o /«erd 
TTJf draWayiiy toO /3o<riX^wj ol rafdat. 

t. Dion. Halic. Antiqq. H, 77. Kalauv ^(iiot . . Kal AtvKtox Oi'aX/- 
pioi lloir\iK6\a%...Tr)P TomtvTiKrjv ^>^oit<j i^valav teal Sid tovto 
iKK\r]<jiay (Twdytiy iJfTCJ Kvpioi...Zw6piov Kdaaiw . . €lff^yyfi\av ds 
rov br]^ov. 

Cicero, speaking of the same case, says quaettor accusnuit (De 
Bep. 2. § 60). He retains the absurd story of the father's rxecu- 
tioo. One troBts that all the accounts of paternal brutality in this 



Regcd Period, 87 

family cannot be tme. See, as to L. Manlius Imperiosus, Liv. 7. 
4, as to T. Manlius L. F. Liv. 8. 6, 7, as to T. Manlius Torquatus 
Liv. 54 Epit. 
tt. This is the view taken by Mommsen. (Book 2. eh. 1. p. 260 tr.) 
V. Criminal-recht Abseh. 1. cap. 5. pp. 54, 55. I may here acknow- 
ledge the many valuable suggestions which I owe to this chapter: 
inter alia as to the mode of reconciling the accounts given by 
Tacitus and Ulpian of the election of the first quaestors. 



§ 18. 
Early Civil Procedure. Sacrament um. 

With respect to the criminal law of regal Rome there is, 
besides the few authorities hitherto cited, little or nothing 
upon which any reliance can be placed. The king as 
judge ; sometimes availing himself of the aid of a 'coun- 
sel;' sometimes perhaps, in cases of minor importance 
delegating his judicial powers to individual * judges'*; 
aided, in his quest of capital crimes, by the quaestor es par^ 
ricidi ; appointing at his pleasure, in cases of treason, the 
extraordinary duumuiri; allowing, though perhaps not 
bound to do so, an appeal from the latter to the assem- 
bled burgesses — this is all that we can recognize with any 
degree of confidence. 

In civil law as distinguished from criminal — ^the for^ 
mer being understood to mean generally rules on tho 
violation of which proceedings can only be taken by the 
private person aggrieved — we have no remnant of direct 
legislation belonging to the regal period. In point of 
procedure, tradition represents the king here again as 
judge, deciding all those matters which in later times 
came before private persons as indices or arhitri. This 
is certainly implied, if not expressly stated, in a compari- 



88 Early Roman Law, 

son drawn "by Cicero between early Greek and Roman 
kings\ Duties so engrossing are made by the same 
author the ground for an endowment of royalty with am- 
ple lands cultivated at public charge : but the power of 
delegating the judicial function is recognized, perhaps as 
an innovation, in the case of Servius administering justice 
by the alleged direction of Taniuinius Priscus^ The 
same delegation appears in the speech which Livy makes 
Tanaquil address to the people on the same occasion''; 
while the feigned case, whether turning upon contested 
property or a personal broil®, in hearing which Tarquinius 
Priscus meets his death, is an instance of the compre- 
hensive jurisdiction over the most minute affairs attri- 
buted to the kings. 

So Dionysius tells us that in ancient times the kings 
settled the ciuses for the suitors by themselves, and theirjudg- 
rnent was law ^ But even Romulus (as we have seen above) 
only retains the decision on greater offences (which would 
seem to include private wrongs) himself, entrusting the 
lesser to the senators, doubtless as to individual delegates 
(to49 ^ovKjevraU), not to the whole senate as a court (for 
which we should have read ry ^ovXrjy. The same king 
passes his decisions speedily on wrongs by citizen against 
citizen, deciding some himself, entrusting others to sub- 
stitutes''. A delegated jurisdiction upon matters of con- 
tract seems to be assumed in the 'magistrates and courts' 
mentioned as existing under Numa: though the whole of 
this passage has most suspiciously the air of a moral 
theme'. Tarquinius Priscus hears the pretended case of 
the two hinds, which seems in this author to be a civil 
suit*. Finally Servius is presented to the people by 
Tanaquil, as appointed by the king to superintend 'all 
matters public and private '^ 

The oldest form of 'action* (see next section, p. 92) 



Regal Period. B9 

known to us is not inconsistent with the view of royal 
jurisdiction here presented. And its reconciliation with 
that view is most satisfactorily effected by recognizing the 
close connection, if not the original identity, of the royal 
with the pontifical function. Actio per sacramentum is 
incorrectly apprehended as ' proceedings by legal wager' 
because, of the two parties staking, while the one lost the 
other did not gain. Sacramentum was the solemn con- 
secration of so many pounds of copper to public sacred 
purposes, each party to a suit depositing the whole 
amount, but only the loser's deposit being ultimately 
taken. From its proper meaning of the act or form of 
consecration the word passed to that of the sum deposited, 
in which sense it is explained by Varro and Festus. The 
decemvirs fixed the amount of deposit, by a rough ad 
valoi^em scale, in the coinage which Mommsen, probably 
with justice, supposes them to have introduced^. But 
there is no reason to suppose that they introduced the 
actio per sacramentum itself, which was doubtless the one 
form under which, in the very oldest times, all civil pro- 
ceedings were brought"^. 

The sum forfeited by the losing party must have 
served in some st>rt as a fee to the court for time and 
trouble expended: from which we may fairly infer that 
court to have been not unconnected with the sacra, to 
which that sum nominally went. The testimony of Varro 
on this point is interesting and significant. The plaintiff 
and defendant, says he, deposited the sum of money 
respectively ad pontem. Miiller, who retains this reading 
supposes it to mean some sacred place near that bridge 
which we have seen to be under the pontiffs' special care. 
But Augustinus* emendation, ad pontificem, for which ad 
pontem might very well be an abbreviation, seems to me 
infinitely preferable". Either reading indicates a conuec- 



96 Early Roman Law, 

tion of the earliest jurisdiction over private suits with the 
pontificate. And whether we regard the king as a de- 
velopement of the pontiff or no, it is certainly at least 
prohable that this jurisdiction was, in the period repre- 
sented by the firet five reigns, confined to him or some 
other member of the sacred college. In respect of the 
lattor, the view best reconciling the somewhat conflicting 
authorities appears to be that which regards it as origin- 
ally consisting of four, with the king in the fifth place as 
ex ojflciu chief, though not bearing the later title pontifex 
mojcimus". 



n. See ftbove, § 15, notes 6, e. 

h. Cicero do Republica 5. § 3, [Nihil ease tarn] regale quam explanft- 
tiouem acquitatis iu qua iuris erat iutcri)retatio, quod iua priuati 
pctero solebaiit a rogibua : ob oasquo caussas aKri...dc*finiebanttir 
qui cswent rrjijii qui colercnturquo sine rcgum ojiera et labore ut 
COS nulla i)riuati uogoti cura a populorum rebuH abduccrct. neo 
ucro quirtquam priuatus crat disceptator aut arbiter litis; Bed 
omnia conficicbantur iudiciia rogiiH. et mibi quidera uidctur Numa 
noHU'r inaxinie tonuisso hunc niorem ucterum Graociao regura. 

c. Do Kop. 2. § 38, quod, cum TurquiniuH ox uolncro aeger (uisse et 
uiucro falso diceretur illo (Soruius) rcgio omatu ius dixissct ob- 
acratoHquo |X!cunia Hua libcrauiRsot, multaquo comitate usus iussa 
Tarquiiii so ius dicore ))robauiHHet, fzc. 

d. Livy 1. 41. 'interim (Tarquinium) Sor. Tullio iuboro populura 
dicto audientera eKse. eum iura redditunun obiturumquo allA 
regis munia esse,' Ac. 

e. Livy 1. 40. Hjwcie rixae. Dionysius Antiqq. 3. 73. /Jog ntya\Ti 
Xpi^Hfyoi TTjif Kapii Tou ftaaiX^uit ^oriBdaw IkoXovp iffpSripoi rapov- 
TU¥ oi'roff aixpuv . . .avroTfavaKTovfTU)!' dfi(f>OT^poit Kod avfifiapTvpo'lm' 
Tuv' u>i hi tlanaXiffat avrout 6 /9a<rt\fi/j X^ytuf iiciXcvct vepl wr &«• 
<t>4porT0, eu'yuJy fikv trtKO. 6iaix<ptfffiqT(ly iaK^rrorro k.t.X. 

f. Dion. 10. 1, t6 nip dpxatop ol ^aaiXelt i<p' oi'rwi' irarrop TO*t 
SfOfiipoit rds iUat teal rb biKanaOiv vt' iKiipuv tovto pofiot tJp. 

g. Dion, 2. 1-4. paaiX€i...i^-gpy]To rdie rd yipa...xaPT6t tov xard <f>6<np 
rf Kara. <rvpO-^Kas SiKalov wpopotlp tup re dSiKtifxaTUP rd fi^yurra. flip 
aiTor hmd^fiv rd it iXdrrova roU ^ovXtirraU ixirpireip Tpovoovficpop 
Xfa nrihh y^prjrai wfpl rat iUat TrXyjixfieXit. 

b, Dion. 2. 29. tup d' tls dXXrjXoiit dSiKrjfidTuv, ov x/wWoi/f aXXa 



/ Regal Period, 91 

Toxetas hroLei rds Kptaeis rd itkv oilri? hie\6» rd 5' eiXXois 
iiriTpiiruv. . 

Dion. 2. 75. ai re dpxal ical rd BiKaaTT^pia rd TrXeto-ra rwy d/Kpia^rj- 
TTjfiaTWv ToTi 4k t^s Trlareus opKon Sl-^twu. TavTa...vTrd tov No/xa 
Tore i^evpedivia KO<j-p.i.idTipav...Triv 'FwficUujv iroKLTelau dweipydaaTO. 
It is not, however, clear whether he is speaking of the practice 
in Numa's times or the subsequent results of Numa's ordinances. 
Tore TOV TyXXtoi' (17 TavaKv\l%) airroh ffvviaTijffiP ws inro toO /3a<riX^ws 
iirlTpoirov airavruv re twu koivQv koX tQv Idiuu dwo^ei.Kvvp.evov. 
MommsenHist.rei nummariae Eom. p. 175, quoted by Scholl. There 
was still apparently only one denomination, the penalties of the 
Twelve Tables being mere nimibers, e.3. si iniuriam faxsit, xxv. 
poenae sunto, see Scholl Reliqq. Praef. viii, ix. As to the amount 
of the penal sum, see Gains Comm. 4. 14. 

Gains Comm. 4. 13. Sacramenti actio generalis erat &c. §§ 11 
— 32 contain almost all that we know of the actiones legis ; a full 
consideration of which belongs less to the present subject than to 
that of the Twelve Tables. The sacramentum appears from 
Festus to have been employed in criminal cases as well, by way 
of a challenge from the accuser to the accused, in a certain sum. 
Sacramentum aes significat quod poenae nomine penditur sine eo 
quis interrogatur slue contenditur. This, however, belongs to the 
most probably later jurisdiction of the tresuiri capitales. See 
Epit. Liv. 11. In the part of Flaccus' article referring to the 
latter (not here cited) L. Papiri Tr. PL is a contradiction in 
terms. It is surprising that Milller does not see the necessity of 
some such correction as that of Ursinus [Tr. Mil.) in spite of its 
historical diflficulties. Clodius would scarcely have been at the 
trouble of a plebeian adoption if a Papirius could so long before 
have been a tribune of the plebs. The triumuiratus nocturnus to 
which a plebeian was eligible existed as early as a.u.c. 430. Liv. 
9. 46. 

De Lingua Latina 5. 180. Ea pecunia quae in indicium uenit 
in litibus sacramentum a sacro. qui petebat et qui inficiabatur de 
aliis rebus utrique D aeris ad pontem deponebant, de aliis rebus 
item certo alio legitimo numero assum ; qui iudicio uicerat suom 
sacramentum e sacro auferebat, uicti ad aerarium redibat. 
See Cic. de Eep. 2. 14. 26, Livy 1. 20, 32 : 2, 2 : 10. 6. Dionysius 
Antiqq, 2, 73 and Zumpt's excellent note, Crimiual-recht, Erste 
Abth, Anmerk, 61, p. 420. He suggests the original identity 
between this board and the five officers who are mentioned by 
Festus : the king, the three flamens, and the pontiff afterwards 
maximus. It is very possible that the board was at first the 



92 Earhj Roman Law, 

king, (maior pontiff proper,) the three flamens, and the minor 
pontiff proper. See Macr. Sat. p. 15. 10. 



§ 19. 
Early Civil Procedure. Vindicatio. In Jure Ce.ssio. 

It should never be forgotten that the English word action 
scarcely conveys a correct notion of the Roman legis actio. 
This might rather be rendered a mode or stage of statutory 
civil proceedings. Moreover it could evidently not be the 
first stage, but must have been preceded by claim on the 
one part and counter-claim or denial on the other. The 
' hand-grapple' {manuum coTisertio), that followed, wa.s ap- 
parently symbolical of physical conflict, a meaning which 
tlio phrase manus couserere, as applied to armies, retained*. 
Wh«,'thor any such symbolism is to be found in the techni- 
cal word expressing ' claim,' depends on a moot point of 
etymology. Corssen connects the first syllable of the 
words uindex, uiiidicare, Sec. with a root signifying desire 
(cf Venus, &c.) ; so that uindtcare, acconling to him, means 
merely means 'to express desire V Many, however, will 
doubtless still prefer the old explanation of this word, 
wljich SchoU accepts — that it means uiin moiistrare, *to 
declare or manifest force ' in the case of a particular article, 
whether this be the actual thing, the title to which is in 
question, or a mere legal representative of it, e.g. the clod 
from the estate". Hereupon the question seems to arise 
whether the force declared purports to be that of the 
rightful owner, or of a deforciant. Mommsen (1. 11. p. 
]()*>, tr.) evidently considers the latter to be the case, but 
although uis has this meaning in the Praetor's order, quod 
nee id nee clam nee precario, &c., I incline to the former in 
uindicare, having regard to the phrase uindicare in liber- 



Regal Period. 93 

faiem, and the fact that it is the claimant into liberty (to 
translate the phrase literally) who really does exercise the 
act of force by striking the person to be made free with 
the uindicta^. This word probably first meant the thing 
claimed, afterwards the claiming rod. So, in the uindi- 
catio in iurey of which Gains gives us such a graphic 
picture (4. 16), the claimant is in tjrpical possession, not de- 
forced from possession, of the slave on whom he lays the. 
straw declaratory of his power. This is the uis festucaria of 
Gellius, 20. 10. 10. The subject of uindiciae belongs rather 
to the Twelve Tables from which the difficult expression 
mndiciam ferre is quoted by Ser. Sulpicius, according to 
Flaccus' article on uindiciae. Here it may suffice to say 
that from a comparison of this article with the passage in 
Gaius, it would appear as if uindicia at first meant claim ; 
uindiciae the samples or parts brought into court emblem- 
atical of the thing itself in dispute ; then intermediate 
possession pendente lite. The partes in Gaius are in most 
cases (for the pilus is doubtful) parts of the thing itself — 
as we should say in land, parts of the freehold — not of its 
produce. If they could be produce, this would explain the 
difficult phrase in Gaius * litis et uindiciarum, id est rei et 
fructuum,' where, as the settlement of the lis relates to 
the thing, so the settlement of the uindiciae relates to its 
produce pendente lite^. 

This solemn form of claim, which must be made before 
the magistrate (in iure), was not employed solely as a pre- 
liminary to sacramentum. Various amicable transactions 
were placed on record, or legally validated, by the institu- 
tion of collusive proceedings, which probably never went 
so far as the deposit. 

Such was the caussa liberalis, whereby a slave who 
was to become a Roman citizen received manumission. 
This was without doubt a fictitious suit, in which the 



9|. Early Roman Law, 

iiindex or assertor lihertatis, ultimately represented by thd 
lictor, claimed the slave, not as his own property but ' for 
liberty ' {in Ubertatem), and on the owner being silent or 
otherwise waivinj:^ Ms claim, the ma<?istrate made award 
accordingly**. Such, too, when an adoption was to be 
effected, was the surrender (in iure cessio) by which the 
films-familias passed from his natural to his adopted fa- 
ther'. And tlie two last-mentioned cases are probably 
only particular applications of a much more general prin- 
ciple — that of effecting alienation by a feigned suit, default 
on the part of the alienor, and award, by the magistrate, 
to the alienee. Of this species of assurance (in iure cessio) 
Gains gives us an account in Comm. 2. 24. It was, accord- 
ing to Ulpian, a common form for the alienation of any 
thing whatever': and, according to Gains, the only form 
by which certain incorporeal things, e.g. inheritances, usu- 
fructs, and servitudes of estates in Rome, could be as- 
sured \ 

No date can be given for the origin of this mode of 
assurance, which may have spning into existence at any 
time after the establishment of a cotirt or magistrate at all. 
With some kinds of property the artifice of a fictitious suit 
was doubtless adopted in the interest of the purchaser, whose 
best security against future proceedings would be a record 
of the court in which such proceedings must be instituted : 
with others*", an exceptional limitation of the ordinary 
rights of ownership, or an avoidance of family obligation 
was perhaps thought to require magisterial sanction. The 
reseml)lance of our Common Recovery to the Roman Sur- 
render in Court has been frequently remarked. It is perhaps 
scarcely necessary to point out the difference Ixitween tho 
latter and its English namesake in Copyhold, where there 
is no suit, real or fictitious, between vendor and purchaser, 



Regal Period, 95 

and the lands are surrendered not to the purchaser (at 
least directly) but to the lord. 

a. This yiew of conserere manus seems favoured by Varro de Lingua 
Latina 5, 7. Sic conserere manum dicimur cum boste ; by the 
common use of the phrase to indicate hostile encounter ; and per- 
haps by the lines of Ennius quoted in Noctt. Att, 20. 10, 

Non ex iure manum consertum sed mage ferro 
rem repetunt regnumque petunt, uadunt solida ui. 
Ortolan (§ 1863, n. 2) takes the consertio to have been merely 
the simultaneous seizure of the disputed property, by the two 
parties. In favour of his view must be reckoned the explanation 
of Aulus Gellius in the passage cited (cum adversario simul manu 
prendere), and an article in Festus: sertorem quidam putant dictum 
a prendendo quia cum cuipiam adserat manum, educendi eius gratia 
ex seruitute in libertatem, uocetur adsertor. The preposition, how- 
ever, in adserere might well indicate taking to oneself by sertio (or 
consertio) similarly to the ad in arrogare. Gaius also (4. 16) only 
tells us of two simultaneous vindications, not of a symbolic contest. 

b. Corssen Ausspr. 2'. 272. Vindicare, if connected with uip, is a 
' spurious compound ' (unlike causidicns &c., which contain no 
case-suffix), unless we can suppose the Latins to have possessed at 
Bome time, besides their surviving stem mis- shewn in uires (for 
older iiises), another stem in n corresponding to the Greek ptv- in 
hes, Ivlov, &c. See however Curtius Grundziige, p. 362. 

c. Aulus Gellius 20. 10. 9. et in ea gleba tanquam in toto agro 
uindicarent. 

d. See Gaius Comm. 1. 17. Boethius in Ciceronis Topica, 2. § 10. 
Vindicta est uirgula quaedam quam lictor manumittendi semi 
capiti imponens eundem seruom in libertatem uindicabat dicens 
quaedam uerba soUemnia. See Ortolan's note on lustin. Instt. 
1. 5. 1, especially n. 4 to § 58 of the Explication. 

e. Gaius Comm. 4. 16, 17. Festus Vindiciae. Not much is to be 
made out of the Pseudo-Asconius on Cicero Verr, 2. 1. § 115. 

/. Noctes Atticae 5. 19. 1. Adoptantur autem cum a parente, in 
cuius potestate sunt, tertia mancipatione in iure ceduntur, atque 
ab eo qui adoptat, apud eum apud quem legis actio est uindi- 
cantur. 

g. Ulp. 19. 9. In iure cessio communis alienatio est et mancipi 
rerum et nee mancipi quae fit per tres personas, in iure cedentis, 
uindicantis, addicentis. 

h. Gaius Comm. 2. 29. 30. 34. Provincial estates were neither 



96 Early Roman Law, 



capable of mancipation nor of surrender (ib. 81), but of couraa 
these had no existence till long after the Begal period. Estates in 
Italy were capable of both (ib.). 



§20. 
The Servian Reform. Criminal and Civil Law. 

Hitherto the statements of historiaas have been con- 
sidered rather as ilhistrative of ancient practice than as 
narrative of actual facts. It is not necessary, as has been 
before remarked, to discuss the question whether the 
time-honoured heroes of Roman legend ever existed or 
not. It is quite possible to believe in the early introduc- 
tion of appeal without dating it by the reign of TuUus : 
nor do the qiiaestores parricidi require the -names of Ro- 
mulus or Numa to back them. 

In reading of Servius, however, fabulous as great part 
of his story is, we find so much of the reform known 
inidor his name proved to be historical by its long sur- 
viving remains, that it seems scarcely wise at once to dis- 
credit even what Dionysius tells us further of the Com- 
mons' King, provided there be nothing improbable in the 
tale. And those who will not go so far as to believe in 
a personal Servius may yet perhaps consent to connect 
certain changes attributed to him with the occasion of the 
Servian reform, which is a fact beyond question. 

There is no reason for thinking that any material 
alteration was made in criminal law : the appeals, if there 
were appeals, may have been to the new assembly of the 
centuries instead of the old one of the curies; but of this 
we have no proof*, A special penal enactment, directed 
against default in making return of the amount of the 
offender's property, is attributed to Servius both by Livy 



Regal Period. 97 

and Dionysiiis, the latter asserting that this law remained 
for a long time amongst the Romans. Livy rather treats 
the law as temporary, and it need not detain us here 
either on the score of importance or credibility ^ 

The antiquity of the fragment against the striker of a 
parent, preserved by Festus (above § G, note c), is proba- 
ble on internal evidence. There is no necessity to press 
its reference to Servius, a reason for which may perhaps 
be found in his own tragical end ^ 

While, however, no new criminal enactment of im- 
portance can be referred to this epoch, other branches of 
law in all probability sustained material alteration. The 
traditional popular character of Servius is scarcely ac- 
counted for by the constitution attributed to him, which, 
at least directly, assigned to the non-burgesses duties 
alone and not rights^. Accordingly we find, in the 
stories which reached Dionysius, besides the constitution 
(treated by that historian as a mere equitable assessment), 
most of the measures actually passed by later champions 
of the people, typified or exemplified in the person of the 
first. Servius puts taxation on a fair footing for the 
poor®, pays the debts of their country's defenders out of 
his own pocket^, and engages to forbid the pledging of 
personal liberty for the future^. Servius redistributes the 
public lands'', and moreover gives homesteads to the 
' hearthless ' Romans around his own on the best part of 
the Esquiline*. All this bears, as has been intimated, a 
suspicious resemblance to the popular measures of the 
early republican period; and history, as we know she 
often repeats, may perhaps be said sometimes to antici- 
pate herself Besides these acts, however, of the first 
reformer, there are others not so clearly modelled upon 
those of his successors. He collects the laws of earlier 
kings, creating certain new ones himself: he has the laws 
R. L. G 



93 Early Roman Law. 

relating to contracts, as well as to offences, ratified by the 
comitia curiata^ : lastly, he diminishes the royal power by 
separating private from public charges, retaining cogni- 
zance of the latter himself, while he entrusts the former 
to private judges, whose powers and rules of procedure he 
settles by law''. A probable commentary on the last 
measure is furnished in the account given of the sufferings 
of the people under the next king. ' The laws enacted by 
Tullius, according to which they used to get their due 
from one another on terms of equality, and were in no 
wise subject to injury by the patricians, as before, in 
respect of their contracts — all these laws Superbus abro- 
gated'.' Tlicy are represented as being re-enacted, or at 
least recalled into use by the first consuls". 

The changes which will now be noticed as probably 
connected with the Servian reform are in the law of civil 
procedure, of conveyance and contract, and of the family. 

a. MomniRen insists npon the pnroly military character of the Bystem 
of centuries at first. Its application to political purposes must, 
he thinks, he pronounced a later innovation. (Hist. 1. ch, C. 
p. 100 of tr,). Incidentally, however, ho allows that certain 
changes must necessarily have followed, for instance that it wa« 
the rrnturifs, now, who interposed their authority to the testa* 
ments of soldiers made before battle (ib.). See IkjIow, § 23. 

A valuable and interesting disquisition on the comitia crH. 
turintn and their connection (or original non-connection) with the 
local trilx* will be found in Mr Seeley's Livy, Book 1. pp. 76. 87. 

6. Liv. 1. 44. Ccnsu jMjrfecto quern (Seruius) maturauerat metn 
legis do incensis latac cum uinculorum minis mortisque edixit &o. 
Dion. Antiqq. 4. 15. rcj; ii /xi) Tifirfffafi^vi^ npLuplaP Cipiat r^t re 
oi/jlat (TT^ptcrdai Kal avrhp naeriyuOdrra Tpadifvai' Koi fUxp* voSXop 
iUn<w€ xapd 'Vuficdoii ovrot 6 ySftxti, 

c. Liv. 1, 4H, Dion. Antiqq. 4. 39, 

d. Mommsen Hist, 1. ch, 6, p, 95 tr. 

e. Dionysins Antiqq, 4. 9. Ua...Tat...(l<T<f>opdt Si' at ol rirtp-tt iirifia' 
povyrai re Kal dvayKd^'oirrai SajKlfffiara ro.tip KOViftoripun tit ri 
Xotrdr ^^p-ffTtf Tifi'^aaadai rat ovalat drarrat KeXevcw k. t. X. 



Regal Period, 99 



/. Dion. Antiqq. 4. 9. ^k tCjv i/xavroO xPW^t^v St'Sw^tt iioXiaaaOai ri, 
Xpia. 10. irdvTO}v bpiiivTiav iwripiO/xei toU Saveia-Tdh rd xpia. 

g. Dion. Antiqq. 4. 9. v6fiov d-qaoixai. ixrjHva davel^eiv iirl (riifiaaiv 
iXevdipois l/cavov T]yov/M€vos tols daveiaTois ras ovaias rwi/ avfi^aWdv- 

TUV KpOLTCLV. 

h. Dion. Antiqq. 4. 10. i^idr/Kep iv <pav€p(? SidraypLa paffiKiKop ^/cxwpeti' 
T^s Zrifioffla^ yfjs roi/i Kapirovp^vovs re Kal I8la KaTix^vras iv upia/xivcp 
Tivl XP^^V 'fol Toi/s ovSiva KXrjpov ^x<"^tt5 t^^ ttoXitwi/ irpbs iavTov 
aToypd<peadai. 

i. Dion. Antiqq. 4. 13. Siiveifie Trjv SrjfjLoaiav x^P"-^ ^ois 6r]Tevov<TC. 
'V(i}Hodu)v...Kal Siiveifiev avToi>s (toi>s 8vo X60oi;s) tois dveaTiois 'Pw- 
fiaib)u olKtas KaraaKevdaaaOai iv6a Kal avros ivoii^aaTo Tr]v otKT](Tiv 
iv T(fi KpaTiar<f} rijs 'IffKi/Xtas rdirtp. 

j. Dion. Antiqq. 4. 10. vdjuovs re avviypa^ev ix rwj dpxaiwv koX 
Trap7}/i€\T]fjt^v(>)p dvaveovfi^vovs ovs 'Fw/jliiXos re ehrjyqaaTo koI Nojaas 
nofJLirlXios ous 3^ avTos Kadiard/xepos. 13. toi>s pd/iovs tovs re ffvvaX' 
XaKTiKoi/s Kal rods irepl twv ddiK-rj/idruv iireKijpuffe rah ifypdrpais. 

k. Dion. Antiqq. 4. 25. t^v ^affCkiKi]v dpxw ip-dwae rrjv rjfilffeiav rrji 
i^ovalas avrbs dcpeXo/ievos' twp yap npo avrov ^affCKiwv dird<ras d^ioOp- 
TU3P i(f>' iavTois Ayeip tols SIkus Kal irdpra rd iyKX-Zj/jLaTa rd re idta Kal 
rd KOipd Trpos top iavTUP Tpbirop diKa^bpTWP, iKCiPos bteXup dwo tQv 
IbiWTLKUP Tct 8r]fJ,6(na, tup jxkp els to koipop (pepoPTCop dbiKTj/idTUp avTos 
iiroieiTO T(is biayptiffeis twp Bk idLWTiKWP Ibiwras ^ra^ep dpai St/cacTas, 
8povs avTois Kai Kapopas ra'^oj ovs avrbs ^ypa'^e vopovs. 

I. Dion. Antiqq. 4. 43. Toiis...p6iMovs Toiis vwo TvWlov ypacp^pras Kaff* 
ovs i^ i(Tov TO SlKaia Tap' dWrfKcjp iXd/M^apop Kal J)v8^p vtto tup 
varpiKlup us rporepop i^XdirroPTO irepl rd ^vp^okaia, vaPTas dpeTKe. 

VI. Dion. Antiqq. 5. 2. 



§21. 

luDiCES. Legis actiones. Centumviri. 

Except in the most patriarchal times, it is evident that 
such religious sanctions as that mentioned in § 9, must 
soon cease to suffice even a small community. In ques- 
tions of the title to and the assurance of property as well 
as in matters of civil injury, a sort of ' common law * will 
grow up, of which cognizance must be taken sooner or 

G2 



100 Early Roman Law, 

later by the state tribunals if not by the legislature. Tlio 
business that thus arose could not but very soon surpass 
the powers of any single man. So that even supposing 
criminal jurisdiction to have been confined to the more 
atrocious cases, and so capable of being discharged by the 
king or perhaps his occasional delegates, it could scarcely 
be so with civil business. Thus we should tl jyriori arrive 
at the institution of some other court beside the king's, 
without the testimony of Dionysius, as a simple matter of 
necessity; and, if Cicero's statement to the contrary* be 
taken as anything more than an opinion that the tra- 
ditional Numa came nearest to certain traditional Greek 
sovereigns, we can only say that the state of things which 
he describes could not long be possible. The best modern 
authorities admit the existence of indices under the kings, 
whether their institution is to be attributed to Servius or 
not^ 

In the first days, however, of the actio per sacramentum 
as the sole form of civil proceedings, it seems not unlikely 
that this jurisdiction wtus confined to the king, and the 
other pontiff or pontiffs. The majority of ciuses would in 
all probability come before the l{\tter, who were patricians 
and held their office for life. It is not likely that the 
most even-handed justice would be administered, by such 
judges, in cases where plebeians were concerned, especially 
if one party liappcneil to be a plebeian and the other a pa- 
trician (.see § 20, note 1). We shall not be surprised, then, 
to find almost any change of jurisdiction from the pontiffs 
to a body of private judges (though the latter were mere 
delegates appointed at the magistrate's option) looked on 
as a j)opular measure. At the same time the permanent 
establishment of such a body might well be regarded as a 
certain narrowing of the regal power, wliich view Diony- 
sius takes in a passage above quoted (20, note k), and in a 



Regal Period. loi 

speech of Servius. *All the power which ye gave me, I 
chose not to keep, but having estabUshed laws on the most 
important matters, which ye all ratified, I granted you the 
right of giving and receiving what is due, in accordance 
with these laws, and I myself first of all submitted to the 
rules of justice which I defined for others, obeying them 
like a private manV The untranslatable Greek idiom 
ht^ovai KoX Xa/jL^dv€Lv ra BUata, of course points exclusively 
to civil actions : and the tradition followed by Dionysius 
appears to have been that Servius enacted not only the 
severance of such cases from the ordinary royal jurisdiction, 
but also certain rules, both of principle and procedure, for 
the settlement of them, which were binding upon the 
whole community, the king included. Something like this 
view must have been taken by TacitUs, who tells us with 
his usual difficult brevity that Servius was the chief en- 
actor of laws, laws which even the kings were to obey'^. 
Whether the consent of the parties entered into the selec- 
tion of the index we cannot say, but it seems that it did, 
and we know that such was the case with the iudex of the 
republican period. The language of Dionysius (§ 20, n. 1) 
is vague and coloured by his desire to represent the Servian 
administration throughout as a plebeian movement ; for it 
cannot be true that plebeians were regularly or to any 
extent appointed iudices. There is no ground for contest- 
ing the universally received opinion that the index was, in 
the earliest times, always a senator. And admission of 
plebeians to the Senate, though perhaps possible before 
and somewhat facilitated by the reformed constitution®, 
must have been very uncommon. Still it might be a 
great advantage for the plebeian to exchange the irre- 
moveable pontiff, bound to no rule and amenable to no 
authority, for the iudex temporarily appointed, with powers 
and procedure defined, perhaps too selected by agreement 



102 Early Roman Law. 

of both parties or, if they could not agree, by lot. This is 
the grain of truth which I conceive to lie hid in Dionysius* 
chaff-heap : to go any farther would be to anticipate the 
times of Gains Gracchus^ 

From this Servian reform, then, prol)ably date tlie civil 
proceedings 'by application for a judge' {per iudicis postu- 
lationem), in the account of which we are unfortunately 
deserted by our only safe guide. That part of the MS of 
Gains which doubtless would have explained the iudicis 
postidatlo, as well as the original condictio, is lost, unless we 
may place under the former head a scanty fragment (§ 15), 
which is generally connected with sacramentum. If we 
are to conclude, from this and the following section, that the 
appointment of a judge formed a necessary part or rather 
an inseparable accompaniment of actio per sacramentum, 
this too perhaps dates from the Servian reform. It may, 
however, not impossibly have been older, and taken place 
originally in iure, before the magistrate, whether king or 
pontiff, alone ; the application for a judge {iudicis poatu' 
Latio) being the later means of imjM)rting a certain latitude 
into the rigid issues of the old law'*'. The original condictio 
was the mutual notice to attend, for the purpose of receiv- 
ing the judge, given by the parties to one anothe^^ 
Throughout the whole subject of the legis actiones, it must 
be rememlxTod that they were not actions in our sense of 
the word, hut statutory forms or stages of jirocedure, 
several (»f which may have entered into the same action, 
as we apprehend it. 

Of the two remaining legis actiones, the maims itiiectio 
which in the ilhistration given by Gains approximates to 
our taking the person in execution, in all probability ex- 
isted as a matter of what we should call common law 
before it was enacted by the Twelve Tables'. The pignoris 
capio of common law or custom {monbus Gains 4. 26;, if 



Regal Period, 103 

connected in the first instance with military pay, cannot 
have come into existence before that was introduced, ac- 
cording to Livy, A. u. C. 348^ The subject, however, of the 
legis actiones generally belongs to the laiv of the Twelve 
Tables, from which it is probable that the first four re- 
ceived both their statutory enactment and their name. 
For in iure cessio see above (§ 19). 

The indices of Seruius Tullius have been often iden- 
tified with the centumuiri, though the passage of Dionysius 
(4. 25) cited by Walter^ in support of this view contains 
no allusion to the latter court. We do not know the date 
of its institution, but the spear, as the sign of Quiri- 
tarian ownership, is evidence of considerable antiquity ^ 
We do know that the centumuiri dealt with many 
questions arising out of the ancient law of persons and 
things'", and that the actio per sacramentum was retained 
as a preliminary to proceedings before them when else- 
where (except in one case) disused". 

If the original constitution of this court is to be con- 
nected, as Verrius Flaccus and Varro intimate °, with the 
thirty-/^ tribes, the centumuiri cannot have existed before 
A.V.C. 513, when that number (35) was made up^. The 
antique forms just referred to are against this, and the 
supposition that the name of hundred was given to a court 
which at its origin consisted of a hundred and five (perhaps 
exclusive of presidents) seems to me unwarrantable. The 
somewhat vague testimony of Pomponius on the subject**, 
only amounts to a statement that, after the institution of 
a Praetor peregrinus (A. v. C. 512), decemuiri litibus iudi- 
candis were made presidents of the centumuiri, which we 
know they continued to be till the time of Pliny the 
younger "■. In a passage of Livy (3. 55) which treats of the 
re-institution of the tribunate of the plebs after the decem- 
virate, he couples with the tribunes and aediles indices and 



104 Early Roman Law, 

decemuiri who are clearly plebeian, and possibly as old in 
point of institution as the tribunes themselves. The last- 
named officers, though first erected into a magistracy on the 
secession to Mons Sacer, may certainly have existed before 
the secession, in connection with the local tribes, attributed 
by consistent tradition to Servius. The original number of 
these is so uncertain that little or no inference, as to the 
centumuiri, can be safely drawn from it. Dionysius, in his 
account of the Seiiiian reform, gives authorities for thirty 
and thirty-one'. The same author, when describing tho 
trial of Coriolanus, recognizes only twenty-one tribes to 
which the vote was allowed, though his calculation that 
the accused must have been acquitted ' for equality of 
votes,' if he had gained those of two tribes more than he 
did. assumes a total number of twenty-two\ 

Livy represents the number of tribes as made vp to 
twenty-one in the year of Superbus' death (a.v.c. 2.39), 
accounting for the other fourteen at ditTerent subsequent 
periods". If the a<ldition in A.V.C. 25{) was of one tribe, 
as has been supposed, the number originally e.stablishe<l by 
Servius may have been twenty, which suits very well with 
that of a hundred officers. 

The Irarned bishop of Lerida, Antonius Augustinua, 
apjM'ars to liave ccinsidcred the centiumiiri iiud their presi- 
<leuts as plebeian jietty magistrates. 1 have not been able 
to find Augustinus' treatise De Legihus, knowing him only 
by his excellent account of lloman families. For tho 
al)ove quotation of his opinion on the present sidyect I 
nl y upon Drakenborch's note to Livy, 3. 55. Both Draken- 
borch and Augustinus recognize a lex Aehutia de centum- 
uiris — in all probability the same as that by which the 
oM lerfi's actiones were abolished except in cases damni 
infecti and those which were to come before the centum- 
viral court. The date of the lex Aehutia is matter of great 



Regal Period. ^ 105 

question, though the institution of a Praetor Peregrinus 
(A.V.C. 512), and the entire remodelling of civil procedure 
which evidently then took place, seem to me quite as 
likely an epoch for this law's enactment, as that usually 
given (circiter 573). It may have been part of this re- 
modelling to set aside the centumviral court for questions 
of pure Quiritarian ownership where the old forms of pro- 
cedure would most naturally be retained \ But the origin 
of the court must, I think, clearly be placed very much 
earlier — probably in Servian times. The expressions of 
Dionysius quoted above, though they have a certain mean- 
ing when applied to the appointment of patrician (or at 
least senatorial) indices, have a much better one when 
applied to the co-ordinate institution of plebeian centumuiri 
for the hearing of plebeian cases. This, of course, ceased to 
be the characteristic of the court in later times, when we 
find it dealing with questions of status, inheritance, 
testament, and Quiritarian law generally, irrespective of 
order '^. 



a. See § 18. note b. 

b. Walter (trad, par Laboulaye), Procedure civile chez les Eomains, 
ch, 1. Ortolan, Histoire de la legislation Komaine, §§ 162. 117. 
Zumpt, Criminalreclit. Absch. 1. c. 4. 

C. Dion. Antiqq. 4. 36. Kal rrjv i^ovaiav rjv vfiets iSdjKari fioi...ovx 
diracrav i^ov\6/xr}v ^x^tv dXXa j/ofiovs re vwip Tviv Kvptundroiv KaraaTTj- 
adfievoi ous diravres €ireKupu}(TaT€ /caret tovtovs v/juv d7r^5w/ca Sidovai 
TO. BiKaia Kal \a/x^dpeiv, Kal avTos k^irjTa^ofi-qv irpuros oh uipiaa Kara 
TcSv dXXwv SiKoloii ujtrirep IdiwTJjs Treidofievos. 

d. Tacitus Ann. 3. 26. sed praecipuos Seruius Tullius sanctor legum 
f uit quis etiam reges obtemperarent. 

e. Mommsen Hist. 1. 5. p. 70 tr. and 1. 6, p. 100 tr. 

/. Zumpt (Absch. 1. cap. 4.) considers that Serviuswas the institutor 
of iudices, who were senators individually appointed for each case 
according to the agreement of the parties. For later changes in 
the constitution of the judicial body see the laws Sempronia, 
Liuia, Plautia, Cornelia, Aurelia. . . •. * 



io6 Early Roman Law, 



Ortolan (§5 1870. 1875) considers tbo procedure by iudieit postU' 
latio to have gradually encroached upon that by $acramentum^ 
from which it was of course distinct, as appears by Gaius Comm. 
4. 20. Ho treats the judge, however, as necessarily entering into 
the sacramental procedure also (§§ 18G1. 1900), relying principally, 
ns it seems, upon a note of the pseudo-Asconius to Cicero's first 
count of accusation against Verres. (In Verrem 2. 1. c. 9 § 26.) 

Namque cum in rem aliquam agerent litiga tores et poena se 
sacramenti pcterent posoebant iudicem qui dabatur post trigesi- 
umra diem. 

This no doubt tallies with the number xxx in Gaius 4. 15, before 
which there is a hopeless lacuna. As far as Gaius alone is con- 
cerned the point turns upon whether we are to supply in the fol- 
lowing sentence [idque] per legem Pinariam factum est; ante earn 

nuknn legem dabatur index the word canff^tim or Htatim, 

with Buttmanu and Hollweg, or (as I should prefer) the word no»- 
<lnm with Heftier. 

I question whctlicr much indeixmdent value should be attached 
to the general statement of the psoudo-Asconius. If the following 
itotc about the iiersonal examination of witnesses come from his 
Jiand, he cannot, according to Baiter, have written before the time 
«.f Hadrian, who established the stricter treatment of evidence. 
Anuleeta ad pseudo-Asconiiim. Onomastic^^m. 8oe too Digest. 
'2'2. 5. 3. 1. The assertion, therefore, that application was made 
for a judge wliere prooeedingH im rrm were taken per narramrntum 
may very well he no inde]x>iMient testimony but merely derived 
from (iaiuH* own account of (tro stages of the law on that |x)int. 
See Gaius Cotniu. 4. 18 for the contiictio. Condioere is inadequately 
rendered by denuntiarr: it must have originally signified mutual 
notice or notice about something arirfcd upon, not notice simply, 
or the preposition is meaninglesM. An agreement lietweon the two 
parties as to the iudex is indicated by the ol«l formula which Fcstns 
has preserved us under Proeum . . est enim procare poscere ut 
cum <licitur in iudiee rnnhxxindo ai alium prncat uiur eum procoM 
hoc est poscis. We know, too, that mutual notice was given to 
appear liefore the judge, when appointed. Sec Gaius 4. 15, who 
is here perfectly consistent with the pseudo-Asconius (loc. cit.) 
comj>erendinatio est ab utrisqur litigatoribiut inuiccm sihi dftiun- 
tintio in perendinum diem. 

For manuM iniectio see Gaius Comm. 4. 21 — 25. The term of 
courpe is applicable to any form of arrest It was effected not by 
an oflicer bat by a private person, see Liv. 2, 23: 3. 44. fee, and 
might apparently (from the la^t-cited passage and others) take 



Regal Period, 107 



place extra ius i.e. not before the magistrate. See, however, 
Gaius Comm. 4. 29. 

j. Livy 4. 59. See Aulus Gellius 6. 10. Verba Catonis sunt...pig- 
noriscapio ob aes militare quod aes a tribune aerario miles acci- 
pere debebat, &c. When pay for service actually began is doubtful. 
The word stipendium cannot have existed before the introduction 
of coined money, if the derivation in Festus be correct. Stipem . . 
nummum signatum. Miiller, pp. 296. 313. ' Stamped ' or 
'pressed' seems a correct expression to us, though it should be 
remembered that the old coins were not stamped but struck with a 
hammer and double die. I fail to see the slightest connection in 
meaning between Corssen's translation of stips (kleines Geldstiick 
1*. 505) and that of the other words with which he justly connects 
this, (stipulus stipes stipare, ori^oj, (rri/Voj, <rTi;</>eX6s, &c.). Surely 
the notion of close pressure is the connecting link? 

If the allowance for purchase of a horse and that for forage 
(aes equestre and aes hordearium) are to be connected, as Livy (1. 48) 
connects th^e, with the Servian military system; pignoris capio, 
being the means provided for their recovery (Gaius 4. 27), must 
have had an earher date than that given in the text. Cicero (de 
Kepublica 2. 20. 36) appears to confiim Livy's account of the early 
institution of these allowances, referring them, however, to Tar- 
quinius Priscus, and connecting them with Corinth, the fabled 
home of the Tarquinii, so as to throw discredit upon the whole 
story. 

k. Tr. Laboulaye Procedure Civile, ch. 1. 

/. Gaius Comm. 4. 16. Valerius Maximus 7. 7. 2: 7. 8. 1, 4. 

in. Cicero de Oratore 1. 38. 173. 

n.. Gaius Comm. 4. 31, 95. 

0. Festus. Centumuiralia indicia a c uiris sunt dicta, nam cum essent 
Bomae xxxv tribus quae et curiae sunt dictae temi ex singulis tribu- 
bus sunt electi ad iudicandum qui c uiri appellati sunt : et licet quin- 
que amplius quam centum fuerint, tamen quo facilius nominaren- 
tur c uiri sunt dicti. Varro de Re Rustica 2. 1. . . numerus non 
ad amussim ut cum dicimus mille naues ad Troiam isse, oentum- 
uirale indicium Romae. 

p. Floras Epit. Liv. 19. 

q. Dig. 1. 2. 2. 28. . . creatus est et alius Praetor qui peregrinus ap- 
pellatus est . . 29. deinde cum esset necessarius magistratus qui 
hastae praeesset decemuiri litibus iudicandis sunt constituti. 

r. Epist. 5. 21. The presidency appears to have been towards the 
close of the republic usurped by the ex-quaestors but was restored 
to the decemuiri by Augustus. See Suetonius Augustus c. 36 and 



io8 Early Roman Law. 



Torrentius' note, who adduces, against the suggestion of a first 
institution of tliese officors by Augustus, the antique s (of stub) 
found in inscriptionfl (xvin. rl. ivdik.). The dfcemuiri were still 
presidents when Cicero was a young man (pro Caecina 33 § 97). 

$. Antiqq. 4. 15. 

t. Anti(i(i. 7. 0-1. ^itS? . . Kal etKOffi rare 0i<XdJi» ovatav aU r) \l/fi<f>os dyt- 
iodri rdi droKvovvai ((TXC 6 Mo/xfioj ew^a' wot' d 8vo xpocrjXdov 
avT(^ <f>v\al did rrjy lao\f/ri<piav dir(\v(To &» uawep 6 vofiot rj^iov. 

«. Livy 2. 21, llomae tribus una et uiginta /rtc/rt<'. As to the others 
see 6. 5; 7. 15; 8. 17; 9. 20; 10. 9; and the epitome of book 19. 

r. Gains Comm. 4. 30. Gellius Noctes Atticae 10. 10. 

If. See pro Caecina 33 § 97 cum Arretinae mulieris libertatem dcfen- 
derem. also ib. 18 § 53. As to inherit(nic<\ here concerning both 
orders, Cic. de orat. 1. 39. Quid qua de re inter Marcellos et Clau- 
dios pntricios cuiri iudicarunt?...nonne in ea cauB8a...de toto stir- 
pis ac gentilitatis iure dicendum? As to tegtament see Valerius 
Maximus 7. 7. 1, 2; 7. 8. 1, 4. Digest 5. 2. 13, 17. Generally 
Cic. do orat. 1. 38. § 173. 



§ 22. 

M AN( 1 riUM, N EXUM. 

The intermixture of wlj.it we term covimon with statute 
law is of course unavoidable in the account of any early 
legislation. With the oldest enactments of Rome, as with 
those of our own country, it is often evidently the ca.se 
that they are merely 'declaratory of the ccmimon law.* 
That is, there is first the custom, then the specific act of 
the legislature recognising, sanctioning, and regidating 
that custom*. Thus from the provisions of the Twelve 
Tables may 1)C clearly inferre<l the previous existence of 
those very ancient a.ssurances or acts in law, 7i£xtim and 
?»rt»c>7)/'/7», of which some notice seems proper here. As 
the institution of indices is directly connected by ancient 



Regal Period, 109 

tradition with Servius, so that of mancipation has been 
indirectly connected by modern inference with the Ser- 
vian reform. 

Mancipium, from manits and capere, is evidently an ex- 
pression originally proper of the taker, not the giver. 
Later, doubtless, the secondary verb, mancipare, was used 
of the latter: but at first it is the taker who is considered 
as the acting party, and purchase rather than conveyance 
is the correct translation of mancipium, I need not 
remind the reader of English Law that, under the legal 
term purchase, the notion of paying a price is not neces- 
sarily included. A price certainly enters into the earliest 
form of mancipium which has come down to us, but the 
word signifies only a taking by hand. Mommsen, ac- 
cepting this bare physical meaning, refers the first man- 
cipium to a time before the invention of property in im- 
moveables, considering it primarily applicable only to 
objects which are acquired by grasping with the hand — 
such as slaves and cattle-^ Whether we are to remount 
or no to this hoar antiquity, we may, I think, assume that 
manus, in the phrase manu capere, carried with it that 
peculiar idea of power and possession which we know be- 
longed to the same word with reference to a wife in much 
later times. This power and possession was asserted by 
the symbolical 'hand-seizure,' which, when accompanied 
by the formal words, the payment of the piece of copper 
to the seller or its acceptance by him, all before the 
proper witnesses, operates as the original Roman con- 
veyance, which we may now for convenience call by 
the later term, mancipation"^. Ortolan, comparing the 
use of the lance as the well-known symbol of Quiritarian 
ownership, justly, in my opinion, regards the earliest man- 
cipium as an e,mblem of capture**. And the same view 
is shewn in a definition by Florentinus of the word mati- 



no Early Roman Txiw. 

cipium, used, it is true, in the later sense of tlie thing 
taken rather than tlie taking, but defined as tliat which 
is taken by (force of) liand from the enemy*. It is highly 
probable that the five witnesses required for this assur- 
ance were intended to represent the five classes of the 
census. If so, mancipation, as we know it, would seem to 
have been subsequent to the Servian reform, or perhaps 
part of the new system thereby introduced'. Whether 
this mode of conveyance was originally intended to be 
confined to certain kinds of property, or that construction 
was, as Mommsen holds, a misunderstanding of later 
times, we need not here enquire. It was doubtless re- 
garded from the earliest times as specially applicable to 
the things which came to be known as res viancijn (ob- 
jects of mancijnum)^ and which are clearly the articles of 
most value in an infant agricultural state. Of these 
articles the law, apparently, did not at first recognize any 
other mode of assurance than mancijmtion : wherejus 
other property, at least if corporeal, might legally pass by 
mere delivery {tr-aditio)'. The doctrine that enjoyment 
(usHs) for a certain time should enure to ripen imperfect 
ownership arising from irregular alienation into that full 
ownership recognized by the ancient law of the Quirites 
{dinniuiuni Quij'iturium), was probably one of the earliest 
ciiuitable modifications imported into that law by judicial 
authority (see below, p. 141). 

The exact force of the nexuni, and its connection with 
vwncipium, are matters of some diflficulty. The latter is 
coupled with the former by the particle que in the Twelve 
Tables, which fact would seem rather to make against the 
opinion held by some, that mancijnuw is a mere species 
of the genus nexum. This opinion is based on the defini- 
tion of Manilius, preserved by Varro. * Nexum is any 
transaction by balance and copper, under which head are 



Regal Period, iii 

mancipia.^ A much more valuable definition follows, by 
the great jurist Scaevola. 

* Mucins makes nexa to be things which by copper and 
balance heeome subject to obligation besides those things 
which are given by mancipium! * That this is the 
truer view/ adds Varro, 'the word in question itself 
shews; for the very thing which by balance becomes 
subject to obligation and not its own, is thence called 
nexum. The free man who owed his labour for servitude, 
in consideration of certain money, until he should pay 
that money, is called nexus, kc.^ The difference be- 
tween Manilius and Mucins appears to be that the former 
is speaking of nexum, the act in law, the latter of nexum, 
the thing or person affected by that act in law. But the 
statements of both are perfectly in harmony with the 
view that the primary idea of nexum is obligation, affixed 
by law to the receipt of a nominal consideration. Some 
parallel may be found in the bargain and sale of our com- 
mon law, by which a use was raised on the payment of 
any, even the smallest, sum of money. (A use, too, we 
may remember, originated in the obligation on the con- 
science of the terre-tenant.) So nexum, obligation, most 
likely originated in an actual bargain and sale of future 
services ; and, if we consider mancipium as a conveyance, 
it would probably be more correct to say that nexum 
arose out of mancipium than that mancipium was a spe- 
cies of nexum. The two original ideas of acquisition and 
obligation are so combined in the earliest form of manci- 
pium known to either us or our authorities, that confusion 
between them was and is inevitable': but, however com- 
plex the ancient legal conception or transaction was, I 
cannot believe that the proper and primary signification 
of nexum was anything but bond or obligation. And, 
generally, the things affected by such an assurance are 



112 Early Roman Law. 

those -svliicli 'become subject to obligation {nexa) by cop- 
per ami balance,' as distinguished from those which 'are 
given (out and out) by mancipium* (see page 111). This 
is the well-known use of the word in Livy, and the per- 
sons who place themselves in this position are said nexum 
inire, to enter into a bond or obligation. 

Verrius Flaccus gives the first definition of VaiTO, 
attributing it to Gallus Aelius, and adding, as instances 
of nexum, testamenti /actio, and (if the emendations be 
correct), iiexi datio and nexi liheratio^. The two latter 
are most probably the giving and releasing of the bond 
or engagement by which the poor debtor became liable to 
personal servitude, and, to quote the graphic language of 
Varro, ' not his own.' The testamenti /actio is, of course, 
the third mode of will-making mentioned by Gaius', 
which will be more particularly noticed hereafter (§ 23). 

The old transaction, then, out of which both mancijKL- 
tion and nexum grew, being a bargain and sale for value, 
where the article purchased is present property, abso- 
lutely transferred, the business would seem to be over, 
and the nexum, or bond between the parties, at an end ; 
where anything is left to be done, i.e. where the article 
purchased includes, or is, some future service, the nexum 
continues. Herein lies the import-ant truth, ably put by 
Mr Maine, that in the original popular, as well as in the 
profes.sional view, a contract was regarded as an incom- 
plete conveyance. 

It is not impossible that, even where property was 
absolutely and finally transferred, there may still have 
been a nexum subsisting. It seems that conveyances in 
this legal form fixed on the seller special liability of 
making gocxl his title as owner, or at any rate of guaran- 
teeing the purcha.ser in possession". So, in our own law, 
if before the statute of quia emptores a man enfeoffed 



Regal Period, 113 

another in fee by the feodal word dedi, the law annexed 
a warranty to this grant. Therefore, even when man- 
cipium or mancipatio was an absolute sale and complete 
transfer of property, the seller might still remain, to a 
certain extent, nextis, though the more natural and in- 
telligible application of the term is to such cases as those 
instanced by Flaccus, where the main part of the trans- 
action consisted of stipulations between the two parties, 
which were yet to be fulfilled. A good example of this 
subsisting nexum occurs in the mancipatio Jiduciae caussa, 
or conveyance on trust. This was employed in the cere- 
mony of emancipation, and other modes of modifying the 
legal condition of persons"; as applied to things, it was 
probably the earliest form of a mortgage ° and trust deed p. 
Whatever of a limitative or executory character ac- 
companied any particular mancipation was doubtless ori- 
ginally set forth in the lex or binding contract"^ of the 
viancipium, which was first orally declared nuncupata (see 
next section, p. 119), but afterwards reduced to writing 
and corresponded to our modern limitations, uses, trusts, 
covenants for title, provisoes — in fact everything which 
follows the words of grant in a conveyance. 

a. So we are told Frag. Vatic. § 50, et mancipationem et in iure 

cessionem lex duodecim tabularum confirmat. 
h. Mommsen Hist. 1, 11. p. 162. n. tr. 

c. On the legal form of mancipium the locus classicus is Gains Comm. 
1. 119. 

d. Histoire §§ 88— 90. 

e. Dig. 1. 5. 4. 3. Mancipia dicta quod ab hostibus manu capiantur. 
/. Ortolan Hist. loc. cit. Mommsen Hist. 1. 6, p. 100 tr. 

Festus. Classici testes dicebantur qui siguandis testamentis 
adhibebantur. These, we know, were identical with the witnesses 
to mancipation. 
g. See Mommsen Hist. 1. 11, p. 162, n. of tr. Ulpian. Frag. 19. 
1. Mancipi res sunt praedia in ItaUco solo, tam rustica qualis est 
fundus quam urbana qualis domus; item iura praediorum rus- 

E. L. H 



114 Early Roman Law, 



ticornm nelut uia iter actua aquaeductus ; item Bemi et qnadm- 
pedes quae dorso colloue domautur uelut boues mull equi asiui. 
ceterao res nee mancipi sunt. 

Again id. 19. 3. Mancipatio propria species alienationis est 
rerum mancipi. Compare Gaius Comm. 2. 22. 

h. Varro de lingua Latiiia 7. § 105. Nexum Manilius scribit omne 
quod per libram et aes geritur, in quo sint mancipia. Mucius 
quae per aes et libram fiant ut obligentur praeter quae mancipio 
dentur. hoc ucrius esse ipsum uerbum ostendit de quo qnaerit; 
nam idem quod obligatur per libram ncque suum fit inde nrTum 
dictum, liber qui suas operas in scruitutem pro pecunia quadam de- 
bebut dum solueret nexus uocatur. The personal construction ^n( 
ut obligentur is peculiar and not quite to be explained by Lucretius* 
iwpeixonnl pleouasm Jit ut.... 1 do not ice, however, bow it can 
bear anj' other meaning than that given in the text. The diffi- 
culty very probably arises from the confusion between nexum 
the thing bound and nexum the bond, of which I think traces may 
be seen in the passages cited below (k) from Festus. 

1. See Maine's Ancient Law, ch. ix. especially pp. 314 — 316. 

k. Festus. Nexum est, ut ait Gallus Aelius quodcunque per aes et 
libram geritur, idque necti dicitur, quo in genere sunt haec : testa- 
mcnti factio ncxi datio ncxi Uheratio. (MilUor for dando and 
librranto. Again nexnn aes apud antiquoa dicebatur pecunia 
quae per noxum obligatur. 

/. 'per aes et libram ' (Jaius Comm. 2. 102. 

in. See Mommsen Hint. 1. 11, p. 102 tr. As auctoritan or warranty 
certainly accom])anied those imperfect assurances, the title under 
which might be ripened by mus into Quiritarian ownership, we 
should A fortiori expect it to accompany mancipation. It sccnis 
questionable, however, whether this continued to be the case, in 
later times, with mancipations by a mortgagee for the nominal sum 
of one Hcsterce. See Poste's Gaius p. 632 and below, note p. 

n. (Jaius Comm. i. 114, 115. lust. Instt. 3. 2. 8, also below, § 25. 

o. Isidor. Origg. 5. 25. Fiducia est cum res aliqua sumendae mutnae 
pecuniae gratia uel mancipatur uel in iure ceditur. 
Isidonis Hifipalensis, so calle<l from bis bishopric of Seville, 
flourished at the beginning of the seventh century of our era. 
• Anno f)3fi,' says Bellarmine, • migrauit in caelum, ut ex chro- 
nicis Hispaniensibus intelligitur.' His Originen or Ktymologiae 
contain many derivations and explanations which have consider- 
able antiquarian if not much philological value. 

p. The two cases of mortgage and trust are distinguished by Gaius 
in Comm. 2. 59. qui rem alicui fiduciae caussa mancipio dcderit 



Eegal Period. , 115 

nel in iure cesserit, si &c., and 60 fiducia contrahitur aut cum 
creditore pignoris iure aut cum amico quod tutius nostrae res 
apud eum essent. 

Compare, aa to trust, Boethius on Cicero's Topica 10 § 45. 
Fiduciam...accepit cuicunque res aliqua mancipaturut eam manci- 
panti remancipet ; uelut si quis tempus dubium timens amico 
potenLiori fundum mancipet ut ei, cum tempus quod suspectum 
est praeterierit, reddat. haec mancipatio fiduciaria nominatur 
idcirco quod restituendi fides interponitur. 

A most interesting relic was discovered in the year 1867 near 
the mouth of the Guadalquivir in the shape of a brazen tablet 
having inscribed upon it a form of mortgage by mancipation, to 
secure present and future advances, w?*h a power of sale. The 
estate mortgaged is conveyed to the mortgagee iiti optumus max- 
urmisque esset, which according to Digest, 21. 2. 75 means that it 
is to be guaranteed liber ab omni seruitute to the mortgagee. He, 
on the other hand, in case of sale, is not bound to make more 
than a formal mancipation for a single sesterce, which apparently 
did not involve warranty of title (Poste's Gains, p. 532). Hiibner 
attributes this tablet, from the form of the letters, to the first 
century a.d. I give the lex mancipi in full from Bruns' Fontes 
luris Romani pp. 131, 2. It is also to be found in the addenda to 
Teste's edition of Gaius. 

Dama L. Titi ser(uo8) fundum Baianum, qui est in agro, qui 
Veneriensis uocatur, pago Olbensi, uti optumus maxumus-q(ue) 
esset HS n(ummo) I et hominem Midam HS n(ummo) I fidi fidu- 
ciae causa mancipio accepit ab L. Baianio, libripende autest(ato). 
adfines fundo dixit L. Baianius L. Titium et C. Seium et populum 
et si quos dicere oportet. 

Pactum comuentum factum est inter Damam, L. Titi ser(uom) 
et L. Baian(ium) : quam pecuniam L. (Titius L.) Baianio dedit 
dederit, credidit, crediderit, expensumue tulit tulerit, sine quid 
pro eo promisit promiserit, spopondit {spoponderit,) fideue quid 
sua esse iussit iusserit, usque eo is fundus eaque mancipia fiducia 
(e) essent, donee ea omnis pecunia fidesue persoluta L. Titi 
soluta liberataque esset ; si pecunia sua quaque die L. Titio 
h(eredi)ue eius data soluta non esset, tum uti eum fundum eaque 
mancipia, sine quae mancipia ex is uellet L. Titius h(eres)ue eius 
uellet pecimia praesenti uenderet; mancipio pluris HS n(imimo) I 
inuitus ne daret, neue satis secimdum mancipium daret, neue 
ut in ea uerba, quae in uerba satis s(ecundum) m(ancipium) dari 
solet, repromitteret, neue simplam neue (duplam) . . . 
Lex is probably connected rather with the root of ligare than with 



ii6 Early Roman Law. 

that of Ugere; see Corssen Ausspr. 1'.444 and Curtius drtlndzuge 
173. Considered in connection with vuincipium, lex and n^xum 
appear only to differ in bo far as the latter is the bond or obliga- 
iiun between the parties, and the former the expression of it. 



§23. 

Testamenta calatis comitiis and per aes et libram. 

The testamenti /actio jier aes et lihram, being a form of 
mancipation, naturally comes here, but the old form of will 
which it superseded deserves a brief notice. Arrogatio co\i\(}i, 
as we have seen (p. 28), be only performed at a meeting 
of the Curies. The first wills were made at a * summoned 
meeting,' in the first instance doubtless of the same Curies. 
1'i>e }»riinary object of these ' Calata Comitia' would ap- 
pear from Ciellius* to be the inauguration of a rex or 
flanieu. As these were life offices, a meeting for the pur- 
pose of filling up a vacancy would be occasional and 
specially summoned, which is probably the origin of the 
name. So Macrobius makes the people to be summoned 
by the pontifex minor to the Curia Calabra aa scon as he 
h.'us caught sight of the new moon, whose rising, though 
to us a tolerably regidar event, waa originally treated as one 
to be specially observed for each individual occasion ^ 
However, at those Calata Comitia was also perfonned the 
making of testaments and the detestatio sacroriim,*. The 
subject-matter with which the latter solemnity dealt is 
clear: >Nhether it was a formal notice to take up certain 
sacra priuata or a formal disavowal of them is not clear'. 
But there can, I think, be little doubt that the secondary 
or incidental function of the Comitia Calata (which were 
alway.s held under the presidency of the pontiffs) was to 



Regal Period, 117 

supervise the maintenance and proper devolution of the 
sdcra priuata. And when this business assumed, as we 
shall shortly see that it did, a form which was in frequent 
practical requisition, the incidental function of the Comitia 
Calata might well become a substantive one, and lead to 
their being held at regular intervals instead of being 
merely called when a king or flamen died. Indeed, a 
formerly questioned statement of Theophilus, that the 
Calata Comitia took place regularly twice a year has been 
confirmed by the discovery of Gains' Commentaries*'. 
Considering, then, the peculiar subject-matter with which 
these Calata Comitia dealt, as also the antiquity implied 
by that subject-matter, by their name and by the name of 
the officer (not yet rex sacrificulus, but rex) with whose 
inauguration they were originally concerned; it does not 
seem too bold to identify them with those assemblies of 
the Curies which transacted the business of arrogation 
under the same presidency (of the pontiffs). The naming 
of an heir being once allowed, more general powers of 
disposing of an inheritance would naturally follow, the 
supervision of the pontiffs providing for the perpetuation 
of the sacra, and the meeting of burgesses, as Mr Maine 
suggests, for the protection of the rights of the gentiles. 

The assembly of the Curies, although perhaps not 
exclusively patrician (see below, § 27, p. 137), would 
certainly seem from the functions which it discharged 
to have been essentially gentile. It was scarcely likely 
that this venerable assembly would concern itself about 
the last wishes of any one not a member of a gens. 
But the Servian reform doubtless gave similar testa- 
mentary powers to any one on the census-roll. For the 
words of Gollius on the subject of Calata Comitia clearly 
shew that these meetings were called of the centuries as 
well as of the Curies, a point which has been much over- 



ii8 Early Roman Law, 

looked. The first wills, then, were oral declarations of 
the testator's wishes as to his inheritance, before an 
assembly of the people, in all probability formally put 
{rogaUi) like the arrogations from which they were de- 
rived, with the sanction of the pontiffs '^. If we may be 
allowed to translate the custom into a modern form, every 
such will was a private act of parliament passed subject to 
the veto of the Episcopal Bench. The inconvenience and 
probable expense of such a system is evident in the case 
of either curies or centuries, but more in that of the cen- 
turies, as being the larger assembly : so that it may have 
been, (as is sometimes assumed.) by those who had to 
avail themselves of the latter, that the new form of will 
was devised. This was a legal transfer (rnancipatio) of the 
inheritance inter uiiws, with that payment of a nominal 
consideration which seems to have been the first legal 
method of creating an obligation between parties. The 
perfectly mutual character of the nexum is seen here in 
the fact that it must have been the jxtyer of this con- 
sideration, the * purchaser of the family,* ixa he was called, 
who became bound to fulfil the ' binding direction (lex)' of 
the mancipium. The act of declaration by the testator 
(nuncvpatio) originally perhaps stated his wishes in full, 
afterwards by reference to the tablets, which, from his 
calling the five witnesses to attest their delivery, became 
the 'tablets of his testament ;* and lastly, by an easy change, 
the ' testament * itself that has descended to modem 
times. Gains describes the whole ceremony in a well- 
known passage • in which the only points that appear to 
require special notice here are the following. The words 
of the familiae emptor or trustee (who wa'* originally the 
heres, the principal cestui-que-trust, also) seem to contain 
a reference to the law of the Twelve Tables. He declares 
himself to receive the property * w hereby thou mayest 



Regal Period, 119 

make a valid (or binding) will in pursuance of the public 
law,' This public law I have little hesitation in identify- 
ing with that of the Twelve Tables, so called as distin- 
guished from the private lex or declaration of a wan- 
cipium^ From the latter comes the word legare, appearing 
in the enactment in question, and which, first meaning 
simply to direct, afterwards signified to leave away from 
the heres. The word lure I have ventured to understand 
* in a valid (literally binding) manner,' on the authority of 
the words, in the Twelve Tables, it/i ius esto, (so be it 
binding.) translated according to the only derivation at all 
satisfactory of the difficult word ius^. I mention this refer- 
ence to the Twelve Tables for the purpose of remarking 
that it merely fixes the date of the formula in which it 
occurs as subsequent to that code. The previous practice 
of testamentary disposition may rather be inferred from 
the words of the enactment itself, which substitutes the 
authority of law for that of custom. If legare be rightly 
connected with the lex mancipi, the word legassit in the 
Twelve Tables proves an established custom of mancipa- 
toiy testation. 

The declaration of the testator was called nuncupation 
for nuncupare signifies, says Gains, to name openly {palam 
nondnarey. The latter part of the word, which is clearly 
the same as in mancupare, has here no explanation. If 
we may regard mancupare and nuncupare as originally 
antithetical — ^the manual taking and the nominal taking — 
we may see a peculiar propriety in the use of the latter 
word, where a continuing nexuni was intended, where cer- 
tain services had yet to be performed, and the transaction 
was, at least in one point of view, executory. This is the 
case with the familiae emptor in the testamentam per aes 
et libram, where, however, the word doubtless soon passed 
altogether into the meaning of * declaring ' those executory 



120 Early lloman Law. 

services which the testator was perhaps ori<;inally con- 
sidered as ' nominally receiving^* 

There is a considerable analogy between this Roman 
artifice of making a conveyance inter uiuos do duty for a 
will, and the English feoffment to use of the feoffor, for a 
similar purpose, before the statute of uses. The owner be- 
came thus enabled to devise the use where he could not 
liave devised the legal estate, which became vested in the 
feoffee as the familia in the emj)tor\ Whether the 
nexum in the Roman case included a trust for the testator 
during the remainder of his life, like the use with us, we 
do not know: probably not, as this will was only made on 
the approach of death''. It may be observed that the 
nominal consideration which seems to have created the 
bond between the parties in Roman law, would have 
been fatal to the resultinrf use which our Court of 
Chancery only held to arise where no consideration pjissed. 

a. Noctes Atticne \'y. 27. In libro Laeli FoliciH a<l Q. Mucium primo 
8criptum est Iial>oonein scriboro calata comitia OBse qtiae pro col- 
lopio pontiftcura habcntiir aut regis (? sacronun) aiU flaniinnm 
inauguraudonim cau«Ha. oonim autom alia ohso cnriata alia ceii- 
turiata. cnriata per lictoreiii cnriatum calari id est conuocari 
centuriata per comiciiifin. iadom comitiiH quae calata appellari 
dixiinufl et Bacrornm dctestatio et testaincnta fieri fw»lebant. 
tria onim genera teHtainentornm fuisso accepiirum ; unum quod 
calatia comitiiH in populi coiitiono fieret, altcmm in procinctu 
cum niri ad proelium faciendum in nciem uocabantnr, tcrtium 
per fnmiliac mancipationem cui aos et libra adhil>eretur. The 
farrorum drtrttatio mentioned here and in Noct. Att. 7. 12 wa« 
very probably a solemn renunciation of family sacra made before 
the rnmilia calata and with the sanction of the pontiffs. This 
sanction was, doubtless, often diflicult to obtain ; from wliich fact, 
as the burden of the »acra become more and respect for them lesg 
ftlt, arose the artifice of shifting this duty upon some slave eman- 
cipated for the purpose (Festus Manumitti (Aik); puri probi Ac), 
or upon some man of straw {urnex cormptionaliji), who become 
liable to the duty of keeping up the $acra whether by nominally 



Regal Feriod. 



121 



purchasing the inheritance or, as the prefix co would seem to 
indicate, by going through the ceremony of coemption (below, 
§ 26) with an heiress so liable. Cic. pro Murena 12. 27. Com- 
pare to some extent our common vouchee in a recovery. 
I. Satt. I. 15. 

c. Gains Comm. 2. 101. 

d. The form of rogation in arrcgation is given by Gellius Noctt. Att. 
5. 19. As to the pontiffs' sanction see Cic. pro domo sua ad 
pontt. 13. 35. pontificibus bona caussa uisa est : approbauerunt. 

€. Gaius Comm. 2. 104. qui facit, adhibitis sicut in ceteris mancipa- 
tionibus quinque testibus ciuibus Komanis puberibus et libripende, 
postquam tabulas testamenti scripserit, mancipat alicui dicis gratia 
familiam suam, in qua re his uerbis famiiiae emptor utitur '■'f ami- 
Ham pecuniamque tuam endo mandatam tutelam custodelamque 
meam [recipio eaque] quo tu iure testamentum facere possis secun- 
dum legem publicam hoc acre et, ut quidam adiciunt, aeneaque 
libra, esto mihi empta,'" deinde aere percutit libram idque aes 
dat testatori uelut preti loco, deinde testator tabulas testamenti 
tenens ita dicit " haec ita ut in his tahulis cerisque scripta sunt ita 
do ita lego ita testor itaque uos, Quirites, testimonium mihi perhibe- 
tote" et hoc dicitur nuncupatio : nuncupare est enim palam 
nominare &c. 

/. Vti legassit super pecunia tutelaue suae rei ita iws esto. 

g. Legare is interpreted, on philological grounds, by Corssen as 
bindenden Auftrag geben, to give a binding charge or commission. 
Ausspr. 1^. 444. lus is traced by the same author to a root 
iu (binden). The stems springing from this root mostly indicate 
connection rather than constraint, but the former meaning is quite 
proper in the case of a valid bond between parties. lus, it may be 
remembered, belonged to civil not criminal law. The word cannot 
come from iubeo, an assumption on which much now exploded 
metaphysical and juridical speculation has been founded. 
h. This view of nuncupare is slightly supported by the following 
passage. Festus. Nuncupata pecunia... uoia, nuncupata dicuntur 
quae Consules Praetores cum in prouinciam proficiscuntur faciunt 
...at Sautra, L. ii. de uerborum antiquitate, satis multis nuncu- 
pata colligit non de recto (Miiller directo ? unnecessarily) nominata 
significare sed promissa et quasi testificata circumscripta recepta, 
quod etiam in uotis nuncupandis esse conuenientius. 

Compare, besides manu-, usu-capio. For the etymology, there 
is not much more 'loss' than in homi(ni)cida. The intermediate 
in dropping, contact with the c changes m to n. For change of o 
to u compare contittncula, &c. See Corssen Ausspr. 2*. 577. 



122 Early Roman Law, 



i. 1 Sand, Uses. "Williams on Real Property, cbapB. 8 and 10. 

k. Gains Comm. 2. 102. Qui neque calatis comitiis ueque in pro* 

cinctu testamcntum fecerat, is ti $ubita morte orgebatar amico 

fumiliam suam mancipio dabat, d-c. 



§ 24. 
Testamenta in procinctu. 

An exceptional and not very valuable privilege of 
testation was allowed to soldiers, without distinction of 
order, on the eve of a battle \ The well-known expres- 
sion 2)rocinctus would appear from Servius* explanation 
to mean that the sort of plaid which formed the ordinary- 
Italian dress, instead of falling in a loose fold over the 
breast, was thrown over the back, then brought tightly 
roimd the front of the body and tied so ns to form a 
girdle ^ In procinctu, then, means in fighting oriler, and 
the will in question was made, as Gellius informs lis, 
'when the men were being called into line for battle' 
(see above, § 23, n. a), or rather, perhaps, after formation 
in line and during the brief delay of taking the auspices: 
for Cicero distinctly connects the cesstition of the latter 
practice with the disuse of testaments in procinctv''. At 
what time they came into legal recognition it is difficult 
to say: but they very probably took their rise in the 
Servian military organization. The coupling of tho 
epithet procincta with the well-known technical term 
cUissis, speaks slightly in favour of this theory, though 
there is nothing to prevent classis (a calling or summon- 
ing) having been used for nny body of soldiers, independ- 
ently of the Servian constitution''. The allowance, then, 
of this practice may possibly have been coeval with power 
to make a will in the calata comitia of the centuries; so 



Regal Period, 123 

that it did not amount to the conferring of a nevV right 
upon the plebeians, but merely to the dispensation with 
forms otherwise necessary. This is clearly the view'taken 
by Cicero, who speaks of the testamentum in procinctu as 
also dispensing with the forms of that per aes et lihram^. 

Heineccius ingeniously suggests that these wills were 
held valid because made by implied vote of the people, 
assembled, here on the battle field, as, for the regular wills, 
in their calata comitia^. In this opinion he is followed 
by Ortolan^. 

The form was an oral declaration of the soldier's wish 
to his fellow-soldiers present''. It is probable that the 
testament was only valid in case of the testator's death 
in that particular battle \ 

Testamenta in procinctu, having fallen into disuse to- 
wards the close of the republican period*', were replaced 
by the testamentum miUtare temporarily allowed by Julius 
Csesar, Titus, Domitian, and Nerva, and placed on a foot- 
ing of permanent authorization by Trajan^ A similar 
allowance has been made in most modern systems'. 



Gaius Comm. 2. 101. aut in procinctu (testamentum faciebant) id 
est cum belli caussa ad pugnam ibant ; procinctus est enim expe- 
ditus et armatus exercitus. alterum itaque in pace et in otio 
faciebant alterum in proelium exituri. 

Servius on Virg. Aen. 7. 612. Gabinus cinctus est toga sic in ter- 
gum reiccta ut una eius lacinia reuocata hominem cingat, hoc 
autem uestimenti genere ueteres Latini cum necdum arma babe- 
rent praecinctis togis bellabant unde etiam milites in procinctu 
esse dicuntur. 

Cic. de Nat. Deorum 2. 3. 9. Itaque maximae reipublicae partes, 
in his bella, quibus reipublicae salus continetur nullis auspiciis 
administrantur : nulla peremnia seruantur nulla ex acuminibus; 
nulla cum uiri uocantur, ex quo in procinctu testamenta perierunt. 
The italicised words are a certain emendation (founded on GelUus' 
cum uiri...uocabantur § 23. n. a, above) of nulli uiri uocantur the 
MS. reading. 



124 Early Roman Law. 



While the general was taking the angpices, (we are told by 
Sabidius on Virg. Aen. 10. 2-11,) interim ea mora utebantur qui 
testamenta in procinctu facere uolebant. This mora, though 
longer doubtless in duration, answers well in point of time to 
our poet's : — 

' One moment while the trumpets blow.' 

d. Festus. Classis procincta exercitus instructus. See too Opima 
spolia, endo jirocinctu, and procincta. Dionysius Antiqq. 4. 18. 
iyivovTQ bk ffvfxfioplai fih f^ dy /caXoP<rt 'Vufiaioi K\d<rfis...i yhp i)fu7t 
l>rifia trpoffraKTiKut <rx'7Ma^ff<'»'''<* ^«:<^^/)o//fv, /fo'Xfi, tovt iK(7poi 
"X^yovffi /cdXo, Kal tAs KaX^tren ipxcuov iKoiXovv /cXaVejt. The ex- 
planation of fc-aXft is probably that the name of the Epsilon, which 
(as following the X) corresponded to a Latin a, was not e or if 
but « (Roby's Latin Grammar, Ixvii). The passage from Dionysius 
is rather in favour of a borrowing of classis from Doric Grerk 
(which is Mommsen's theory) than of derivation from a stem 
cla-t (cf. Gothic la-th-6n) by which Corssen proposes to account 
for the first s. Ausspr. 1'. 490. Curtius GnmdzUge 133. The 
meaning is the same in either case. 

e. Cicero de Oratore 1. 5.i § 228. tanquam in procinctu testamentom 
faceret sine libra et tabulis, 

/. Heinecc. .\ntiqq. Syntagma 2. 10. 3. 

ff. Ortolan Explication § 651. 

/». Festus. In procinctu factum testamentnm dicitur quod mile« pug- 
natunis nuncupat praeaentibus commilitonibus. 

1. Heinecc. Antiqq. Syntagma 2. 10. 4. 

k. Digest. 29. 1. 1. pr. Militibus lil>eram testamonti factionom 
primus quidem Diuos lulius Caesar concessit, sed ea concespio 
temporalis erat : postea uero primus Diuos Titus dcdit ; post hoc 
Domitianus; postea Diuos Nerua plonissimam indulgentiam in 
niilites contulit eamque et Traianus secutus est et exinde man- 
datis inseri coepit caput tale &c. The gist of the 'caput' is 'ut 
qufMjuo modo tostati fuissent rata osset eorum uoluntas.* 

The above is due to Ulpian, who also in Frag. 23. 10 speakii 
to the same efToct, adding, as to the duration of such wills, 'sed 
quod testamontum miles contra iuris regulam fecit ita demum 
ualet si uel in castris mortuos sit uel post missionem intra annum. 
Compare Gains Comm. 2. 109—111. Justin. Instt, 2. 11, specially 

§3. 
/. 1 Vic. c. 26 § 11. Code Napoleon (Civil) Liv. 3. Tit. 2. Sec. 2. &c. 



. Regal Period, 125 

§25. 

Emancipatio. Noxae deditio. Adoptio. 

Consistently with the view that ownership was the main 
constituent element oipotestas, we find the legal convey- 
ance forming a large part of these acts in law by which 
that peculiar relation was transferred, modified or ex- 
tinguished. Of these, the emancipation of a son from 
the father's power was in all probability recognized rather 
than created by the enactment of the Twelve Tables, ' if 
a father shall have thrice sold his son, let the son be free 
from the father"'. This practice, then, may have dated 
from shortly after the introduction of mancipation. There 
does not seem, however, any ground for supposing that 
the mancipation of a son was introduced merely for the 
purpose of setting him free. It was sometimes doubtless 
the bonS, fide transfer of a chattel, which, for instance, in 
the case {noxalis caussa) of making over bodily an offend- 
ing son to the person injured as amends for the injury, 
clearly existed in the time of Gains, though it had ceased 
in that of Justinian ^ It need not be now discussed 
whether such a surrender {noxae deditio) was introduced 
by the Twelve Tables or, as seems more probable, existed 
before^ : the barbarity of the practice, which may have 
extended even to the surrender of dead bodies'', speaks 
for its antiquity. The noxae deditio is merely mentioned 
here as a proof of the lengths to which the exercise of 
patria potestas was actually carried. The child indeed, as 
Dionysius tells us, was in some respects worse ofif than 
the slave. On the former's attaining liberty in the hands 
of his new owner, the father's rights were revived. To 
these, at least in this particular respect, the law at last 
fixed, as we have seen, a limit which had probably been 



126 Early Roman Law, 

previously recognized by custom. And a strict interpreta- 
tion of the law introduced the curious anomaly of less 
ceremonial sufficinj' for the enfranchisement of a daujjh- 
ter or grandchild than for that of a son*. The form of 
emancipation resulting from this enactment may be easily 
made out from Gains' Commentaries, 1. 132, though there 
are some lacunae in this section. The only thing requir- 
ing notice is the position of the son after the third sale. 
The father's peculiar rights are now extinguished, and the 
former son is in the position of a slave to the Emptor. 
If, therefore, on his enfranchisement it is intended that 
liis former father should occupy the position of patronus 
to him, he must be resold to the father, and finally manu- 
mitted by him ; whereas on the two former sales, either 
manumission or resale by the purchaser would suffice 
e(iually waW. 

The word emancipatus, in the ordinary signification 
under which it has just been considered, apparently means 
mancipnted away, i.e. out of the father's power. It is 
iiowever sometimes used even by the cla.ssical jurists, as 
it is certainly by the writers of the Augustan and pre- 
Augustan period, to express mere mancipation, very often 
a voluntary sale of one's self. So Plautus JSacchides, 1. 1. 
51), Nunc ego mulicr tibi me emancupo, and the fine 
passage in Horace's Kpodes, 9. 12, Ilomanus (eheu posteri 
negabitis) Emancipatus feminat;, &c. Lambinus, on the 
latter, takes what seems to be the true view that man- 
cipare was strictly proper of the buyer only, emancijxire 
Wing said of the seller''. It is therefore not surprising 
t<i find the latter word u.sed even in cases of adoption, 
wlien; it is not intended that the JilinS'/amilias shall pass 
out of patrid potestas altogether, but only out of that of 
the natural into that of the adoptive father''. Adoption 
may of course be as old as arrogation, but would seem 



Regal Period, 127 

not to be so, from the state supervision, which was prac- 
tically required, being of a purely civil character — whereas 
that required in arrogation was at least in part religious — 
and from the employment of mancipation. The person to 
be adopted was thrice purchased by the adoptive from the 
natural father, the last sale being followed or accom- 
panied by a formal claim (uindicatio) on the part of the 
former, and surrender in court {in iure cessio) on the part 
of the latter ^ 



a. Si pater filium ter uenum duuit filius d. patre liber esto. Ulpian 
10. 1. duuit is Scholl's future perfect, (p. 85.) 

6. Gaius Comm. 4. 75—81. It was a question whether three sales 
were required here as in 'voluntary mancipations' or one would 
suffice. Compare on the whole subject lust. Instt. 4. 8, especi- 
ally § 7; also below, note d. 

c. Ulpian in Dig. 9. 4. 2. 1. See note d, 

d. See the fragmentary section 81 of Gaius Comm. 4. Compare too 
Livy's story of the Samnites surrendering Brutulus' dead body to 
the Bomans. (8. 39.) The same author makes out the resurrender 
to the Samnites of Sp. Postumius and the other guarantors of a 
peace (after their capture at the Caudine Forks), to be a noxae 
dcditio. Livy 9, 10. A. Cornelius Aruina fetialis ita uerba fecit, 
"quandoquehisce homines iniussu populi Komani Quiritium f oedus 
ictum iri spoponderunt atque ob earn rem noxam nocuerunt . . . 
hosce homines uobis dedo." SchoU would here apparently read 
noxiam following Seruius on Aen. 1. 41. {noxam. pro noxiam. et 
hoc interest inter noxam et noxiam quod noxia culpa est id est 
peccatum, noxa autem poena, quidam noxa quae nocuit noxia id 
quod nocitum accipiunt). Flaccus makes noxia the damage done, 
noxa the fault or its penalty. Festus noxia (bis). 

SchoU, then, seems to interpret noxae dedere 'give up to punish- 
ment' (e/j K6\a<riv). Of all this I can only here say that the sim- 
pler form is the more likely to come near the meaning of the root 
noc — hurt; and that the MS. reading of the passage from Livy 
seems at least as good authority as the opinion of the Eoman phi- 
lologers and jurists upon the original meaning of noxa, when they 
do not affect to quote any ancient fragment. In the passage from 
the Digest, * si seruos furtum faxit noxiamue nocuit,' Haloandrus 
reads noxam. 



128 Early Roman Law, 



e. Gaius Coram, 1. 132, 4. 

/. Giiscben on Gaius Coram. 1. 132. 

.'/. Festus is ambiguous. Kmancipati duobus modis intclligunttir 
aut ii qui ex patris iure cxierunt aut ii qui aliorum fiuut doraini 
quorum utruraque fit raancipationo. Tbo second clause may 
mean voluntary sale of one's self, as in tbe case of Antony, put by 
Horace. 

h. Cicero de Finibus 1. 7. . . seucritatcra (Torquati) in eo filio...qaem 
in adoptionera I>. Silano emaucipaiierat. 

t. Suetonius, Augustus 64. Caiura et Lucium adoptauit domi (as 
opposed to in iure) per aesem et libram emptos a patre Agrippa. 
So too Festus (at least according to Miiller's additions, mainly fol- 
lowing tboso of Ursinus). [Mancipationo adoptatur] ut patris sui 
beres e-[-s8o desinat: sed eius qui adop-]-tet tara beres est 
(luu-[-ra8i ex eo natus esset &c.] Gellius 5. 19. adoptantur 
uutem cum a parente in cuius potestate sunt tertia mancipatione 
in iure ceduntur atque ab eo (jui adoptat ainid eum apud quem 
K'^'is actio est ( = in iure, apuJ magistratum) uindicantur; adro- 
gjintur bi qui cum sui iuris sunt in alienam scse potostutem tra- 
dunt eiusque rei ipsi auctores liunt. 

Query, did tbe latter, after munoiiiation was introduced, em- 
ploy tbat form, as tbe next doubtless did? Tbis would give a 
g<H)d explanation of tbe expressions above cited from Plautus and 
Horace, as also of tbo secmd meaning of cmuncipatm in Festufl 
(above, note g). For uindicatio and in iure ccgmio see above, § 19. 



§ 2n. 

Orkjinal Legal Position of Womkn and its 
Modifications. 

With regard to the patria potestas tlio daughter was no 
«loMl)t originally in no better position than the son. She 
might even he given np, according to the Institutes*, like 
him, in no.rali cama (see above, p. 125). For her marriage, 
of course the consent of those in whose 'power''' or tute- 
lage^ she might be was necessary: nor are w^e surprised to 



Regal Period. 129 

find a form of mancipation employed for her purchase and 
sale, as a bride. This coemptio is probably, at least in the 
form we know of it, later than confarreatio, by which, 
however, it is quite possible that it was sometimes accom- 
panied, as we now occasionally have a religious ceremony 
celebrated in addition to a civil maiTiage. Coemptio would 
perhaps be first used by those who had not family sacra, 
which were no doubt essential to confarreatio. 

It may possibly have been from its originating among 
those with whom the paternal authority, though of course 
existing, was not a thing quite so sacied and supreme as 
with members of an old genSy that we do not in this mar- 
riage find it to be the father so much who sells his daugh- 
ter, as the daughter who with his direction {iussus) sells 
herself*^. She is generally said coemptionem jhcere, and 
the compounded preposition is explained by Servius' view 
that this is a mutual transaction in which each party buys 
the other®. A price being apparently always mentioned, 
and the aes et libra being made by Servius essential to co- 
emption, it does not seem necessary or proper here to have 
recourse to the original meaning (take) of emere '. 

The words which Boethius^ makes the parties use in 
this marriage perhaps explain his strange statement that 
those who came into the husband's power (manus) by 
coemption were called mater-familias but not those who 
did the like by confarreatio or usus. These words are not 
unlike a modem form. They asked one another, the man, 
would she be his mater-familias ?.. .and the woman, would 
he be her ^?aier-/awi7ia5 .? to which questions both an- 
swered, they would. The regular form of mancipation no 
doubt followed, and probably constituted the binding part 
of the transaction : indeed Boethius' account may be little 
more than a gloss upon the often-quoted formula, ubi tu 
Gains ibi ego Gaia, words which seem according to Cicero 
R. L. I 



130 Early Roman Law. 

to have caused the same trouble to the pedantic lawyers of 
his day as the mysterious letters 2(. or M, do sometimes to 
the catechumens of ours**. The stiitement as to viaterfa- 
viiltas contained in this passage of Boethius is mentioned 
by Servius as an alternative theory together with what la 
no doubt the truer one — that all wives in manu were 
niatresfamiliasK The other mode by which a woman 
passed in manum may be mentioned here, though all we 
know of its date is that it waa in vogue before the Twelve 
Tables. I mean usus or prescription, by which cohabita- 
tion for a year, with the consent of those in whose power 
she was or of her guardian, transfenxnl a woman into the 
j)ower of him who was thenceforth her husband. This is 
merely an application of the wider doctrine referred to 
above (p. 110) and more particularly in the next section 

(p. 1*1). 

Conuentlo in manum, however, the technical term for 
passing into the power of a husband, was found undesir- 
able by some persons, even in those early times, as it wa.s 
ahnost universally avoided in later. Hence arose a prac- 
tite of breaking the usus by a certain amount of absence 
during the year of prescription, which absence the law of 
tlie Twelve Tables fixeil at three continuous nights ^ 

The guardianship or tutelage exercised over women 
must be noticed here, as coemptio wius also employed with 
reference to it, and it presumably existe<l prior to the 
Twelve Tables'. According to Roman common law a 
woman though of full age did not, like a man, become a 
perfectly free agent by the death of him in whose power 
she was. She merely passed into the tutehuje either of a 
guardian a])p()inted by the deceased or of those relatives, 
ius guardians fixed by law, to whom on her death un- 
married and intestate her property would come". On 
these points the enactment of the Twelve Tables may with 



Regal Period. 131 

probability be considered as merely 'declaratory of the 
common law.' The special exception of the Vestal virgins 
contained in that code*" sufficiently proves the rule, and 
the normal condition of all other women. So that even if 
a woman abstained from marriage or at least from those 
forms of marriage which brought her and all her property 
into the ' power {manusy of a husband, her liberty to deal 
as she would with her own was of a most questionable 
kind. 

She succeeded, it is true, to her share of property, but 
she could not, in the old times, alienate it, or perform any 
act in law whatever, without the sanction of her tutor, who 
might be an interested relative. * To every act,' says Livy, 
*even of a private character, done by a woman, our ances- 
tors required the sanction of a tutor''' It is true that this 
rigid primitive law was in time evaded, and even overruled 
by equitable regulations proceeding from the state tribu- 
nals themselves. Gaius, curiously anticipating a now well- 
known argument, scouts the idea of a ' want of weight in 
the female mind ' as forming any good reason for their 
state of wardship : ' because,' says he, * women of full age 
manage their affairs for themselves, and in some cases the 
tutor puts in his sanction by way of form : nay, is often 
obliged to give it against his will by the praetor' (whom we 
may here perhaps identify with the Court of Chancery) p. 
Originally, however, a single woman on the death by 
which a man would have become perfectly free, had a 
tutor cast on her by law (if one had not been otherwise 
appointed for her), who was interested in the succession to 
her property, and without whose sanction she could neither 
alienate the portions of that property regarded as most 
valuable by the old law**, nor make a will at all'. 

Down to the time of Gaius the statutory tutor could 
not be compelled to give his sanction to either of these 

I 2 



132 Early Roman Law. 

acts, and that avowedly because of his own conflicting 
interests'. In fact until the passing of a SenatvLS-con- 
sultum, under Hadrian, not even the sanction of a statu- 
tory tutor would suffice to validate a woman's will, but 
she must first have come into the tutelage of a trustee by 
the cumbrous process of coemption, remancipation, and 
manumission. This point of law we see confirmed by 
a passage of Cicero'. The trustee or fiduciary tutors, 
of whom Cicero complains'', were of course flexible 
enough, but it must be remembered that the sanction of 
the statutory tutor was necessary before a woman could 
effect tlie fonnal coemption through which she exchanged 
his tutelage for that of her own choice. The state of ward- 
ship with women was for life, not, as with males, termin- 
able at pul>erty". 

a. luBtin. Instt. 4. 8. 7. 

I. lustin. Instt. 1. 10. pr. dum tamen, si filii familias sint (here 

ino'iiding daughters) consensum habeant parcntium quorum in 

potentate sunt. 

Digest 23. 2. 2. Nuptiao consisterc non po^sunt nisi consen* 

tiant omncH id ent qui coeuut quoruraquo in pot<)8tato Hunt. 

ripian Frag. 5. 2. lustum nintrinionium est e\ inter cos qui 

nuptias contrahnnt conubium Hit ct tani niasculus pubes quani 

femina uiripotens sit, ct utriquc consontiant si sui iuria sint aut 

etiam parontcs eorum si in potestate Hint. 

c. Cicero pro Flacco 34 § 84 so far as regards xtms and coemptio. 

In nianum, inquit, conuenerat. nunc audio, sed quacro U8n 
an coemptiono? usu non potuit. niliil enim potent de tutola legi- 
tima nisi omnium tutorum auctoritato deminui. coemptione? 
ergo omnibus (tutoribus) auctoribus. Sco too Ulpian Frag. 11. 
22. 27. 

d. HeinecciuR however quotes an inscription,— pvul. clavd. • • akto- 

NIXAM VOLVMMAM VIROINEM VOl.F.NT. AVSPIC. A PARENTIBTS 8V18 

coEMiT, EX. FAc. iiii. IN HOM. DvxiT. I do not kuow his author- 
ity. It was, doubtless, the indeix>ndcnt, or at least concurrent, 
action of the dauglitcr which constituted the difference, both in 
form and result, between c:nmption and ordinary mancipation. 
See Gains Comm. 1. 123. 



Regal Period, 133 



Servius on Georg. 1. 31. Teque sibi generum Tethys emat omni- 
bus undis. quod autem ait eirmt ad antiquom nuptiarum pertinet 
ritum quo se maritus et uxor inuicem emebant sicut habemus 
in iure. And on Aen. 4. 103. liceat. sane hie coemptionis spe- 
ciem tangit. coemptio enim est ubi libra atque aes adhibetur et 
mulier atque uir in se quasi emptionem faciunt, &c. See his note 
also on L 211. dominum. 

Festus, Enure quod nunc est mercari antiqui accipiebant pro 
sumere. Cf. adimere, perimere, &c. 

Boethius in Topica 3. § 14. quae . . in manum per eoemptionem 
conuenerant eae matres-familias uocabantur quae uero usu uel 
farreo minime. coemptio uero eertis soUemnitatibus peragebatur 
et sese in coemendo inuicem interrogabant, uir ita : an sibi mulier 
matcr-familias esse vellet? ilia respondebat, uelle. item mulier 
interrogabat : an uir sibi pater-familias esseuellet? ille responde- 
bat, uelle. 

This commentator is the author of the celebrated work, trans- 
lated by our own Alfred, De consolatione philosophiae. See the 
line eulogium on him in Gibbon's 39th chapter. He was executed 
A.D. 526. 

Cicero pro Muraena 12. § 27. Quia in alicuius libris exempli 
caussa id nomen inuenerunt, putarunt omnes mulieres quae 
eoemptionem facerent gaias uocarL 

Seruius on Aen. 11. 476. matronae. See Cicero Topica 3. § 14, 
who there gives a tolerably crucial instance, Si ita Fabiae pecunia 
legata est a uiro, si ei uiro uxor mater-familias esset, si ea in 
manum non conuenerat nihil debetur. genus est uxor; eius 
duae formae: una matrum-familias, earum quae in manum conue- 
nerunt; altera earum quae tantummodo uxores habentur. 

Also Gellius Noctes Atticae 18. 6. Illud . . probabilius . . . 
matrem-familias appellatam esse eam solam quae in mariti manu 
mancipioque aut in eius, in cuius maritus, manu mancipioque 
esset: quoniam non in matrimonium tantum sed in familiam 
quoque mariti et in sui heredis locum uenisset. 

It is possible that the term mater-familias may have been 
laxly applied to a woman sui iuris and unmarried. See Ulpian in 
Digest 1. 6. 4. Patres-familias sunt qui sunt suae potestatis sine 
puberes sine impuberes; simili modo matres-familiarum. Also, 
though the following is not so clear, Frag. 4. 1. Sui iuris sunt 
familiarum suarum principes id est pater familiae itemque mater 
famiUae. But the ordinary meaning of the term is clearly that 
given by Gellius and a statement sometimes quoted from Nonius 
(de compendiosa doctrina per litteras) is simply absurd. 'Ma- 



134 Early Roman Law. 

trem-familias (esse ntmenpatam) quae in £amilia manoipioqae 

sit patria etsi in mariti matrimonio esset.' Both this and the 
Btutenient of Boetbius as to wives %isu uel farreo (above, note ^7) 
may have arisen from a consideration of the exceptional case 
given in the mutilated § 136 of Gains' first book, which must, I 
think, really refer only to wives who passed i;i manum (by cou- 
farreation), sacrorum camsa. See Giischen on that passage. Also 
Tacitus Ann. 4. 16. 

k. Gaius Comm. 1. 111. Usu in manum conneniebat qnae anno 
contiuuo nupta perseuerabat ; nam uelut annua possessione usu- 
capiebutur iu familiam uiri trausibat filiacque locum obtinebat. 
itaque lege xn tabularum cautum erat si qua nollet eo modo in 
manum mariti conueuire ut quotanuis trinoctio abesset atque ita 
usum cuiusquo anni interrumperet ; sed hoc totum ius partim 
legibus sublatum est partim ipsa consnetudino obHtteratum est. 
See Gellius 3. 2. 12 — 13, where this breaking of the use is ex- 
pressed by the word usurpari said of the woman. From usnni 
rupere (SchoU 104) comes nsu-ripare, and, when applied to one'8 
own case, the middle usurj)ari. 

/. Gaius Comm. 1. 144. 14!». 

iH, Id. 1. 150. quibus testamento tutor datus non sit iis ex lege xii 
tabularum agnati sunt tutores, 157. Glim . . quantum ad legem 
XII tabularum attinet etiani feminao agnatos Imbebant tutores. 

For the identity of the tutores Icffitimi with the persons enti- 
tled on intestacy see Gaius Comm, 1, 164, 5. The relation of a 
tutor in respect to his jnipil's property — that of reversioner or ex- 
pectant — must have had some awkward consequences from the 
earliest times. As to later, see Persius 2. 12, 13. pupillumue 
utinam quem proximus heres iinpello exjiungam ! 

As instance of the act (not thought merely) to which Buch 
wishes were father, see Suet, Galb. 9, Juvenal 6. 629, <tc. 

»i. Gains Comm. 1. 145. loquimnr antcm exceptis uirginibns Ve«- 
talibus qnas etiam neteres in honorem sacerdoti liberas esse uol- 
uerunt: itaque etiam lege xn tabularum cautum est. 

o. I, ivy 34. 2. The sentiment is attributed to Cato (major) in hit 
defence of the Oppian law, ' majores nostri nnllam nc priuatam 
quidem rem agere feminas sine tutore auctore uolucnint.' 

;). Gaius Comm. 1. 190. So Cicero, speaking of the practical elusion, 
in his time, of the restraints of tutelage, says: Mulieros omnes 
propter infirmitatem consili maiores in tutomm potestate esse 
uolucrunt : hi innenemnt genera tutorum quae potestate molieram 
continerentur. pro Murena 12. 27. 

q. Gaius Comm. 2. g 80. Nunc admonendi sumus neqne f$minam 



Uegal Period. 135 



neque pupillum sine tutore auctore rem mancipi alienare posse ; 
uec mancipi uero feminam quidem posse pupillum non posse. 

Neither could such property pass by tradition and usus. Gains 
2. § 47. Item mulieris quae in agnatorum tutela erat res man- 
cipi usucapi non poterant : id ita lege xii tabularum cautum erat. 
It must be remembered that the Twelve Tables no doubt contained 
the first statutory notice of usucapio; so that the last-quoted 
enactment is probably not the imposition of a new restriction on 
women, but their exclusion from a new (statutory) power of alien- 
ation. 

See too the sweeping final clause in the following passage of 
Ulpian (Frag. 11. 27). Tutoris auctoritas necessaria est mulieri- 
bus in his rebus : si lege aut legitimo iudicio agant, si se obligent, 
si ciuile negotium gerant, &c. 

r. Gains 2. 118. Obseruandum praeterea est ut, si mulier quae in 
tutela sit faciat testamentum, tutoris auctoritate facere debeat: 
alioquin inutiliter iure ciuili testatur. Ulpian Frag. 20. 15. 
Feminae post duodecimum annum aetatis testamenta facere pos- 
sunt tutore auctore donee in tutela sunt. 

If a woman happened to have no tutor (a very rare case) she 
must apply for one in order to make a will. Livy 39. 10. Quin 
eo processerat (Hispala, a freedwoman) ut post patroni mortem, 
quia in nullius manu erat, tutore a tribunis et praetore petito, 
cum testamentum faceret, unum Aebutium institueret heredem. 

8. Gains Comm. 1. 192. 

t. lb. § 115*. Olim etiam testamenti faciendi gratia fidueiaria fiebat 
coemptio. tunc ejiim non aliter feminae testamenti faciendi ius 
habebant, exceptis quibusdam personis, quam si coemptionem 
fecissent remancipataeque et manumissae fuissent. sed hanc 
necessitatem coemptionis faciendae ex auctoritate diui Hadriani 
senatus remisit. 

Cicero (Topica 4. 18) makes a capitis deminutio essential, under 
praetorian law, to possession in accordance with a woman's testa- 
ment. Si ea mulier testamentum fecit quae se capite nunquam 
deminuit non uidetur ex edicto praetoris secundum eas tabulas 
possessio dari. 

This capitis deminutio was the result, not of the conventio in 
manum by coemption, which only put the woman in the position of 
daughter to the coemptionator; but of the resale, here a mancipa- 
tion proper, to the tutor Jiduciarixis, by which she comes into the 
position of slave to the latter. See Gains Comm. 1. § 123. Si 
tamen quaerat aliquis quare citra coemptionem feminae etiam 
mancipentur, ea quidem quae coemptionem facit...8eruilem condi-» 



136 Early Roman Law, 



cionem...mAncipati mancipataeue seruorum loco oonstitanntur. I 
give the rending of Goschcu^s edition which seems to me best. 
The meaning clearly is, • The reason for women undergoing 
mancipation besides coemption is that by the latter they do not 
enter into ser^•ile condition, by the former they do.' If a woman 
in the position of Jllia were manumitted, it appears to have been 
held that her manumitter (and subsequent tutor) could not aid her 
to disappoint the agnati. She must, therefore, to gain free power 
of testation, enter into servile condition, on which the immumitter 
became by common law her patronus, and that patronus, by an 
analogous interpretation of the rule of the Twelve Tables about 
agnati, her tutor Jiduciarius. See Gains 1. § 165. 
Gains 1. §§ 144, 145. The exceptional privilege under the liex 
lulia and Papia Poppaca, as that in favour of the Vestal Yirgins, 
proving the general rule. See too § 194. 



§27. 
Commencement of the Republic. 

The expulsion of the Tarquinii and abolition of royalty 
only conic \mdcr notice lierc a,s causing ch.ange in legisla- 
tion or judicature. Both appear to have been modified to 
a greater extent than we should gather from the words 
of Cicero in which he treats the considar authority as 
scarcely diffurring from the royal except in duration*. 

Whatever power of direct legislation may liavc been 
enjoyed or usurped by the Kings, it is clear that none 
such descended to the two first magistrates of the re- 
public. The function of enacting public laws belonged to 
the coinitia centuriata. It is possible that the older as- 
sembly {curiatit) may for some time have retained a power 
of sanction or veto in matters of general legislation. But 
their sphere of action wtus undoubtedly soon confined to 
a few special departments, such as the passing of private 
bills (in the matter of arrogation), and the investiture of 
oflicers with military authority (imperivm)\ The consti- 
tution of this assembly as of the comitia centuriata is a 



Regal Period. 137 

difficult and disputed question for which I must refer 
the reader to such histories as those of Niebuhr, Rubin 0, 
and Mommsen. A very able discussion of these matters 
will also be found in Mr Seeley's Historical Examination 
printed with the first book of his Livy. The conclu- 
sion at which I myself have arrived as to the comitia 
curiata has been briefly indicated already, i. e. that it was 
essentially a gentile assembly but was not exclusively a 
patrician one^ 

The legislative power of the comitia centuriata was 
probably at this epoch subjected to a constitutional check 
in the requirement that their enactments should be rati- 
fied by ' sanction of the fathers ' (auctoritate patrum) ^. It 
is clear, I think, that these patres are not identical with 
the curiate assembly °. They are considered by Mommsen 
as a convention of patricians distinct at once from the 
senate and the comitia centuriata, confronting the latter ' in 
firm and serried ranks like an Upper House.' In this 
view Mr Seeley appears to coincide®. With much defer- 
ence to the two last-mentioned authorities, I am disposed 
to believe that the patres were, in this case, neither more 
nor less than the Senate, which we know to have borne 
that title and to have gradually appropriated to itself the 
different branches of power from the commencement of the 
republic till its decay'. 

The Senate was no doubt originally a body of advisers 
chosen by the consuls in the same manner as before by 
the kings ; the choice being perfectly arbitrary, and there- 
fore falling usually on intimates of the consuls for the 
time being. The power of removal was probably exer- 
cised but very rarely, and the chance of being left out on 
the general revision at the census came only every fourth 
year. Merit began to be recognised as a qualification for 
the Senatorship, at least after the institution of censors : 



8 Early Roman Law. 



rejection became a direct stigma, and would therefore be 
in general sparingly used*'. Subject to the chances of 
omission or rejection here mentioned, a senator's office 
wjvs for life: moreover the practice grew up of allowing, 
as a matter of course, a quasi -sen atonal position to those 
Avlio liad hold a magistracy, which position would necesj- 
sarily involve a preference for, if not a right of, admission 
to the rank of full senator**. These causes did not, of 
course, all operate immediately on the abolition of the 
life-monarchy : but, even then, the comparative perma- 
nence of the Senate, as against the yearly Consuls, must 
have given the former a great increase of power. So 
these pati'es who, whether the Senate, a portion of the 
Senate, or a patrician convention, had certainly little or 
no definite function under the kings, now enjoyed the 
important right of veto if no initiative. That this veto 
V as a substantial power may be inferred from the neces- 
sity, in later times, of passing the Publilian law which, 
making the sanction precedent and a matter of course, 
reduced it to a mere formality'. 

How far the Senate may have enjoyed any independent 
legislative j)ower in the early republicau period is matter 
of doubt. The Senatus-Consuita which have come down 
to us m extenso, belong to a mucli later time. They ap- 
pear in fact to have been decreed on the sole advice of 
this body as taken by the consuls : in form they are 
rather opinions given to the executive than independent 
acts of the legislative authority''. 

With n^ganl to the administration of justice, the treat- 
ment of crimes seems, as before, to demand first notice. 
Here, that supreme and final jurisdiction which some at 
least of the kings, whether legitimately or not, appear to 
have possessed, was clearly done away with. One result 
of the appointment of two magistrates with equal autho- 



Regal Period, 139 

rity was that a citizen, aggrieved by the sentence of one, 
might obtain assistance {auxilium) by calling to his aid 
{appellando) the other: failing this, he could summon 
(prouocare) the magistrate or magistrates themselves be- 
fore the supreme court of the people, there to maintain 
the impugned judgement. The latter right is expressed 
very strongly and clearly by Dionysius, who evidently 
considers it as extending to all penal sentences, for he 
includes the case of fine in addition to those mentioned 
by other authors, of death or scourging ^ And both 
limitations of the consular authority may be gathered 
from the passage in which Livy speaks of the dictator- 
ship — a temporary revival of kingly power, soon found 
necessary either in the national or aristocratic interest — 
as an authority under which there was none of the relief 
that might be sought from one consul against the sentence 
of the other, nor any appeal™. 

This right of appeal, then, which was probably, as has 
been seen above (§ 15), a disputed point under the 
regal authority, was, on the downfall of that authority, 
raised from the position of a questionable customary to 
that of a definite statutory rule". It is quite possible 
that no express penalty was attached to its breach: the 
real sanction prol:)ably was the danger which a consul 
offending against the law would run, of impeachment, 
after his office had expired, for unconstitutional conduct, 
which seems a more satisfactory meaning than that of 
mere moral censure attributed by Livy to the phrase 
improbe factum ^ 

From the character of the sanction, this law might no 
doubt sometimes be, as Livy intimates, a dead letter in 
the case of very powerful offenders : but its formal import, 
as of the similar succeeding enactments carried by that 
' People-courting ' family to which the first is attributed, 



140 Early Roman Law, 

was doubtless to place the supreme criminal jurisdiction 
iu the hands of the centuriate assembl}' **. It should not 
be forgotten that tliis limitation of the consular power 
only extended to the city and a mile round, beyond which 
space their absolute military authority began**. 

In point of civil judicature, the consuls succeeded to 
a considerable portion of the kingly power. 'Judge,' in 
fact, appears to have been their distinctive title in rela- 
tion to the people when within the city walls. When 
therefore an array {exercitus) was to be ordered, whether 
for military or political purposes, the consul's officer first 
summoned the Quirites to the presence of the 'judges,* by 
which term the consuls must be meant^ We should not 
infer from this title either that the private indices were 
as yet unknown (see above, § 21) or had been discon- 
tinued, but that the line between their functions and 
those of the public magistrate was not so sharply drawn 
as it is supposed to have been in the later time oifoi^nulae. 
With regard to derivational meaning, the word is as 
pro|x?r for the one as for the other : and the decision of 
the iudex was always given by him merely as the delegate 
and under the commission of the magistrate. • Whether 
the latter became now bound to refer civil cases to a 
iudex (such reference having been previously optional) is 
not perhaps quite so clear as Mommsen (ii. 8, p. 449 
of tr.) seems to assume. 

Neither in civil nor criminal cases do we find any 
general jurisdiction possessed by the pontiffs, under the 
republic. With their special cognizance of certain offencee 
c tmniitted by religious persons we have not here to do. 
Any other judicial functions that the pontiffs may, in the 
earliest times, have possesseil, must have been merged in 
tlie royal power before that was superseded by the con- 
sular, and clearly descended to the consuls, not to the 



. Regal Period. 141 

original possessors. As, however, retaining the custody 
of legal forms and precedents, the sacred college doubtless 
continued, both in the later regal and early republican 
period, to exercise a great, if an indirect, influence upon 
the administration of justice, and thereby also upon a 
species of legislation. 

By means of their civil decisions, the chief magistrates 
of the republic cannot but have introduced a great deal 
of judge-made or magisterial law^ This is generally 
treated as if it only commenced with the institution of 
the praetor urhanus, an assumption based, no doubt, upon 
the name ((lus praetorium) by which these modifications 
and reforms of the strict original law were most generally 
known. But it must not be forgotten that the name of 
2)raetor was borne, long prior to that institution, by the 
two chief officers of the Roman republic*. The title 
under which we usually know them, probably derived 
from their function of taking counsel with the Senate", 
was later than the general appellation of * leader,' where- 
by they, as perhaps also any chief magistrates, were origi- 
nally called ^ So that praetorian is simply magisterial 
law, and, as such, must have had some existence from the 
very earliest days of any regular enactment at all. For 
the first laws of an infant state are brief, crude, inflexible ; 
and it is seldom that any easily available machinery 
is provided for repeal or reform. In the meantime, 
owing to the increasing complications and refinements 
of a growing society, new cases must arise, not contem- 
plated by the strict law, and calling for equitable modifi- 
cations or free rules of interpretation, amounting to little 
short of new laws, into which they often become formally 
converted. Such is doubtless the history of usiis; in the 
case of which we may infer, from enactments of the 
Twelve Tables, a prior statute declaring that mancipation 



142 Early Eonian Law. 

or surrender in court shall be the only title conferring 
full ownership of certain classes of property, and a prac- 
tice of the magistrates allowing such ownership to spring 
out of other titles, when followed by a certain time of 
possession. Such is probably the history of those limita- 
tions which the necessities of practice imported into the 
originally simple and absolute majicipium, and of the 
employment of mancipium so modified for the purpose of 
private testation. Some judicial recognition no doubt 
intervened between the hard rule of old law and the 
later enactment that, according to the verbal declaration 
of the mancipator, or, according to the direction concern- 
ing his property, of the testator, so shoxild it be binding*'. 
And as in the last-cited enactment of the Twelve Tables 
we have an instance where powers considered too narrow 
were extended, so have we in the subsequent history of 
testation an instance where powers considered too exten- 
sive were narrowed, by the accretion of judicial decisions 
which came to be known as Praetorian law". These deci- 
sions and precedents of course assumed a greater degree 
of permanence and authority when they began to be 
codified into niles and 'declared forth' {edict'i) by the 
yearly magistrate as the principles of decision which were 
to bind himself and his ixuiices: but the principle of 
indirect judicial legislation must, I tliink, have been 
established before the praetor urbaiius, and may perhaps 
account for the very small body of statutes which so long 
sufficed the Roman people. 



a. Cicero dc Hopublica 2. 32. 50. Aiqne uU consales potestatcm 
habcrent tcinporo dimUxat anuuam genere ipso ao iure regiam. 
See too Livy 2. 1. 

b. Of the many paHsages which may bo quoted as to the Uz curia ta 
de ivijicrio the following appear to me among the most interestiiig 



Regal Period. 143 



and valuable. Cicero de Republica 2. §§ 25, 31, 33, 35, 38, ad di- 
uersos 1. 9. 25. Livy 5. 46, 52 : 9. 38: 26. 2. 
c. The comitia curiata are undoubtedly treated by Livy as representing 
the populus, under which title it is almost certain that he must 
have included plebeians as well as patricians. Seeley pp. 68, 69. 
There are, I may add, two important passages, cited above (note b), 
to which I think Mr Seeley scarcely gives sufficient notice. Livy 
6. 46. Accepto inde senatus decreto ut et comitiis curiatis reuo- 
catus de exsilio iussu populi Camillus dictator extemplo diceretur 

militesque haberent imperatorem quern uellent lex curiata 

lata est diotatorque absens dictus. The first sentence is somewhat 
confused, but I think there is Uttle doubt that Livy treats iussu 
populi as equivalent to lege curiata. 

Compare with this 26. 2. Principio eius anni cum de litteris 
L, Marci referretur, res gestae magnificae senatui uisae : titulus 
honoris (quod imperio non populi iussu non ex auctoritate patrum 
dato propraetor senatui scripserat) magnam partem hominum 
offendebat. 

It appears pretty clearly from this latter passage that auctori- 
tas patrum was something distinct from populi iussu^, i.e. from 
lex curiata. 

d, Cicero de Kepublica 2. 32. 56. Quodque erat ad obtinendam 
potentiam nobilium uel maximum uehementer id retinebatur, 
populi comitia ne essent rata nisi ea patrum approbauisset auc- 
tori tas. 

e. Mommsen Hist. 2. 1. pp. 265, 269 of tr. Seeley pp. 66, 67. See 
next note (/). 

/. Mommsen Hist. 2. 3. pp. 327, 328 of tr. Ortolan (Histoire § 178) 
treats the auctoritas patrum as that of the senate. One would 
certainly expect to find more definite accounts of the body (if not 
the Senate), with which so important a power as this universal 
veto was deposited, than the vague expressions of Dionysius in 
2. 60 and 6. 90, and the patricil of Livy 6. 42. The last passage, 
upon which Mr Seeley mainly reUes, as proving these patres not 
to be the Senate, runs as follows : Per ingentia certamina dicta- 
tor senatusque uictus ut rogationes tribuniciae acciperentur ; et 
comitia consulum aduersa nobilitate habita, quibus L. Sextius de 
plebe primus consul factus, et ne is quidem finis certaminum fuit 
qviia patricil se auctores futures negabant, &c. Is it impossible or 
inconsistent with the conduct of the aristocracy in this struggle, 
that after the senate as a body had accepted the rogations and 
allowed the elections to take place, the patrician majority of that 
body should afterwards refuse to accept the result of those elections ? 



144 Early Roman Law, 



g. On the original conBtitntion of the Senate Flaocns' testimony ii 
valuable. Praeterxti Senators qnondam in opprobrio non erant 
qnod, ut'roges sibi Icgebant sublegebantque qnos in conBilio pub- 
lico baberent, ita post cxactos eos consnles quoque et tribnni 
niilitum consulari potcstate coniunctissimoB Bibi qnosqne patri- 
cionnn et deincle plebeiomm legebant; donee Ouiuia Tribnnicla 
(bc. lex) interucnit, qua sanctum est ut censores ex orani ordine 
optimum qucmque cnriatim (Herschk centuriatim) in senatum 
legcrent, quo factum est nt qui praeteriti e»scnt et loco moti 
habcrentur ignominiosi. On the qnestion tchrn tins lex Ouinia 
■wnH passed and "when a note of censure was formally recorded 
against rejected Senators, eee Liry 89. 42, and Drakcnborch's 
very full note thereon. 

h. Festns. -S<'wa/or<'<t,..[adiicitur] 'quibusqne in senatn sententiam 
dicore licet,' quia hi qui post lustrum conditnm ex innioribns 
mngistratum ceperunt, et in Senatu Bententiam dicunt et non 
uocantur Benatores antequam in senioribus sunt censi. 

I. Livy 8. 12. ut Icgum quae comitiis centuriutis ferrentnr ante 
initum suffrngium . patrea auctores fierent. In 1. 17 ho says, 
referring to the potres' sanction given to the election of a king by 
the popttliiH, Hodieque in legibus magistratibusqne ropandis usur- 
patur idem ins, ui adempta: priusquam populUB BufTraginm ineat, 
in incertuni comitiorum enentnm patres auctores fiunt. 

k. Sec the commencement of the SenatuH-ConRultnm do Bacchana- 
libus (508 A.v.c.) Q. MarciuB L. f, Sp. PoBtnmitiB L. f, cob. senatum 
consolnerunt n(onifl) Octob. apud aedem ruelonni...I)e bacana* 
libus quri foideratei esent ita exdeicendum ccuBuere, A'C. Also 
that do philosophis et rhetoribufl (598 A.v.c). C. Fannio Strabone 
M. Vulerio Messala cos, M. PomponiuB praetor senatum consnlait... 
Quod uerba facta sunt de philosophis et de rhetoribus, de ea re 
ita consuernnt ut "M. Pompouius praetor animaduerteret curaret- 
que uti ei o repnblica fidequo sua uideretur ut Komae ne csaent. 
Here, certainly, the Senate seem to give an order to the Praetor, 
though only on his application. (T have taken these two docu* 
ments from Brun's Pontes iuris Romani antiqui.) 

/. DionysiuB Antiqq. 5. 19. 'Edy nt dpx^r "PuneUwv ripii droKTtlptiP 
rj fjLaariyovv ij j;r)fitovr tit xp-fifnara 9i\-^, i((iyai rtf ISiuTfj Tpoica- 
\fia6ai TTiv dpxV ^'i '"'i" "'"O'' ^t^ov Hplaiv Tr6.<r\(iP b'iy tcJ; fitra^O 
Xp6r(f} furjiiv inrb Trjt dpxv* ^wi dv 6 8fjuo% ifwip airrov il^rftplayfTau 
Compare Cicero de Republica 2. 31, 51. Idemque, in quo fuit 
Publicola maxime, legem ad populum tnlit eam quae centuriatia 
comitiis prima lata est, no quis magistratns ciucm Komanum 
aduersus prouocationem uccaret neue uerbtraret. Also Livy 10. 



Regal Period. 145 

9 (below, note o). On^^the probably later extension of this law to 
the case of heavy fines see Mommsen 2, 1. p. 259 tr.. 

m. Livy 2. 18. Neque enim, ut in consulibus, qui pari potestate 
essent, alterius auxilium, neqne prouocatio erat. 

n. Ortolan Histoire § 94. 

0. Livy 10. 9. Porcia tamen lex sola pro tergo ciuium lata uidetur 
quod graui poena si quis uerberasset necassetue ciuem Komanum 
sanxit. Valeria lex, cum eum qui prouocasset uirgis caedi securi- 
que necari uetuisset, nihil ultra quam improhe factum adiecit. id, 
qui turn pudor hominum erat, uisum, credo, uinculum satis uali- 
dum legis. Compare Cicero de Eepublica 2. 31. 64. Neque uero 
leges Porciae, quae tres sunt trium Porciorum, quicquam praeter 
sanctionem attulerunt noui. 

p. This is indicated by the stories of the removal or lowering of the 
axes. Cicero de Eepublica 2. 31. 55. Itaque Publicola lege ilia 
de prouocatione perlata statim secures de fascibus demi iussit. 
The same worthy, according to Livy, before the passing of the law 
• summissis fascibus in contionem escendit.' 2. 7. 

Valerius Maximus 4. 1. 1. Inuidiosum magistratus fastidium 
moderatione ad tolerabilem habitum deduxit, fasces securibus 
uacuefaciendo et in contione populo summittendo. 
See too Dionysius quoted in the next note. 

q. Livy 3. 20. ad Regillum lacum...omnes id iussuros quod consules 
uellent: neque enim prouocationem esse longius ab urbe mille 
passuum ; et tribunos, si eo ueniant, in alia turba Quiritium sub- 
iectos fore consulari imperio. 

Dionysius Antiqq. 5. 19. dcpelXey (o OiidXiptos) diro twv pdfiSwu 
Toi>s TeX^Keis Kal KaTeaT-qffaro roh fier avrou vwaTOLS ^dos, 8 /cat fxixpi- 
TrjS ifXTJs Siifiuvev tjXikIus, Srav ^(jidev ttjs 7r6Xews yiucovTat. xp'^'^^at 
Tots treKiKeaiv Mov 8k rats ^d/35oij KOfffieia-dai fiovais. 

r. Varro de lingua Latina, 6. 88. In commentariis consularibus sio 
inueni : qui exercitum imperaturus erit accenso dicit hoc ' Calpurni, 
uoca ialicium omnes Quirites hue ad me.' accensus dicit sic 
•omnes Quirites inlicium uisite hue ad indices.' *C. Calpurni,' 
cos. dicit, 'uoca ad conuentionem omnes Quirites huo ad me.' 
accensus dicit sio ♦omnes Quirites ite ad conventionem hue ad 
indices.' 

Corssen makes licium * girding' and inlicium^in procinctum. 
He considers therefore the first summons to be a * calling into 
equipment' or ' mobilizing' of the people. (Ausspr. 1'. 494 — 498.) 
A statement of Livy is against the consuls having been origi- 
nally named indices. In speaking of an interpretation of the lex 
Horatia, according to which the protection thereby given to the 

R. L. K 



146 Early Roman Law. 



plebeian indices was considered as extending to the oonsals also— 
iudicem enim consulem appellari — be adds— quae refellitur inter- 
pretatio quod liis temporibus noudtim consulem iudicem sed prao- 
torem appellari mos fuerit. Livy 3. 55. 

Cicero de Legibus 3. 3. 8 can only, I tbiuk, be relied upon so 
far as to hIicw that at some time or other the consuls were called 
indices as well as praetors; not, as Drakenborch (on Livy loo. cit.) 
gathers, that they were first called praetors, then iudicet, lastly 
consuls. 

See for this meaning of iits honorarium lust. lustt. 1. 2. 7. 'quod 
qui houorem gerunt, id est magistratus, auctoritatem huic iuri 
dederunt. It is a generic term, apphcable, in later days, to 
aediles' law as well as praetors'. 

See Livy 3. 55 quoted in note r. Zonaras Annal. 7. 19. Tire yap 
(A.V.C. 305) X^7eroi irpCnov vrdrovs avroCfS TpoiTayopfvdrjrai ffTparij- 
701)5 KaXovfiivovi TO trporepoy. Festus. Praetoria porta ... imiio 
praetores erant qui nunc cousules. See also next note. 
Varro (apud Nouium 1. 91). lidem diccbantur consules et prae- 
tores; quod praeireut populo praetores, quod consulerent senatuju 
consules. Compare the senatus consulta above quoted (*), and 
Corssen Ausspr, 1'. -446, 'from their conducting the consultations' 
of the Senate and popular assembly (?) or (2'. 71) 'taking those 
bodies to counsel.' 

See above, note (, as to the consuls; as to the more general appli- 
cation of the term Livy 7. 3. Lex uetusta est priscis UtteriH uer- 
bisqne ^cripta ut qui praetor maxinius sit Idibus Septcmbribns 
clauom pangat .... M. Horatius consul ex lego tcmplum louis 
optimi maximi dcdicauit anno post rcgos exaotos; a consulibug 
postea ad dictatorcs quia mains imperium erat sollomne claui 
figcudi translatum est. So, on the occasion which introduces 
the subject, senatus dictatorem claui figendi caussa dici iussit. 
(a.v.c. 391.) 

This fixing of the year-nail took place after the institution of 
the Praetor Urbanus (a.v.c. 387), so that there wore then two 
Consuls and a Praetor proper — enough to justify the use of a 
superlative, whether indicating greatest age or greatest dignity 
(Festna, Maximum Praetorem). But Livy clearly refers the Irx to 
an earlier time, whatever be made of the difficult ex lege . . dedi- 
cauit. 

Now as between the two consuls (originally praetors) the term 
must have been maior. Compare Festus, maiorem consukm 
L. Caesar putat dici uel eum penes quem fasces sint uel eum qui 
prior factus sit. Praetorem autem maiorem, urbanum ; mlnores 



Regcd Period. 147 

ceteros. In the last case the term maior survived from a time 
when there were but two praetors proper to a time when the addi- 
tion of more would have justified maximus. 

The inevitable conclusion, I think, is that praetor was an old 
general term signifying commander, which, though applied to the 
two chief magistrates who succeeded the king, was by no means 
invented for them or understood to be confined to them. 
Cum nexum faciet mancipiumque, uti lingua nuncupassit ita ius 
esto. (Festus, nuncupata pecunia.) Vti legassit super pecunia 
tutelaue suae rei ita ius esto. Ulpian Fr. 11. 14. 
Gains Comm. 2. 123 and following sections. 



148 



INDEX. 



Jctio legh, 92, 102, 103 

„ jj^T iudicispostuhttionem, 

102, 106 
,, jier manus iuiectioneni, 

102 
„ per pifftioris capioiwm, 

102, 103 
,, per gaeramentum, 88, 90, 
102, 103 
adoptio, 128 

„ perhaps not so old as arro- 
flatio, 120, 127 
aei* eqneHtre et hordearlum, 107 
antiquarian authorities, 7 
appeal to people, 06 

„ „ from king, 6«, 69 

.1 „ origi- 

nally an imperfect right, 71 
appeUatio and prouoeatio, 139 
Appius Claudius Caccus, 3 

,, „ the decemvir, 3 

arroflatio, 28, 29, 33 
Arval guild, 13 
uurtoritaif, 114 

atirtnritait patrum, 137, 138, 143 
Aulug Gellius, 9 

Aurelii and worship of the 8UU, 23 
itiLzilium, 139 

bargain and sale, 111 



biographers untrustworthy aathori* 

ties, 6 
blood-rcvcngc, 4S 
burial law of Twelve Tables, 14, 15 

calendar, 15 « 

calends, 15 
caitttsa lihcrali.^, 93 

„ noxdliK, 125, 128 
centttmuiri, 103, 101, 105 
cesgio in jure, 94 
Cicero de legibus, 4 
cUifnh, 122, 124 
ciymptio, 129 
coempliotuiliii grne.r, 120 
cocmplionator, 135 
comitiacalata, 116, 117, 120 

,, cnituriata, 136, 137 

„ curi,ita, 117, 118, 137, 148 
common and statute law, 108 
condictio, 102, 106 
comertio mauuitm, 92, 95 
consuls, why so called, 141 
contio, 47,48, 49 
crimes anciently treated as sing, 85 

,, and wrongs, 46, 47 

,, ,, different classi- 

fications of,at different periods, 51 
custom embodied in earliest laws, 
12, 13, 14, 15 



Index. 



149 



customary law, Austin on, 11 Horatius, trial of, from Flaccus, 62 

„ „ Livy, 60, 61 

d of 3(1 singular imperative, 40 
daughter given up in noxall caussa, lanus and luno, 22 



128 



improhe factum, 139 



decemuiri litihus iudicandis, 103, indices, a name of the consuls, 140, 



104, 107 
decuriae, 30 

Demetrius Phalereus, 18 
detestatio sacrorum, 116 
Dionysius of Halicarnassus, 8 
duumuiri perduellionis, § 12 



145, 146 
,, first appointment of, 100 
,, patrician, 101 
,, plebeian, 103, 104, 105 
luno Couella, 15, 16 
,, Lucina,16 



limitation of their func- iurisdiction, civil, of king, 87, 88 



tions, 67 
, , specially appointed, 63, 64 
,, ,, by whom, 64 

edicta, 142 

emancipare, double meaning of, 126 

emancipatio, 125, 126 

false witness, 53, 54 
familia, 25 
familiae emptor, 118 

„ compared with feoffee to 

uses, 120 
family records a source of error, 6, 

7,8 
Festus, Sextus Pompeius, 8 
Jiducia, 114 

Flaccus, Marcus Verrius, 8, 9 
Flavins, 3 
fnnus, 20 



„ ,, under republic, 

140 
,, criminal, of king, 57, 

68, 70 
„ ,, under repub- 

lic, 138, 140 
„ delegated civil, 88, 100 

jurists, classical, 7 
ius and iure, 119, 121 
ius honorarium, 141, 146 
ius Papirianum, 2 

kings compared vfith pater-familias, 
70 

,, first legendary, perhaps real 
chieftains of clans, 54, 58 

„*■ possibly developed from pon- 
tiffs, 57, 59 



(lentes, 23, 24, 25 
Granius Flaccus, 3, 4 

heredes, 28 

heres, derivation of, 32, 33 

homicide, involuntary, 47, 48, 50 



of, 49, 50 
Horatius, trial of, from Dionysius, 63 



land-mark, penalty for removing, 52 

legare, 119, 121 

legislation, indirect or magisterial, 

141, 142 
legislative power, 55, 58, 136, 137, 

138 
legislators, traditional, 54 
lessum, 18 
purification lex, derivation of word, 116 

, Aebutia, 104, 105 

, curiata, 83 



ISO 



Early Roman Law, 



L'x, inaudpt, 118 
,, Papiria, 2 
„ pfrduellionig, 61 ; by whom 

cuacted, 0-i, 65 
„ sttcratti, 38, 41 
„ Valeria, 71 

Mucrobiiis, 10 
mancipatio, 110 

„ fuhiciae caHSS(t,\\^,\\o 

mancipium, orit,anal meaning of, lU'J 

„ legal form of, 113 

mamm, 25, 20, 129 
marriage, earliest, 2G, 27, 28 

,, consents necessary to, 
128, 132 
matrr-familias, who so called, 129, 

130, 133 
month, divisions of, IG 
moon identified with Jane Luciua, 

22 
mortgage, Roman, 113 

„ form of, discovered in 
1807, 115 
murder, criterion of, 49 
mnrrata polio, IG 

Naiitii, connected with worship of 
Minena, 23 

tirzuw, 110, 111, 112, 113 

,, mutual character of, 118 
,, two meanings of, 114 

nocturnal depredation on arable 
land, 52, 53 
theft, 52, 53 

tiomiua, meanings of, 24, 29, 30 

iioxn and noxia, 127 

tinxae (Irilidn, 125, 127 

nuncupnrr. 111), 121 

nuncupatio, 118 

offences, many, criminal now, not 
so with Romans, 51 



offences, small number of original, 
as regards property, 61, 
52 
original documents of legislation, 1 
orthography, vi. vii. 

„ of regal laws older 

than that of Twelve 
Tables, 84 
outlawry, 38, 39, U 



Papirius, 2 

paiicida^, 42 

parricidi quacstorcs, 42, 44 

jmrricidiuin, 42, 45, 4G 

pater-familiag, 25, 26 

,, as owner, 85 

patria potentaft, 25, 20, 31, 126 
Taulus, epitomizer of Festus, 8 
pellex, 13, 10, 17 
penalty, remissible or uon-remissi> 

bio, 40, 47, 51 
perdHcUio, derivation of term, 72 
,, original and later mean* 

ing of, 72, 73, 74 
„ why the charge brought 
against lloratius, 73, 
74 
petit treason, 37 
I'inarian ffcnt, 23 
plorare, 30, 39 
police officers, early, GO 
pontiff X minor, 15, 92 
pontiffs, books of, 12, 13 

,, custodiansof legalforma.lS 
,, extensive functions of, 56 
,, their connection with potu 

fubliciuM, 50, 59 
„ their connection with na- 
cramrntum, 89 
pontifical college, its original con- 
stitution, 90, 91, 92 
Potitian gem, 23 



Index. 



isi 



praetor, originally a general name, 

141 
primogeniture, 28, 33 
procinctus, 122, 123, 124 
prouocatio and appellatio, 139 

quaestors, derivation and original 
meaning of term, 75 
,, duration of their office, 83 

,, mode of their appoint- 
ment, 82, 83 
„ number of regular, dou- 

bled, 80 
,, original, their functions, 

75, 77, 79, 83, 84; 
their introduction § 1 7 
distinguished from 
the later occasional 
quaesitores, 77, 79, 80 ; 
first appointment of 
the latter, 79 
„ treasury business com- 
mitted to, 77, 81, 82 
Quinctian or Quinctilian gens, 23 
Quirites, 25, 31 
quotations of laws, 4 

reigns, great average length of, 

55,58 
remancipation, 135 
representation of deceased person, 

27 
ricinium, 17 

sacra puhlica and priuata, 23 
„ priimta, 116, 117; bond of 
the gem, 25 

sacramcntum, what, 89; its con- 
nection with pontiffs, ih. 

sacratio, 36, 39 

SaHan guild, 13, 23 



sanction of earliest ' laws,' what, 14 
Senate, 137, 138 
Senatus-consulta, 138, 144 
Servius, commentator on Virgil, 9, 
10 
„ Tullius, historical cha- 
racter of, 96 
„ later reforms attributed 

to, 96 
„ legal reforms actually ef- 
fected by, 98 
Solon's law no origin of Twelve 

Tables, 18, 19 
spolia opima, law of , 13 

testamentum calatis comitiis, 116, 
117, 118 
,, in procinctu, 122, 123 

„ militarc, 123 

,, per aes et libram, 118, 

119, 120 
traditio, 110 
tribes, number of, 104 
trust, Roman, 113, 114, 115 
tutela, 28 

tutelage of women, 130, 132 
tutor Jiduciarius, 132, 135 
,, legitimus, 134 

Varro, M. Terentius, 9 
uindicare, derivation of, 92, 95 
uindiciae, 93 
uindicta, 93, 95 
usus, 110, 141 

warranty, 113 

wills, English, by feoffment to use, 
120 
,, first Eoman, what, 118 
„ of women, 131, 182, 135 



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