fvorfi
UXUL)
ROMAN LAW,
OUVKAGES DE M, OETOLAN,
Chez M. HENKI PLON, imprimeur de TEmpereur, Rue
Garonciere No. 8, a Paris.
Explication historique des Instituts de 1'empereur Justinien, avec
le texte, la traduction en regard, et les explications sous chaque
paragraphe, precedee de 1'Histoire de la legislation romaine,
depuis son origine jusqu'a la legislation moderne, et d'une
Generalisation du Droit romain, d'apres les textes ancienne-
ment connus, on plus recemment decouverts. Huitieme edition,
revue et augmentee, 3 vol. in-8 . . . . . . 22 fr. 50
Cours public d'histoire du Droit constitutional, anciennes con-
stitutions des peuples de 1'Europe. 1 vol. in- 8 (epuise).
Le Ministere public en France, Trait e et Code de son organisation,
sa competence et de ses fonctious dans 1'ordre politique,
iciaire et administratif, par MM. OUTOLAN et LEDEAU, 2 vols.
^-J 12 fr.
Cours de legislation penale comparee :
Introduction philosophique, 1 vol. in-8 (epuise}.
Introduction historique, 1 vol. in-8 (epuise).
Elements de droit penal: Penalite, Juridictions, Procedure ; troi-
sieme edition, revue et augmentee, 2 vol. in-8 . . 15 fr. ,,
Resume des elements du droit penal, 1 vol. in-8 . . 10 fr.
De la Souverainete du peuple, et des principes du gouvernement
republicaiu moderne, brochure in-8 (epuisee).
Les Enfantines, Moralites, 1 vol. in-12, format Charpentier, deuxieme
edition, augmentee ; chez H. Plou, editeur . . 3 fr.
Des moyens d'acquerir le domaine international, ou Propriete
d'Etat entre les nations, d'apres le droit des gens public ; et
De 1'equilibre politique, par EUGENE ORTOLAN, docteur en
droit, Redacteur au ministere des aifaires etraugeres ; gr. in-8
3 fr.
SOUS PRESSE:
Medecine legale, par le Dr. LEGRAND DU SAULLE, laureat de
I'lnstitut et de 1'Academie de medecine, medecin de Bicetre,
expert pres les tribimaux, etc., et M. OHTOLAX, professeur
a la Faculte de droit de Paris ; suivi d'uu Precis de chimie
legale, par le Dr. A. NAQUEZ, professeur agrege de la Faculte
de medecine de Paris.
^l -
THE HISTORY
or
ROMAN LAW
FROM THE TEXT OF
ORTOLAN'S
HISTOIRE DE LA LEGISLATION ROMAINE ET
GENERALISATION DU DROIT
(EDITION OF 1870)
TRANSLATED WITH THE AUTHOR'S PERMISSION
AXD BUrriJUIKXTED BT A
CHROSOMETRICAL CHART OF ROMAS HISTORY
BY
ILTUDUS T. PRICUARD, ESQ., F.S.S.
BABItlKTKB-AT-LAW
A **uU IM TV !, TC m\
AND
DAVID NASMITH, !v*g., LL.H.
BABMIXTHB-AT-LAW , C
'
LONDON :
IJUTTERWORTIIS. 7, FLEET STREET,
. ^ukiishm te iS emm i MM! nnilnU fb||.
KI'INMl U(iH: T. * T. Ct.AkK; HI.I.I. ft UK IHKI'TK ;
1 -I III IS : H..IM ,j -. roMTEH fc CO. ; K. I' 'S-iMiY.
CAl.flTTA: TJIAl'KI.K, M'ISK A iti. BoMHAY: TH ACKEK, VIMMi * CO.
Ml.1.11"! UM (iEoKli
1H71.
[.-I// ri(//i/x rctrrrnl.]
T\3c
U
juu
O r lfcr
LONDON t
PRINTED BY C. fl O W O R T II AND SONS,
NEWTON STREET, HIGH IIOI.RORN.
TRANSLATORS' INTRODUCTION.
THK superior value, a* a study, of the history of the institutions
and of the law of Koine to the jurist, the lawyer and the poli-
tieian would apj>ear to consist in the fact that the Roman nation
present* to the modern student the nut perfect and complete
specimen we liave of national growth, development and decay.
The great influence which the Roman language, literature and
institution* have had u)>on modern nations is, unquestionably, in
itaelf sufficient to justify the time and rent-arch which have been
spent in their study. Hut, apart from this, there is no |>criod of
ancient history which contains in so complete and comjmct a
form, although extending over many centuries, a diorama of a
nation's career from its cradle to its grave.
The position and progress of a nation's life may ! comjNircd
to tliat of an individual man standing on the -pot of open ground
between two dark tunnels. Above and around him there Chines
the light of heaven, and within the limits of this contracted
sphere he moves with a sen>e of freedom and security, but what
there is before and In-hind him he cnnnot see. His destiny, how-
ever,eomjH'ls him to move forward, but he -lirink- from the hidden
danger that may be concealed in the gloom with which his path-
wav is enveloped, and hesitates to take a step onward which
may prove fatal. While he so Instates a strong ray of light
is <-;i-t into the tiiniu I Ix-liiiul him. As he looks steadily tin-
light brightens, :m<l. u> it brightens, it rnuMr- him to ili-tm-
gui.-h the genenil features of the Un-ality; he sees the dangers by
which the path i.- surrounded : h' al-> marks tin- safest method
of avoiding thox* dangers. l-ii^ coni|)elleil to atlvance, ami
vi TRANSLATORS' INTRODUCTION.
having nothing to guide him but the knowledge of what there
is behind, he avails himself of that knowledge and endeavours
to steer his onward course by the light which has been vouch-
safed him.
This gleam of light is the ray thrown by history on the past.
It is the only guide a nation has in its progress through the
present towards its future destiny.
It is the province, then, of the true historian to throw as
clear and steady a ray as possible upon every feature of past
experience. It is to collect and arrange facts and causes, and
to show effects. He should, therefore, be free from political
bias or predilection for personal character or particular classes.
He should never be the advocate, rarely the judge. His proper
functions are those of a jury to determine the facts and to
draw from them only those inferences which are conclusive and
inevitable. And herein lies the immense superiority, as a study
of practical utility, of ancient over modern history. The abso-
lute impossibility of writing contemporaneous history without a
bias has become proverbial. But the truth is not so universally
recognized as it ought to be, that the difficulty of writing
history impartially is by no means confined to the record of
contemporaneous events. It applies with equal force to any
history of modern times, so long as the period embraced is suf-
ficiently near our own to involve the discussion of principles or
institutions current or in existence in our own age. History,
indeed, is so full of uncertainties and points of dispute that the
perfectly impartial historian who would set himself to weigh
each event and every public character in turn, and to place both
sides of every question before his readers, in order that having
the whole case before them they might form a correct con-
clusion, would neither satisfy himself nor his readers; for the
passionless summing-up of the judge would impart so dry a
character to his pages that his readers would abandon the task
of mastering their contents from sheer weariness. The writer
of modern history, therefore, adopts one of two alternatives.
M:AN>LAII;X IMI;MII ^ ; vii
Either he writes as an advocate in which case his works are
more like pleading than history, and, for all the lessons they
profess to impart derived from the experience of the past, are
practically useless or he aims at literary effect, in which case
works savour rather of romance than history, truth being
sacrificed to the artistic grouping of the picture: and they are,
except so far as they may correctly represent the manners of a
period, for all purposes of historical study worthless.
In dealing with ancient history, however, all the minor de-
tails have been so swept away by time, or buried beneath tin-
lapse of ages, as to leave the sharp outline and characteristic
ires of the landscape unobscured. We are content in ], t
these potty details remain in the oblivion in which we find them.
To restore them would doubtless be a task of considerable in-
terest, but it is a hopeless one; and as the great writer whose
work we have in these pages undertaken to bring within the
reach of the lln-H-h student and the general reader has well
shown, even where this reproduction has been attempted by
:n id others, imagination has to entered into the composi-
tion of the work as to detract from its utility to the student of
ry and jurisprudence. Piles of volume.* have been written,
and volume- uion- \\ill probably be written, upon the character
of Henrv \ III. and the Reformation; but the character of
Constant ine the Great must remain for all time an enigma,
and to attempt to determine it would be men waste of labour.
Tin- political principles which were the active causes of erenU
in an\ | en.nl of modern history arc too much akin to, nay, they
are in most cases so exactly the same as those which agitato
men's minds in our own day, that it is scarcely in human
nature to discuss their effects without bias or predilection.
To deal effectively with history, to make it what it ought to
be, if the aim of the writer be higher than the production of a
romance, a ray of light directing the policy of the statesman, or
of a people, or informing the mind of the jurist as to the ex-
uce of the |>ast, the writer must pass before his reader's
viii TRANSLATORS' INTRODUCTION.
vision centuries of time, varieties of institutions, and that infinite
diversity of elements which contribute to the development and pro-
gress of human affairs. He must depict a nation in its infancy, its
growth, its manhood, and its old age. He must mark the slow
or the rapid changes, the gradual or sudden modifications, and
the various influences which connect the beginning with the end,
and which constitute the peculiarities or characteristic features
of each phase of the ever-varying scene. In order to do this he
must study human nature ; he must realize the material and the
spiritual elements of the human being, and must be familiar with
the springs and motives of human actions.
Starting with the fact that every nation or community is a
collection or aggregate of individuals, he must determine wherein
and to what extent that which is true concerning the individual is
equally true concerning the community, the terms upon which
the individuals agree to form themselves into the community,
and the fundamental principles they have laid down and recog-
nized as the basis of their union, their relations to each other,
and their relations to external communities, and the influences
which from time to time tend to alter or to modify those re-
lations.
It is because the national career of Rome contains more of the
elements which contribute to the interest and utility of historical
study than that of any other nation in the world, and because
of the close affinity which exists between many of the principal
institutions of modern times and those of Rome, and because of
its influence on our literature, and above all upon our laws, that
the translators have been led to encourage the hope that the
value of a work by the greatest writer on this subject, reduced
to a form and clothed in language which will render it accessible
to all English readers, will be duly appreciated.
M. Ortolan's History of Roman Law, by far the most
masterly work on this interesting subject in any language, has
for years been a source from which our English writers on juris-
prudence have drawn much of their material. But the work
I MK* IX I KM; IX
t' has not formed, to the extent it ought to have done, a
-book in our schools and universities, nor has it been so
freely resorted to by the student or the professor as it would
have been had its extraordinary merits been more generally
more fully recognized. This is owing partly, perhaps
mainly, to its being in a foreign language ; but it is also owiui:
t-> the fact of its having been regarded too much as a technical
work of interest only to the legal student, and to a mistaken
though too prevalent a view of the true province of hist.
That true province of history has only begun to be recognized
in Comparatively recent yean. The impulse which sets in
motion the forces whose effects we witness in the battle-fit 1.1.
in the noisy struggle of tin- forum, in tlu> tumult in the senate
or the market-place, in the asaaasina a despot, in the
destruction of a |x>pular leader, or in the simultaneous rising of
a wh-.i.- people, ii kfafl pNBjmi of thought. \'.-.-\ IMMI th-
great value of M. Ortolan's historical work. With the eye of
a true philosopher he traces the stream of Roman history to its
source, instead of dealing exclusively with the events that lie on
Institutions and laws can only be properly understood by an
acquaintance with their origin, with the condition and circum-
stances that gave birth to them, with the change* of circum-
stances and condition* that modified and finally extinguished
tin-in. In the history of individuals as of nations the progress
of thought is the key to their career. A nd in the case of nations
that progress is indicated by the development of law and of
public and private institutions. Thus while investigating the
History of Roman Law, M. Ortolan has elaborated the history
of Rome. And such a work in the hands of a skilled and pro-
fessed jurist is mire to posses* this great advantage, that it will
be distinguished by the logical precision, clearness of arrange-
in, 'lit and exactitude which the study of law is, above all other**,
calculated to impart.
It is, however, of the utmost importance that the student,
x TRANSLATORS' INTUODUCTIOX.
before entering on the history of the political progress of a
nation, or the development of its institutions and its laws, should
possess the faculty of viewing the subject objectively, by localiz-
ing it or giving it its true position in the general history of the
world, and of localizing each separate event and recognizing
its relations to other events. We shall therefore add a few
words upon man as a free-will agent, upon government as a
department or branch of the division of the labour of a com-
munity, upon law as a governing or regulating principle, and
upon the proper method of treating and overcoming the diffi-
culty of chronology.
First, then, as to man and his conduct as a free-will agent.
A nation is but a collection of individuals. In some respects
that which is true of the individual is true of the nation, in
others the case is different. The individual is a free-will agent,
but this freedom of the will is more or less controlled by cir-
cumstances. A man may be free to go from one place to
another, but if he elects to go it must be via the existing track ;
he cannot ignore those obstacles to his straight course which
circumstances over which he has no control have placed in his
way. As he does not possess the power of flight he cannot
take the short cut of the bird. What is true of physical ob-
struction is true of mental. Education has confined each man
within certain channels, and taught or accustomed him to arrive
at certain ends by the use of given means. Be his religion, for
example, what it may, it has given him a distinct bias : and
the morality of the community of which he is a member, or
that of the particular knot of people with which he is imme-
diately connected, will have its influence certainly upon every
important act of his life, and perhaps also upon all those of
minor and even insignificant importance. Nor is it necessary
that he should be conscious of these influences ; as a matter of
fact, the great mass of men are not ; they do or they omit to
do, they pursue one course and avoid another, rarely being able
to assign a reason, and certainly not the true reason. To what
TRANSLATORS' INTRODUCTION. xi
extent this counteracting or opposing force to a pure free-will
line of conduct moulds and influences societies it may -be diffi-
cult to ay, but that the force exists is beyond controversy, and
this feet must be ever present to the true historian. Again,
every community starts with a given number of principles
which it recognizes as sound ; these principles are bracketed or
combined in a manner more or less |>eculiar to the community,
and a {articular lient is given to the direction of their develojv-
ment. If, then, we know these fundamental principles, the
mode of combination and their bent or tendency, we may deter-
mine by anticipation their destiny with almoft as much cer-
tainty as we are able to predicate the time and place at which
a pedestrian will arrive when we know the point from which he
starts, the direction he has taken, and the jtace at which he
travels. It is true he may start from a given |tuiut and may
take a given direction, but leing diverted from his road he may
never reach the Mi|.j*.--<l destination. In tin same manner
our calculation would !M at fault a# to human or national de-
velopment if we disregard or overlook any change in the con-
dition*. The principle, however, remain* unaffected, for know-
ing the point of divergence, the other data remaining, we have
but to intcrcnlculntc the change in order to ascertain the actual
destinv. Unquestionable as i the truth of tin- principle. atil
easy as is its application to the ph\>ical or moral conn*- of an
individual, it- application to the ca>e of n nation in far from
simple ; it involves accurate discrimination U-tween cause und
effect. Difficulty of application i*. however, the \\orct reason
for the abandonment of a numd principle. For in-tance. an
act has ju-t U-en paM*d in Ilnglanil inaugurating a -\ -t m of
compulsory education. At the present inomeiit the pau]H-ri-m
of Knglnnd co-t< lO,(HM),(MN) |MT annum. SupjMwing the act
to IK- ndm 'mistered for one generation bv thoM- who understand
what -mini education rvallx i-. the result inu-t ! to reduce th-
co;t of pail|H'rism to at the ino-t one half. Now -up]...-, that
one vear In-fore it is ascertained that tif -t of j-aujH-ri-in ha-
Xll TRANSLATORS INTRODUCTION.
been reduced one half, an act is passed making voluntary pau-
perism criminal. To what cause would the superficial ascribe
the reduction of the cost of pauperism ? To the Criminal Act,
to the Education Act, or to that which produced the Education
Act ? If to the cause of the Education Act, what is it ? In
proportion as you remove the person to whom this case is sub-
mitted from the period of its occurrence, so does the difficulty
of answering the question increase. The correct answer to the
question is, however, the necessary key to a most important
feature in the history of the English nation.
The notion of government involves the terms of compact.
Is the community free, or is it not ? Is it a union of human
beings for the mutual benefit of the members ? If so, accord-
ing to the principle of the division of labour, the sovereignty is
delegated by the general body to a certain section, to be exer-
cised for the benefit of all. Is the community a compound of
the conqueror and the conquered ? If so, the governing spirit
is oppression, the governed being regarded by their rulers as
beasts of burden, whose toils minister to their comfort. Is the
community a family ? If so, the father, having the burden of
its support, is entitled to the privilege of its direction.
In the first case it is a republic, whether the sovereignty is
lodged in the hands of a hereditary monarch, an annual or
biennial consul or president ; or whether it is placed in those of
a committee, whatever be its constitution. And assuming the
sovereignty to be rightly exercised, its exercise will be bene-
ficial and satisfactory to the body.
In the second case there is no community of sentiment or
interest, and when the opportunity presents itself the organiza-
tion will be destroyed by the emancipation of the servile
element.
The natural duration of the third case is necessarily short,
for the conditions of its existence are daily changing, and with
the growth of the self-supporting faculty of the younger mem-
bers their dependence decreases.
TRANSLATORS INTRODUCTION. Xlii
It is therefore necessary to determine the true character of
the community in order to ascertain the wisdom and fitness of
its institutions, their probable duration, and the circumstances
by which they may be affected.
Law, properly speaking, is the rule of conduct dictated by a
superior to an inferior. It consequently involves the determi-
nation and power to enforce it, and the infliction of punishment
for non-observance.
Under this head, more or less accurately, may be specified
the law of God, the law of the land and the law of morality.
The scope of these preliminary remarks does not allow of our
entering at any length into a consideration of the fundamental
principles of law. We would, however, point out an error
which is all the more mischievous from its almost universal
acceptation as an unquestioned truth, and which has had the
effect of involving whole schools of writers, divines, metaphy-
sicians and jurists in an inexplicable maze of perplexities,
inducing men to adopt the wildest theories Avith the hope of
reconciling or removing difficulties.
One of the most fertile sources of error is the misapplication
of terms. The mass of mankind do not think for themselves.
They adopt terms and phrases as representing ideas, without
questioning their accuracy or considering their true meaning,
provided that they have been adopted by others, who, however,
while using them may have recognized their real meaning and
have used them only in their true and accurate signification.
By degrees, however, that true and correct signification becomes
lost through non-observance. The terms or phrases come into
common use, perhaps they serve as a shibboleth for schools or a
watchword for a party. They come to be on everyone's lips
and in every page of countless treatises. And by general con-
sent a certain signification is allotted to them, a signification
however far removed from their real and acciirate meaning. Nor
for a long period, perhaps, is there any inconvenient result from
this practice. But at length some discussion arises involving,
xiv TRANSLATORS' INTRODUCTION.
possibly, some important principle in which these words or
phrases, which have come to bear a signification so far removed
from their true and pure origin, are involved in the dispute, or
become the weapons of the disputants. Then forthwith arises
the utmost possible confusion. Theories are invented to reconcile
the irreconcilable. The disputants are at war, as they fancy,
about principles, Avhereas they are at one in principle if they
could but see it, though at war about words because using them
in different acceptations. And if the subject matter of dispute be
one in any way connected with religious dogma or metaphysical
reasoning, the discord is intensified a hundredfold.
There is no better illustration of this than the mode in which
the word " morality " has been twisted from its real and original
signification. The word, from mores, " manners" or " custom,"
in its strict sense signifies the recognized notions and practices
of any community at a given time, and used in any other sense
it is apt to lead to all sorts of perplexities and many irrecon-
cilable conclusions, and not unfrequently to give birth to great
injustice and confusion between truth and error. In this sense
of the word it must be clear that morality is purely relative.
The habit of separate individuals or communities erecting a
standard of right and wrong of their own, and measuring the
acts and motives of other men by that standard, is universal.
Hence men are ever prone to set up a standard of right and
wrong in accordance Avith the views, opinions, feelings and
practices prevalent in their own time, losing sight of the fact
that such views, opinions, feelings and practices may vary and
do vary under different conditions and in different stages of
civilization, in different communities and in the same commu-
nity at different times, whereas that which is in itself good or
bad is fixed and immutable. The one is the law of morality,
the other the law of God. Many cases of the confusion which
has arisen from the want of observing this distinction will
readily occur to the mind. Take, for instance, the institutions
of marriage and of slavery, and the practice of duelling. It is
TRANSLATORS' INTRODUCTION. xv
immoral for the Englishman to have more than one wife ; it is
perfectly moral for the Turk to have several. Less than a
hundred years ago duelling was both legal and moral in
England ; at the present moment it is illegal, immoral and
universally reprobated. So, again, slavery at the commence-
ment of this century, at least so far as the coloured races were
concerned, was an existing institution, the propriety of which
was rarely questioned. At the present moment there is scarcely
a civilized nation which does not loathe it as an infamous prac-
tice. Yet men, always anxious to judge others by their own
standard, and losing sight altogether of the essential principle
of the law of morality, have endeavoured to persuade themselves
and others that morality is that which is good in the abstract ;
and hence we have witnessed the absurdities into which men
have been led by assuming that the law of morality is synony-
mous with the law of God, and going about to justify such
practices for instance as duelling, or such institutions as slavery,
by reference to the Bible ; and we have lived to see arguments
in favour of polygamy drawn from the example and practice
of the Jewish nation. And this principle, or rather this con-
founding of principles, has been carried so far as to invade the
province of Divine law. The expression so commonly used by
schoolmen, " the moral government of God," in reality can
signify nothing else than the economy of the Divine govern-
ment, measured, shaped and squared so as to fit in with human
notions of what ought and ought not to be the principle of that
government.
What, then, can be more illogical or more absurd than to
affix the stigma of immorality upon practices and institutions
prevailing among different communities, or among the same
communities at different eras in their history? Or, in other
words, what error can be more fatal to a true appreciation of
the real principles and facts of history, and the lessons they are
calculated to teach, than for the historian to judge or to measure
the past by the standard of the present. Institutions have lived
xvi TRANSLATORS' INTRODUCTION.
and died out, laws have been made and repealed, practices
allowed to prevail and become obsolete, which, at the time they
flourished, were considered as necessary for the well-being of
the community as they would at another time be considered
pernicious and reprehensible. A nation, like an individual,
has various stages of development, and though the treatment
suited to the child is ill adapted to manhood, the man is none
the less indebted to the discipline of his youth, nor can he in
his decline venture with impunity to use the strong diet and
violent exercise of his vigorous manhood.
In order to judge of men, of institutions, of laws and of prac-
tices, we must identify them with their period ; and in order to
identify them with their period, we require before the eye an
objective chronology. Dates are worthless unless they convey
to the mind positions relatively to a whole, of which the par-
ticular date is a fraction. The entire period under discussion
must be present to the mind before it is possible to realize the
bearing or value of a date, or the circumstance that charac-
terizes it. A similar fact is realized by all in connection with
the study of geography. We seldom think of describing the
relative positions of places by stating their respective degrees of
latitude and longitude, and even when we do so, the notion
conveyed entirely depends upon the fact of a map being present
to the mind's eye. We have all seen, and more or less per-
fectly remember, the form and general features of the map of
England, though no map is actually before us. When the
word Newcastle is mentioned, we at once look as it were to
the top or north ; on the mention of Corn Avail, to the south-
west; on that of Kent, to the south-east; and though not
knowing a given place, when told that it is so many miles
north-east of York for instance, with the locality of which we
are acquainted, we at once realize its position, and consequently
many facts connected with it. This is not the case with
history when studied in the ordinary manner, though if possible
this power of localization in connection with history is of
TRANSLATORS INTRODUCTION. XV11
greater importance, for everything depends upon it. What is
the result ? We hear dates mentioned, but they do not fix our
attention upon well ascertained spots. What, for example, is
the impression produced by the mention of the dates 1176,
1445, 1562 and 1679, as to English history, or the dates
B.C. 445, B.C. 366, A.D. 222, as to Eoman history ? Even to
the majority of those who have a tolerable acquaintance with
either history, these dates have failed to take a local habitation,
and the mention of them recalls no definite impression of events,
or series of events, relatively to the surrounding circumstances,
and the general course of history.
There is no reason, however, why the student of history
should be less able to realize his subject objectively and locally
than the student of geography.
A little study of the skeleton Chronometrical Chart which has
been prepared for this edition will readily enable him to do so.
It is called the skeleton chart in order to prevent the reader,
who has not seen the Chronometrical Chart of the History of
England by the same author, from supposing that, like this, the
latter is confined to a mere outline.
The condition of the Roman law when Justinian undertook
its codification, as described at page 439 et seq., will suggest a
comparison with our own law at the present time. A good
deal of discussion has of late taken place concerning the pro-
posed codification of the law of England. In considering this
question we must not forget that law is necessarily progressive,
and that a body of laws suited to the exigency of a particular
period in a nation's history will not always remain equally well
adapted to the purposes for which they were originally designed.
M. Ortolan's remark, at page 551, on the subject of codification
of law, is full of significance. "A code," he says, "ought never
to be suffered to stand in the way of progress." Nor is there
any necessity that it should do so.
Codification, properly speaking, is the reduction to a simple,
a logical, and a concise form of the law of a country at a given
b
XV111 TRANSLATORS INTRODUCTION.
date. It supposes that, up to that time, laws have been enacted
in a fragmentary form, and that, as a result of their disjointed
character, the legislation of the country is needlessly cumbrous
and inaccessible. The most important matter, therefore, to
consider, in connection with codification, is the means by which
a code may be prevented from becoming an obstacle to progress.
To a certain extent, English legislation has shown us, though
most imperfectly, how this may be accomplished. At the pre-
sent moment our legislature is in the habit, as circumstances
may require, of issuing acts of parliament. These are, in fact,
means of amending, abrogating or supplementing existing law.
The great defect of the present system is that, instead of with-
drawing, upon each occasion when alteration is found necessary,
the existing law upon any given subject, for instance bank-
ruptcy, and issuing a new amended and a complete code upon
the subject, that which exists is allowed to remain ; generally,
however, it is mutilated, and a new act is promulgated intro-
ducing certain changes. The result is that, in order to ascertain
the actual law upon the point under consideration, it is necessary
to refer to a variety of acts, and much unnecessary labour and
expense and the risk of uncertainty and inaccuracy is the con-
sequence. All these difficulties might be obviated and the
obscurity removed if, whenever any alteration was required in
a portion of a statute, the whole statute was repealed and a new
act introduced, reproducing those portions which required no
amendment and containing the modified or the new clauses in
their proper place.
Were this system pursued in respect to our legislation the
necessity of a general code would not exist, and alterations in
the law could be made with facility and with little attendant
expense either to the legislature or to those whose business it is
to be familiar with the law. These remarks do not, of course,
apply to the codification of what is known as judge-made law,
at least to the extent that this branch of law has not, up to the
present time, been codified in our country. This neglect has
TRANSLATORS INTRODUCTION. XIX
resulted in the necessity for extensive libraries, access to which
can be obtained only at the expense of much time and trouble,
and then only by those who happen to be residing in the
metropolis or in large provincial towns, where, as an exceptional
thing, law libraries are to be found.
It cannot be denied that the laws of any community ought to
be comprised within such limits as to put it in the power of a
professor or a student to master them by the labour of a few
years. Can it be asserted that it is possible to master the law
of England by the study of a lifetime ? Whether true or not,
it is the generally received opinion, and it is one which it may
be observed is generally entertained by those who have bestowed
the most labour on, and made the most progress in, the study
of law, that a complete knowledge of the laws of England is
unattainable in the lifetime of any man.
At the present moment the fusion of law and equity is
under serious consideration. Whether such fusion will or will
not result in benefit to the community must depend upon the
spirit in which it is undertaken. The Court of Chancery was
the means devised by our forefathers to prevent the evils which
must attend any blind belief in codification. At the present
moment the law administered by our Courts of Chancery is
to a very small extent in accord with the original spirit of the
institution. These Courts, having existed for centuries, have
now a legislative and a judge-made law as well defined and as
obligatory as that administered in our Common Law Courts,
and it is questionable whether in any but a technical sense there
is more equity in one of the Superior Courts than in another.
The fact really is, that the Courts of Chancery ought to be re-
garded as courts for the consideration of cases of a peculiar
nature, and as differing from any other court only in the same
way that a Court of Bankruptcy or the Criminal Court differs
from the Common Law Courts or the Courts of Probate and
Divorce, and the law peculiar to those courts should be codified
in the way suggested equally with that peculiar to others.
62
XX TKANSLATOKS' INTRODUCTION.
Viewed in this light, it is difficult to understand what the real
notion is that is entertained by those who advocate this fusion.
If it is to give jurisdiction to all courts alike concerning all
matters, this must necessarily result in one of two things : the
compelling judges and the profession to become familiar with
all branches of the law, which is admitted to be, as the law now
stands, an impossibility, or in the simplification and codification
of all law as a step precedent to such fusion.
The translators have had the usual difficulty to contend
against which attends every effort to give expression to the
thoughts and ideas of a great scholar and profound thinker
in a language foreign to that in which those ideas were first
thought out and clothed with words. It is obvious that the
same latitude which is allowed to the translator of a purely
imaginative writer, a novelist or a poet, is scarcely permissible
in the case of a work upon law and jurisprudence. They have
endeavoured, therefore, to adhere as closely as possible to the
original consistent with the idiom of the English language.
A copious Index will increase the value of the work to the
student of Roman history and literature, by affording easy
reference to the explanation of technical phrases and terms
which are so constantly met with in the works of Cicero,
Tacitus, Livy, and the other Latin text-books. While the
course of general history, briefly stated and logically arranged,
will, with the assistance of the chart, be impressed with facility
on the memory.
TABLE OF CONTENTS.
PAGE
INTRODUCTION .. .. .. .. .. .. 1
F1KST EPOCH. THE KINGS.
Sect. 1. Origin of Rome .. .. .. .. .. ..2
2. Patricians and Plebeians (Patres, Patricii; Plets, Plebii) Patrons
and Clients (Patroni, Clientes) Patrician "Gentes" (Popului
Romanus) .. . . . . . . . . 19
3. Tribes and Curies (Tribus et Curies') . . . . . . . . 31
4. Assembly by Curies ( Comitia curiata) . . . . . . 35
5. The Senate (Senatus) . . . . . . . . . . 38
6. The King {Rex) .. .. .. .. .. .. 41
7. The original Elements of private civil Law . . . . . . 41
8. Religious Institutions {Sacra publica, Sacra privata) . . . . 43
9. The Calendar : Days Fasti or Nefasti . . . . . . 46
10. The Election of Kings, from Cicero's De Republica " Lex regia " 49
11. International Law College of the Feciales .. .. ..50
12. The Census . . . . . . . . . . . . 57
13. The Classes {Classes) and the Centuries {Centuries') .. ..57
14. The Assembly by Centuries ( Comitia centuriata) . . . . 64
15. The Knights (Equites) .. .. .. .. ..66
16! The new Local Tribes (ex locis) . . . . . . . . 68
17. The Royal Laws (Leges Regice) their Collection by Papirius (Jus
civile Papirianum or Lex Papiria) . . . . . . 70
Review of the preceding Period.
Foreign Policy . . . . . . . . . . . . 73
Public Law . . . . . . . . . . . . 75
Sacred Law .. .. .. .. .. ..77
Private Law . . . . . . . . . . . . 79
Manners and Customs . . . . . . . . . . 79
SECOND EPOCH. THE REPUBLIC.
I. TO THE PASSING OF THE LAWS OP THE TWELVE TABLES. . . 86
Sect. 18. The Valerian Laws (Leges Valeria) Quaestors of Homicide ( Quces-
tores Parricidii) .. .. .. .. ..88
19. Quaestors of the Public Revenue . . . . . . . . 89
20. Dictator, or Master of the People (Dictator, Magister Popvli )
Master of the Cavalry (Magister Equitum) . . . . 90
XX11 TABLE OF CONTENTS.
PAGE
Sect. 21. The Struggle between the Plebeians and the Patricians . . . . 91
22. Plebeian Tribunes (Tribuni Plebis*) The Sacred Laws (Leges
Sacrce).. .. .. .. .. .. ..93
23. The Comitia by Tribes ( Comitia tributa) Plebiscita (Plebis-scita) 94
24. Plebeian Ediles (^diles Plebeii) . . . . . . . . 96
25. Origin of the Twelve Tables (Lex or Leges XII Tabularum, Lex
decemvir alls) Decemvirs .. .. .. ..96
26. The Fragments of the Twelve Tables as preserved to us . . 99
FRAGMENTS OF THE TWELVE TABLES.
Tab. 1. The Summons before the Magistrate (De in jus vocando). . 102
2. Judicial Proceedings (Dejudiciis) . . .. .. 104
3. Execution following Confession or Judgment (De cere con-
fesso rebusque jure judicatis) . . . . . . 105
4. The Eights of the Father (De jure patrio) . . . . 106
5. Inheritance and Tutelage (De Jicereditatibus et tutelis) .. 107
6. Dominion and Possession (De dominio et possessione} .. 110
7. The Law concerning Beal Property (De jure cedium et
agrorum) . . . . .. .. .. .. 112
8. On Torts (De delictis) . . . . . . . . 114
9. Public Law (De jure publico) .. .. ..119
10. Sacred Law (De jure sacro) .. . . . . . . 120
11. Supplement to the first Five Tables .. .. ..122
12. Supplement to the last Five Tables . . . . . . 123
27. Character of the Twelve Tables . . . . . . . . 124
28. Actions of the Law (Legis Actiones) . . . . . . . . 140
II. FROM THE TIME OP THE TWELVE TABLES TO THE SUBMISSION OP
ALL ITALY.
Sect. 29. Lex Valeria Horatia, De Plebiscitis .. .. .. ..147
30. The Canuleian Law (De connubio patrum et plebis) .. .. 147
31. Military Tribunes (Tribuni Militum) .. .. .. 148
32. The Censors (Censores) .. .. .. .. ..149
33. Praetor (Prater} . . . . . . . . . . . . 153
34. Curule ^Ediles (^Ediles Curules) .. .. .. ..154
35. Judge (Judex), Arbitrator (Arbiter), Recuperators (Recuperatores) 155
36. Centum virs ( Centumviri) .. .. .. .. .. 158
37. The Lex Petillia Papiria (De nexis) .. . . . . . . 164
38. On the Disclosure of the Dies Fasti and the Actiones Legis (Jus
Flavianuin) . . . . . . . . . . . . 165
39. Leges Publilise Lex Hortensia (De plebiscitis') . . . . 166
Revision of the preceding Period.
The Foreign Policy of Home . . . . . . . . 169
Public Law (from the Time of the Twelve Tables to the Sub-
mission of all Italy) . . . . . . . . . . 182
Sacred Law .. .. .. .. .. .. 191
Civil Law .. .. .. .. .. ..192
Manners and Customs . . . . . . . . . . 195
TABLE OF CONTENTS. XX111
III. FROM THE TOTAL SUBJUGATION OF ITALY TO THE EMPIRE.
Sect. 40. Praetor Peregrinus .. .. .. ' 198
41. The Establishment of the Provinces .. .. .. .. 201
42. The Increase in the Number of Prators . . . . . 202
43. Proconsuls .. .. 203
44. Proprietors .. 204
45. The Public Consultations of the Jurists (Responsa Prudentum) .. 205
46. A New "Work on the Actiones Legis (Jus JElianum vel Tripertita) 212
47. The gradual Decline of the Actiones Legis the Creation of a fifth
Action (the Condictio, Lex Silia, and Lex Calpurnia) the par-
tial Suppression of these Actions (Lex jEbutia) . . . . 213
48. The Ordinary or Formulary Procedure (Ordinaria Judicia, vel
per Formulas) The Extraordinary Procedure (Extraordinaria
Judicia) .. .. 217
49. The Introduction of Philosophy and especially of Stoicism Its
Influence upon Jurisprudence . . . . . 225
50. The Seditions of the Gracchi ( GraocTianai) Agrarian Laws (Leges
agrarics) .. .. .. 226
51. Questiones perpetuse Cognitiones extraordinarise . . . . 234
52. The Judiciary Laws (Leges judiciariai) .. .. .. 239
63. On the Authority of the Senatus-consulta . . . . . . 241
54. Jus honorarium Edictum Edictum perpetuum Edictum repenti-
num Interdictum Edictum tralatitium Lex Cornelia, de
Edictis .. .. .. .. .. .. .. 244
55. The Social War . . . . . . . . . . . . 250
56. The Civil Wars . . . . . . . . . . . . 251
57. The Servile Wars . . . . . . . . . . . . 252
Review of the preceding Period.
Roman Foreign Policy . . . . . . . . . . 257
Public Law (Jus publicum) .. .. .. .. 261
Jus Sacrum . . . . . . . . . . . . 269
Jus Privatum . . . . . . . . . . . . 269
Manners and Customs . . . . . . . . 275
THE THIRD EPOCH. THE EMPERORS.
I. FROM THE ESTABLISHMENT OP THE EMPIRE TO CONSTANTINE.
Sect. 58. Lieutenants of the Emperor (Legati C&saris} .. .. .. 280
59. Procurators of the Emperor (Procuratores Ccesaris) . . . . 280
60. The Prefect of the City (Prtefectus urbi) . . . . . . 281
61. Praetorian Prefects (Prcefecti Prcctorio) .. .. .. 282
62. Quasstores candidati Principis . . . . . . . . 282
63. The Prsefectus Annonarum . . . . . . . . . . 282
64. Prefect of the Night Guards (Prafectus vigilum) .. . . 283
65. The Senatus-Consulta : their Effects upon the Jus Privatum . . 284
66. Constitutions of the Emperor ( Constitutiones principurn) .. 287
XXIV TABLE OF CONTENTS.
PAGE
Sect. 67. Lex Regia . . . . . . . . . . . . 290
68. The Responsa Prudentmn . . . . . . . . . . 293
69. Labeo and Capito (M. Antistius Labeo et C. Ateius Capita} The
Two Schools of the Jurists : The Proculeians or Pegasians and
the Sabinians or Cassians . . . . . . . . . . 302
70. Lex Julia, De maritandis ordinibus ; Lex Papia Poppaea : called
also Leges Julia et Papia, sometimes Novas Leges, or simply
Leges on Marriage and on Paternity . . . . . . 308
71. Fideicotnmissa Codicils (Codicilli) .. .. .. .. 314
72. Enfranchisement Lex JElia Sentia Lex Furia Caninia . . 315
73. Jus Honorarium The Edictum Perpetuum of Salvius Julianus. . 319
74. The Advice and the Opinions of the Jurists (Sententice et Opini-
ones) The express Authority conferred by the Rescript of
Adrian . . . . . . . . . . . . . . 322
75. The Jus Latii and the Jus Italicum. under the Emperors . . 334
76. The Colonies and Municipia under the early Emperors The Tables
of Malaga . . . . . . . . . . . . 338
77. The Rights of Citizenship conceded to all the Subjects of the Empire 339
78. The Modification of the Leges Julia and Papia Poppasa The Rights
of the Fiscus in Claims upon Caduca . . . . . . 346
79. The Propagation of Christianity . . . . . . . . 357
80. The Irruption of the Barbarians . . . . . . . . 359
81. Decay of the Formulary System or of the Ordo Judiciorum, The
Extraordinary Procedure (Judlcia Extraordlnaria) introduced
generally Petty Judges (Judices Pedanei) . . ., . . 361
82. Division of the Imperial Government Two Augusti and Two
Csesars . . . . . . . . . . . . . . 365
Summary of the preceding Epoch.
The External Situation of the Empire . . . . . . 367
Jus Publicum . . . . . . . . . . . . 367
Legislative Power . . . . . . . . . . 369
Executive and Electoral Power . . . . . . . . 369
Judicial Powers . . . . . . . . . . 370
Criminal Matters . . . . . . . . . . 370
The Jus Sacrum . . . . . . . . . . 372
The Jus Privatum . . . . . . . . . . 373
Persons . . . . . . . . . . . . 374
Things and Property . . . . . . . . . . 375
Testaments . . . . . . . . . . . . 375
Successions . . . . . . . . . . . . 376
Contracts and Actions . . . . . . . . . . 376
Manners and Customs . . . . . . . . . . 37(5
II. FROM CONSTANTINE TO JUSTINIAN.
83. Constitutions invalidating the Notes of Paul, Ulpian and Marcian
upon Papinian, and approving the other Writings of Paul and
particularly his Sententiae . . . . . . . . . . 379
84. The Gregorian and the Hermogenian Codes ( Gregorianus Codex,
Hermogenianus Codex) .. .. .. .. .. 382
85. Christianity the Religion of the Empire . . . . . . 387
TABLE OF CONTENTS. XXV
Sect. 86. The Foundation of a New Capital . . . . . . . . 388
87. The Bishops (Episcopi)
88. ThePatricii
89. Comites Consistoriani . . . . . . . .
90. Quaestor Sacri Palatii . . . . . . . . .
91. Magistrates of the Provinces
92. Other Functionaries of the Empire A New Hierarchical Nobility . . 392
93. Innovations of Constantino in the Jus Privatum Abrogation of
the Penalties against Ccelibes and Orbi New Amendments of
the Leges Julia and Papia . . . . . . . . 393
94. Agricolae or Coloni . . . . . . . . . . 402
95. Suppression of the Formulae (De Formulis sublatis) .. .. 406
96. The Defensores Civitatum .. .. .. .. ..410
97. The Division of the Empire .. .. .. .. ..411
98. The Public Schools of Constantinople and of Home .. ..411
99. The Responsa Prudentum Lex de Responsis Prudentum .. 412
100. The Theodosian Code . . . . . . . . ..416
101. Theodosius projects an extended Code . . . . . . 421
102. Fragmenta Vaticana Mosaicarum et Romanarum Legum Collatio
Consultatio veteris cujusdam Jurisconsult! .. .. 422
103. The End of the Western Empire . . . . . . . . 428
104. Roman Laws published by German Kings . . . . . . 432
III. JUSTINIAN EMPEROE, A.D. 527.
105. Codex Justinianeus Codex vetus . . . . . . . . 443
106. Quinquaginta Decisiones . . . . . . . . . . 444
107. The Digest or Pandects (Digesta, Pandectce) ,. . . . . 447
108. Institutes (Institutiones, Instituta, Elementa) . . . . 458
109. New Edition of the Code ( Codex repetitce Prcelectionis) . . 459
110. Novelise Constitutiones afterwards Authenticse, Corpus Anthenti-
corum . . . . . . . . . . . . . . 461
111. Corpus Juris Civilis .. .. .. .. .. 471
112. Tribonian or Tribunian . .. .. .. .. 476
113. Theophilus and some other Professors of Law . . . . . . 477
114. The teaching of Law before and after Justinian . . . . 478
General Survey of the preceding Period.
The External Situation of Constantinople . . . . . . 489
The Jus Publicuin . . . . . . . . . . 490
Criminal Matters . . . . . . . . . . 490
Civil Matters . . . . . . . . . . . . 491
The Jus Sacrum . . . . . . . . , . 491
The Jus Privatum . . . . . . . . . . 492
Persons . . . . . . . . . . . . 493
Things and Property . . . . . . . . . . 493
Wills .. .. .. .. .. .. ..493
Succession . . . . . . . . . . . . 494
Contracts . . . . . . . . . . . . 494
Actiones . . . . . . . . . . . . 494
Manners and Customs . . . . . . . . . . 494
XXVI TABLE OF CONTENTS.
PAGE
THE DESTINY OF THE ROMAN LAW IN THE EAST
AND WEST AFTER JUSTINIAN.
I. IN THE EAST.
Sect. 115. The Greek Jurists of the Sixth Century . . . . . . 496
116. The Manuals or Codes of the Byzantine Emperors : Ecloga,
Proehiron, Epanagoge, Basilicce ... . . . . .. 501
117. The Greek Jurists posterior to the Basilicas The Fall of the
Eastern Empire . . . . . . . . . . 506
118. Byzantine Law subsequent to the Sixteenth Century .. . . 511
II. THE WEST.
119. The Publication of the Law of Justinian in Italy . . . . 513
120. The Maintenance of the Law of Justinian after the Fall of the
Byzantine Power in Italy The Extent of this Power The
Roman Nationality of the Population . . . . . . 514
121. The Influence of the Clergy upon the Maintenance of Justinian's
Law in Italy .. .. .. .. .. .. 517
122. The Influence of the Principle of the Personality of the Laws upon
the Maintenance of the Law of Justinian in Italy . . . . 520
123. First Indication of the Law of Justinian in Gaul . . . . 522
124. Revival of the Study and Teaching of the Texts of Justinian
towards the end of the Eleventh Century The School of
Bologna and the Glossators Placentinus in France, Vacarius
in England . . . . . . . . . . . . 527
125. Brachylogus et Petri Exceptiones Legum Romanorum . . . . 534
126. Manuscripts and Texts of the Corpus juris Justiniani The
Pandectae Florentine and the Vulgate The ancient Digest,
the Infortiatum and the new Digest . . . . . . 536
127. The Schools of the Jurists from the Glossators to the Sixteenth
Century .. .. .. .. .. . . 541
128. Roman Law considered as an Element of French Law .. . . 548
EPOCHS OF ROMAN LAW AS GENERALLY RECEIVED.
THE FIRST PERIOD, OR THE INFANCY OF LAW . . . . . . 552
SECOND PERIOD, ITS YOUTH . . . . . . . . . . 552
THIRD PERIOD, ITS MANHOOD . . . . . . . . 553
FOURTH PERIOD, ITS OLD AGE . . . . . . . . . . 553
List of the Works of the Jurists from whose Writings the Pandects of Jus-
tinian were compiled . . . . . 555
GENERALIZATION OF ROMAN LAW.
THE IDEA OF THIS GENERALIZATION, AND, FIRST ITS USES . . . . 558
THE IDEA OF THIS GENERALIZATION, AND, SECONDLY ITS SPIRIT . . 559
THE ORDER OF GENERAL EXPOSITION . . . . . . . . 559
TABLE OF CONTENTS. XXV11
PAGE
PART L OP EIGHT AND THE ELEMENTS OF ITS GENERATION.
PRELIMINARY ARTICLE.
Sect, 1. The Idea of Law .. .. .. .. .. ..561
2. Immediate Consequences of Law . . . . . . 565
3. Component Elements of the Generation of Law . . . . 565
I. OF PERSONS.
CHAPTER I. COMPONENT NOTIONS.
4. Idea of Person .. .. .. .. .. .. 567
5. Second Acceptation of the word Person . . . . . . 568
CHAPTER II. STATUS.
6. Idea and component Elements of Status . . . . . . 568
I. Liberty (Libertas).
7. Liberty Slavery (Servitus) Colonization ( Colonatus) . . . 569
8. Enfranchisement (Manumissio} Free Men (Ingenui) and Enfran-
chised Slaves (Liberti, Libertini) .. . . .. .. 571
9. Successive Modifications in the Condition of the Enfranchised . . 571
II. Citizenship (Civitas).
10. Civis, Peregrinus, Hostis, Barharus . . . . . . . . 572
11. Successive Communication of the Jus Civitatis to Persons without
the Precincts of Home . . . . . . . . . . 574
12. Gradual Alteration of the Civil Law . . . . . . . . 576
III. Familia.
13. General Idea of a Eoman Family . . . . . . . . 576
1 4. The Basis of the Roman Family . . . . . . . . 578
15. Power The Chief of the Family {Paterfamilias') Persons Sui
Juris or Alieni Juris . . . . . . . . . . 578
16. Divers kinds of Power (Potestas, Manus, Mancipium) . . . . 580
17. Marriage (Justce Nuptice) and the various Unions between the
Sexes {Concubinatiis, Stuprum, Contubernium) . . .. 584
18. Cognatio, Agnatio Gens, Adfinitas .. .. .. .. 586
19. Different Acceptations of the Word Familia, . . . . . . 589
20. Successive Modifications of the Law relating to the Family . . 590
IV. On the Loss or Change of Status ( Capitis Deminutio).
21. Maxima, Media, Minima {Capitis Deminutio) . . . . 591
CHAPTER III. OTHER CONDITIONS AFFECTING PERSONS BESIDES
STATUS {Status).
22. Generally.. .. .. .. .. .. ..592
23. Existimatio . . . . . . . . . . . . 593
24. Rank Dignity .. .. .. .. .. ..595
25. The Profession . . . . . . . . . . . . 595
26. Religion . . . . . . . . . . . . . . 595
27. The Domicile (Domicilium: where one is Incola) ; the Local City
(where one is Civis, Municeps) . . . . . . . . 596
28. The Sex . . 599
XXV111 TABLE OF CONTENTS.
PAGE
Sect. 29. Age .. .. .. .. .. .. .. 6 oo
30. Physical or Mental Defects . . . . . . . . . . 603
CHAPTER IV. OP THE CAPACITY OP PERSONS.
31. Generally . . . . . . . . . . . . 604
32. Tutela Cura .. .. .. .. .. ..604
CHAPTER V. LEGAL
33. Populus Curiae Magistratui Hsereditas Peculium Univer-
sitas .. .. .. .. .. .. ..605
CHAPTER VI. THE EXTINCTION OF PERSONS.
31 .. .. .. .. .. .. .. ,. 607
ARTICLE SECOND. II. OF THINGS.
CHAPTER I. OF FUNDAMENTAL PRINCIPLES.
Sect. 35. General Idea of Things . . . . . . . . . . 608
CHAPTER II. CLASSIFICATION OF THINGS.
36. Relations under which may be ranged the Principal Divisions of
Things . . . . . . . . . . . . . . 609
I. In Relation to their Creation.
37. Things Corporeal and Incorporeal . . . . . . . . 610
II. In Relation to Religion.
38. Res Divini Juris and Res Humani Juris . . . . . . 610
III. In Relation to the State.
39. Rights of Citizenship The Idea of the Commercium applicable to
Things as well as to Persons . . . . . . . . 612
40. Roman Soil (Ager Romanus) ; Italian Soil, or that which enjoyed
Roman Privileges (Italicum Solum) ; and Provincial or Foreign
Soil (Solum Provinciale) . . .. .. .. .. 612
41. Res Mancipi and Res ncc Mancipi . . . . . . .. 614
IV. In Relation to the Proprietor.
42. Res omnium, Publicse, Universitatis, Singulorum, Nullius . . 620
43. Things in our Patrimony {Bono), or out of our Patrimony . . 621
44. Public Land, Property of the State (Ager Publicus) ; Private Land,
Property of Individuals (Ager Privatus) .. .. .. 621
V. Tilings considered physically and legally.
45. Movable Things (Res mobiles, seu moventes) or Immovable (Res
.Soli, Immobiles) .. .. .. .. .. 623
46. Things divisible or indivisible Principal or accessory . . . . 625
47. Genus and Species Things which are determined by Weight, by
Number or by Measure (qua pondere, nil-mere , mensurdve con-
stant) Of so called Res fungibiles Things quce ipso usu con-
sumuntur; qii>ce in abiisu continentur . . . . . . 626
VI. In Relation to their Composition or Aggregation.
48. A particular Thing (Res singularis Rerum Universitas) . . 628
TABLE OF CONTENTS. XXIX
PAGE
ARTICLE THIRD. III. OF FACTS.
I. Component Ideas.
Sect. 49. Idea of Fact . . . . . . . . 629
50. The Subject of the Act . . . . . . 630
51. Acts create Eights .. .. . 631
II. Legal Facts or Acts.
52. Idea of the legal Fact or Act . . . . . . 631
53. The Form of legal Acts . . . . . 632
54. Special Character of the Koman Law with Respect to legal Acts . . 632
55. Acts of Civil Law Acts of the Law of Nations . . . . 637
56. One Citizen could not be represented by another . . . . 637
57. Will, Consent (Consensus); Ignor&nce(Iffnorantia); Error (Error);
Cosenage (Dolus bonus, Dolus mains); Violence and Fear ( Vis,
Metus).. .. .. .. -. 638
III. Acts other than Legal Acts.
58. The Conception of Acts other than Legal Acts; the Principles
which regulated their Consequences in Law . . . . . . 639
IV. Elements inseparable from Acts.
59. The Time (Dies) ; the Place (Locus') . . . . . . 640
V. Authentification of Facts.
60. Proo'fs (De Probationibus) .. .. .. 641
61. Presumptions (De Prcesumptionibus) .. .. 643
62. Doubtful Facts (De Rebus dubiis) . . . . . . . . 645
VI. Fictiones Juris.
63. Fictions of the Civil and of Praetorian Law . . . . . . 645
CONCLUSION OP THE FIRST PART.
64. Creation of Eights . . . . . . . . . . . . 647
PART II. EIGHTS AND ACTIONS.
ARTICLE FIRST. EIGHTS.
CHAPTER I. GENERAL CLASSIFICATION OF EIGHTS.
65. Pers/ ,al Eights Eeal Eights (A Classification not adopted in the
EC ianLaw) .. .. .. .. .. ..647
66. Idea jf Personal and of Eeal Eights . . . . . . . . 648
67. Various Denominations of Eeal Eights and of Personal Eights . . 651
CHAPTER II. PERSONAL EIGHTS.
I. Obligations.
68. General Idea of the Obligation or Personal Eight .. .. 653
69. Obligatlo, properly so called amongst the Eomaiis . . . . 655
70. Creation of Obligations . . . . . . . . 65(5
71. Transfer of Obligations .. .. .. .. .. 6(0
72. Extinction of Obligations . . . . . . . . 600
XXX TABLE OF CONTENTS.
PAGE
II. Personal Rights, other than Obligation properly so called.
Sect.73 .. .. .. .. .. .. .. .. 662
CHAPTEE III. EEAL RIGHTS.
74. Idea common to all Real Rights . . . . . . . . 663
75. Mancipium Dominium Proprietas . . . . . . . . 663
76. Possessio .. .. .. .. .. .. .. 665
77. Different Kinds of Dominium Successive Alterations of Civil Law 666
78. Acquisition Transmission Loss of Estate or Property . . 667
79. Real Rights other than Proprietas and Possessio . . . . 670
CHAPTER IV. CONSIDERATIONS APPLICABLE TO PERSONAL RIGHTS
AND TO REAL RIGHTS.
Sect. 80. Rights relating to the State, to the Family, to the Moral or Physical
Individuality of Man . . . . . . . . . . 671
81. Acquisitions or Successions per Universitatem .. .. 671
ARTICLE SECOND. OF ACTIONS.
I. Preliminary Notions.
82. Rights Jurisdiction Procedure . . . . . . . . 672
83. General Idea of the Actio . . . . . . . . . . 673
84. Three Epochs and Three Systems of Judicial Procedure in Roman
Law .. .. .. .. .. .. .. 673
85. Distinction between Jus and Judicium Magistratus and Judex 674
86. The State appoints the Magistrate the Parties the Judex . . 675
87. The Public Administration of Justice . . . . . . 676
II. Legis Actiones.
88. The Functions of the Magistrate and the Judex under this System 677
89. Forms of Procedure, or Actions of the Law (Let/is Actiones) . . 678
90. Signification of the Word Actio under the Legis Actiones . , 679
91. Fictitious Application of the Legis Actiones to Cases where there
was no real Suit, in Jure Cessio . . . . . . . . 680
92. Decline of the Legis Actiones .. . . . . . . 680
III. Formula or Ordinaria Judicia.
93. The Magistrate and the Judge under the Formula System . . 681
94. The Formulae . . . . . . . . . . . . 682
95. Signification of the Term Actio under the Formula System . . 685
96. Actions in Rem and in Personam . . . . . . . . 685
97. Exceptio Replicatio Duplicatio Triplicatio Prsescriptio .. 687
98. Interdicta .. .. .. .. .. ..689
99. Extra Ordinem Cognitio Extraordinaria Judicia . . . . 690
100. The Decline of the Formula System . . . . . . . . 691
IV. Judicia Extraordinaria.
101. Jus and Judicium, the Office of the Magistrate and that of the
Judge became identical .. .. .. .. .. 691
102. The Change of the Character of the Actio, the Exceptio and the
Interdict, under the extraordinary Procedure, and especially under
Justinian .. .. .. .. .. .. 693
103. The various Significations of the Word Actio . . .. . . 694
CONCLUSION . . . . . . , . . . . . . . 695
ABBREVIATIONS.
Gai. ii. 22
Ulp. xxiv. 26 ..
Ulp. lust
Paul. Sent. iii. 3, 17 ..
Paul. Frag
Cod. Theod. viii. 12, 8,
1-
Vatic. J. E. Frag. 7
LL. Mos. et Horn. Coll.
xvi. 4.
Dig. xxxviii. 7, 2, 1,
f. Ulp.
Cod
Inst.
Theo.
For Gaius's Institutes, commentary second, para-
graph twenty-second.
Ulpian, title twenty-four, paragraph twenty-six.
Fragments of the Institutes of Ulpian.
Pauli Sentential, third book, third title, para-
graph seventeen.
Fragment on Fiscal Law ascribed to Paulus.
Theodosian Code, eighth book, title twelve,
section eight, paragraph one.
Fragment of Roman Law discovered by M. Mai
in the Library of the Vatican, paragraph
seven.
Comparison between the Law of Moses and the
Roman Law, title sixteen, paragraph four.
Digest, book thirty-eight, title seven, section
two, paragraph one, fragment of Ulpian.
Justinian's Code.
Justinian's Institutes.
Paraphrase of the Institutes by Theopliilus.
ERRATA.
Page 59, line 17, for " censitares" read " censitarii."
Page 98, line 10, for "B.C. 454" read "B.C. 451."
Page 98, last line,/or " B.C. 452 " read "B.C. 449."
Page 202, line 19, for " mancipia" read " municipia."
Page 223, line 1, for " administratio " read " demonstratio."
Page 248, line 26, for " repentine" read " repentina."
Page 377, line 23, for " Maximin " read " Maximian."
Page 459, note 2 , for " de Justiniani" read " Justiniani."
Page 496, in heading, for " UNDER JUSTINIAN" read " AFTER JUSTINIAN."
Page 642, line 16, for " a-lv, written," read " fit, with."
INTRODUCTION.
EVERY historian ought to be a jurist, every jurist a historian.
It is impossible to understand an enactment without a thorough
acquaintance with its history. But then the question occurs,
what is this history ? Does it consist in dry tables of laws ar-
ranged in chronological order? Certainly not. The manners
of a nation, its movements, its wars, its growth, its civilization,
are each of them causes that mould the national law. It is our
task to investigate these causes, indicate their influence, and
trace the changes they have brought about. Most writers have
made the history of law subordinate to that of the people, and
have been content to trace their progress, independently of the
development of law, to an epoch when their system of jurispru-
dence underwent some striking modification. I prefer, how-
ever, an opposite course, and consider that the history of the
people should be subordinate to that of their law. As land-
marks in the progress of a nation, I select great political events
which modify the national character by changing the govern-
ment. In these revolutions public law is remodelled, and if in
some cases the legal system no less than the national character
appears to remain unchanged, we must take care not to be de-
ceived by an outward semblance of conformity, for we shall find
that in all such cases the seed has been sown which sooner or
later will bear the fruit of change.
Adopting, then, this system in treating of Roman law, we
shall have in this summary to consider the subject in three
divisions, corresponding to three epochs That of the Kings,
that of the Republic, and that of the Empire. 1
1 The divisions ordinarily adopted in books upon the history of law will be
found in the Appendix.
VOL. I. B
THE HISTORY OP ROMAN LAW.
FIRST EPOCH.
THE KINGS.
SECTION I. ORIGIN OF ROME.
2. THE infancy of all ancient nations is wrapt in obscurity;
their earliest history is clouded by a mass of doubtful traditions
and incredible fables. This remark is especially applicable to
the Romans, whose origin, though not of great antiquity, was
veiled even from their own eyes. Popular stories, heroic bal-
lads, the Pontifical annals, containing the records of prodigies
and supernatural events, formed the basis of their history, which
were supplemented by a species of tradition adopted by poets,
historians, publicists and jurists, vaguely at first, but gathering
assurance by repetition till it came to be regarded as a historical
record. This is the national belief, and is to be traced in every
branch of Roman literature.
3. The critic and the sceptic of modern times, however,
have ruthlessly assailed these traditions of Roman origin, and
it has become the fashion to rank them with the fables of
mythology, not only as to that portion of the narrative which
is manifestly fable, but also to much which has the semblance
of truth.
4. These efforts have not been solely iconoclastic. Criticism
has attempted to reconstruct. It has endeavoured to resuscitate
from its decay the Rome of early times, whose origin was a
mystery even to its own people. Love of popularity, the eager-
ness of theorists, not unfrequently the fertility of imagination,
have given birth to rash conjectures, which, in addition to the
THE HISTORY OF ROMAN LAW. 3
charm of novelty, possessed sufficient fascination to secure for a
time popular favour.
These efforts were not confined to modern times; for specu-
lations on this subject commenced with the revival of literature
in the sixteenth century. In a work written in 1685, Peri-
zonius traces the basis of early Roman history to old popular
ballads and funereal songs. And Cato, in his treatise " Origines,"
alludes to the odes which used to be sung long before his time
on festive occasions in the houses of men of rank, in praise of
the heroes from whom they claimed descent. Cicero also
alludes to these odes with a regret that they had become obso-
lete. 1 Perizonius warns the student against reliance upon
these poetical effusions, which had their origin in vanity and
the love of the marvellous. 5
Thus it must be borne in mind that the mythical character
of early Roman history, although it has been brought promi-
nently into notice by the careful research of modern times, was
not a new idea; and, without alluding specially to several
minor efforts in this direction to be found in the " Transactions
of the Academic des Belles Lettres," Dr. Beaufort, in 1738,
published a dissertation on the uncertainty of the five first
periods of Roman history. 3 And some years previously
Vico, at Naples, whose footsteps Niebuhr in our own time
has to a certain extent followed, undertook the reconstruction
of this doubtful epoch upon more independent data, derived
from the great principles of the Philosophy of History. 4
6. But these researches have been carried still further back
into the vista of time, and attempts have even been made to
1 Cicero, In Brutum, 19 : "Atque principio et fine uno" (1720); "De con-
utinam exstarent ilia carmina, qua? mul- stantia jurisprudentise," in two parts;
tis saeculis ante suam ajtatem in epulis " De constantia philosophise et De con-
esse cantitata a singulis convivis de stantia philologies" (1721) ; but espe-
clarorura virorum laudibus, in Originl- cially in his " Scienza nuova" (1st edit.
bus scriptum reliquit Cato ! " 1725; 2nd and 3rd edit. 1730, 1744).
3 Pemomns, Animadvert, historic^, Niebuhr, " Histoire romainc " (first
ch. 5 et 6, Amsterd., 1685. volumes printed 1811 and 1812, recast
3 Utrecht, 1738. Also, by the same in subsequent editions) ; French trans-
author, "La Republique romaine," La lation by M. de Golbery (six vols. 8vo.,
Haye, 1766. 2 vols. in 4to. 1830 to 1837). Niebuhr died January
4 Vico, amongst his early Latin 2nd, 1831, before the completion of his
works, in his " De uno universi juris great work.
B 2
4 THE HISTORY OF ROMAN LAW.
trace the progress of civilization in ages anterior to the birth of
Rome, by rekindling to life the ashes of Italian nationalities long
concealed beneath the ruins of the colossal city, by reproducing
Italy as she existed prior to its foundation with all her in-
habitants, their diverse states, their institutions, their languages
long buried in the past. The labours of Lanzi have demon-
strated the possibility of deciphering with tolerable accuracy
the writing, and not unfrequently the language of this ancient
people, by a study of their monuments. And we are indebted
to Micali for some interesting essays upon the main features of
their general history. These are pleasing speculations, which,
could the limits of my work admit of it, should undoubtedly
find a place here.
6. There was in the poetry and literature of Greece, as also
in that of Rome, its offspring, a tendency to ascribe a Grecian
character to the origin of the Italian States. This is shown in
the three grand epic events of Grecian poetry, the return of
Hercules from his Iberian expedition, when he opened the road
to the ocean, placing restrictions upon its use ; the voyage of
the Argonauts, in which Hercules himself assisted at the outset,
and the dispersion of the Grecian or Trojan heroes after the
fall of Troy, with the wanderings of Ulysses and .ZEneas. The
genius of the poet has, in all these popular legends, attributed
to the Greeks the capture and possession of Italian soil. Add
to these that other obscure legend of the Pelasgi, whom Homer
calls " a race divine," * but who might have been called, accord-
ing to Myrsilus of Lesbos, by a play upon the word which the
wit of the ancients could appreciate, Pelargi, that is to say, a
"race of storks." 2 To them the Dodonian oracle might have
said, " Go seek the sea-girt land of the Sicilians consecrated
by its inhabitants to Saturn and the Cotylaeus." 3
This influence of Grecian mythology and literature upon
that of Rome caused the Romans to overlook the study of
the ancient population of Italy, their real ancestors ; and hence
the exploits, the customs, institutions and languages of the
1 Od. lib. xix. 177. 3 Ibid. 19. Macrobius, Satur-
2 Dion. lib. i. 28. nalia, lib. i. c. 7.
THE HISTORY OF ROMAN LAW. 5
people from whom the founders of Rome were descended,
have been, if not altogether forgotten, at any rate obscured.
And the share which the aboriginal races took in developing
the civilization of Italy has been overshadowed by the influence
which the Greek colonies, located on different parts of the Italian
shores, contributed to that result. This influence, too, has
caused the primitive appellation of a part of these shores to be
merged in the name of Magna Grgecia, and this to such an
extent as to make it appear that Italy owes its civilization to
that country alone.
It is however still possible to trace in these Roman writers
vestiges which we may recognize as those of the ancient Ita-
lians. Medals, coins, funereal monuments with inscriptions, and
written monuments of still greater value, a variety of works of
art and industry consecrated to domestic or public use, or to
religious rites, together with the remains of walls still subsisting,
the magnitude and solidity of which have given them the name
of Cyclopasan ; in one word, all the treasures of archaeological
research are at hand to aid us in this attempt at historical restor-
ation. Micali, whose works have been already cited, has made
this attempt ; it is true with a certain amount of national
prejudice, but with ability that claims attention and asserts
authority.
7. We shall mislead ourselves and others, if we seek in any
other direction for the bases of the history of Roman law. And
with due regard to the eminent services rendered by Niebuhr in
the details of Roman history, he has laid himself open to censure
for the influence he has attributed to Grecian, in comparison
with Italian genius, throughout the whole course of his study of
Roman institutions. The old popular ballads, which purport to
relate the story of the foundation of Rome and which were in
existence even in the time of Cato, were at least adapted to the
condition of the language of his period. And the popular
ballads, descriptive of the earliest times of Rome, were of Italian
character and not imported from without. Of the same type
were those religious institutions, belief and practices among the
Romans, derived from antiquity, which influenced their life,
6 THE HISTORY OF ROMAN LAW.
both public and private. It would be an error to look upon
these institutions and customs as created and improvised for the
first time by the Romans. Rome, at first, was nothing more
than a nucleus where the principle of agglomeration, so charac-
teristic of the Italians, had been developed, and it resembled
many other similar centres of association formed by the numer-
ous minute sections into which the inhabitants were subdivided.
In some cases, however, the principle of confederation among
the different towns and colonies resulted in the acquisition of
increased power and more extended territorial limits. The
religious rites, the magisterial office, the costumes or external
insignia, the fasces, the axes, the lictors, the curule chairs, are all
of Italian origin. 1 If Greece was able to introduce into the
religion of Italy the greater part of its deities, Italy, on the
other hand, derived from sources more remote its national
divinities not unfrequently borrowed in its turn by Greece,
such as Janus and his companion Camese symbols of the land
of birth, Vesta the goddess of the sacred fire, Faunus and many
others whose names are less commonly known, not to mention
the Camamian nymphs invoked by the poets in the Augustan
age. Varro also, in speaking of the altars consecrated by King
Tatius to Rome, tells us that they have Sabine characteristics. 2
And, as regards language, if Greece has added much to the
Roman vocabulary as it has descended to us, the primitive
roots of the language are undoubtedly of Italian source roots
deeply set in the very elements of Italian speech and which have
been too much overlooked by the grammarians of the later time
of the republic and the empire, but which nevertheless indicate
their origin.
In fact, Rome following the usage of other Italian towns,
had its protecting deity and its sacred name of Latin derivation.
1 Macrobius, Saturnalia, lib. i. ch. to Vetulonia, one of the principal
6 : " Tullus Hostilius, Hosti filing, Etruscan towns :
rex Romanorum tertius debellatis Kis senos IHEC prima dedit pracedere fasces,
EtruSClS^Sellam curnlem lictoresqne et Kt junxit totidem tacito terrore secures ;
togam pictam atque priEtextam, qua3 Hajc altas eboris decoravit honorecumles,
insignia magistratuum Etruscorum Et Pceps Tyrio vestem pratexuit ostro.
erant, primus ut Romre haberentur, 2 Varro, De lingua latino,, lib. iv.
instituit." See also Livy, lib. i. 8 ; 74: " Et arte Sabiuam lingnam olcnt
and Silius, in his poem on the Punic qure Tati regis voto sunt Roma; dedi-
wars (ode 8, line 485 et seq.), referring catae."
THE HISTORY OF ROMAN LAW. 7
This name it was forbidden to the initiated to divulge, lest the
enemy becoming acquainted with it should invoke the aid of the
deity against the city. The mystery attaching to this divinity
and its sacred appellation was such that it ultimately became
forgotten by the Romans themselves, and was unknown even to
the most learned among them. Valerius Soranus perished, ac-
cording to Pliny, for having divulged it. 1 As to the word
" Roma," Verrius relates that it was forbidden to reveal its
origin. 2
8. A research into the history of the old Italian nationalities
anterior to Roman dominion is attended, in addition to many
other difficulties, with the same embarrassment that we feel in
connection with the history of nations still extant, as, for in-
stance, the Swiss cantons, the German states or the Italian
republics of the middle ages. This arises from the existence of
a multiplicity of petty states a town or a village with its in-
habitants and adjacent territory playing the part of a " Power "
and calling itself a " people " each having its own history and
its own institutions, while the rivalries, alliances, negociations
and hostilities which arise among them confine the attention of
the student to mere details. The mistake so often made by
substituting the history of corporations and colonies for that of
nations is a source of incessant fatigue to the mind, and is
especially distasteful in modern times when we are accustomed
to great national unions, and to the centralization of power
developed by the growth of civilization.
But how vastly the proportions of this historic problem
increase in magnitude, how widely extended becomes the range
of contemplation when discarding the theory that the Italian
nationalities consisted of so many distinct races sprung from the
1 Macrobins, Saturnalia, lib. iii. abolitum enunciaA'it Valerius Soranus,
c. 9 : " Nam proptcrea ipsi Roinani ct luitque mox pcenas."
Dcnm in cujus tutcla urbs Roma cst, 2 Fcstus, on the word Roma : "Caite-
et ipsins urbis Latinum nomen ignotum rum causam ejus appellationis inveiiisse
esse voluerunt." " Ipsius vero urbis ait Verrius vetitam esse publicari."
nomen etiam doctissimis ignotum est." Reference must be made to the etymo-
Pliny, Hist, natur., lib. iii. 9, no. 11: logical discussion in the same passage
"Roma ipsa, cujus nomen alterum upon the Greek fables in order to ex-
diccre, arcanis ca^remoniarum nefas plain the name Rome,
habetur, optimaque et salutari fide
8 THE HISTORY OP ROMAN LAW.
soil, indigenous and aboriginal, we adopt the principle usually
accepted as a guide in kindred speculations, and rise to the
grand conception of a common origin ! If we search for an
answer to the question, whence came these numberless petty
states, or whence did the Italian peninsula, or Greece, or Spain,
or Gaul, or other parts of Europe, receive their population ? we
find ourselves passing away from the study of minute details,
and petty subdivisions confusing us with numberless anomalies
and intricacies in race and language, and coming within view
of the fountain head, we obtain a glimpse of a unity of origin
among the races which peopled Europe, races that are detached
branches of one common stock, sprung from the same distant line-
age : and we may cease to wonder at the event which happened
at the battle of Marius against the Ambro-Teutons, when from
the ranks of the army of the barbarians as well as from those of
the Italian auxiliaries there burst forth, to the great astonishment
of the combatants, the same war cry, " Ambra, Ambra ! " *
And with these dim and uncertain vestiges before us of a
forgotten unity, which are to be met with everywhere amid the
utmost diversity of human language, we begin to perceive the
basis of a common origin of race.
We are indebted to M. Ampere for the commencement of a
history of Rome, 2 written at Rome itself, from the testimony
of archaeological remains. These materials have been arranged
and elaborated with much genius and taste, aided by a skilful
application of the inventive faculty. In order to write his his-
tory, this accomplished scholar and poet ascended successively
every summit of the locality whence he might obtain a survey
of the surrounding district. But we may ask whether, in thus
localizing the point of vision, an author does not run a risk of
restricting too much his field of observation? In order to in-
vestigate fairly the history of the distribution of mankind in
connection with the corresponding subdivisions of territory,
should not the philosopher rather ascend to the summit of
Mount Ararat, and thence endeavour to trace the course of
those streams of the great human family which the vast Asiatic
1 Plutarque, Vie dc Marius. * Paris, 1862. Two vols. in 8vo.
THE HISTORY OF ROMAN LAW.
cradle of our race has, amid the dim and uncertain haze of past
ages, successively sent forth to people the continent of Europe ?
Feeble as the glimpse may be which we get of the progress
of different tribes towards the west, the comparative study of
fragmentary traditions, customs and national beliefs, aided by
the light which modern researches in philology have thrown
upon the subject, enables us to arrive with certainty at some
grand results. We are in a position to assert, that certain
powerful races belonging to the Japhetic family, the Iberians,
the still more powerful and extended race of Kelts (Gaels),
and their kindred race, the Cimbri, have given to the Italian
peninsula, as well as to Spain and Gaul, and other parts of
Europe, their population. So that, although these countries
were peopled at different times by races who immigrated into
them in different proportions by separate routes, and by succes-
sive invasions or immigrations, they are inhabited by men origi-
nally of the same race. The Ligures, the Siculi and the Sicani
are, according to the most commonly received opinion, branches
from the same Iberian stock. The Umbrians, according to
traditions to which the learned Roman was not a stranger, were
regarded as the progenitors of the Kelts or Gaels who had
crossed the mountains into Upper Italy. 1
The mysterious Pelasgi were but tribes of Cimbri, who,
emanating from Thrace, spread themselves over certain parts
of Asia Minor and the Grecian Archipelago, and reached even
the almost sea-girt land of Italy. The fact of their being
established in Greece led to the belief in their Hellenic origin,
notwithstanding that they preceded by a long time the races
who at a later period replaced them, and even borrowed from
them the appellation of Greeks and Hellenes. From the same
stock of Cimbri sprung the Etruscans or Tyrrhenians (although
to trace their derivation from the common stem we must look
further back), who were offshoots of another branch of the
1 " Sane Unibros Gallorum vetcrum DC memorabillbux mundi, ch. 8). This
propaginem essc M. Antonius refert" Cornelius Bochus was enfranchised by
(Cervius, ch. 12, JKneid.). This M. Sylla, and renowned for his erudition.
Antonius Guipho was a preceptor of " Umbri Italiaj gens est, sed Gallorum
Julius Caesar, arid came from Cisalpine veterum propago " (Isidore de Seville,
Gaul. "Bochus absolvit Gallorum veto- Dvs oriyincs, lib. ix. c. 2).
rum propaginem Unibros esse" (Solin,
10 THE HISTORY OF ROMAN LAW.
Pelasgi, and at a subsequent period made their way to
Italy. 1
Lastly, a third race also sprung from the " Asiatic cradle,"
and, tracing its lineage to the source personified under the
name of Japhet, must be reckoned among the ancestors of the
Italian nation. This is the Ionic race, whose descendants, in
after ages and in another land, threw such lustre on the Pelasgic
names of Greek and Hellenes. 2 This race, at its first appear-
ance in Europe, settled some offshoots on the coast of Sicily and
Italy, and with difficulty established itself in Greece by expel-
ling or intermingling with the Pelasgi, and at that time gave no
promise of the renown that was destined in after ages to be
attained by its descendants.
Care must be taken not to confound with this primitive
Ionian element in Italy the colonies which the Greeks, at a
much later period and in the height of their prosperity, founded
in that country, and from which the name of Magna Grascia
came to be given to a portion of the Italian shores.
Of these events, whose history is traced with difficulty amid
the obscurity that overhangs the origin of the human race, the
most recent dates back as far as fifteen or sixteen centuries
prior to our era, and seven or eight hundred years before the
foundation of Koine. In effect, they show that there were three
principal races by which Italy was peopled, the Iberians, the
Kelts or Gaels, with their kindred Cimbri, and the lones.
And the early population of Gaul had without doubt a similar
origin. From these sources emanated the ancient races now
known as the aboriginal inhabitants of Italy, not in a single
stream pure and unmixed, but in many different channels, some-
times uniting, sometimes crossing each other, according as the
accidents of locality and surrounding circumstances affected
their course. Amongst some of these, as was the case with the
Ligures and the Siculi, with the Ausones and their offshoots,
the Volsci or Opici, with the TJmbrians and their numerous
1 " Hyginus dixit, Pelasgos esse qui pies primitifs de la race de Jafete :
Tyrrheni snnt : hoc etiam Varro com- Colmar, 1853, p. 42 ct scq.
niemorat" (Servius, c. 8, JKncld^}. See 2 Vide the same work 1>y M. Bcrg-
the concise but instructive work by mann, p. 51 et scq.
M. Bergmann, of Strasburg, Les pen-
THE HISTORY OF ROMAN LAW. 1 1
colonies, with the Sabines and their branches, with the Piccni
and the various Sabellic tribes, with the Marsi, the Hernici and
the Etruscans, the race of the Iberians, or Gaels or Cimbri,
acquired preeminence, whereas among others, as in certain parts
of Latium and of the Italian or Sicilian coasts, the lones were
in the ascendant.
But as we approach the period when the history of Rome
commences, we find that all connection with the past and all
traces of unity of origin had been forgotten. At the present
day we should regard the internal affairs of petty communities,
mere fragments and infinitesimal sections of a population, how-
ever important they might appear in their own annals, as matters
of very little significance. , Doubtless these petty states had their
own history their growth, their divisions, their international
wars, their politics, coloured by the accidents of the time and
local influences but the end of all of them was Rome, and they
were absorbed in a destiny which was fated to embrace the
world.
Notwithstanding, however, the great extent to which the
principle of dispersion had been carried out, there are many
indications to be observed of the existence on a larger scale
of previous nationalities which had gone through a course
of prosperity and subsequent decline ; such, for instance, as
affinities in language and custom, symptoms of unity in their
systems of confederation and colonization, political alliances and
co-operations in military ventures. But among the subordinate
nationalities which existed up to the time of Rome, and were
taken up and finally absorbed by her, three, viz., the Latins,
the Sabines and the Etruscans, occupy a prominent position.
In fact, it was in the midst of these, and by the union of de-
tached sections from each of them, that the new political
organization was formed. And in whatever proportions this
combination was effected, there is no doubt that it was the
basis upon which Rome was founded.
The Latin element had the double advantage of territory
and antiquity, the Sabine that of power and independence, the
Etruscan that of civilization and religious and political in-
stitutions alreadv established and defined.
12 THE HISTORY OF ROMAN LAW.
9. The method by which the union between a certain section
of the Sabines and the Romans was effected is related in detail
by tradition, and is celebrated in the national poems. The
appellation " Quirites " was the sacred name of these Sabines,
and was derived according to Festus from the goddess Ceres,
to whom they offered the sacrifice of water and wine, whence
also Cures the name of their chief city, and Curis or Quiris the
Sabine lance, the emblem and instrument of power. 1 The
Quirinal Hill was so styled, according to Varro, because it was
upon its summit that the Sabines encamped when they came
with Tatius from Cures to Rome. 2 The twofold origin of the
Romans is also indicated in their sacrifices, their prayers and
their religious formulas. And the phrase " Populo Romano
Quiritibusque " subsequently altered to " Populus Romanus
Quiritium" would seem to indicate that it was the custom at one
time to invoke the gods on behalf both of the Romans and the
Quirites. 3 Moreover, it was from the Sabines that the Romans
themselves took the name of Quirites, 4 and Romulus was called
by the sacred name Quirinus. 5 Thence also came their goddess
Cures and the god Quirinus, the deity of the lance, identified
with Romulus and to whose honour a temple was erected on
the Quirinal mount. 6 This lance long continued to play an
1 Festus, on the word Quirites : people, Quirites.
" Quirites, dicti Sabiiii a Curi dea, cui 4 Livy, lib. i. 13 : " Ita geminata
aqua ctvino sacra facere soliti erant . . urbe, ut Sabinis tamen aliquid daretur,
Ab ejusdem autem dcae nomine viden- Quirites a Curibus appellati."
tur item cures Sabinas hastas appellate, 5 Ovid, Fasti, lib. ii. line 477 et seq.,
quibus ea gens armis erat potens." where the three grounds are given upon
2 Varro, De lingua lati/ia, lib. v. either of which Romulus may have
51 : " Collis Quirinalis, ob Quirini been called Quirlmts :
fanum ; sunt qui a Quiritibus, qui cum sive quod hasta curis priscis est dicta Sabinis,
Tatio Curibus venerunt Romam, quod Bcllicus a telo venit in astra Deus ;
ilii Vinhriprint pah-n " SPP nlsn TnVstus Sire suum rej?l nomcn posuere Quiritcs ;
tUS > Seu quia Komanis junxcrat ilie Cures.
on the term (Jmnnalis colLis. ^ , ,, , . . .. .
' Festus, on the word Did: " Bid r . estus ' on , thc ^rdQmrmus : Qui-
mos erat Romanis in omnibus sacrificiis " nus ex h . aC ^t R T, ulu f S st f ap f
prccibusque, POPULO ROMANO QUIRI- latus ' q nod c ? n > ld <*.' *** uteretur,
TIBUSQUE, quod cst Curensibus, qu ci- a ^ Roma 1 eo nomme Romulum ap-
vitas Sabinorum potentissima fuit." See ^ e , 'J^ 6 11 ' ... .. ,.
this religious formula altered in Aulus vld > Fastt > llb ' hne 51 1 : ~
Gellius, lib. x. cap. 24, a formula of Templa Deo flunt, collis quoque dictus ab illo.
the Praetor announcing the fetes called It was the latter of these two which
Compitalia for the Roman people, Qui- gave to the mountain its name Quirinal,
rites; and Livy, lib. viii. cap. 9, a for- on account of the temple there erected
mala by which the Consul Decius de- to Quirinus.
voted himself on behalf of the Roman
THE HISTORY OF ROMAN LAM'. 13
important part in their symbolic ceremonies, their formula} and
the technical language of Roman Law.
10. The Etruscan element is less clearly traced in popular
tradition ; but its existence can be satisfactorily established
from the testimony of the historians, supplementing that of tra-
dition. Varro, Festus, Tacitus and Dionysius of Halicarnassus
tell us that Mons Caslius was so named from one Caelius or
Vibenna Cseles, a noble Etruscan, who had come with his
retinue (cum sud manu) to the succour some say of Romulus,
others of Tarquinius Priscus, and established his residence upon
this hill, which in after times their descendants were required
to abandon, when they were forced to take up their residence in
the plain country, because the position upon the heights when
fortified gave them an advantage and enabled them to domineer
over and disturb at will the surrounding territory. Antiquarians
are not agreed as to the name of their king, but this much is
certain, that they formed in the plains, not far from the Forum,
a settlement which received from them the name of the Etrus-
can Quarter ( Vicus Tuscus], where was to be seen the statue
of Vertumnus, the principal deity of Etruria. The Mons
Caelius was, before the arrival of the Etruscans, called Quer-
quetulanus on account of its being thickly covered with oak
trees. And in like manner Mons Quirinalis was called, before
the arrival of the Sabines, Agonius or .ZEgonus. 1
1 Varro, De lingua latina, lib. v. erat ; mox Caelium appellitatum a Cselc
46: " Cselius mons, a Gaelic Vibenno, Vibenna, qui dux gcntis Etruscae, qnum
Tusco duce nobili, qui cum sua manu auxilium appellatutn ductavisset, sedem
dicitur Romulo venisse auxilio contra earn acceperat a Tarquinio Frisco, seu
Tatium regem : hinc post Cselii mor- quis alius regum dedit : nam scriptores
tern, quod minis munita loca tenerent in eo dissentiunt ; crctera non ambigua
neque sine suspicione essent, dcducti sunt, magnas eas copias per plana etiam
dicuntur in planum. Ab eis dictus ac foro propinqua habitasse, nnde Tus-
vicus Tuscus, et ideo ibi Vortumnum cum vicuna e vocabulo advenarum die-
stare, quod is Deus Etrurise princeps." turn." The version current among the
Festus, on the word Caillus : " Cajlius Etruscan writers was somewhat diffe-
mons dictus est a Caele quodam ex rent. According to them it was Scrvius
Etruria qui Romulo auxilium advcrsus Tullius, the faithful companion of Cables
Sabinos pnebuit, eo quod in eo domi- Vibenna, who, after his reverse, quitted
cilium habuit." Dion. Halic., lib. ii. Etruria with the wreck of his armv and
38. Tacitus, Annales, lib. iv. 45: occupied the mount, which he called
"... Montem eum antiquitus Coelius in honour of his chief. He also
Querquetulanum cognomento fuisse, changed his own Etruscan name from
quod talis silvae frequens fccundusque Mastarna to Scrvius Tullius. We de-
14 THE HISTORY OF ROMAN LAW.
The existence of the Etruscan element also appears, though
somewhat obscurely, in the account given us of the Luceres, the
third section of the Roman people (pars tertia populi Romani),
which was constituted a tribe (distributa) by Tatius, or, accord-
ing to Festus > by Romulus. 1 The origin of the name Luceres
was explained by the Romans in different ways : Livy tells us
that it was uncertain ; 2 Festus derives it, in the passage just
cited, from a certain Lucerus, King of Ardea, a town on the
coast of Latium, who also came to the succour of Romulus.
But from Varro we learn that the term Luceres was Etruscan,
and Festus himself, in another passage, derives it from a
Lucumon, the chief of this band. Cicero tells us of the death
of this Lucumon while fighting with the Romans against the
Sabines. 3 This Lucumon, then, is evidently no other than the
Etruscan leader Vibenna Casles. All doubt as to the correct-
ness of this conclusion is dispelled when we recollect with
Mebuhr that " lucumo " is merely a term descriptive of dignity
among the Etruscans, and the error has clearly arisen from the
habit of regarding it as a proper name. 4
A further trace of the existence of the Etruscan element is to
rive this Etruscan version from what tertia Populi Romani est distributa a
are termed the Claudian Tables, which Tatio et Romulo, appellati sunt a
are bronze tables discovered in 1528 at Lucero Ardeaj rege, qui auxilio fuit
Lyons, where they are preserved, and Romulo adversns Tatium bellanti."
on which is engraved a speech of the 2 Livy, lib. i. 13 : Lucerum nominis
Emperor Claudius on the concession of et originis causa incerta est.
the jus senator-turn to the Gauls, or 3 Varro, De lingua latina, lib. v.
their right to be called senators. Pre- 55 : " Tatlenses a Tatio, Ramnenses
viously the Annals of Tacitus, lib. ii. a Romulo, Luceres, ut Junius, a Lucu-
24, presented an analysis of this ora- mone. Sed omnia hajc vocabula Tusca,
tlon, the text of which has been thus ut Volnius, qui tragcedias Tuscas scrip-
preserved. A fac-stmile of the text sit, dicebat." Festus, on the word
has been printed by M. Monfalcon, Lucomedi : " Lucomedi a duce suo
librarian to the municipality of Lyons, Lucumone died, qui postea Lucerenses
with its consent ( 1851, fol.) It is also appellati sunt." Cicero, De republica,
to be found in the greater number of lib. ii. 8 : " . . . Et suo et Tatii
the editions of Tacitus. That the Em- nomine et Lucumonis, qui Romuli
peror Claudius wrote an Etruscan ver- socius in Sabino prajlio occiderat."
sion may be believed, inasmuch as we 4 Servius, ad JEncid., lib. ii. line
find from Suetonius that he wrote a 2G8 : " Duodecim enim lucumones, qui
Greek history of the Etruscans in reges sunt lingua Tuscorum, habebant."
twenty volumes, which are lost. Et lib. viii. line 475 : " Tuscia duode-
As to the primitive name of the cim lucumones habuit, id est reges,
Quirinal mount, vide Festus, on the quibus unus praserat." Also, lib. x.
words Quirinalis collis et JEgoniuin. line 202, et lib. xi. line 10. Censorinus,
1 Festus, on the word Lucerenses : De die natali, c. 4 : " Lucumones, turn
" Lucerenses, et Luceres, qua? pars Etruriae potentes."
THE HISTORY OF ROMAN LATV. 15
be found in the account given by tradition of the arrival at
Rome of Tarquin, with his people, from Tarquinii, one of the
principal towns of Etruria. Thus each of the three elementary
races which collectively founded Home, supplied it with a king,
the Latins, Sabines and Etruscans.
11. It must not be supposed that this Sabine element com-
prised the whole of the Sabine people, much less that the
Etruscan element composed the whole of the powerful Etruscan
nation; but they were clearly sections of these people so
clearly that we may concur with Floras, who observes in con-
nection with the period subsequent to the " social war," that the
Roman people was a composite of Etruscan, Latin and Sabine,
which had united the blood flowing from different sources and
incorporated into one body its various members. 1
12. These considerations will enable us to grasp the prin-
ciples of the customs and institutions of Rome from the view
they give us of pre-existing nationalities, whence it derived its
origin. Upon this broad basis we may take our stand, without
carrying our researches into minute details. We learn from
Censorinus that Varro divided the historic period into three
epochs. The first he called aS^Xov or unknown, because it is
wrapt in the obscurity of ignorance ; the second /*u0jxo'y, be-
cause it abounds in fables ; and the third, urropjxov, derives its
materials from the record of events contained in annals that
may be relied upon. 2 Vico in a similar manner, but with more
depth of view, divides the historic epoch into the divine, the
heroic and the human. 3 Niebuhr still more closely follows
Varro, and while adopting a tripartite system of division with
reference to Roman history, in his first edition styles the
primitive period the mythic or purely fabulous, the second
mytho-historic or a mixture of facts and fables, and the third
historic. His work will be read with interest, but caution
must be exercised in following him through the imaginary
1 Floras, lib. iii. 19: " Quum membris, et ex omnibus unus est."
Populus Romanus Etruscos, Latinos, a Censorinus, De die natali, 24.
Sabinosque miscuerit, et unum ex om- 3 Vico, Principj di scienza niiova,
nibus sanguincm ducat, corpus fecit ex lib. iy. Del corso chef anno le nazicmi.
1 6 THE HISTORY OF ROMAN LAW.
recitals which he substitutes with the assurance of certainty for
the fables of the two earlier periods. Legend may be sub-
stituted for legend, and conjecture for conjecture, but ideas
that live in the traditions and literature of an entire nation,
form themselves part of its history if only as representing the
national faith. This is the principle we wish to follow. In
his first edition, Niebuhr presents us with a Rome, a mere
Etruscan colony, a little fortified town built on the Mons Pala-
tinus and tracing its origin back to the era of the Pelasgi, and
embodying in the course of time the villages on the neigh-
bouring hills by which it was surrounded. Next he presents
us with a Sabine town on Mons Quirinalis, and then an
Etruscan town on Mons Cselius, thus reproducing under the
shape of conjectures transformed into assertions the theory of
the three national elements attested by antiquity, the Latin, the
Sabine and Etruscan. Of the towns or villages of Remuria,
Vaticum, Quirium and Lucerum, the ancients have made no
mention.
13. Bearing in mind this idea of the component element of
the Roman people, at a period when their history commences,
we are in a position to approach the study of their institutions.
And as we shall here, even more than in the study of historic
events, come in contact with the brilliant works of Vico and
Niebuhr, which may not be ignored, although we are not able
to accept their fundamental data, it appears necessary, before
we proceed further, to place on record our view of the writings
of these eminent authors.
The tendency of Vico is to generalize. His aim is to dis-
cover the general principles of law, as the laws are necessarily
interwoven with the history of the human race. The history
and the law of Rome are only introduced as examples, of great
importance, it is true, on account of the attention they have
received in modern times, but nevertheless as mere examples
which the writer, not without using some constraint to mould
them to suit his views, has adduced to illustrate certain philo-
sophic dogmas of his own. The author's fertility of idea, his
depth of view, the glimmering light of certain fundamental
THE HISTORY OF ROMAN LAW. 1 7
principles which he imagines he has discovered, are charac-
terized by that vagueness, incoherence, caprice and sometimes
even the absence of sound reasoning, which are peculiar to
writers of great genius. In connection with the study of the
institutions now occupying our attention he has laid down
general principles which ought to be accepted as indisputable,
and others which ought to be as definitely rejected. And as to
his details, they are in many respects unnecessary to a thorough
acquaintance with Roman law, and a jurist, guided in his study
of the subject by the document before him, would be justified in
rejecting them as fanciful.
The special subject of Niebuhr's work is the history of
Rome, in which considerable attention is bestowed upon the
institutions. It is a work of much learned research, and the
author, who delights in the minutest details of archaeological
investigation, has freely consulted and made use of the evi-
dence afforded by relics of antiquity. Though he does not
profess to be a jurist, still the student is indebted to him for the
greatest service rendered to the study of Roman law in modern
times the production of the Institutes of Gaius, of which he
was the first to discover the palimpsest. For this we owe him
a deep debt of gratitude. As a critic he was subtle and in-
genious ; as a writer he could call to his aid a brilliant imagina-
tion and the conceptions of a poet. But like many archaeologists
he is prone to self-deception, at one time being too visionary, at
another under a conviction which he will not allow to be dis-
putable, he relates as fact that which is mere fancy, without
affording the slightest indication of the licence he has taken.
Consequently his work is in places a collection of antiquarian
dissertations, which as intercalations are always instructive,
though long and tedious ; in others his style is most attractive,
and his delineations full of life. It is no matter of surprise,
therefore, that upon a great number of points his labours have
thrown much light and have materially assisted the jurist in his
study of Roman law, more particularly with reference to the
period when the history of this law begins to emerge from the
obscurity of its early origin. But in his treatment of the Roman
constitution and the divisions and social relations of the different
VOL. i. c
18 THE HISTORY OF ROMAN LAW.
classes of the population at this epoch, in the absence of docu-
mentary evidence he has trusted too much to imagination. It
is, therefore, only with the utmost caution that many of his
ideas in this particular branch of the subject can be introduced
into a history of the law. He appears to us to start from an
erroneous basis, and we consider it hazardous to admit theories,
constructed with no attention to critical accuracy, into an
elementary work in which nothing should find a place except
established truths. Preoccupied with examples derived from
the history of society in the middle ages, and especially of the
petty states of Germany, Niebuhr, even in the terminology
adopted by him on a principle completely at variance with the
language of the Romans, has occasionally produced the same
effect if I may be permitted to use such an illustration in a
subject of this nature as would be produced by a painter who
should represent Abraham as about to accomplish the sacrifice
of his son with firearms.
14. Whatever licence may be allowed a writer treating of
ordinary history, in that of jurisprudence there should be no
room for the play of the imagination, for it is a subject that re-
quires to be handled with the most severe and scrupulous exact-
ness. We have accordingly, so far as is possible, derived our
materials solely from written sources left us by the Romans
themselves. We are about to follow the history of this people
throughout their career of development, and in doing so, we
shall have our attention directed to the public, the sacred, the
private law, and the customs of the people successively. The
first public law comprises the constitution, the machinery of
legislation, the administration of justice, the appointments to
office, the right of contracting peace or making war. The
sacred law, which among the Romans was intimately connected
with and formed a branch of political law, regulated the cere-
monies of religion, and their observance in public and private
life, and the election and authority of the pontiffs. Private law
is that which concerned the interest of individuals in their mutual
relations with each other, and regulated their marriages, their
contracts, their property and their inheritance. And, lastly, we
THE HISTORY OF ROMAN LAW. 19
shall consider custom, the influence of which was equally great
over public, sacred and private law.
The divisions of the population into patricians and plebeians,
into patrons and clients, whence the patrician "gens," the
whole forming collectively the Populus Romanus ; its distribu-
tion into three tribes and thirty curies ; the assembly of the
curies ; the senate ; the kingly office, are the political institu-
tions whose origin was attributed by Roman tradition to the
time of Romulus, and all of which, by the common consent of
historians, poets, statesmen and jurists, are ascribed to the first
king. 1 The existence of these institutions, which either in
their entirety or in fragmentary portions, have been carried on
from age to age, through gradual modifications and trans-
formations, cannot be called in question, but it is impossible to
give, with any certainty, a detailed account of their origin or
organization in early times, because the only writings worthy of
reliance that refer to the subject are Avanting in these details.
But this much may be asserted with confidence, that these
institutions were but imitations of similar institutions in vogue
at the same time among other Italian nations.
SECTION II.
PATRICIANS AND PLEBEIANS (Patres, Patridi; Plebs,
Plebeii).
PATRONS AND CLIENTS (Patroni, Clientes}.
PATRICIAN " GENTES " (Populus Romanus}.
1 5. The commencement of civilization was not, as poets tell
us, a golden age, or an age of wisdom, equality and liberty, for
the march of human progress is in an opposite direction. And
we may accept, as an undisputed fact, the axiom laid down by
Vico, that nature everywhere commences with the gross and
unrefined. The birth of nations is in slavery, inequality, and
ignorance ; and the Italian nations, among which Rome was
founded, were no exceptions to the rule. Their people were
1 See Cicero, Dr re.piiblica, lib. ii. 8.
c 2
20 THE HISTORY OP ROMAN LAW.
either slaves or aristocrats. We must not, therefore, be sur-
prised to find the people in the earliest times divided into classes
differing widely in their condition, a superior and dominant
caste having the right of intermarriage, equal privileges, a
monopoly of sacerdotal, political and judicial functions the
patricians (patres, patricii); and an inferior and subject class,
prohibited from alliance with the former, neither admitted to
its rights or its laws, distributed among the different families
of the patricians, from whom they received protection as an
incident of clientage, and excluded from public functions these
were the plebeians, or plebs {plebs, pleleii ) ; and, finally, a
third class, which in no degree formed part of the State, with-
out civil rights, and living the life of animals, being regarded
by the head of the family in no other light than as mere
property a chattel. These were the slaves (servi, mancipia).
The explanation of this classification is to be sought for in
the diversified origin of the Roman population, in the distinct
elements of which it was composed, in the fact of there being
an asylum among them ever open to the stranger or the fugitive
slave, in the then existing customs of war, and the fate which
awaited the inhabitants of towns and districts either in the
character of captives or conquered people. This is a field of
study long since explored. And it must be borne in mind that
these social characteristics were those of all the Italian nations
of the period, among which Rome subsequently attained pre-
eminence. Each of the Italian towns "and petty states had its
superior and governing, and its inferior and governed class.
Clientage, slavery and enfranchisement were in vogue, and
produced everywhere analogous results. " The nations by
which we are surrounded," said Appius Claudius, in his vehe-
ment harangue against the plebeians, " are governed by the
great, and there is not one of them which presents an instance
of equal legal rights being shared by the governing and the
governed classes." 1 Censorinus, speaking of the miraculous
birth of men, relates a story found in the books of the Etrus-
cans, that in a field forming part of the territory of Tarquinii,
1 Dion. lib. vi. 54.
THE HISTORY OF ROMAN LAW. 21
the plough turned up from the furrows an infant, Tagcs, who
commenced teaching the art of divination, which was com-
mitted to writing by the " lucumons." This was at the time
the governing class in Etruria, and held the same position as
the patricians at Rome, 1 which in this respect resembled the
other Italian cities, although it placed its peculiar complexion
and stamp upon its institutions. And it is by attention to this
division of the Roman people that the study of their public
or private laws is to be commenced. The two castes, the
patrician and plebeian, present a clearly defined line of demar-
cation between the two elements, whose disputes and struggles
ultimately result in a perfect equality of social status, legal
rights and customs.
1 6. Another of the ancient Italian institutions is the bond of
clientage : and the history of Rome itself furnishes us with proof
of its existence in the other nations of Italy. Thus we find
Attus Clausus, a noble Sabine, afterwards known at Rome as
Appius Claudius, flying from Regillum to seek refuge in Rome
accompanied by a large number of his clients (magna clientum
comitatus manu). Dionysius goes so far as to assert that five
thousand was about the number of relations and clients, fit to
bear arms, who accompanied him. 2 Again, at the siege of Veii,
we find nobles from all parts of Etruria flocking, with their
clients, to the succour of the city. 3 An exact and detailed
acquaintance with this institution, if in our possession, would
throw great light upon the social condition of the Romans, upon
the composition of the great patrician houses, and upon many
important points connected with public and private law.
This bond of clientage between the patricians and those who
attached themselves to them in the capacity of clients, gave rise
to a new distinction in the relative position of persons, that of
patrons (patroni) and of clients (clientes). The classic authority
1 Ccnsorinns, 4, in fine: " Nee non 23, and Amminn. Murccllin. lib. xxi.
in agro Tarquinicnsi puev dieitnr exa- 1.
ratus, nomine Tagcs, qui disciplinam 2 T^ivy, lib. ii, If.; Dion. lib. v.
cecinorit extispicii : quam luciunones, fli).
turn Etrnriii! potcntes, exscripsernnt." 3 Dion. lib. ix. 5.
See also Ciceio, Dedh'inutione, lib. ii.
22 THE HISTOKY OF ROMAN LAW.
on this subject is Dionysius, 1 who shows that reciprocal rights
and duties, though differing in kind, existed between the patron
and the client. On the part of the patron towards the clients
there was the duty of protection, assistance and instruction in
the law, a general regard for their interests and oversight of
their affairs during their presence or absence, and the obligation
of commencing or defending all actions necessary for their pro-
tection. This writer here confines himself to obligations con-
nected with legal rights, the management of pecuniary matters
and litigation, which, from the earliest times, were regarded as
affairs of the utmost importance among the Romans. The
picture is correct so far as it is confined to the period when
Dionysius of Halicarnassus wrote ; but in other respects it
requires to be supplemented. The pecuniary burdens to be
borne by the clients for the benefit of their patrons were
marriage portions for the daughters of the latter, the ransom
of the patron or his sons from captivity, cesses for roads, cost of
unsuccessful litigation, the payment of fines, expenses connected
with the magisterial offices and all other public charges. On
the part of both, such was the reciprocity of obligation, it was
forbidden for one to be the accuser or a witness against the other,
or to lend assistance to or join the ranks of his enemy. Who-
ever was guilty of any of these acts became liable to the law
against traitors and to be sacrificed to the gods {sacer esto}.
And it is a proof of the great antiquity of this institution among
the Italian nations, that it belonged to a period when human
sacrifices were in vogue, and when the guilty were immolated at
religious festivals upon the altar of the deity to whom they had
been dedicated. Dionysius of Halicarnassus, speaking of the
time of which he wrote, tells us that it was lawful for every one
to kill them with impunity ; and this is confirmed by Festus, on
the meaning of the word " sacer."
It is impossible not to recognize a great similarity, though
under very different aspects, between the relations that existed
between the patron and his client and those established in our
feudal period between the lord and his vassal. In the case of
1 Dion. lib. ii. 9 et seq.
THE HISTOKY OF ROMAN LAW. 23
subsidies the connection was exactly similar, viz. the marriage
portion of the eldest daughter and the ransom from captivity.
The tradition of this bond of union between the patron and
his client was long retained as a Roman maxim in times when
the primitive character of the institution was almost entirely
forgotten. Virgil, in his description of the infernal regions,
subjects to the same punishment the man who has struck his
father and the patron who has practised fraud upon his client
" Pulsatusve parens, et f raus innexa client!." '
Aulus Gellius represents a conversation as taking place be-
tween certain sages and some noble Romans concerning the
relative importance attributed by ancient custom to family and
to social obligations (officia). Here it is at once admitted that
immediately after the observance of duty to parents (parentes}
comes that of a guardian to his ward, and in the second place
that towards the client, " qui sese itidem in fidem patrocinium-
que nostrum dediderunt." In the third place are ranked duties
towards a guest, and after these duties towards cognati and
allies. And Aulus Gellius is confirmed by the discourses of
M. Cato, of the Pontifex Maximus, C. Cassar, and the writings
of the jurist Massurius Sabinus. Cato says, " testimony may
be given in favour of a client, against cognati, by a patron ; but
none can be given against a client. Next to the name of father
that of patron stands highest." 2
One of the illusions of Niebuhr, which we reject, is his theory
that the clients were an order of the people entirely distinct
from the plebeians. He gives them a distinct origin and an
independent position in order to bear out his conclusion, which
after all is immaterial, that the plebeians in their struggle
1 Virgil, JEn., lib. vi. line 609. " Nam neque hominum morte memoria
2 Aul. Gell. lib. v. ch. 13. The deleri debet, quin aproximisretineatur;
speech of Cato, quoted by him : " Ad- neque clientes sine summa infamia de-
versus cognates pro cliente testatur ; seri possunt ; quibus etiam a propinquis
testimonium adversus clicntem nemo nostris opem ferre instituimus." So
dicit : patrem primum,postea patronum Aul. Gell. lib. xx. ch. 1, in his com-
proximum nomen habere." Of Mas- mentary on the law of the Twelve
surius Sabinus : " In officiis apud ma- Tables : " Sic (Populus Romanus) cli-
j ores ita observatum est, primum tutelar, entem in fidem acceptum cariorem ha-
deinde hospiti, deinde clienti, turn cog- beri quam propinquos, tuendumque esse
nato, postea affini." Of C. Caesar: contra cognates censuit."
24 THE HISTORY OF ROMAN LAW.
against the patricians were not revolted clients, but that they
were an oppressed section of the population rising against their
oppressors. Clientage, whatever may have been its advantages,
was a species of service the subjection of an inferior to a
superior caste. Clients or no clients, they were governed by
the patricians, the privileged race monopolizing the spiritual
and secular government of the state. There is no necessity to
seek for any other explanation or apology for the struggle.
The entire testimony of antiquity convinces us that the clients
formed part of an inferior class. It is almost capable of demon-
stration that, in the first ages of Rome, all the plebeians were
distributed among and attached to the several patrician houses
by the bond of clientage, if not already enfranchised. This is
supported by the popular tradition of Romulus. Cicero makes
this remark in his treatise on the Republic, 1 and M. Manlius, in
his oration to the plebeians against the patricians, bids them
calculate their own numbers and that of their adversaries. " So
many clients as you were formerly, when subservient to one
patron, so many will you now be against one enemy." 2
This much is certain, that as a result of the continuous in-
crease of the plebeians in proportion to the growth of power in
Rome and the increase of population, a time arrived when the
number of plebeians attached as clients to the patrician houses
was exceedingly small in comparison with the great body of
plebeians not so attached. And the bond by which they were
united to their patrons, the duties imposed by virtue of their
position as clients, their enrolment in the first organization of
the comitia in the families of their patrons (although we have
no certain knoAvledge how that enrolment was effected), the
prohibition against lending aid to the enemies of their patrons
under pain of being adjudged traitors, all contributed to place
them in the situation of apparent supporters of the patricians in
the struggle with the plebeians, and caused them to be regarded
as forming a part of the patrician force, and sometimes as me-
diators and intercessors between the contending parties.
1 Cicero, De rcpnlilica, lib. ii. 9: " Livy, lib. vi. 18: " Quot cnim
"Et babuit (Romulus) plcbcm in oli- clientes circa singulos fm'stis patronos,
en tolas principnm descriptam ; quod tot mine ad versus unum hostcrn critis."
quanta: fucrit utilitati, post vidcro,"
THE HISTORY OF ROMAN LAW. 25
And it is equally certain that in the deliberations of the
plebeian tribes, where they were numerically insignificant, their
influence ceased to be the same as in the other assemblies.
From all the texts collected by Niebuhr in support of his pecu-
liar views, there is not one that militates against the truth of
these conclusions.
But the picture which Dionysius of Halicarnassus supplies
regarding the institution of clientage is deficient in many fea-
tures which are necessary to convey a clear idea of the social
condition of the people at this early period of their history.
Some of these features, which have no doubt been effaced by
time, we may discover in the study of what are known as the
patrician " gens" or " gentes."
17. Here again, notwithstanding the credit accorded to
Niebuhr by other writers, we place no reliance on the theory
he has invented, nor can we accept the figure three hundred,
which, according to him, was the number of the patrician
"gentes." Such a limit, ingenious as may appear the combi-
nation of numbers by which it is determined, is inadmissible in
connection with a matter so variable as that of the number of
" gentes," which of necessity was ever fluctuating a fact ad-
mitted by Niebuhr himself in other matters not involving these
symmetrical rules. Notwithstanding the absence of written
authorities on this point, we still have sufficient data to enable
us to form an estimate of the Roman " gens," accurate enough
for the jurist, preferable to that of Niebuhr and far more simple,
and one which possesses the requisite precision for the applica-
tion of the law regarding it. As we shall enter at length into
this discussion in treating of the succession of the " gens," it
will be sufficient to give in this place a summary of the results
at which we have arrived. 1
The first requisite to constitute a gens, that is to say, an en-
tirety, a genealogical aggregation, was the fact that in retracing
the descent to the ultimate stock, no instance could be found of
an ancestor having ever been in a state of slavery, or any kind
of vassalage whatever. This is the definition given by the
1 See Ortolan's Institutes, vol. iii. end of title 2
26 THE HISTORY OF ROMAN LAW.
Pontiff Scsevola and quoted verbatim by Cicero. 1 For in early
times, as we shall shortly see, not only were the patricians alone
in such a position, but the very idea could not enter into the
mind of a plebeian of ever attaining to such a position. In
fact, by combining the results of these two ancient institutions
of the Italian nations on the one hand, slavery and enfran-
chisement; on the other, clientage if we go back to the period
when every plebeian who was not either an enfranchised man or
the descendant of one, was a client, we see clearly that no one
of plebeian origin either in his own person or that of his an-
cestor was free from the taint of slavery or some form of vas-
salage. The patricians alone could claim such an origin a
pure blood: they alone were able to form by the reunion of
different branches, sprung from a common stock, and united
by the ties of agnation, a gens ; they alone could possess the
qualification of gentiles, that qualification which, stripped of a
portion of its ancient signification, has been handed down to us
by tradition, and which is expressed in the languages of modern
Europe by the terms " gentilhomme," " gentilhuomo," "gentil-
hombre " and "gentleman."
The most prominently marked feature of the period to which
we refer a feature which the more readily escapes the memory
because, as time passes, or society becomes renewed, or laws
changed, the reality of the past disappears was that at the
foundation of Rome all of the population who were not patri-
cians were distributed among that order.
In fact, to each patrician "gens" there were attached two
accessory subordinate classes, the clients of the patrician of the
yen s with their descendants, and the descendants of then-
enfranchised.
The clients, as well as the enfranchised, adopted, with a
peculiar termination, the name of the gens to which they were
attached in a kind of civil relationship ; and the title of "patron,"
diminutive of " pater," indicated both this species of relationship
and the powers which resulted from it.
They were attached consequently, with their descendants, to
1 " Quorum majorum nemo servitutem scrvivit." (Cic. Top. G.)
THE HISTORY OF ROMAN LAW. 27
the religious rites and sacrifices peculiar to their "gens" (sacra
gentilitia) ; they had as their "gentiles" the members of the
gens to which they belonged, in the order of their respective
degrees of agnation ; for, as in tracing their pedigree, they in
each case arrived at an ancestor who had been tainted by slavery
or clientage, they could not point to any individual as their
personal gentile, but were, so to say, placed derivatively in the
genealogy of another. " Have you ever heard who constituted
the first Roman patricians ? Certainly not men who fell from
heaven, but those only who were able to specify their ancestors ;
in other words, none but the * ingenui.' " 1
" Ingenuus," a word whose legal signification has changed
with the modification of the social condition of those to whom
it has been applied, indicated, in primitive Roman history, one
who was born in a gens, one who had a genealogy, one who
could show a line of descent free to its fountain source from
every taint of vassalage. In short, if the patricians did not de-
clare themselves actually descended from heaven, they, at least,
not unfrequently laid claim to have been instructed by those
who had thence descended such were, for example, the lucu-
mons of Etruria, receiving from the mouth of the divine Tages
the secrets of the art of divination. 2
The notion of the gens is completed by another feature, the
right of tutelage and inheritance enjoyed by the patron as to
his clients and their descendants rights which in default of
tutors and legitimate heirs finally devolved upon the patricians
of the gens of which these families were dependent.
All who have carefully studied Roman antiquities have been
satisfied of the existence of these rights of tutelage and succes-
sion to the client and his descendants and to the enfranchised,
although they may not have been able to find it anywhere spe-
cifically mentioned, because this constitutes the basis, so to
1 " Semper ista audita sunt eadem, Publius Decius Mus, Livy, lib. x. 8.
penes vos auspicia esse, vos solos gen- We shall give shortly the exact mean-
tern habei'e, vos solos justum imperium ing of the words "j>atrcm cicre jws-
et auspicia domi militiiuque. . . . En sent.") " Patricios, Cincius ait in libro
unquain fando audistis, patricios primo de Comitiis, eos appellari solitos, qui
esse factos, non de coelo dimissos, sed nunc ingenui vocantur." (Aul. Gell.
qui patrem ciere possent, id est, nihil on the word Patricios.)
ultra quam ingenues." (Oration of 2 Vide supra, 15.
28 THE HISTORY OF ROMAN LAW.
speak, of all that is written concerning the tutelage or succes-
sion of the gentiles. 1
Notwithstanding the complication produced by the intermix-
ture of different groups of families, the degrees of gentility were
measured and could be legally computed for each individual
from their respective degrees of agnation.
1 8. The client and all belonging to him, dependents of the
gens of his patrician patron, was a familiar (familiaris} of his
patron, that is to say, was comprised within his family, the
word familia being taken in its widest signification, extending
to and including property, slaves enfranchised, clients and all
other persons in whatever capacity, if under the power of the
chief. Some of these clients resided in the house of their
patron ; others received from him plots of land to cultivate.
This distribution of land by the patricians amongst the plebeians,
their clients, is mentioned by several writers. Lydus, in his
treatise on the Magistracies of the Roman Republic, 2 says that
the patricians have given to their familiares the name of clients,
from clientes, a contraction of colientes, on account of the respect
and the devotion due from the familiar to them. Was it not
rather on account of their cultivating their lands, and would not
the word clientes correspond in origin to coloni?
19. Roman etymologists have differed as to the origin of
the words patres, patricii, applied to senators and to members
of the superior and dominant class. The patres were the
senators, the patricii their descendants. The name patres was
most probably given to the senators, cither on account of their
age, of their paternal solicitude, or because it was the duty of
the senate to divide the lands amongst the plebeians, as fathers
to their children. 3 The name of patricii was given to those
1 AVc may see here some trace of ter caritatem Patres." And 12 :
clientage among foreigners where there " Quibus ipse rex tantnm tribuisset, ut
can be no question about the succession eos patres vellct nominari, patriciosque
of the Gentiles. eorum liberos." Sallust, Catilina, 6:
- Lib. i. 20. " Hi vel setate, vel cur.-e similitudine,
3 Cicero, DC reputliea, lib. ii. 8 : Patres appellabantur." Festus, on the
" In rcgium consilium (Rornnlus) dele- word Patres: "Patres appcllantnr, ex
gcrat principes, qui appellati sunt prop- quibus senatus constat, qnos initio urbis
THE HISTORY OF ROMAN LAW. 29
who were able to trace their descent, that is to say, who were
derived from a stock that had always been free from any form
of vassalage. 1 The fact is, the word pater, both as a legal and
common term, essentially implies, in connection with primitive
times, the idea of power, and with the early Romans that of
almost absolute power. Thus the head of the family is termed
by the Romans paterfamilias, whether he had children or not,
whether married or single, or even if an infant in his cradle,
his family consisting of his chattels, his slaves, his enfranchised
or his clients. Thus, to express the position of a married
woman, and the power of her husband over her, the Romans
said that she was loco jilice, i. e. in the situation of a daughter ;
again, to express the degree of power exercisable over the
enfranchised and the clients, which was not so great as that
over a child or slave, the word "patronus," the diminutive of
pater, was employed. The terms patres and patricii, applied to
the dominant class at a period when it had under its control,
either by enfranchisement or clientage, the entire plebeian
population, involved no other idea than that of power. The
idea, indeed, conveyed by these terms in ancient times was not
one of tenderness, but solely that of " might." Florus was
not far from the truth when he said, speaking of the senate,
" ex auctoritate patres ;" and Festus is strictly accurate in
saying, " It is manifest that the patricians were by the ancients
called patrons, because they were, according to the custom of
the period, as much the masters of their clients as the father is
that of his children." 2
The term "patres" is the more ancient of the two; the word
" patricii" is derived from it, and is generally synonymous with
it, though it may be possible to point out some slight shades of
difference ; and the patres were the heads of the families of the
upper class, having subject to and distributed among them the
conditas Romulus C. delegit, et sic ap- publican penes senes esset, qui ex aucto-
pellavit, quorum consilio atque prudcn- ritatc Patres, ob a;tatem Senatus voca-
tia respublica administraretur atque bantur." Festus, on the word Patro-
gubernaretur ; quique agrorum partes nus : " Patronus ab antiquis cur dictns
adtribnerent tenuioribus perinde ac li- sit, manifestum; quia ut patres filiorum,
beris, ac pecunias dividerent." sic hi numerari inter dominos clicntuiu
1 Vide supra, 17, note. consucverunt."
2 Florus, lib. i. 1 : " Consilium rci-
30 THE HISTORY OF ROMATST LAW.
entire plebeian population. The " patricii " are all members of
this class, whether heads of families or not. The term patres
was by no means synonymous with senatores, nor was it exclu-
sively applied to senators, nor were the patricians necessarily
descendants of senators : for the superior and dominant class
did not spring from the senate, but, on the other hand, the
senate was composed of members of that class, and this was the
case throughout all the Italian cities. The permanent broad
line of contrast is between patrician and plebeian.
From what has been already said, we are now in a position
to appreciate the ancient definition of patrician " qui patrem
ciere possent, id est, nihil ultra quam ingenuos." The true an-
cient meaning was this : " Those who could trace their descent
to a pater, who were born in a gens." 1 The counterpart is to
be found in the definition of the plebeian given by the jurist
Capito, "Plebes, in qua gentes civium patricise non insunt,"
that portion of the people in which the patrician gentes are not
included. 2
And it is clear that Publius Decius Mus, in the way in
which he represents the ancient definition of the word patrician,
plays upon the words and the change that had come o^er public
spirit even in his time. However, he touches upon the an-
cient signification when he afterwards said, " As soon as I can
mention a consul as being my father, so soon can my son speak
of him as his grandfather."
20. Nor can we any more accept the opinion of Niebuhr,
who follows Vico in this respect, that the plebeians at the com-
mencement did not form a part of the Roman populus. From
the beginning and at all times the " Populus Romanus " was
the united body of patricians and plebeians. Such is the defini-
tion given by Roman jurists and writers of every age.
The numerous passages quoted by Niebuhr, 3 in which the two
1 We do not adopt the common trans- populo omnis pars civitatis omnesqne
lation, "Those who can name their ejus ordines contineantur ; plebes vero
father," which is absurd ; Pater here ea dicitur in qua gentes civium patri-
expresses the old Roman chief. cia3 non insunt."
2 Aul. Gell. lib. x. 20 : " Plebem 3 Vide Yol. ii. p. 163 et seq. of the
autem Capito in eadem definitione se- l^rench translation.
orsum a populo divisit : qnoninm in
THE HISTORY OF ROMAN LAW. 31
words "populus plebsque Romana" appear united, no more
authorizes the conclusion Niebuhr draws from this fact than it
warrants our arguing from the well-known phrase, " Senatus
populusque Romanus," that the members of the senate did not
form part of the "populus." The same turn of expression
with the double pleonasm is to be found at a period when there
is certainly no room for doubt. For example, in the subscrip-
tion to a letter written by Lepidus, and preserved in the collec-
tion of Epistolas Familiares, there occurs this expression :
" Lepidus Imperator iterum, Pontifex Maximus, salutem dicit
Senatui, populo, plebique Romanae."
The same pleonasm occurs in the two significant passages of
Festus, which, in the Farnese manuscript, follow and supple-
ment each other : " Populi commune est in legibus ferendis
cum plebe sufrragium. Patrum commune cum populo suftra-
gium, quibus suffiragantibus fit populiscitum." 1
SECTION III.
TRIBES AND CURIES ( Tribus et Curia?).
21. The Roman people are represented as being divided
from the earliest period into three tribes the Ramnenses,
Tatienses and Luceres.
We are told by Cicero, Yarro and Festus, who obtained their
information from the earliest writers, that these appellations
are respectively derived from Romulus, the chief of the Latins,
Tatius, the chief of the Sabines, and from Lucumon, the chief
of the Etruscans. We are warranted in regarding these three
tribes as the three distinct nationalities which collectively laid
the foundation of the Roman nation. 5 Varro, however, tells
us that all three denominations were Etruscan. This tripartite
division was also territorial; the Roman territory, or ager
Romanus, being divided into three parts ; the one assigned to
the Ramnenses, another to the Tatienses, and the third to the
1 Festus, on the word Populi. 2 Vide supra, pars. 9 and 10.
32 THE HISTORY OP ROMAN LAW.
Luceres. So that these three primitive tribes were at once
local and personal, each comprising at the same time a section
of the people as well as retaining the territory of their respective
nationalities. 1 We find in Cicero that L. Tarquinius, among
the alterations he suggested, desired to change these names
Tatienses, Ramnenses and Luceres, but that he was prevented
by the formidable opposition of the famous augur Attius
Navius. 2
22. In the first subdivision of each tribe into ten curies, we
find the entire Roman people distributed into thirty curies.
Popular tradition relates that each of these curies received the
name of one of the Sabine women who, during the progress of
the battle that followed the rape of the Sabines, threw them-
selves between the combatants and became the mediators of
peace between the Romans and their own people. Cicero does
not hesitate to relate this tradition, which is also to be found in
Livy, Festus and elsewhere, 3 though some Roman writers
refuse to accept it, and assign a different origin to the names
of the curies.
Dionysius of Halicarnassus refers 4 to a second subdivision
of each curia into ten decurice. This subdivision, however, is
less known, and is of comparatively little importance to the
constitutional or legal historian. Whereas, in both cases, the
1 Cicero, De rcpuMica, lib. ii. 8 : 2 Cicero, De republics,, lib. ii. 20 :
"Populumque et suo et Tatii nomine, "Nee potuit (L. Tarquinius) Titiensi-
et Lucumonis qui Romuli socius in um et Ramnensium et Lucerum mutare
Sabino prrelio occiderat, in tribns tres, quum cuperet nomina, quod auctor ei
curiasque triginta descripsei'at (Romu- summa augur gloria Attius Navius non
lus)." Varro, De lingua latina,]ib. v. erat."
55: " Agcr Romanusprimum divisus 3 Cicero, De repulUca, lib. ii. 8 :
in paries tres, a quo tribns appellata " Populum . . . in tribus trcs, curias-
Tatiensium, Ramnium, Lucerum : no- que triginta descripserat (Romulus),
minatae, ut ait Ennius, Tat lenses a quas curias earnm nominibus nuncupa-
Tatio, Ramnenses a Romulo, Lvccres, vit, quse ex Sabinis virgines raptai,
ut Junius, a Lucumone. Sed omiiia postea fuerant oratrices pacis et fccde-
hsec yocabula Tusca, ut Volnius, qui ris." Livy, lib. i. 13 : " Ex bello tarn
tragcedias Tuscas scripsit, diccbat." tristi, laita repente pax cariores Sabinas
Festus, on the word Titiensis: " Titi- viris ac parentibus, et ante oinnes
ensis tribus a prajnomine Tatii rcgis Rormilo ipsi, fecit. Itaque, quum popu-
appellata videtur. Titia quoque curia lum in curias triginta dividerct, nomina
ab eodem rege est dicta." On the word earum curiis imposuit."
Lucent edi, cited supra, 10, note 3. 4 Lib. ii. 7.
THE HISTORY OF ROMAN LAW. 33
division into thirty curies is a matter of considerable importance
and merits particular attention from the very first.
23. The members of the same tribe and those of the same
curia, besides the bond of a common national origin Latin,
Sabine, or Etruscan, which would gradually become weaker as
the fusion of the several races became more complete were
united by ties of a different character. There was first the bond
of religious unity. In addition to the faith and rites common
to the entire tribe, each curia had its tutelary deity, its peculiar
creed and its characteristic sacrifices (curionia sacra), its priests
(curiones, curiales flamines, curiarum sacerdotei), its fetes,
and its annual festivals. There was, secondly, the bond of
military service ; for it was the duty of each tribe to furnish
for each legion, recruited from its own curies, a thousand men. 1
Thirdly, there was the political bond ; for the voters could only
exercise the right of vote in conjunction with the other members
of their curia. And, lastly, there was a bond of union in the
details of administration and internal organization peculiar to
each curia.
The members of the tribe designated each other " tribules ;"
those of the curia "curiales." 2
24. There can be no doubt that this ancient organization by
curies had an aristocratic origin. The details of the system, it
is true, are unknown to us ; but whatever they may have been,
it is sufficient to refer to what has gone before to enable us to
understand how in these primitive times, when every plebeian
was attached, either by the ties of clientage or enfranchisement,
to some patrician, it happened that each patrician gens formed
a species of group, encircling and absorbing in itself its plebeian
subordinates. This does not imply that it did not embrace the
plebeians, or that the curies consisted solely of patricians.
Assuredly Plautus's miser, who hurried off to take his share of
1 Varro, De ling, lat., lib. v. c. 89. um as dicebatur, quod dabatur curioni
1 Festus : " Curiales ejasdem curias, ob sacerdotium curionatus." Varro,
ut tribules, et municipes. Curiales fla- lib. v. 83: " Curiones dicti a curiis,
mines, curiarum sacerdotes. Curionia qui fiunt ut in his sacra faciant."
sacra, quae in curiis fiebant. Curioni-
D
34 THE HISTORY OF ROMAN LAW.
the money that was to be distributed by the chief of his curia
(nostrce magister curice), lest his treason should be suspected,
was not a patrician. 1
25. The term curia had several significations other than
that just given. It was applied, for instance, to the place
where the priests of the curies met together to perform their
religious functions, to the place where the senate assembled for
the discharge of public business, and to the local senate of the
respective towns. Care is therefore necessary not to confound
these different objects expressed by the same term. It may be
observed that the majority of Roman etymologists assign the
same root to the word when used in either sense, viz., curare,
to take care (of). 2
26. The word tribus had in like manner its various signifi-
cations and derivations. In proportion as the fusion of races
was completed and unity accomplished, the ancient division
into the three primitive tribes, each representing its individual
nationality, disappeared. And in time a new classification by
tribes, with entirely different characteristics, was made, to which
we shall shortly turn our attention. The growth of the popu-
lation and the corresponding extension of the city led to a like
increase in the number of the tribes, which ultimately reached
thirty-five. It is thus most necessary to avoid confounding
these new tribes, totally different in origin, and destined to
1 Plautus, Aulularia, act i. sc. 4 : gerebatur. Curiae etiam nominantur,
Nam noster nostr* qui est magister curias, in quibus uniuscuj usque partis populi
Dividere argenti dixit numos in viros. Romani quid geritur ; quales sunt eas,
This dividere argenti numos recalls to in quas Romulus populum distribuit
our memory the tenuioribus pecunias numero triginta (quibus postea additas
dividerent, in the definition of the sunt quinque) ut in sua quisque curia
patricians, by Festus. (See above, 19, sacra publica faceret, feriasque observa-
note 3. ) ret. Hisque curiis singulis nomina Cu-
2 VaiTO, De lingua latina, lib. v. riarum virginum imposita esse dicnntur,
155 : " Curia; duorum generum ; nam quas virgines quondam Romani de Sabi-
et ubi curarent sacerdotes res divinas, nis rapuerunt." The parenthesis (qui-
ut Curise Veteres, et ubi senatus huma- Ims postea additcc sunt quinque) con-
nas, ut Curia Hostilia, quod prirnum tains a confusion between the curies
sedificavit Hostilius rex." Festus, on and the thirty-five tribes which subse-
the word Curia: " Curia, locus est ubi quently came into existence a confu-
publicas curas gerebant. Calabra curia sion which is repeated in Festus on the
dicebatur, ubi tantum ratio sacrorum word Centummralia.
THE HISTORY OF ROMAN LAW. 35
occupy a most important position in the affairs of the republic,
with the three primitive tribes just described.
SECTION IV.
ASSEMBLY BY CURIES ( Comitia curiata).
27. The meeting of the thirty curies for deliberation upon
public business constitutes the most ancient Roman assembly.
These were the religious and aristocratic gatherings convoked
by the lictors, held in the centre of the city, in that part of the
forum at the foot of the Capitol known as the Comitium, under
the sanction of sacerdotal rites, and where patrician influence
was preeminently conspicuous. 1
It was here that the election took place for those sacerdotal
offices which were within the gift of the " populus," where
magistrates were appointed, and the king selected. Here also
that famous law, the " lex curiata," was passed, the true nature
of which remained a mystery till the discovery of Cicero's work
upon the Republic. This left no doubt that it was the law of
investiture, without which no magistrate, not even the king
himself, though duly elected, could have conferred upon him
the " imperium," or right to command. Here the composition
of families was determined, and testamentary successions regu-
lated two matters of the utmost importance to the mainte-
nance of an aristocracy, more especially when they involved
admission to the peculiar privileges (sacraprivatd) of a religious
caste.
The jurist will recognize this assembly of the curies as the
first Roman legislative assembly.
28. The extent of its power, however, must not be exagge-
rated, for this power was limited in many directions. The
curies could only assemble when convoked. They could only
1 Varro, De lingua latina, lib. v. comitio conveniebant ; qui locus a coe-
155 : " Comitium, ab eo quod coibant undo, id est simul veniendo, dictus est."
eo comitiis curiatis et litium causa." Aul. Gell. lib. xv. ch. 27 : " Curiata
Festus, on the word Comitiales: " Co- (comitia) per lictorem curiatum calari,
mitiales dies appellabant, quum in id est convocari."
D 2
36 THE HISTORY OP ROMAN LAW.
meet to transact one matter. The magistrates who had the
right to convoke were patricians, acting under the order of the
senate. The augurs, whose presence was absolutely necessary,
were patricians. A favourable auspice must have preceded a
convocation. The will of the assembly must be expressed by
the simple affirmative or negative ; and should the vote take an
unlooked-for turn, it was competent for any augur or magistrate
having the auspice at any moment to declare the assembly dis-
solved by the mere utterance of the formula olio die, indicating
that the auspice was unfavourable. If Jupiter thundered, that
is, to the right or, what was the same thing, if the augur or the
magistrate declared that he did, the assembly was dissolved ;
all which, says Cicero, was to secure to certain nobles the de-
termination of all matters, 1 and even when the decision was
given, in order to render it effective the confirmation of the
senate was requisite (auctor Jieri}. z This necessary action of
both bodies is concisely expressed by Cicero in the sentence,
" Potestas in populo, auctoritas in senatu sit." 3 The jurist will
understand the force of the word " auctoritas " here, as used
by a Roman.
29. It was not the function of the Romans, in their elective
assemblies, to take the votes of individual members, as is the
practice in modern times ; but the electors were arranged in
groups, each group having one vote. In this instance they
were grouped by Curies, each Curia having consequently one
vote. The order in which the votes of the curies should be
taken was determined by lot without reference to the tribe to
which they belonged, whether Ramnenses, Tatienses, or Lu-
ceres. Livy says, that those upon whom the lot fell to vote
first were called "principium." 4 As soon as sixteen curies
1 Cicero, De divinationc, lib. ii. 35: jussisset, id sic ratum esset, si patres
" Fulmen sinistrum, auspicium opti- auctores fierent. Turn interrex, con-
mum habemus ad omnes res, praeter- clone advocata: 'Quod bonum, faustum,
quam ad comitia : quod quidem insti- felixque sit, inquit, Quirites, regem
tutum reipublicse causa est, ut comitio- create ; ita Patribus visum est. Patres
rum, vel in judiciis populi, vel in jure deinde, si dignum, qui secundus ab
legum, vel in creandis magistratibus, llomulo numcretur, crearitis, auctores
principes civitatis essent interpretes." fient.' "
4 Livy, lib. i. 17 : " Decreverunt 3 Cic. De legibus, lib. iii. 12.
enim (patres) ut, quum populus regcm 4 Livy, lib. ix. 38 : " Faucia curia
THE HISTORY OF ROMAN LAW. 37
had voted the same way, the majority being ascertained, the
decision was declared, and the others did not vote.
30. It is matter of question how the modes in which the
curies should vote was determined whether or not each indi-
vidual opinion was taken (viritini), and that of the majority
adopted. This view rests upon a passage in Livy. 1 Niebuhr
is of opinion and there is much reason in what he says, judg-
ing from an expression in Aulus Gellius, that the members of
each curia were arranged in their respective gentes, and that
each gens had a vote, the majority of which determined that of
the curia. This interpretation would be in harmony with the
social condition of the period, as already explained, and would
present us with the picture of the patricians of each gens march-
ing forward, followed by the long train of their dependants,
solemnly to register their vote. But we are convinced, that
the expression of Aulus Gellius simply indicates that the curies
were a division of citizens based upon the original nationalities
(ex generibus hominum], the three tribes of Ramnenses, Tati-
enses, and Luceres, having each been divided into ten curies ;
whereas in assemblies formed at a more recent period the prin-
ciple of classification was entirely different. This construc-
tion is more in harmony with the concluding words of Aulus
Gellius. 2
Be the correct interpretation what it may, the passage is
none the less characteristic, and should be retained as the an-
cient formula for the assembly of curies. " Cum ex generibus
hominum sujfragium feratur, curiata comitia esse." Whether
fuit principium," or rather Faucice bly was dissolved and adjourned to
curice fuit principium,, according to another day.
the formula which we find in the text ' Lib. i. 43.
of a plebiscitum given by Fronto (De 2 Aul. Gell. lib. xv. ch. 27: "Item
aqvceductis, 129). The lot had fallen in eodem libro (Lrelii Felicis) hoc scrip-
to this Faucian curia to be first in two turn est : ' Cum ex generibus hominum
calamitous years, that of the capture of suff ragium feratur, curiata comitia
Home and of the Claudine forts (utro- esse ; cum ex censu et astate, centuri-
que anno eadem curia fuerat princi- ata; cum ex regionibus et locis, tri-
p-turn). And so it was considered a buta.' " We do not render ex yeneri-
bad omen, and when, in the circum- bus as if \ivfQrcexgentibus; we trans-
stance of which Livy speaks, the name late it in its literal sense ; when the
of the curia twice came first the assem- votes were taken according to race or
origin.
38 THE HISTORY OF KOMAN LAW.
the electors were grouped in gens, or whether they voted sepa-
rately (viritirn), this much is clear, that the patricians controlled
the plebeians by whom they were surrounded, and who by the
ties of clientage were bound to give them their support.
31. It is precisely because the thirty curies were constituted
upon a principle based upon the threefold origin of the ancient
nationalities, the Latins, Sabines and Etruscans (ex generibus
hominum), that it was destined to prove insufficient, and even
an absurdity, the moment that so many other nationalities were
admitted to and amalgamated with the Roman populus. The
curies were thus soon to disappear in order to make room for
other organizations more conformable to the exigencies of the
period. However, long after they had ceased to exist in their
original constitution, they were maintained for the administra-
tion of affairs of religion and for the investiture of the imperium
by the lex curiata, when thirty lictors, symbolizing the thirty
curies by a legal fiction, confirmed their authority. 1
SECTION V.
THE SENATE (Senatus).
32. The senate was an institution common to the cities of
antiquity, whether Greek or Italian. The chiefs of the patri-
cian caste constituted the senators. This title, an indication of
the matured experience of age, was adopted by the Romans,
according to Cicero, in imitation of the Greeks, who designated
the members of the civic council, elders (ys^ovrcj). 2 We have
already seen that they were also styled patres, as expressing
their patrician privileges ; and Florus says of them, " Qui ex
auctoritate Patres, ob getatem Senatus vocabantur. 3
1 Cicero, Agrar. ii. 11 and 12: " Lycurgus ^Ipovra? Laccdaemone appel-
" Curiata (comitia) tantum auspiciorum lavit . . . quos penes summam con-
causa remanserunt." " Illis fcomitiis), silii voluit esse, quum imperil summam
ad speciem atque ad usurpationem ve- rex teneret : ex quo nostri idem illud
tustatis, per XXX lictores, auspiciorum secuti atque interpretati, quos senes ille
causa, adumbratis." appellavit, nominarunt senatum."
2 Cicero, De repnUica, lib. ii. 28: 4 Vide supra, 19.
THE HISTORY OF ROMAN LAW. 39
33. Roman tradition differs as to the number of the senators
in primitive times. Nor are the historians Livy, Cicero,
Dionysius of Halicarnassus, Plutarch and others agreed as to
the original number or subsequent additions. All, however,
concur in this, that at the close of the reign of Tarquinius
Priscus the strength was three hundred. This number re-
mained unaltered till the latter end of the republic, when it was
doubled or tripled according to the turbulent character of the
times and the rivalry of ambitious partisans.
The peculiarity of the number three hundred suggests the
supposition that in early times each of the three distinct na-
tionalities, forming the three tribes, was represented in the
senate by an equal number of senators, namely, one hundred.
One of the popular traditions adopted by Plutarch and Dio-
nysius supports this theory, that is to say, in connection with
the Sabines, while Cicero tells us that each of the three
nationalities was represented by fifty senators till the time of
L. Tarquinius (Priscus), who doubled their number, thus
making the total three hundred ; and that the original senators
and their successors were styled Patres mojorum gentium, while
those created by Tarquin and their successors were known as
Patres minorum gentium.*
When at a later period the plebeians were admitted to the
senate, they did not receive the rank of Patres, which was con-
fined to the patrician race, but were called Conscripti or
Adlecti, i. e., inscribed in the number of senators, whence the
expression "Patres et conscripti" or in its contracted form
Patres conscripti. 2
1 Cicero, De republica, lib. ii. 20 : adsumpti : nam Patres dicuntur qui
". Principio duplicavit (L. Tarquinius) sunt patricii generis ; Conscripti, qui in
ilium pristinum patrum numerum ; et senatu sunt scriptis adnotati." And on
antiques patres majorum gentium ap- the word Conscripti : " Conscripti dice-
pellavit, qnos priores sententiam roga- bantur qui ex equestri ordine patribus
bat; a se adscitos, minorum." Livy, adscribebantur, ut numerus senatorum
lib. iv. 35, says the same in fixing on expleretur." And on the words Qui
one hundred, the number of the new Patres; " Qui Patres, qui Conscripti
senators made by L. Tarquin : " Cen- vocati sunt in curiam, quo tempore re-
turn in patres legit ; qui deinde mino- gibus urbe expulsis, P. Valerius consul
rum gentium sunt appellati." ( Publicola, in concert with his colleague
2 Uestus, on the -word Adlecti: "Ad- Brutus), propter inopiam patriciorum
lecti dicebantur apud Romanes, qui ex plebe adlegit in numerum senatorum
propter inopiam (patriciorum) ex eques- centum et sexaginta et quatuor, ut ex-
tri ordine in senatorum sunt numero pleret numerum senatorum trecento-
40 THE HISTORY OF ROMAN LAW.
The three hundred senators were divided into decuries, that
is, were divided by tens ; consequently there were thirty sena-
torial decuries, or the same number as there were of curies,
which gives rise to the conjecture that each curia furnished a
senatorial decuria. However, these numerical coincidences are
not to be relied iipon.
34. Setting aside Romulus and his immediate successors,
together with the transactions imputed to them, it has long
been a subject of discussion whether under the principles of the
constitution the senators were present at the nomination of the
kings, or at the election of curies. With the exception of a
passage from Dionysius, Roman historians concur in believing
that they were present at the election of kings, which is con-
firmed by the practice under the republic after the expulsion of
the kings. 1
35. The senate is styled by Cicero the Royal Council
(regium consilium\ z It deliberated upon public matters, and
upon propositions to be submitted to the people in the curies.
Being an aristocratic assembly, its tendency was to make
tools of those entrusted with the government. As the ward
can only act with the authority of his guardian, so the king
reigned only by the counsel and with the authority of the
senate. Cicero says, even of Romulus himself, the traditional
founder of Rome, " Multo etiam magis Romulus Patrum
auctoritate consilioque regnavit" 3
rum, et duo genera appellata sunt." cos, consules quoqne, et tribuni railitum
Livy, lib. ii. 1 : " Csedibus regis de- consular! potestate, conjunctissimos sibi
minutum patrum numernm, primoribus quosque patriciorum et deinde plebeio-
equestris gradus lectis, ad trecentorum rum Icgebant ; donee Ovinia tribunitia
snmmam explevit (Brutus) ; traditum- intervenit, qua sanctum est, ut censorcs
que inde fertur, ut in Senatuni vocaren- ex omni ordine optimum quemque curi-
tur, qui Patres, quique Conscripti es- atim senatu legerent. Quo factum est,
sent. Conscriptos videlicet in novum ut qui prasteriti essent, et loco moti,
senatum appellabant lectos." haberentur ignominiosi."
1 Festus, on the word Preeteritl: 2 Cicero, De republlca, lib. ii. 8.
" Prsetcriti senatores quondam in op- . 3 Cicero, De rcpublica, lib. ii. 8 :
probrio non erant, quod, nt reges sibi " Multo etiam magis Romulus Patrum
Icgebant sublegebantque quos in consi- auctoritate consilioque regnavit."
lio publico haberent, ita, post exactos
THE HISTORY OF ROMAN LAW. 41
SECTION VI.
THE KING (Rex).
36. The king is the ruler (rex), the administrator of an
aristocratic republic. The curies subordinate to the patrician
caste nominate him, and after the confirmation of the election
by the aucloritas of the senate, confer upon him by the lex
curiata the investiture of power. The senate counsels, assists
and supports him ; his functions are military, sacred and
judicial ; he is at once commander in chief, high priest and
superior magistrate ; his lot must be cast with the patricians
or with the plebeians ; he must either submit himself to the
patrician and senatorial will, or he must seek in popular favour
and plebeian support the means to resist their influence. The
regal annals, however, present us with a brighter picture,
and invest the king with a much larger share of authority,
making him the founder of institutions, the creator of senators,
the dispenser of landed estates and the spoils of war, and the
great lawgiver. And doubtless he was such in the manner
described in the quotation from Pomponius, and referred to
in the next paragraph, inasmuch as he proposed laws to the
senate.
SECTION VII.
THE ORIGINAL ELEMENTS OF PRIVATE CIVIL LAW.
37. It is to Romulus himself that the Roman historian and
jurist attributes the publication of positive law upon marital and
paternal power ; that is to say, upon the composition of the
Roman family. 1 Without reference to laws that are said to
have been written, but which are unknown to us and are pos-
sibly as fabulous as the times to which they relate, we may
1 Dion. lib. ii. 26 and 27. Digest, atas ad populum tulit," This lex Re-
1, 2, De origine juris, 2, 2, fragment gin-, of which Papinian speaks in the
of Pomponius : " Ipsum Romnlum tra- following terms, is cited as a law of
ditur populum in triginta partes di- Romulus: " Quum patri lex Regia de-
visisse, quas partes Curias appellavit : dcrit in filinm vita? necisque potcsta-
propterea quod tune reipublicas curam tern." (Collatio legvm Alosa'icanon
per sententiam partium earum expedie- ct Romanarum, tit. 4, 8.)
bat ; et ita Leges quasdam et ipse c uri-
42 THE HISTORY OF KOMAN LAW.
perhaps find in the military tendencies and the rude manners of
the age, and particularly in the city of Rome itself, sufficient to
afford a fair idea of the primitive elements of Quiritarian private
law. 1 The family, like the state, began with slavery. The
Romans were the " Quirites," the men of the lance. By the
lance they acquired their territory, their property, their com-
panions, and, if we may credit their poets, even their wives.
With them the lance became the symbol of property, and even
had a place in their judicial procedure. Their slaves were
booty, their wives were booty, and their children, begotten of
them, the fruit of their possession. Such being the case, we
are prepared to find, running all through the popular traditions
of their origin, the rule that the head of the family, the pater
familias, had over his slaves, his wife and his children, not a
power such as is known to us, but the most full and complete
rights of property ; the power of life and death over slaves, the
power of condemnation over wife and children, and the right to
sell the latter or to abandon and expose them, more particularly
Avhen deformed. As a historical fact, this right of property
and licence to abandon children was common to almost all the
nations of Italy, if not to the full extent possessed by the
Romans, at least it existed in principle.
Though it may appear that the existence of such institutions
at the birth of Rome is of but little importance to us, it must
not be forgotten that they formed the basis of the civil law both
public and private, nor should we fail to find traces of their im-
press throughout the entire extent of their legislation. These
are, however, but the germs, and to attribute to them at this
epoch the development of their riper growth would be an
anachronism.
38. B.C. 715. The poetic traditions of the Romans, after
having related the fate of Romulus, how he was borne to heaven
and placed in the rank of the gods, go on to tell us how, after
an interregnum of a year, during which certain senators, for a
period of five days each, alternately exercised the regal power,
1 Also Ulpian, " Nam quum jus potcstatis moribus sit receptum." (Dig. 1, C>,
De "his qui sui, etc., 8, f. Ulp.)
TUE HISTORY OF ROMAN LAW. 43
the people assembled by curies and called a Sabine of the name
of Numa Pompilius to the throne. They represent this king
as pacific as his predecessor was warlike, devoting his attention
to humanizing the barbarous manners of the Romans, favouring
the cultivation of land, and developing the principles of sacred
law. For it is to him that the greater part of the religious
institutions of Rome are ascribed.
SECTION VIII.
RELIGIOUS INSTITUTIONS {Sacra publica, Sacra privata).
39. It is of more importance than is generally supposed to
examine the character assumed by the state religion of the
Romans, even from its birth, for religion was closely bound up
with public law and all state matters.
The indigenous deities of the Italian nation are to a great
extent blended with the Greek divinities, and not unfrequently
assume their names. The practice of human sacrifice, common
to these nations, existed from the earliest ages of Rome, and
continued till after the expulsion of the kings, leaving for a
long time traces in the shape of a sacred formula impressed
upon its legal system: sacer esto. 1 We are able to gather from
certain jeux des mots, that tradition both attributes to Hercules
in the fabulous ages, and to the Consul Junius Brutus at the
time of the Roman republic, the credit of having dissuaded or
prohibited the Romans from the practice of human sacrifices.
Hercules is said to have induced the Italian nations to offer to
Saturn the sacrifice of lighted torches in lieu of that of human
beings, the word <a>ra of the oracle signifying at the same time
men and torches ; Junius Brutus, who put an end to the prac-
tice of immolating infants to the gods Lares and Manes, still
practised at the (compitalia] fetes, ordered in their stead an
offering of garlic or poppy heads, because the oracle had said,
" Intercede for heads with heads. 2 Nevertheless certain human
1 Vide supra, 16. pro capitihus, capitibus snpplicaretnr."
2 Macrobius, Saturnalia, ch. 7 : " Ut This jeu dc mots is attributed to Her-
44 THE HISTORY OF ROMAN LAW.
sacrifices, upon the occasion of great national calamities, more
than once occur in Roman history even in much later times. 1
It was chiefly from an Etruscan source that the Romans
derived their science and the greater part of their religious
practices. The Etruscans no doubt possessed a ritual, the same
probably as that which the lucumons pretended to have written
down from the dictation of the miraculous Tages. And we
can gather from an enumeration of rites and practices made by
Festus, and adapted to the Roman institutions, all that the
ritual contained relative to public law. 2 The jurist Labeo wrote
a commentary upon it in fifteen volumes, which is now lost.
The sacerdotal functions were for the most part considered
by the Romans, the Etruscans, and the other Italian nations, as
civil charges and a privilege of the patrician caste. Under no
obligation to lay aside the ordinary habits of society, the priest,
like any other citizen, was free to marry, and in general at
liberty to aspire to any dignity in the state, being at the same
time bound by almost all public obligations. These priests
formed colleges, of which the king was chief. No important
enterprise was ever undertaken without first offering up a sacri-
fice to the gods and without consulting the oracles; and not
unfrequently the validity of a public act, its continuance or its
repeal, was made to depend on a sacerdotal determination.
The especial province of the augurs, whose history it will be
our duty to trace, consisted in presaging the result of a sug-
gested enterprise by the means of celestial phenomena, observa-
tions upon the entrails of the sacrificial victims, attention to the
flight, the song or the appetite of birds. Divers Italian com-
munities were renowned for their skill in one or more of these
modes of divination, and it was from them that the Romans
acquired their knowledge. The Umbrians, for example, were
cules, and from the offerings made to " Rituales nominantur Etruscorum li-
Saturn in place of human sacrifices bri, in quibus prsescriptum est, quo ritu
came the custom of sending wax tapers condantur urbes, arse, tedes sacrentur,
at the Saturnalia. We see that our qua sanctitate muri, quo jure porta%
custom of presenting tapers, before the quomodo tribus, curise, centurise distri-
Eevolution, among certain classes, had buantur, exercitus constituantur, ordi-
an ancient origin. nentur, cteteraque ejus modi ad bellum
1 Livy, lib. xxii. 57. ac pacem pertinentia."
2 Festus, on the word Rituales:
THE HISTORY OF ROMAN LAW. 45
famed for their prophecies based upon the motions of birds;
while the Etruscans paid especial attention to omens from
lightning, celestial phenomena and prodigies; and such was
the importance attached to the acquisition of this knowledge
that the Roman senate decreed that six children belonging to
the first patrician families should be confided one to each of the
different communities of Etruria, that they might be brought
up in the mysteries of this art. 1
The sacra publica were those sacrifices and rites which were
performed in the name and at the expense of the city, and
which were religious ceremonies, varying with the occasion, the
divinity, and the time. 2
40. Every important act of a Roman, whether public or
private, assumed a religious character : hence their implicit
reliance on an oath, their respect for things sacred, their vene-
ration for the tomb, the worship of their lares and domestic
deities : a worship which, together with the religious obligations
it entailed (sacra privata], was, according to the account given
by Cicero in his treatise on the laws, transmitted from genera-
tion to generation as an indestructible and necessary part of
the inheritance. " Ritus families patrumque servanto ; sacra
privata perpetuo monento." 3
We not unfrequently find in the Roman writers mention
made of certain vestiges of sacra privata peculiar to the gentcs
1 Cicero, De dicinatione, lib. i. 41. pilius et auspiciis tnajoribus inventis,
a Festus, on the word Publica: ad pristinum numerum duo augures
" Publica sacra, qure publico sumptu, addidit ; et sacris e principum numero
pro populo fiunt, quseque pro montibus, pontifices quinque prrefecit; etanirnos,
pagis, curiis, sacellis; at privata, quse propositis legibus his quas in monu-
pro singulis hominibus, familiis, genti- mentis habemus, ardentes consuetudine
bus fiunt." And on the word Popn- et cupiditate bellandi, religionurn casrc-
laria: " Popularia sacra sunt, ut ait moniismitigavit; adjunxitqueprajterea
Labeo, quae omnes cives faciunt, ncc flamines, salios, virginesque vestales ;
certis familiis adtributa sunt : Forna- omnesque partes religionis statuit sanc-
calia, Parilia, Laralia, Porca praxii- tissime. Sacrorum autem ipsorum dili-
dauia." gentiam difficilem, apparatum perfaci-
3 Cicero, De legit), lib. ii. 9. See lem esse voluit. Nam qnoe perdiscenda,
how, in his treatise on the Republic, he quaeque observanda essent multa con-
speaks of the religious laws of Numa, stituit, sed ea sine impensa. Sic reli-
adding that they still preserved them in gionibus colendis operam addidit, sump-
existing monuments, and giving them turn removit." (De rfijmbliea, lib. ii.
the credit of originating sacrifices of an 14.)
inexpensive character: " Idemque Porn-
46 THE HISTORY OF ROMAN LAW.
of an illustrious house, for example, that of Claudia, Horatia,
Fabia, Nautia, and others." 1
SECTION IX.
THE CALENDAR : DAYS Fasti OR Nefasti.
41 . It was the duty of the pontiffs to regulate the calendar.
In order to obviate inconvenience it is necessary that the year
should involve the same time precisely that is occupied by the
earth in its circuit round the sun. Such being the case, times
and seasons correspond ; the earth and the year run and termi-
nate their course together. The early Italian year was far
from presenting this harmony. We are told by Censorinus
that it was no uncommon thing for the different Italian nations,
and especially the Ferentini, the Lavinians and the Albans, to
have years peculiar to themselves and differing from each other.
Under these circumstances it is obvious that irregularities were
of constant occurrence. These they adjusted, however, as
best they could, relying upon their familiarity with the courses
of the heavenly bodies, by the intercalation from time to time
of the period necessary to equalize their artificial with the solar
year. 2 The Romans, according to the authorities cited by
Censorinus, amongst whom is Yarro, at first adopted the year
in use with the Albans. 3 This year was based upon lunar revo-
lutions, and consisted of ten months, the first being March,
the last December. These ten months only contained three
hundred and four days, and as the time occupied by the earth
in its revolution round the sun is three hundred and sixty-five
days and a quarter, the month of March, with which the year
commenced, recurred before the earth had accomplished its
1 See specially Festus, on the words sibus, ad unum verum ilium naturalem-
ProjniditinHS, J'orci/s and Saturno. quo corrio-ere."
Livy. lib. i. 26, and lib. v. 4(5. a Censorinus, DC die natali, 20:
2 Censorinus, Di- die natali, 20 : " Sed niagis Junio Gracchano, et Ful-
'Nam, ut ahum Ferentini, ahum La- vio, et Varroni, et Suetonio, aliisque
vinii, itemque Albani vel Rpmani ha- crcdendum, qui decem mensium puta-
bnerant annum: ita et alia; gentcs. venmt fuisse : ut tune Albania erat,
Omnibus tamen fuit propositnm suns undc orti Romani."
civilcs annos, varic intercalandis men-
THE HISTORY OF ROMAN LAW. 47
revolution, or the four seasons had marked their course. Con-
sequently at one time it was in winter, at another in the
summer, each month being correspondingly displaced. This
want of harmony between the months and the seasons could
not fail to bring about visible confusion, and consequently the
Romans, like the other Italian nations, had from time to time
recourse to intercalation.
The first correction is attributed to Numa, who is said to
have added to the ten months, then existing, two others, January
and February, the one at the commencement, the other at the
end of the year. These twelve months, however, only contain
354 days, or, according to some, 355. The difference then
still existing between the Roman and Solar year was from ten
to eleven days, and it was the duty of the pontiffs to keep this
discrepancy obviated by periodic intercalation. But upon what
principle this was done is far from clear. Plutarch says that
Numa decreed that a month, consisting of twenty-two or
twenty-three days, should be alternately intercalated every
second year ; but as this method did not exactly meet the diffi-
culty, it appears to have been abandoned by the pontiffs, who
made what arbitrary additions they thought fit. 1 The uncer-
tainty and irregularity occasioned by these arbitrary intercala-
tions, made at the caprice of the pontiffs, is a constant source of
bitter complaint on the part of the historian. 2
42. These calculations were intimately connected both with
public and private law ; the duration of magistracies, the classi-
fication of feast days, the celebration of public or private cere-
mtnmsc^Jionour of the domestic deities, fixed and moveable
holy days, Sie*^ -~^~J "^on which the comitia could be
held, 3 and those upon whi^n bt&L" >: nll that
* Censorinus, De die natali, 20: a gi licet.
" Sed horum plcrique, ob odium vel
48 THE HISTORY OF ROMAN LAW.
which was all important to the jurist, the days upon which the
magistrate could exercise his functions, when he was permitted
to pronounce the sacred words " DO, DICO, ADDICO ; " in which
are summed up the various acts of his jurisdiction, and from
which came the expression dies fastus (de fari licet) and dies
nefastus (de fari non licet). 1 All these depended upon the
termination of the year, and were regulated by the calendar.
The result of this was, to place all these functions within tho
direction and under the control of the pontiff, whence they and
the patrician class, of which they were members, acquired im-
mense influence, both in public and private matters.
The fact of a day being " fastus " or " nefastus " was a matter
of the utmost importance to the Romans in relation to their
private affairs.
The solemn procedure, consisting of what were styled the
legis actiones, was confined to the " dies fasti," not merely as
to the conduct of law suits, but also as to a number of voluntary
transactions of a private nature between consenting parties ; as,
for example, alienations, the commencement or termination of
servitudes, enfranchisement, emancipation and adoption, which
were accomplished by means of feigned actions. Certain days
were "nefasti" in the morning and evening, while during the
day time, that is, between the immolation of the victim and the
sacrifice, they were "fasti;" such days were termed "intercisi." "
Books giving a list of the days in the year, showing which were
" fasti," were termed " Fastorum libri." 3 Ovid has devoted a
poem to the subject, in which he says, addressing Germanicus,
" You Avill find the public feast days and those dedicated to
your domestic worship," viz., the day upon whick j''l;_; t -a,s"~not
~-.- **j\JL clTJU-
1 Varro De 7i.^, tue month of March,- J*/^*", .
v ' ^^^_ ^-*+*r- T>,, lingua latma, lib. vi.
uimimenced, recurj^d--^ttctonhus 31 : " Intert-isi dies sunt per quos
^-rrrTnaculo licet fari." inane et vespcri est nefas medio torn pore
_ j_-rrrr~'" Tr ~r)ie s nefasti, per quos dies inter hostiam cassam et exta porrecta
nefas fari priutorem: DO, DICO, ADD] CO; fas." Reference must be made to
itaque non potest agi ; neccsse enim Macrobius, Saturnalia, Mb. i. ch. 1C,
aliquo corum nti verbo, cum lego quid for a definition of tbe different days ami
peragitur." And further, 53 : " Ilinc of several other matters, and also for an
fasti dies quibus vcrha certa legitima account of the relation which these days
sine piacnlo prcctoribus licet fari. Ab bore to the dies fcstl and jtrofesti;
hoc ncftiiiti qiiibus diebus ea fari jus 3 Festus, on the word Fastorum :
non cst, et si fati sunt, piacnlum fari- "Fastorum libri appellantur, in quibus
unt." tot ins auni fit descriptio."
THE HISTORY OF ROMAN LAW. 49
lawful to pronounce the three words, and those upon which it
was lawful to take legal proceedings. 1 In the time of Ovid, the
arrangement and the character assigned to each day of the year
had been in vogue for almost three centuries, and were uni-
versally known ; but in the commencement and for a very con-
siderable period of the republic, the knowledge was confined to
the pontiffs and the patricians.
43. With the view of having a visible symbol of the calcula-
tion of time, a custom which had long existed among the
Etruscans and had been adopted by the Romans was confirmed
by an ancient law. This custom was that the chief magistrate
should, upon a certain day in each year, drive a large nail into
the wall of the Temple of Jupiter at Rome. This was also
held, in the superstition of the people, to be an expiatory
solemnity for epidemics, public calamities and great crimes. 2
44. After Numa an interval of more than ninety years is
occupied, according to the Roman narrative, by the three reigns
of Tullus Hostilius, B.C. 673 ; Ancus Martius, B.C. 641 ; and
Tarquinius Priscus, B.C. 616.
SECTION X.
THE ELECTION OF KINGS, FROM CICERO'S DE REPUBLIC A
"Lex regia."
45. In his treatise on the Republic Cicero brings to our
notice several points of interest, in connection with the election
of kings, well worth attention. He never fails to repeat, con-
cerning Tatius, Ancus, Tarquin, and Servius, what he says
1 Ovid, Fasti, lib. i. line 7 et seq. : Line 53 :
Sacra recognosces Annalibus eruta priscls ; Est quoque, quo populum jus est includere
Et quo sit merito quseque notata dies. septls.
Invenies illic et festa domestica vobls. 2 Festus, on the word Claws : " Cla-
Lines 47 and 48 : vus anna li s appellabatur, qui figebatur
in parietibus sacrarum oedium per annos
me nefastus erit per quern Ma verba silen- singulos> ut per e os numerus collige-
Fastus erit, per quern lege licebit agi. retur annorum." See Livy, lib. vii.
3, and lib. vii. 18.
50 THE HISTORY OF ROMAN LAW.
about Numa, "quamquam populus curiatis eum comitiis regem
esse jusserat, tamen ipse de suo imperio curiatam legem tulit." 1
The sentence recurs in each new reign with such regularity and
identity of expression that it may be reasonably concluded that
he was deriving his information from some public legal docu-
ment. This explains the origin and nature of that " lex curiata "
which continued in force to the latest days of the republic, in
order to give the magistrates, after their election, the investiture
of the " imperium" This practice commenced with the age of
the kings. When the curies had elected the king, when the
senate had given its " auctoritas " to their election, the " lex
curiata " was then passed in order that the king might be in-
vested with the " imperium"*
Such was, we think, without doubt, the " lex regia" the term
applied to the investiture of the emperor a name which sur-
vived republican hatred to royalty and which was preserved
during the empire.
SECTION XI.
INTERNATIONAL LAW COLLEGE OF THE FECIALES.
46. During the three reigns to which we have just referred
the spirit of conquest recovered its original energy, and the
territory and inhabitants of Rome were augmented from the
territories and inhabitants of neighbouring states. The Roman
historians ascribe some to Numa, others to Tullus Hostilius or
Ancus Martius, an institution connected with international law,
the college of the Feciales. The fact is that this was an insti-
tution common to the different Italian nations, and that the
Romans only followed the prevailing custom. Various writers
inform us that it existed with the Albans, the Samnites, the
Ardeans, the Falisci of Etruria and the Equicoli. 3 Varro
and Festus assign very equivocal etymologies to the word
Feciales.* Cicero, in his treatise " De legibus," summarises
1 Cicero, De republ., lib. ii. 13,17, 39. Dion. lib. ii. 73. Servius,^<Z
18, 20 and 21. JEneiA., lib. x. 1. 14.
2 Vide supra, 27. * Varro, De lingua latina, lib. 5,
3 Livy, lib. i. 24, 32; lib. viii. 86: "Feciales quod fidei publics;
THE HISTORY OF ROMAN LAW. 51
the attributes of these priests in the following terms : " That
the Feciales were the judges of treaties, peace, war, truces,
embassies, and that they declared war." 1
So likewise these priests, of which the college was composed,
twenty-one in number, who were sprung from patrician families
of the highest rank, were consulted upon all points of inter-
national law ; they were engaged in the formation of treaties
of alliance and were bound to swear to their observation, and
they were charged with the declaration of war.
A religious rite and certain solemn formulas were prescribed
for each phase of these transactions. In those observed upon
the conclusion of a treaty of peace, a pig was the appropriate
sacrifice ; Virgil says, 2 " et cassa jungebant foedera porca," and
Livy gives us the formula of imprecation pronounced by the
Feciales against the Roman people should they violate a treaty :
" In illo die, Jupiter, Populum Romanum sic ferito, ut ego
hunc porcum hie hodie feriam." 3 The figure of a pig was also
one of the military insignia. 4 Livy describes the ceremony
accompanying the declaration of war, and the various utterances
of the fecialis as he successively crosses the enemy's frontier, as
he advances through their country, as he demands reparation
for the wrongs, real or imaginary, which constitute the motive
or pretext for the attack. If the satisfaction demanded was not
given within the thirty-three days, he referred the matter to the
senate, and finally, after war had been resolved upon, he returned
to the hostile frontier, and thrusting his lance into its soil, thus
solemnly made his declaration of war : " Since this nation has
permitted unjust aggressions to be made upon the Roman people,
since the Roman people have ordered war to be waged against
it, and as the senate has proposed, decreed and determined on
this war, I, in the name of the Roman people, declare and thus
commence hostilities." 5
inter populos praerant ; nam per hos 3 Livy, lib. i. 24.
fiebat ut justum conciperetur bellum, 4 Festus, on the word Porci : "Porci
et inde desitum ut fcedere fides pacis effigies inter militaria signa quintum
constitueretur." Festus, on the word locum obtinebat, quia confecto bello,
Fctiales : " Fetiales a feriendo dicti, inter quos pax fiebat, ex csesa porca
apnd hos enim belli pacisque faciendae fcedere firmari solet."
jus est." 5 Li 77, lib. i. 32. Aul. Cell. lib.
1 Cic., De leyibus, lib. ii. 9. xvi. ch. 4, gives us the same formula
8 JEneid., lib. viii. 641. with some variations.
E 2
52 THE HISTOEY OF ROMAN LAW.
In the course of time, it is true, although the outward form
remained the substance had disappeared. A small field near
the temple of Bellona, within sight of the extremity of the
Circus, was consecrated as the campus hostis. It is here that
the fecialis, to avoid the loss of valuable time made by under-
taking a long journey, went to announce his declaration of war,
and at the foot of a little column, of which Ovid speaks in his
Fasti, he hurled his javelin to the ground. 1
47. It is to the time of Ancus Martins that Niebuhr ascribes
the origin of the plebeians ; and upon the faith of a correction
in a manuscript verse of Catullus, which has evidently been
altered, 2 he concludes that the plebeians were the followers of
Ancus, while the patricians, with their clients, were those of
Romulus. It is true that the history recognized by the Romans
describes Ancus Martius as greatly swelling the population of
Rome, by transporting thither after their defeat several thousand
Latins to whom the right of citizenship was awarded. But
Ancus, in so doing, only followed the example of others be-
sides the Romans, whose invariable policy during their early
history, as we see in Dionysius of Halicarnassus, 3 was, that these
strangers, upon whom the rights of citizenship were conferred,
were distributed among the various curies. It is, however, true
that these new citizens, by whom the Roman population was
from time to time augmented, not being all, as were the primi-
tive inhabitants, attached to patrician gentes by the ties of
clientage, occupied a somewhat different position, as has already
been explained. 4 The observations of Niebuhr must be con-
fined to this point.
48. According to tradition, Ancus enlarged the city, which
he fortified by an entrenchment on the Janiculum, and by the
1 Ovid, Fasti, lib. 6, 1. 205 et seq. : Antiquam, ut solita es, boua
Sosnitcs ope gentem.
Prospicit a templo summum brevis area circum
Est ibi non parvae parva columna notfc. The MS. has A ntlqilC. Niebllhr adopts
Hinc soiet hasta manu, belli pncnuntia, mitti, the reading indicated by Scalier, 2f.o-
In regem ct gentes quum placet arma capi. mu u qve Ancique, the race of Komnlus
2 Catullus, Ode 34 to Diana. The and Ancus. Admitting this, we are
generally received reading is far from the deduction derived from it.
Sis quocunque placet tibi ' ^ h - "* 50 -
Sancta nomiua Koinulique * Vide supra, 16.
THE HISTORY OF ROMAN LAW. 53
fossa Quiritium, a Quiritian ditch between Mons Cselius and
Mons Aventinus. In order to unite the Aventine and the
Janiculum banks of the river, he threw a bridge across the
Tiber, the first bridge that had been constructed over it. This
bridge was built of wood, and it was called the " Pons Sublicius,"
from a Volscian word signifying the beams of which it was con-
structed. 1 This being from time to time repaired, still remained
a wooden bridge in the time of Augustus, B.C. 23, when it was
carried away by a flood, and, having been rebuilt of stone, was
called the " Pons ^Emilianus," from the name of the censor
under whose directions the reconstruction was effected.
At this day the traveller in Rome is shown on the declivity
of the Capitol below the forum the Mamertine prison, a small
dungeon constructed of large masses of stone, united without
the aid of cement after the manner of the Etruscans. The con-
struction of this prison is attributed to Ancus Martius, from
whom it took its name. 2 Ostia, also a Roman colony at the
mouth of the Tiber, is said to have been founded by Ancus
Martius, who had occupied both sides of the river to its mouth. 3
49. As it was during the reign of Ancus Martius that Lucius
Tarquinius, who is said, either in his own person or in that of
his father, to have been of Corinthian origin, accompanied by
a numerous retinue, and bringing with him immense treasures,
came to settle at Rome, Cicero takes occasion to say that the
arts and sciences of Greece flowed into Rome, not in a narrow
stream but in a mighty river. 4 But this is an anticipation, for
the monuments and buildings of that period attest Etruscan and
not Grecian art.
50. This Lucius Tarquinius, a lucumon of Tarquinii, who
1 Festus, on the word Sullicinm : Mamertinus. Vide Fcstus on these
" Sublicium pontem quidam putant ap- words.
pellatum esse a sullicilms, peculiar! 3 For each of these points, see Livy,
vocabulo Volscoruin, qua; sunt tigna in lib. i. 32 and 33 ; Cicero, De rcpub-
latitudinem extensa." lica, lib. ii. 18 and 19.
2 Mamers, in the Osque language 4 Cicero, De republica, lib. ii. 19 :
according to Fcstus, in the Sabine Ian- " Influxit enim non tenuis quidam e
guage according to Varro, both of Gnccia rivulus in hanc urbem, sed
whom may be right, was the name of abundantissimus amnis illarum disci-
the god Mars. Whence the names plinarum et artium."
Mamercus or Martius, and the epithet
54 THE HISTORY OF ROMAN LAW.
assumed at Rome the name of Tarquinius Priseus, 1 appears to
have commenced an attack upon the primitive institutions based
upon the distinctions of the original nationalities, Ramnenses,
Tatienses, Luceres, and against the narrow oligarchy of the
ancient patrician families ; an attack which his successor Servius
Tullius pushed still further, and which, at a later period, was
taken up and driven to very different results by the plebeians.
The moment had come when the primitive frame in which the
citizens were divided into tribes and curies according to their
origin, Ramnenses, Tatienses, or Luceres, no longer sufficed for
the wants of the new citizens who belonged to neither of these,
but by whom Rome had been successively recruited, and who
now formed a rapidly increasing population.
Many of these new comers had, in their own cities, been
members of the dominant class ; but when they arrived in Rome
they had been with the exception of a very few who, with the
rights of citizenship, received those of the patriciate placed in
the ranks of plebeians. Here, owing to their hereditary fran-
chise, they were in a position to form the stock of the plebeian
" gentes" in opposition to the original principle on which the
patricians alone could form a "gens." Tarquin himself belonged
to the number of the new citizens, and many of his friends and
partisans who had accompanied him, and who had been ad-
mitted with him to the rights of citizenship, and had been dis-
tributed amongst the tribes and the curies, 2 found themselves in
the position we have just described.
51. Lucius Tarquinius was unable to accomplish all that he
desired by way of reformation. When he attempted to abolish
the names of the tribes, Ramnenses, Tatienses and Luceres, as
being inconsistent with the new elements of the population, he
encountered a formidable opposition, under the colour of religion,
in the person of Attius Navius the augur, and he was compelled
1 The true meaning of the word epithet: "Priscus Tarquinius estdictus,
Priscus applied to Tarquin has long quia prius fuit quam superbus Tar-
been questioned. Livy makes it a sur- quinius" (onthewordPn'sc?/s). Diony-
name : " Urbem ingressi sunt domici- sius of Halicarnassus is of the same
lioque ibi comparato, L. Tarquiniurn opinion, lib. iv. 48.
Priscnm edidere nomen." Livy, i. 34. 3 Dion. lib. iii. 71.
Paul, following Festus, considers it an
THE HISTORY OF HOMAN LAW. 55
to renounce his design. 1 It was reserved to his successor to
succeed in this object in another way. Nevertheless, he elevated
about a hundred or a hundred and fifty persons to the patriciate
(historians differ as to the number), and gave them a place in
the senate ; and as the pride of the ancient patricians refused to
admit them upon terms of perfect equality, they became the
foundation of those "minores gentes" who, from generation to
generation, remained distinct from the " gentes major es" whose
stock and nobility were coeval with the foundation of Rome. 2
62. Among the numerous monuments and works of art con-
structed in the time of L. Tarquin, when the future grandeur
of the eternal city began to dawn upon the world, which is still
shown at Rome, was the " Cloaca Maxima." This great and
useful work, by which the marshes were drained, the atmo-
sphere purified, and large tracts of land reclaimed for the city,
was commenced by L. Tarquinius and completed by Tar-
quinius Superbus. It is in the Etruscan style of architecture,
and has withstood the destructive influence of time and neglect.
There the imagination of the poet can contemplate, in the
creation of a Cyclopean or Pelasgic age, the mysterious vestiges
of an unknown civilization.
53. B.C. 578. Servius Tullius was indebted to a subterfuge
for his elevation to the throne. This prize he secured without
pledging himself to the patrician party (non commisit se patri-
bus\ and was the first who became king without the pre-
liminary election by the senate or the sanction of the curies,
although after he had mounted the throne he solicited nomina-
tion and the investiture of the " imperium " by the lex curiata.*
In doing this, he aimed a fatal blow at the ancient system of
distribution into tribes, based upon their primitive origin. This
distribution had become utterly inconsistent with the new and
now considerable population of Rome. And if he suffered the
" comitia curiata," which was constructed upon that narrow
principle, still to exist, it was merely from respect to the
1 Vide supra, 21. 3 Cic., De republica, lib. ii. 21.
3 Vide supra, 33.
56 THE HISTORY OF ROMAN LAW.
auspices and certain old forms of primitive law. The assem-
blies he created were for the discharge of real business, and
were framed upon a different system, every citizen being
eligible.
According to the first census taken by Servius Tullius, the
population of Rome at that time consisted of upwards of 80,000,
and this shows the extent to which the representatives of the
three original tribes, the Ramnenses, Tatienses and Luceres,
must have found themselves outnumbered. Servius himself,
whether we accept the fables about his extraction, or adopt the
Etruscan annals which represent him as the chief of an Etruscan
band, belonged, together with ah 1 his followers, to the new
comers.
The friend and counsellor of Tarquin, his predecessor, he
carried out his labours to completion. The radical reform
which he introduced in the political constitution of Rome was
to place side by side with an aristocracy of race the superior
caste of the ancient patrician order, an aristocracy of wealth,
whose ranks were open to all. Thus it was that many of the
new citizens attained a position of influence, in spite of the
rank they or their ancestors had enjoyed in their native country,
and who, whatever might have been their wealth, had hitherto
at Rome been denied admission into the patrician order, and
had been ranked with the plebeians.
54. Heretofore the revenue had been raised by means of a
poll tax (viritirn), arbitrarily imposed without any fixed prin-
ciple or any adequate proportion between the rich and poor.
The division of the people into tribes and curies had been, as
we have seen, based upon their origin, and the assembly so
founded (comitia curiata) voted "ex generibus" And, not-
withstanding our ignorance of details, we know that the supre-
macy remained in the hands of the ancient patrician order. It
was for Servius to substitute for this division and consequent
vote, depending upon caste, a distribution of the people and a
system of voting regulated by wealth ; in short, he proportioned
the taxation and the suffrage of each citizen to the amount of
his property.
THE HISTORY OF ROMAN LAW. 57
The institution of the census, the distribution of the people
into classes and centuries, the assembly of the centuries, the
origin and progress of the order of knights, and the organiza-
tion of tribes according to locality, here demand our attention.
SECTION XII.
THE CENSUS.
65. The head of each family was obliged to make a written
statement, upon oath, of the number of persons composing his
family, of his property of every description, and its fair estimated
value, under penalty of confiscation of any article omitted. 1 As
soon as this was finished the entire populus passed in review
through the Campus Martius and underwent the ceremony of
purification (jpopulum lustrare]. This ceremony was repeated
every fifth year ; hence the term lustrum was used to signify
a period of five years. This table or register was called the
" census," and, as a new chapter (caput) was opened for each
head of a family, the condition of the population and the respec-
tive fortunes of families could be periodically ascertained.
Enrolment by name in the census was a privilege confined to
citizens ; the names of sons were doubtless inscribed in the
chapter dedicated to their father; women, and males under
sixteen years of age, who had not exchanged the prcstexta for the
toga, were only enumerated ; slaves were indicated simply by
numbers amongst the chattels of their masters, and in the course
of time the ceremony of enfranchisement consisted simply in
inscribing their name in this table.
SECTION XIII.
THE CLASSES ( Classes} AND THE CENTURIES ( Centuries).
66. From the institution of the census, which had determined
the amount of the fortune of each citizen, was derived the dis-
tribution of the people into classes and centuries, based mainly
1 Dion. lib. 4, 16.
58 THE HISTORY OF ROMAN LAAV.
upon the amount of their wealth. This distribution was regu-
lated so as to provide for the three social necessities, taxation,
military service, and the franchise. The classes and the cen-
turies therefore formed an organization for the purposes of
revenue, war, and legislation. This assimilation must not, how-
ever, be pushed too far, and certain clearly defined lines of
demarcation must be preserved between these three distinct
objects. Sons, who at this period could not hold property,
were only placed in the classes under the census of their father,
and consequently only contributed to the revenue in the person
of their father. Although, in military matters, their individu-
ality was recognized, and they had the right of personal voting
in the comitia.
57. The division of classes as to matters of taxation was
exclusively regulated by the amount of property. These classes
were five in number, for those whose income was below a cer-
tain sum, not being liable to taxation under the rule laid down
by Servius, were not considered as belonging to any class. 1
Historians differ as to the pecuniary qualification necessary for
each class, and it is exceedingly difficult for us to form a correct
estimate relatively with our own times. 2 These classes were
taxed differently, and state burdens must therefore have fallen
upon each in a manner proportioned to his means. It is not
difficult to understand with what feelings the exemption accorded
to them by Servius was received by the numerous class of poor
plebeians. So dear was his memory to them, that for long after
the expulsion of the kings, tradition having fixed his birth in
the " nones," without specifying which, the plebeians celebrated
them all ; and fearing lest if these fetes should happen to fall on
a market-day, when the concourse of people being great, some
revolutionary measures might be taken in memory of this king,
1 This is as the matter was under- 2nd class . . . . 75,000 asses.
stood by the Komans, and stated by 3rd . . . . , . 50,000
Cicero and Livy. Pionysius makes six, 4th . . . . . . 25,000
because he reckons as a class all those 5th class .. .. 11,000
who were exempt from taxation. Or, according to Dionysius, 12,500, the
8 According to Livy, lib. i. 43, the half of the amount required for the class
property qualification was as follows : No. 4. Those whose income did not
1st class consisted of citizens who reach this amount were not classified
possessed . . 100,000 asses. and were free from taxation.
THE IIISTOKY OF ROMAN LAW. 59
the pontiffs carefully prevented the market-days from falling
upon the nones, by such arbitrary intercalations as were neces-
sary to effect that object. 1
68. In addition to the taxation proportioned to the wealth
of the citizen according to his class, was his obligation to render
fully-equipped military service free of cost to the state, the ex-
pense of his uniform and arms being regulated by the regiment
to which he belonged. Livy 2 gives the details of the necessary
equipment for each class. Those whose income did not reach
the requisite sum to place them in the fifth class were bound to
render military service, but it was at the charge of the state.
There is, however, some disagreement upon this point amongst
ancient writers, and it seems that, even in this residuum, certain
shades of distinction, likewise based upon property, were drawn,
and that those who had more than 1,500 asses formed a first
class under the name of " adcensi" and " velati," a species of
supplementary soldier attached to the censitares as accessories
(ad-censi), who were compelled to follow the army without arms
in ordinary private costume, and to take the arms and place of
those who should fall in the battle. 3 Livy mentions them as
being distributed amongst the fifth class, probably because they
were placed at the end in the same way as were the horns and
the trumpets, though forming no part of the census.
69. The citizens, according to their status in the census, had
distinguishing appellations. Those whose names were registered
in the census as liable to revenue taxation of whatever class were
called " assidui" (from assem duere or dare) ; those not liable
to taxation were called " proletarii," the state not demanding
1 Macrobins, Satnr., lib. i. ch. 13 : quod ad legionum censum essent ad-
" Veritos ergo qui diebus prseerant, ne script! ; quidam relates, quod restiti
quid nundinis collecta universitas ob inermes sequerentur exercitum." And
regis desiderium novnret, cavisse, ut on the word Velati: "Velati appella-
nonae a nundinis segregarentur. See bantur vestiti et inermes, qui exercitnm
above, 47, and note. sequebantur, quique in mortuorum mili-
* Lib. i. 42. turn loco substituebantur." Varro, DC
3 Festus, on the word Adscripticii : lingua latino,, lib. vii. 56 : " Adscrip-
" Adscripticii velati quidam script! di- tivi dicti, quod olim adscribebantur
cebantur qui supplendis legionibus ad- inermes, armatis militibus qui succede-
scribebautur. Hos et aclccnsos dicebant, rent, si quis eorum deperisset."
60 THE HISTORY OF ROMAN LAW.
from them any contingent other than that of their children.
However, upon closer examination, we find certain limitations ;
those citizens, for example, whose fortune was below the amount
necessary to place them in the fifth class, yet possessed more
than 1,500 asses, would be the "accensi" or "velati;" those
whose fortune ranged between 1,500 and 375 asses were the
" proletarii " properly so called ; the remainder simply appearing
upon the census by name were termed " capite censi." 1 In
cases of extreme urgency, the proletarii might be armed and
equipped at the public expense ; but it was not till the time of
Marius, in the wars against the Cimbri and against Jugurtha,
that we find the " capite censi" admitted into the army.
60. In order clearly to understand the division into centuries,
its double object, military and electoral, must be kept in view.
The word " centuria" has a military origin, and most pro-
bably originally signified a troop of 100 men, though at a later
period it had no reference to number. 2 In the military aspect
centuries existed amongst the old Italian nations ; thus the
Etruscan rituals indicate the ceremony attending the distri-
bution into the centuries of which the army was composed, 3
and centuries existed at Rome before those introduced by Ser-
vius Tullius. Thus the tribes, the Ramnenses, Tatienses and
Luceres, each originally furnished a hundred cavalry, in all
three hundred, recruited from amongst the patricians. The
creation of these centuries is attributed to Romulus, and L.
1 Cicero, De repitblica, ii. 22: censorum jcris fuit trccenti septuaginta
" Quum locupletes assld-uos appellasset quinque." Festus, on the word Adsi-
ab iere dando; eos qui aut non pins duns: ". . .Alii eum (adsiduum)
mille quingentum ajris ant omnino nihil qui sumptu proprio militabat, ab asse
in suum censum prater caput attulis- dando vocatum existimarunt." And
sent, proletaries nominavit ; ut ex iis on the word Proletarium : "Proleta-
quasi proles, id est quasi progenies rium capite censum dictum quod ex his
civitatis exspectari videretur." Aul. civitas constet, quasi proles progenie.
Gell. lib. xvi. c. 10, who enters mi- Idem et prolctanei."
nutcly into the distinction to be drawn 2 Festus, on the word Centurla:
between proletarii, capite cvtisi and " Centuria in agris significat centa
assidvi: "Qui in plebe, inquit, llomana, jugera; in re militari centum homines."
tenuissimi pauperrimique erant, ncque Varro, De lingua latina, lib. y. 35 ;
amplius quam mille quingentum juris 88 : " Manipulos, exercitus minimas
in censum fatcrob&nt,, proletarii appel- inanus qua? unura secuntur signum.
lati sunt; qui vero nnllo aut perquam Centuria, qui sub uno centurione sunt,
parvo jure censebantur, capite censi vo- quorum centenarius Justus numerus."
cabantur; extremus autem census capite 3 Vide supra.
THE HISTORY OF ROMAN LAW. 61
Tarquin is said twice to have increased their number, which
probably, upon the second occasion, was doubled and reached
six j 1 but these must not be confused with the institution of
Servius Tullius, though they retained their position and formed
a part of his system.
61. From a military point of view, three important observa-
tions must be made : First, this division into classes was con-
fined to the infantry. At the head of the army, in the place of
honour and independent of the classes, was the cavalry. As
the system of Servius Tullius was a compromise between the
organization based upon the three original nationalities and the
numerous new population, as Servius had not destroyed the
curies nor their assemblies, so in the construction of the cavalry
he left intact the three centuries, Ramnenses, Tatienses and
Luceres, to be recruited as before from the old patriciate ; nor
did he interfere with the additions made by his predecessors.
These centuries of patrician knights were then six in number,
and had been raised to that number either by Servius Tullius
himself, according to Livy, or rather, as Cicero indicates, by
TJ. Tarquin, who to the three centuries of knights " majorum
gentium " added three others, " minorum gentium. But be
this as it may, under the name of the six centuries (sex cen-
turies], or that of the six suffrages (sex suffragid], these six
centuries of patrician knights took the lead of the cavalry in
the system of Servius Tullius, to which were added twelve new
centuries recruited from the first and most wealthy families of
the city (ex primoribus civitatis according to Livy; censu
maximo according to Cicero) ; thus making in all eighteen
centuries of cavalry. 2
63. The second observation is, that, in addition to the
cavalry, there were several services in the army that neces-
1 Cicero, De republics,, lib. ii. 20. quibus inaugurate erant nominibus,
Compare with Livy, lib. i. 36. fecit." Cicero, De repnlllca, lib. ii.
3 Livy, lib. i. 43 : " Ita peclestri 2 : " Equitum magno numero ex
exercitu ornato distributoque, equitum omni populi surnma separate, reliquum
ex primoribus civitatis duodecim scrip- populuin distribuit in quinque classes."
sit centurias, sex item alias centurias, " . . . Equitum centuriae cum sex
tribus ab llomulo institutis, sub iisdem suffragiis."
62 THE HISTOEY OF EOMAN LAW.
sitated special men, selected without regard to the census.
These formed special or extraordinary centuries annexed to one
of the classes, though not forming part of it, under a property
classification. Such were the engineers or carpenters, who
formed two centuries attached, according to Livy, to the first
class ; the hornblowers and trumpeters forming two centuries,
attached, according to the same historian, to the last class.
In a similar situation were the supplementary soldiers, "accensi
velati," also inscribed and marching in the rear of the centuries
of the last class, though of an inferior census.
63. Lastly, the third point to be observed is, that with
regard to the citizens inscribed in the infantry classes, the
nature itself of the military service required that attention
should be paid to differences of ages. These citizens were con-
sequently distributed in their respective classes in distinct cen-
turies ; the centuries of juniors (Juniorum) having to undertake
foreign service ; the duties of the seniors (seniorum} being con-
fined to the defence of the city. 1 Those who had assumed the
virile robe on the completion of their sixteenth year were liable
to enlistment in the former, while those who had attained their
forty-sixth year were incorporated in the latter. 2
64. We have next to notice the centuries as classified by
the suffrage in the comitia, and it is here that we shall note
the ingenuity in the mechanism of this political system. The
principle was to take as an unit the vote of the century, as in
the case of the curies in the old classification ex generibus;
to give more centuries, and consequently more votes, to the
first class, which represented the wealthier though less numerous
1 Livy, lib. i. 43 : " Seniores, ad eosque ad annum quadragesimum sex-
urbis custodiam ut praesto essent; jn- turn juniores, supraque eum annum
venes, ut foris bclla gererent." senior es appellasse." The age of six-
2 Aul. Gell. lib.x. ch. 28 : " C. Tubero teen completed or seventeen commenced
in Historiarvm primo scripsit, Servium is the admitted age for qualification
Tullium, regem populi liomani, cum for several other public departments,
illas quinque classes juniorum, census Livy, lib. xxii. 57: "Juniores ab
faciendi gratia, institueret, pueros esse annis scptcmdecim ;"and lib. xliii. 14:
existimasse, qui minores essent annis " Minor annis sex et quadraginta."
septemdecim : atque inde ab anno sep- Consult Censorinus, De die natali, ch.
timo decimo, quo idoncos jam esse rei- 14.
publics arbitraretur, milites scripsisse .-
THE HISTORY OF ROMAN LAW. 63
part of the population ; to give in each class to the seniors,
though fewer in number, as many centuries, and consequently
the same votes, as to the juniors ; and, lastly, to throw into a
single century, and therefore to reduce to one vote, or, ac-
cording to some writers, to two votes, the entire body of prole-
tarii and capite censi; the effect of all which was to balance in
each class the influence of numbers with that of age, and again
to establish an equipoise between numbers and property. There
were in all a hundred and ninety-four centuries, or, according
to another version, a hundred and ninety-nine. 1
65. In short, for the purposes of taxation this classification
represented the citizens as arranged according to their property,
nothing being exacted from the lowest class, in which were
the proletarii and capite censi, who were exempt even from
military service.
For military purposes we find the classes arranged under the
heads of cavalry (equites^) and infantry, military engineers and
carpenters, buglers and trumpeters, even so far as the separation
of young men from those of mature years, and this principle
of distribution extended even to the supernumerary ranks.
It would be a mistake to suppose that this constituted the
1 The following is the table of the Centuries,
centuries according to Livy : 5ta class - Two centuries of buglers
and trumpeters, one of
The six onginenuries >
knights, together ^ the 12 AH the jpii*^^ ( *& '
censi in one century . . . . 1
Infantry. (According to others the proletarii
1st class. 40 centuries of Semores ) gQ formed one and the capite censi
40 Juniores } another.) _
Together with two cen- Total . . 19-t
turies of artificers or -p.. ,., . . nr . , ",..
military carpenters Dlon< llb> 1V ' 20 et se( l'' dlffers some "
one Seniores, one Ju- f^SSR ^^ ^ he makes 7 the
o total 19d by omitting the accensi celati,
II lUllS . . . . i 25 11 j_l r i r-
2nd 10 centuries Seniores and and P f ! f e the two centuries of artifi-
on cers after the second class and that of
J-V/ ll UlllOi to * \J j.1 r i j j_ ft ,1
n.,.1 T) n i on the buglers and trumpeters after the
JU " L^' ' go fourtb - Cicer . P* re J> b -> lib - 22,
5th ^ 15 centuries Seniores and f^f s a fi c f cul fn, ^ich, as it gives
j - y OQ to the first century seventy instead of
With one century of su- ^ ht ^ h f as , led * " the S"PPO?ition that
pemnmeraries^nai * e .'f * ha8 been altered b ^ the
relati.. .. ..1 P v
64 THE HISTORY OF ROMAN LAW.
entire army. This was the system upon which the army, what-
ever might be the nature of the duty on which it was to be
employed, was recruited ; but it was impossible to observe in
every detail the exact proportions represented by this classifica-
tion. From the last century, the entire body of the proletarii
and the capite censi were in any case excluded.
SECTION XIV.
THE ASSEMBLY BY CENTURIES ( Comitia centuriata).
66. These assemblies represented the aristocracy of wealth.
As the people were arranged in military order and under arms
these assemblies could not be held within the city ; they were
therefore held in the Campus Martius, and were convoked not
by the lictors but by the sound of the bugle. While one section
went to vote the remainder watched in arms on the Janiculum. 1
The suffrages were taken and calculated by centuries, beginning
with the knights, then the classes in their order. In each class
the order of the centuries was determined by lot, that to which
it fell to vote first, being called prarogativa (from prce rogare).*
As soon as the vote of a century was known it was proclaimed,
and they then passed on to the next. As soon as the majority
was ascertained the result was declared, and the remaining
centuries were not called upon to vote ; so that it never, or very
seldom, happened that the inferior centuries were called upon
for their suffrage. Livy says that it was rarely necessary to
call upon the second class. 3 In this way the power of determin-
ing all questions was lodged in the most wealthy centuries, and
as for those of inferior rank, such for instance as the proletarii
and capite censi, it may be said that they merely visited the
1 Aul. Gell. lib. xv. ch. 27 : " Curiata fragiis fcrcndis occupatus."
per lictorem curiatum calari, id est con- a Livy, lib. xxvi. '22 : " Praaroga-
vocari : centuriata per cornicinem." tiva Veturia juniorum."
" Centuriata autem comitia intra po- 3 Livy, lib. i. 43 : " Equites enim
mcerium fieri nefas esse ; quia exerci- vocabantur prima : octoginta inde pri-
tum extra urbem imperari oportcat ; ma? classis ccnturias ; ibi se variaret,
intra urbem imperari jusnon sit : prop- quod raro incidebat, nt secundaj classis
terea centuriata in campo Martio habcri, vocarentur ; nee fere unquam infra ita
exercitumque imperari przesidii causa descenderet, ut ad infimos pervenirent."
Bolitum : quoniam populus esset in suf-
THE HISTORY OF ROMAN LAW. 65
Campus Martius, as spectators, to ascertain the division of the
people, their own vote being a delusion. This mode of pro-
cedure would not have been so objectionable if the final result
had not been declared till after all had voted, instead of which
each vote was given aloud and the calculation made openly.
67. Aulus Gellius, who has given us the characteristic for-
mula of the comitia curiata, <( Cum ex generibus hominum suf-
fragium feratur, curiata comitia esse," also gives that of the
comitia centuriata, " Cum ex censu et aetate, centuriata." ' The
population, instead of being then distributed, as in the curies,
according to their origin, as Ramnenses, Tatienses and Luceres,
were distributed amongst the classes according to the census,
and in each class according to age ; the young and the old being
placed in different centuries.
Thus, as the framework of the primitive system was con-
structed solely for the benefit of the original aristocracy and
their descendants, this was based upon a principle that admitted
all ; the place assigned to each being determined by the rank of
his census and his age. The comitia centuriata were also termed
" maximus comitiatus."
68. These comitia or assemblies did not, in the beginning,
take the place of complete substitutes for the comitia curiata ;
but rather existed concurrently with them. It would be difficult
to say what attributes belonged to them in the first instance ;
but in the course of time the power of making laws, determining
criminal charges and of creating magistrates became theirs. On
the other hand the comitia curiata, gradually deprived of their
functions, confined their operations to making certain elections,
to the regulation of sacerdotal institutions, to passing the lex
curiata, by which the imperium was conveyed, and to certain
matters affecting the constitution of families, wills and adoptions ;
and were ultimately reduced to a pure symbol, being attached
to things which had long since disappeared or ceased to exist
except in the memory of the past. 2
1 Aul. Gell. lib. xv. ch. 27. 2 Vide supra, 31.
F
66 THE HISTORY OF ROMAN LAW.
69. We must also apply to the comitia centuriata what has
been said 1 concerning the comitia curiata as to the right of con-
voking the assembly, the necessity of the auspice, of there being
but one matter to determine, of their deciding either in the
affirmative or in the negative without the power of amendment ;
their liability to interruption and adjournment by the mere
utterance of the words " alio die," indicating an unfavourable
omen; and, finally, that their decrees had not the force of law
till they had received from the senate its " auctoritas." 2
Thus these assemblies were still, in all the foregoing particu-
lars, under the predominating influence of the patricians ; as a
consequence of the formation and the number of the centuries
they were subject to the influence of wealth ; while the necessity
for the " auctoritas" of the senate presents collectively a species
of composite legislative power in which the king, the senate
and the centuries of the citizens concur. At a later period,
that is, in the year 340 B.C., under the popular dictatorship of
Q. Publilius Philo, a law was passed which required the senate
to give in advance its auctoritas to whatever laws should be
presented to the comitia centuriata.*
SECTION XV.
THE KNIGHTS (Equites\
70. While the citizens were thus divided into different
classes, regulated by the amount of their property, there was an
order daily increasing in strength and destined, in the course of
time, to hold a conspicuous position between the senators on the
one hand and the plebeians on the other: this order was the
Knights.
This institution, which first appears in the three centuries of
1 Vide supra, 28. essent rata, nisi ea patrum approbavis-
2 Cicero, De republica, lib. i. 32 : set auctoritas."
" Quodque erat ad obtinendam poten- 3 Livy, lib. viii. 12 : " Ut legum
tiara nobilium vel maximum, vehemen- quai comitiis centuriatis ferrentur, ante
ter id retinebatur, populi comitia ne initum suffragium, Patres auctores fie-
rent."
THE HISTORY OF ROMAN LAW. 67
a hundred cavalry each, and which, under the name of " celeres,"
tradition represents as the guard of Romulus, was of purely
military origin. Each of these three centuries corresponds to
one of the three original tribes, after which, it was called the
century of the Ramnenses, of the Tatienses, or of the Luceres.
These centuries were without doubt recruited from the patrician
youth of the corresponding tribe. The addition made by L.
Tarquin was a military necessity, 1 still it had at the same time
another object in view; it induced the youth of the new and
wealthy patricians to enter a regiment distinguished from the
rest of the army, whose equipment was far more costly than
that of other corps. This career was open to the new comers
who had no connection with the ancient families which consti-
tuted the original tribes. The centuries of the knights were
composed of the youth of the majorum gentium and of the
minorum gentium. In the system introduced by Servius, in
addition to the centuries of knights belonging to the ancient
and to the more modern patriciate, twelve other centuries were
added, recruited from the most wealthy families of the plebeians.
These centuries, whose service we have said was purely military,
constituted the cavalry ; they, however, early acquired a most
important political influence, from the fact of their marching
and voting at the head of the other citizens, and before all the
classes. This is the germ of the transformation which took
place at a later period in this institution.
The cavalry horses were public property, and belonged to the
state ; the money furnished for their purchase was called " es
equestre," that for their provender and attendance " ses hordi-
arium." 2 However, on special occasions it was not uncommon
for the wealthy to purchase and equip their horses at their own
expense. 3
1 Livy, lib. i. 36: " Tarquinius, emend us erat, qtue pecunia dicebatur
equitem maxime suis deesse viribns JBS equestre ; item ... ex qua horde-
ratus, ad Ramnenses, Tatienses, Lu- um equis erat comparandum, qua? pecu-
ceres, quas centurias Romulus scripse- nia dicebatur ses hordiarium."
rat, addere alias constituit." 3 Livy gives an example, lib. v. 7.
2 Gains, iv. 27 : " Ex qua equus
F 2
68 THE HISTORY OF ROMAN LAW.
SECTION XVI.
THE NEW LOCAL TRIBES (ex locis).
71. These new tribes must not be confounded with those we
have already mentioned, for although they both had the same
appellation they differed widely as institutions. As the popula-
tion of Rome was rapidly increased by the accession of strangers,
it became no longer possible to maintain the old distinction of
the three primitive tribes. We have already seen how this dis-
tinction, upon which the early Romans laid so much stress, had
been, if not destroyed, at any rate counterbalanced in the senate,
in the comitia, and in the cavalry.
Here we shall find it entirely effaced : the ancient tribes, whose
origin was traced from race (ex generibus), gave place to the
new tribes of Servius, determined by locality (ex locis).
72. The city, the boundaries of which were extended by
Servius Tullius so as to enclose the seven hills, was divided into
four tribes : the Palatina, Collina, Esquilina and the Suburana.
Though origin was no longer the principle of division, yet, as a
matter of fact, the districts assigned to the first three were those
occupied by the three ancient tribGS. 1 These are the four urban
tribes, which with the growth of the city were gradually ex-
panded, but were never increased in number.
73. The country around Rome, occupied by persons enjoying
the rights of citizenship, was in like manner distributed into dif-
ferent districts, each with its separate name. These formed the
rural tribes, which gradually increased in number with the ex-
tension of the city. The number in the time of Servius Tullius
is uncertain ; Dionysius of Halicarnassus, relying upon certain
authorities, amongst whom was Cato, fixes it at twenty-six,
which, with the four urban tribes, would give thirty at this
early period. 2 But Livy, whose statement is much more in
harmony with the general course of Roman history, and so
1 Vide supra, 21. > Dion. lib. iv. 19.
THE HISTORY OF ROMAN LAW. 69
explicit as to render him the best authority, tells us that it
was in proportion as the rights of citizenship were accorded to
the occupants of adjoining territories and towns, ordinarily at
the close of a census, that new tribes were added. In this way
they would gradually extend throughout Italy, and, as a matter
of fact, they did so extend as far as the sea, the river Arno and
the Apennines. They usually took the name of the place where
they were formed. From the time that there were in all twenty-
one tribes, Livy gives an exact account of each subsequent ad-
dition till they reach their final number, thirty-five. 1
74. It was a bond of union between citizens to be members
of the same tribe. It was by tribes that taxes were levied and
the legions recruited ; each tribe had its peculiar religious system
and sacrifices. 2 As the members of the same curia called each
other curiales, so the members of a tribe styled their fellows
tributes, " tribulis meus;" and we often find in the official
designation of a citizen the name of his tribe either inserted
between or placed at the end of his other names. 3
75. In the time of Servius the tribes did not form an assembly
for the purpose of voting in the comitia, for then the votes were
taken by centuries, the people having been divided and grouped
after the census was complete ; but a time came when the local
tribes acquired a political existence, when magistrates were
appointed by them, and new comilia were created in their
1 Livy, lib. vi. 5: " Tribus quatnor mary of the 19th book (lost): " Lus-
ex novis civibus additse, Stellatina, trum a censoribus conditnm est : censa
Tromentina,8abatina,Arniensis:e9s- sunt civium capita ducenta quinqua-
que viginti quinque tribuum numerura ginta unum millia, ducenta viginti duo
explevere (an. 367)." Lib. vii. 15: . . . Duas tribus adjecta) sunt, Velina
" Eodem anno duae tribus, Pomptina et et Quirina (an. 512)." The two last
Publilia, additae (an. 395)." Lib. viii. complete the number thirty-five.
17 : "Eodem auno census actus, 2 Dion. lib. iv. 18.
novique cives censi, tribus propter eos 3 The acts of the senate given by
additae Mcecia et Scaptia: censorcs Cicero, Ad familiar es, lib. viii. ep. 8,
addiderunt Q. Publilius Philo, Sp. Pos- furnish numerous examples : L. Villius
tumius (an. 421)." Lib. ix. 20 : " Et L. F. Pomptina annalis ; C. Septi-
duae Roma? additse tribus, Ufentina ac mius T. F. Quirina, etc. In the decree
Falerina (an. 435)." Lib. x. 9 : " Et in the 9th Philippic, 7 : Serv. Sulpi-
lustrnm eo anno conditum a P. Sem- cius Q. F. Lemonia, Ruf us. And in the
pronio Sopho et P. Sulpicio Saverrione epitaph recently discovered at Nimes :
censoribus: tribusque additae du&,Ani- " C. Mclius C. F. Volt (Voltinia)
ensis ac Terentina (an. 454)." Sum- sedatus, vivus sibi."
70 THE HISTORY OF ROMAN LAW.
midst of an entirely plebeian character. Then the repartition
of citizens into tribes, the number and the quality of those
whose names were enrolled, became of the greatest political
importance, and new expedients were sought, by the plebeians
themselves, to check the influence of numbers when represent-
ing the lowest orders. The multitude became absorbed in the
urban tribes, and consequently had but four votes, whereas the
citizens of higher rank or larger property were distributed
amongst the rural tribes, which hence became the most in-
fluential, having between them thirty-one votes in all. 1 Nothing
of this, however, existed at the time of Servius, and the urban
tribes consisted simply of the city population.
SECTION XVII.
THE KOYAL LAWS (Leges Regici) THEIR COLLECTION BY
PAPIRIUS (Jus civile Papirianum, or Lex Papiria).
76. B.C. 534. We have now nearly reached the expiration
of the regal period. The jurist Pomponius, who is confirmed by
other writers, assigns to the age of Tarquinius Superbus, the suc-
cessor of Servius, a code which, if it were in existence, we might
call the code of this period. Pomponius relates, that all the
leges curiatce promulgated by Romulus and his royal successors
down to this period, were collected by the pontiff Sextus Papirius
into one book, which received the title of " The Civil Law, by
Papirius" (Jus civile Papirianum). Consequently Pomponius
opens up the sources of Roman law by alluding to this code,
and gives a list of jurists, beginning with the name of Papirius. 2
1 Livy, lib. ix. 46 : " Fabius, simul Papirii, qui fuit illis temporibns quibus
concordiae causa, simul ne humillimo- superbus Demarati Corinthii filius, ex
rum in manu comitia essent, omnem principalibus viris. Is liber, ut dixi-
forensem turbam cxcretam in quatuor mus,appellatur Jus civile Papirianum;
tribus conjecit, urbanasque eas appel- non quia Papirius de suo quicquam ibi
lavit." adjecit, sed quod leges sine ordine la-
2 Dig. 1, 2, De origine juris, 2, 2, tas in unum composuit." Ibid. 36 :
f. Pompon. : "Et ita leges quasdam et "Fuit autem in primis peritus Publius
ipse curiatas ad populum tulit (Roniu- Papirius, qui Leges regias in unum
lus). Tulerunt et sequentes reges : qua; contulit." See also Dion. lib. iii. 50.
omnes conscripts exstant in libro Sexti
THE HISTORY OF ROMAN LAW. 71
The jurist Paul cites a commentary made by Granius Flaccus,
a contemporary of Cicero, upon the lex Papiria; 1 and Macro-
bius, in his Saturnalia, in reference to a question of religious
rites, quotes a passage from the lex Papiria itself; the Latin of
which, however, is clearly not of the time of Papirius, but was
probably derived from the commentary of Granius Flaccus or
from some other derivative source. 2
The ancient writers themselves more than once discussed the
question of these royal laws. Livy says, that after the city was
destroyed by fire by the Gauls B.C. 390, in which conflagration
the writings of the pontiffs and other records, both public and
private, perished, one of the first anxieties of succeeding ma-
gistrates was to collect all the treatises and laws that could
be found. Their efforts resulted in obtaining copies of the
Twelve Tables and certain royal laws. 3
Cicero speaks of certain of the religious laws of Numa as
being preserved upon monuments still existing in his time.*
(B.C. 106 to B.C. 43.)
Festus quotes the text of a law ascribed to Numa ; 5 but the
most important fact is, that in the Digest of Justinian there are
two fragments, the one from Papinian, the other from Mar-
cellus, which contain quotations from the lex regia. 6
Though the fact of the existence of these codes is thus attested,
the same cannot be said either of their origin or of their true
1 Dig. 50, 16, De verborum signifi- (Numa) legum etiam scriptor fuisset,
catione, 144, f. Paul : " Granius Flac- quas scitis exstare." Tacitus mentions
cus in libro de Jure Papiriano scribit, a religious law of King Tullus in his
. . ." etc. Annals, lib. xii. 8, and gives in a few
3 Macrobius, Saturnalia, lib. iii. ch. words a general view of the enactments
11: "In Papiriano enim Jure evidenter of the different kings, lib. iii. 25.
relatum est, arte vicem prastare posse 5 Festus, on the word Parici : " Id
mensam dicatam : ' Ut in templo,' in- autem fuisse indicat lex Numa3 Pom-
qnit, . . ." etc. (Then follows the pilii regis his composita verbis : SlQUlS
quotation.) HOMINEM LIBERUM DOLO SCIENS
3 Livy, lib. vi. 1 : " In primis, foe- MOETI DUIT PAKICIDA ESTO." See
dera ac leges, erant autem etc duodecim also the word Termino.
tabulaj et quasdam regiaj leges, conquiri, 6 Dig. 11, 8, De mortno inferendo,
qua? compararent, jusserunt." 2, f. Marcell. : "Negat lex rcgia, muli-
4 Cicero, DC repnblica, lib. ii. 14 : erem qua? praegnans mortua sit, humari
" Pompilius . . . et animos, propositis antequam partus ei excidatur." Col-
legibus his quas in rnonumcntis habc- latio leg. Mas. et Roman., tit. 4, 8,
mns, ardentes consuetudine et cupidi- f. Papinian. : " Quum patri lex regia
tate bellandi. religionum ca?rimoniis dedcrit in filium vitas necisque potesta-
mitigavit." Ibid. lib. v. 2 : " Qui tern."
72 THE HISTORY OF ROMAN LAW.
character. Were they or not confined to matters of religion?
Were they perhaps nothing more than an apocryphal version
drawn up by the pontiffs ? Was the collection made by Papirius
confined to Pontifical law, or did it, as its title would seem to
indicate, embrace the entire law ?
Such are the questions that perplex the critic. These
records are completely lost, and we know little more of the
leges regice than their name. The reconstruction that has been
attempted from the imperfect materials left us by ancient
writers is nothing more than a speculation of modern ingenuity.
That the subject, however, does admit of serious consideration
is shown by the labours of M. Dirksen, in his Essay upon the
Sources of Roman Law (1823).
Pomponius says the leges regice were abolished, after the
expulsion of the kings, by the lex Tribunicial
77. B.C. 510. According to Roman narrative two-and-a-half
centuries had scarcely passed since the foundation of the city ;
seven kings only had occupied its throne, when it was destined
to undergo a revolution of the most striking character. Hitherto
the royal authority had been the check to the overbearing in-
fluence of the patricians. Servius had given the death-blow to
supremacy of race. Tarquin, surnamed " the Proud," was still
less willing to bend to the patrician will. The poppies which
elevated their heads above their fellows were to be struck down.
The struggle was between the aristocracy and the crown. The
plebeians, on their part, were oppressed under the yoke of their
task-masters like the Egyptians under their Pharaohs, or rather
like the Etruscans under their lucumons ; and, toiling in trenches
and subterranean passages, they erected monuments which still
exist to testify to their labours the conquerors of nations con-
verted into hewers of wood and drawers of water. 2 The senate
and the patricians seized the opportunity that presented itself.
The attempt made upon the chaste Lucretia fired the indig-
nation of the people and Rome became a consular republic.
1 Dig. 1, 2, Deorlg.jur., 2, 3, f. in fossas cloacasque exhauriendas de-
Pomp, mersaj. Romanes homines, victores
2 Livy, lib. i. 59 : " Addita superbia omnium circa populorum, opifices ac
ipsius regis miseriocque ct labores plobis, lapicidas pro bellatoribus factos."
THE HISTORY OF ROMAN LAW. 73
Before we proceed to the consideration of the second period,
let us review the past, and, bringing together in one line of vision
the point from which the Romans started, and that at which
they have now arrived, let us scan their political development
and glance at the progress made in their institutions and
manners.
REVIEW OF THE PRECEDING PERIOD.
FOREIGN POLICY.
78. The early policy of Rome was aggressive. The small
adjoining boroughs and the larger towns by which it was sur-
rounded were destroyed, and their inhabitants transported to
Rome, there to enjoy equal rights with their conquerors. At
this time the privilege of a Roman citizen, shared even by the
vanquished, was not the coveted distinction it afterwards be-
came.
When Rome had acquired a population and a territory which
gave it rank among surrounding states and enabled it to extend
its limits, instead of destroying the towns it subjected and im-
porting their inhabitants into Rome, it established Roman
colonies in those places in imitation of the practice of other
Italian nations. It was in this way that the Umbrians, the
Etruscans and the Sabines had propagated their respective races
and extended their power in different parts of Italy.
The proletarii and the enfranchised, amongst whom a portion
of the lands taken from the conquered as spoil of war was divided,
were sent out to occupy the newly -acquired territory. The
conquered inhabitants, left in the enjoyment of the residue of
their ancient possessions, were in some instances admitted into
and formed part of the new Roman colony ; in others they were
suffered to live side by side with their conqxierors, by whom
they were governed. These colonies at the same time served
as outposts to the metropolis, protecting its territory and facili-
tating its future conquests. Under the kings they were few in
74 THE HISTORY OF KOMAN LAW.
number, and but little is known of the way in which they were
governed : they rapidly increased, however, under the republic.
The first Roman maritime colony was Ostia, founded at the
month of the Tiber by Ancus Martius between B.C. 640 and
617. 1
79. In order to escape the barbarities then attending con-
quest, the destruction of their city, the loss of their lands, the
distribution of their property as booty amongst the victorious
soldiery, and slavery, it was not an uncommon thing for a people
to surrender at discretion. Those who adopted this course were
termed dediticii. Livy gives us the precise formula employed
upon the occasion when the people of Collatia submitted to
the Romans under L. Tarquinius : " The king demanded :
Are (not) you the ambassadors and orators sent from the people
of Collatia? We are. Are the Collatians an independent
people? They are. Do you deliver yourselves, the Collatian
people, your city, your lands, water, boundaries, sanctuaries,
utensils, your property, whether sacred or secular, to me and
the Roman people as a gift ? We give them. I then receive
them." 2
The people who thus yielded were treated with more or less
generosity, according to the circumstances, which varied in each
case.
80. The policy by which a conquered city was destroyed, or
turned into a colony, or forced into voluntary surrender, was
not, of course, carried out with the neighbouring people who
were powerful enough to contend with them on equal terms.
Vanquished in one engagement, they almost immediately re-
turned to the struggle ; nor did fortune always favour the
Romans, for notwithstanding the colour given to these events
in Roman annals and tradition, evidence is not wanting of oc-
casional failure.
1 Vide supra, 48. Est. Deditisne vos, popnlum Collati-
2 Livy, lib. i. 38 : " Rex interroga- num, urbem, agros, aquam, terminos,
vit : ' Estisne vos legati oratoi'esque delubra, utensilia, divina humanaque
missi a populoCollatino ? Sumus. Est- omnia, in meam populique Romani diti-
ne populus Collatinus in sua potestate ? oncm ? Dcdimus. At ego rccipio.' "
THE HISTORY OF ROMAN LAW. 75
The obstinate resistance of these powerful neighbours and the
incessant conflicts that took place form almost the sole theme
of the Roman historians of the regal period. These struggles
frequently resulted in treaties of alliance, by which the Romans
guaranteed to their opponents the enjoyment of their own laws,
their government and their independence ; although they were
annexed as federal states, each being bound to assist the other
against the common foe. It was thus that at a very early
period the Romans and the Latins were united, which union,
more accurately defined at a later epoch, served as the type
and standard of certain conditions in the status of persons at
Rome (Latini, vetus Latiurn). It was in this manner that
Rome, with a contracted territory and with but comparatively
few citizens, was defended from external enemies by colonies
which had no share in its government, and was supported in
Latium by federal allies.
PUBLIC LAW.
81. We find in Rome three political bodies, each having
distinct prerogatives : the people, the senate, and the king.
The people consisted of two castes, the patricians and the
plebeians, amongst whom a third order, the knights, early ap-
peared and exercised a powerful influence under a double aspect;
an aristocracy of race on the one hand and on the other a class
deriving its influence from the possession of property and from
seniority of age.
The senate, the supreme council of the aristocracy, at first
composed of a hundred patricians, was subsequently extended
to three hundred by the admission of the new element (patrcs
minorum gentium), who ranked below the former (patres ma-
jorum gentium). This council asserted the right of controlling
the power of the kings, whom it held in its tutelage, and ulti-
mately overthrew. The kings were not hereditary, but were
nominated in the comitia, received the auctoritas of the senate,
and were invested with the imperium by the lex curiata.
82. The respective prerogatives of these three political bodies,
76 THE HISTORY OF ROMAN LAW.
though not determined by any positive law, are generally defined
in the following manner:
The people elected the kings, sometimes gave their consent
to declarations of war or peace, affirmed or negatived the passing
or repeal of laws, subject however to the auctoritas of the senate,
which was necessary to give validity to the proceeding.
The senate was consulted upon all important matters of ad-
ministration ; it suggested alterations of the law ; declarations of
war and negotiations for peace were submitted to it before being
laid before the people ; the decisions of the comitia required its
auctoritas or approbation, by which it united with the people
(auctor fit) to give executive force to their decisions. Its de-
crees were called senatus-consulta.
The king had the command of the army ; he convoked the
comitia and the senate, caused the laws to be executed and jus-
tice administered, and frequently, as sovereign pontiff, presided
at religious ceremonies.
83. The modern division of sovereign power into several
distinct branches and their independent operation had no place
in the government of Rome. This subtle analysis, which is the
result of an advanced civilization, and especially of the meta-
physical tendencies of a later age, had not entered the mind of
the Romans. But if, in order to form an estimate of the actual
condition of these institutions at this time, we apply this analysis,
we shall obtain the following results:
LEGISLATIVE POWER. This was exercised by the king, the
senate and the people. The king appears usually to have taken
the initiative. All projects were, however, examined and dis-
cussed in the senate before the convocation of the people. These
latter deliberated, at first in the assembly of the curies, comitia
curiata, where, by a system the principles of which are un-
known to us in detail, the suffrage was taken ex generibus, and
where the preponderance was secured to the old patrician caste;
later, in the assembly of the centuries, where the suffrage was
taken according to the census and to age, ex censu ct estate, so
that by an ingenious distribution the elder, though fewer in
number in each section, were put on a par with the younger;
THE HISTORY OF ROMAN LAW. 77
and in the assembly generally the rich, though fewer in number,
had the majority of votes. Furthermore, the comitia centuriata
did not absorb the curiata; the two institutions existed side by
side and formed the first source of Roman law, while the
senate, by the addition of its auctoritas to their decrees, gave
them the force of law.
THE EXECUTIVE was chiefly confided to the king, who never-
theless was subject to the advice of the senate in administrative
affairs, and was obliged to obtain the consent of the people in
matters of peace and war.
THE JUDICIAL Power, as a general rule, was vested in the king :
he heard and determined private disputes either in person or by
patricians whom he nominated for the purpose. Criminal mat-
ters which involved the life of a citizen were frequently sub-
mitted to the arbitration of the people. We have an example
of this in the trial of Horatius, if we can accept the testimony
of history.
To these three powers must be added a fourth, which, though
distinct from the other three, forms their basis, and must be
regarded as their superior.
THE ELECTORAL POWER. This electoral power did not in
primitive times assume the phase familiar to us in our own days,
that is to say, as applied to the election of mandatories charged
to represent the electors in a public assembly, but was applied
to the election of the high functionaries of the state. In the
earliest period it was lodged in the aristocratic assembly of race,
the comitia curiata. The nomination of the king was thus made
with the co-operation of the senate, which gave its auctoritas.
SACRED LAW.
84. At Rome the rites and ceremonies of religion entered
into international, public and private law ; the king, as pontifex
maximus, presided over sacred matters, and numbers of the
highest patrician families enjoyed sacerdotal appointments, the
tenure of which, it must be remembered, was not for the most
part incompatible with that of other public offices. There were
three principal institutions connected with sacred law to which
attention must be directed.
78 THE HISTORY OF ROMAN LAW.
1st. The college of the pontiffs. This college was at first
composed of four members: one of these, the president, was
called the high pontiff (pontifex maximus}. It was the head
of the sacerdotal hierarchy, having a religious jurisdiction over
the entire priesthood, and many matters, both public and pri-
vate, which were intimately connected with religion ; such, for
example, as adoptions, funerals, the religious obligations due
by each family to its gods and to its household deities.
It was the duty of the pontifex maximus to commit to writing
the principal events of each year, and to expose them upon an
album or white tablet which was suspended in his house, and
generally to keep these annales maximi, which have proved one
of the few sources of information, concerning this period, open to
the poet and the historian of later date. 1
The pontifical dignity, which was confined to the patricians,
was conferred for life. The election to vacancies was made by
the remaining members, it being a self-electing body. 2 The
election of pontifex maximus from among their number was,
however, made by the comitia. At what period this practice
commenced is uncertain; that such was the case in later times
is clear, but that it was so at this epoch is mere conjecture.
2nd. The college of the augurs consisted at this period of
four members, whose chief duty was to consult the heavens
previous to any important enterprise. More than once we have
seen them dissolve an assembly or stop a general on the eve of
an attack, because the omens were not propitious. At the time
of the division of the people into three tribes, each of the three
furnished an augur. 3 When the old divisions were replaced by
the four local tribes of Servius, they became four in number, or
one for each tribe.
3rd. The college of the feciales. The duty of these officers
was confined to international law, in relation to treaties of
alliance and war.
1 Cicero, De oratore, lib. ii. 12: scendi ; ii, qui etiam nunc Annales
" Ab initio rerum Romanarum usque maximi nominantur."
ad P. Mucium, pontificem maximum, 2 Dion. lib. ii. 75.
res omnes singulorum annorum manda- 3 Cicero, De republica, lib. ii. 9:
bat litteris pontifex maximus, effere- " Ex singulis tribubus singulos coopta-
batque in album, et proponebat tabulam vit augures (Romulus)."
domi, potestas ut esset populo cogno-
THE HISTORY OF ROMAN LAW. 79
PRIVATE LAW.
85. We have no documents whatever throwing light upon
the private law of this period. History, it is true, ascribes to
the kings some important enactments passed in the comitia
upon marriage, the paternal power, and the rights of creditors
relatively to their debtors ; but the accuracy which is essential
to the study of this subject cannot be found in vague and uncer-
tain tradition. The existence of these unknown laws is contro-
verted, and generally it may be said that the private law of this
period is comprised in the manners and customs of the people.
Any attempt to describe it in detail would, in all probability,
result in attributing to this period institutions belonging to a
later epoch.
MANNERS AND CUSTOMS.
86. It appears to have been an universally admitted principle
that each city should have its own laws confined to its own
citizens. The connubium, or right of marriage, did not exist
between males and females of different cities unless by special
agreement between those cities. Thus it was that the primitive
Romans, according to tradition, were compelled to resort to
ambuscade and force in order to carry off their first wives. The
commercium was no doubt in the same condition, that is to say,
without a special arrangement between two cities, the inhabitants
of the one could not legally convey any property to those of
another or make binding engagements with them. The law
peculiar and exclusively belonging to Roman citizens was termed
the law of the Quirites (Jus Quiritium).
87. It will be asked, were the juridical customs, the rules for
the regulation of families, concerning property and obligations
the same for the patrician and the plebeian? We answer that
all the evidence tends to prove that they were different; that
not only in public but in private law the plebeian was separated
by a broad line from the patrician. Any attempt to specify
details would end in conjecture; however, we have sufficient
material to enable us to obtain a correct idea of the most im-
80 THE HISTORY OF ROMAN LAW.
portant points of distinction between the private status of the
two castes.
On the one hand, the patrician could boast an origin coeval
with the foundation of Home ; he could point to one of the old
nobles as his father (gui patrem ciere possunt, id est, nihil ultra
guam ingenui)\ in tracing his lineage step by step back to the
progenitor of his race, he could say that none of his ancestry
had been tainted by vassalage (quorum majorum nemo servitutem
ser vivify; and his race, having no genealogy but its own, con-
stituted it a gens (vos solos gentem habere), which included both
the plebeians subject to it by the ties of clientage and the en-
franchised, to whom it had given liberty a double class of
dependants to whom the gens communicated its name and rites
(sacra gentilitia) to whom the head of the gens was a patron,
a civil father and a chief (pater).
On the other hand the plebeian of doubtful or servile origin
was frequently unable to say whence he came ; he could in no
instance trace his lineage back without coming to a client who
had been enfranchised, or to one whose origin was lost ; he thus
had no gens of his own, and generally traced his stock from a
dependant of some patrician gens.
Such is the radical difference between the two castes, the
basis upon which rests the distinction between public and pri-
vate legal rights; and such were the plebeians who, in course
of time, increased in number and strength, till at length they found
themselves in a position to contest step by step the right to
equality with their patrician superiors.
88. All private law among the Romans was based upon one
idea. The hand (manus) was the symbol of power. Chattels,
slaves, children, wife and freedmen, all were subject to the chief
in manu an expression which, at a later period, acquired a
more special signification. But the means by which the warrior
acquired power and was enabled to get his property within his
grasp (manu capere}, was by the lance, the wielders or possessors
of which were the Quirites a symbol that long remained in use
after the actual prototype had disappeared. Even in the solem-
nities of marriage, long after these primitive times, it was the
THE HISTORY OF ROMAN LAW. 81
custom to pass a lance over the head of the bride, in token of
the power over her (manus) her husband was about to acquire. 1
That which we now call property bore a name very expressive
of the then state of civilization mancipium, which was applied
at the same time to the object of possession and to the power of
possession itself (manu captuni).
89. As the lance represented acquisition by violence, so there
was a remarkable symbol which occupied a most important
position in connection with a transaction of private law the
peaceable transfer of possession (manus) over property (man-
cipium). We allude to the ceremony with the piece of brass
and the balance, per CBS et libram, called nexum, mancipium,
and at a later period mancipatio. Here we have a relic of
the time when money passed by weight a libripens holds the
balance, five citizens, representing perhaps the five classes of
the census, are present as witnesses; the metal is given and
weighed; certain words containing the law of the contract,
lex mancipii, are pronounced, and the manus, the power, is
transmitted from the seller to the buyer. Money, which had
long been in use amongst the Italian nations, was early adopted
by the Romans, and copper coins, bearing the impression of an
ox or a sheep, whence the term " pecunia," were early intro-
duced; yet the solemnity per ces et libram was retained, and,
although symbolical, regarded as necessary.
90. As on the one hand manus was the basis of Quiritarian
private right, so on the other mancipatio, or the solemnity per
CBS et libram, was the form chiefly used for the establishment, the
modification or the extinction of rights. By it interests in land
were acquired, the property in beasts of burden or of draught
was passed, slaves transferred, and the power over the wife or
the freedman established; by it civil obligations were contracted,
and the validity of the last will or testament depended upon its
proper observance.
1 Festus, on the word Celibari: ma armorum et imperil est." Festus
" Celibari hasta caput nnbentis come- gives also several other explanations of
batur . . . quod nuptiali jure imperio this usage, but this is the correct one.
viri subjicitur nubens : quia hasta suin-
G
82 THE HISTORY OF ROMAN LAW.
This solemnity was in many instances purely plebeian, and by
it the inferior class was enabled to arrive at results attained by
the higher through means considered more dignified. Thus,
while the patrician wife passed into the power of her husband
by the religious ceremony termed the confarreatio, the character
of which and the attendant symbol are full of dignity and nobi-
lity, and which qualified the children of the marriage to under-
take high sacerdotal functions, the plebeian woman was sold to
her husband for a piece of brass weighed out in the balance per
ces et libram, or might be acquired as a chattel by possession for
one year. So, while the curies were convoked to hear a patri-
cian declare his testament, to deliberate whether the disposition
he desired to make was consistent with the interests of an aristo-
cratic family, whether the nominated heir was worthy of admis-
sion after the death of the testator to the place occupied by him
in the corporation; while, in fact, the testament of a patrician
was regarded as nothing less than a law of the curia, the plebeian
testament consisted of a sale during his life per CBS et libram of
his estate, to take effect upon his death. By this ceremony
also the plebeian bound himself or his children either to redress
a wrong, to raise money, or to give security for money bor-
rowed.
91. But the most striking feature of Roman manners is the
family. Grouped around its chief, subject to his despotic rule,
it exists, a small isolated body complete in itself, surrounded by
the other component parts of the general body of society.
The head, paterfamilias, is alone in private law capable of
having rights or obligations. All under his power are but his
agents, his instruments. He is sole proprietor of the property
in his or their possession: even the persons constituting his
household are his property. His slaves, his children, his wife
and his freedmen are under his immediate power and control.
Around him, though not so intimately connected with him,
are his enfranchised, and, when the pater is a patrician, his
clients. To this state of things several institutions, to which
constant reference is made in the civil law relating to persons,
owe their origin.
THE HISTORY OF ROMAN LAW. 83
1st. Slavery, which introduced into the state and into families
a class of human beings almost destitute of rights, who, like
any other ordinary chattels, could be disposed of by the owner
at will an institution, though contrary to nature, yet common
to all nations of the period.
2nd. The paternal power, which was of peculiar force among
the Romans ; for it made the father supreme over his son what-
ever might be his age, as also over his son's children and the
fruits of his labour, and extended even to the power of life and
death.
3rd. The marital power, when the woman passed under the
authority of her husband a power perhaps less absolute than
either of the two former, because it was moderated by the
influence of the wife's relatives.
4th. The power over freemen, who, though ranked by the
state as free, could, as to the family, be subject to the chief, its
head, reduced to a species of property and assimilated to slaves.
"Whether we regard them as children or other dependants sold
or abandoned per ces et libram by their chief, or as debtors who,
in default of payment, were adjudicated by the magistrate to
their creditors (addicti}, or as those who voluntarily sold them-
selves per (Bs et libram for a given time to creditors in satisfac-
tion of their debt, nexi.
5th. Enfranchisement, which transferred a person from the
condition of a chattel to that of a free man without at the same
time severing all the ties and obligations which bound him to
his ancient master. Thus was created in Rome a peculiar class
of citizens, which retained through several generations the im-
press of their original slavery. It is not known how enfran-
chisement was effected prior to the institution of the census.
After that period it was accomplished by simply writing the
name of the individual in the census or list of citizens. Diony-
sius ascribes to Servius the admission of the enfranchised to the
rights of citizenship and their inscription in the urban tribes. 1
6th. Clientage was a condition at the same time political and
private, by which the plebeians were subject to the superior
1 Dion. lib. iv. 26.
G2
84 THE HISTORY OF ROMAN LAW.
race, and distributed amongst their families as dependants of
the patrician gentes. The client and his descendants became a
part of his patron's gens : they assumed with a terminal modi-
fication its name and adopted its peculiar rites (sacra gentilitia) ;
and in default of natural heirs the gens became the successor.
The patron and his client were bound by mutual obligations,
and religion and custom clothed these duties with so sacred a
character, that he who violated them when human sacrifices
were in vogue was publicly immolated at one of the religious
festivals : sacer esto.
The patricians alone had clients, and in the earliest period of
Roman history every plebeian was attached by this bond to some
aristocratic gens ; in the course of time, however, the new order
of plebeians steadily increasing, and being free from such ties,
absorbed these first germs of the Roman population. The
gentes, the first race, and their dependants the plebeians, the
nucleus of the Roman people, disappeared, and with them real
clientage was gone, having been transformed by the course of
time and the progress of civilization into an institution existing
merely in name, sustained only for ostentation and intrigue.
92. If from the condition of persons at this period we pass
to that of property, our attention will be first arrested by the
Ager Romanus or Quiritarian land. The Quiritarian title to
land could only be enjoyed by Roman citizens, and was confined
to certain lands. The different kings of Rome, Romulus,
Ancus, Tarquinius Priscus and Servius Tullius, are represented
by the historian as tracing and successively extending the limits
of this Ager Romanus, and dividing it amongst the citizens in
allotments, either to the several curies or to separate individuals,
viritim. 1 The Quiritarian land ceased to increase in extent
from the last survey made by Servius Tullius. 2 In vain did
Rome by conquest after conquest invade the world and extend
the limits of its dominion, the Ager Romanus remained as it
had been fixed. And no greater favour could be granted by
the maternal city than the endowment of other land with a par-
1 Dion., Antiquit., lib. iii.l. Cicero, 9 Dion. lib. iv. 13.
De repiiblica, lib. ii. 14, 18.
THE HISTORY OF ROMAN LAW. 85
ticipation in the privileges of the Quiritarian law in imitation
of the Ager Romanus. And tradition, overlooking modifica-
tions introduced by successive changes of race, of civilization
and of language, at this day points out to the traveller at Rome
the Agro Romano. 1
We must be careful to distinguish the Ager Romanus from
the Ager publicus, or state lands, which belonged to the people
collectively. These were lands reserved for pasturage or uses
in common, to be worked for the public advantage or to be held
of the state, either gratuitously or at a rent. These are the
lands of which the patricians took possession and for which they
refused or neglected to pay the rents, while they transmitted
them, if not as Quiritarian property at least as a hereditary
possession to their posterity ; and these are the lands of which
the plebeians so constantly demanded the division. This public
land extended in proportion to the success of the Roman arms.
The confiscation of the territory of the vanquished, in the
absence of more favourable terms, is a part of the law of war,
and all conquered lands, before being granted to private indi-
viduals, were Ager publicus, so that in this way the term might
have come to embrace the known world.
It is therefore erroneous to say that Rome had not at this
time a civil law. It may be true that it was not a written law,
however it was the common law, and was so deeply rooted in
custom as to be the germ of all subsequent legal growth.
1 Varro, De lingua latind,l\b. v. 33. public! disserunt agrorum sunt genera
He tells us how they distinguished by quinque, Romanus, Gabinus, Peregri-
the aid of the science of augury different nus, Hosticus, Incertus," &c., and gives
kinds of agcr : " Ut nostri augures the explanation.
THE HISTORY OF ROMAN LAW.
SECOND PERIOD.
THE REPUBLIC.
I. TO THE PASSING OF THE LAWS OF THE TWELVE TABLES.
93. IT is impossible for several distinct powers to exist side
by side in the same state without rivalry and antagonism. If
there are three, two of them will unite to destroy the third.
Are there but two, the struggle is only the more severe.
Rome furnishes us with an illustration of this. Of the three
political bodies we have seen existing in the state, the patrician
and plebeian alone remained at the epoch at which we have
arrived. They had united in their efforts to overthrow the
kings, and they then entered upon that protracted contest with
each other, in which the patricians, who were at first in sole
possession of all the honours, privileges and dignities of the
state, beheld them one by one taken away or shared by their
opponents, the plebeians. It was a struggle which, originating
in the liberation of the two orders from regal authority, termi-
nated in their subjection to imperial despotism (B.C. 509). It
would appear at first sight as if the government had undergone
but slight change. There was no apparent innovation in the
comitia, in the senate, or in the administration generally. The
regal authority had only been transferred to two consuls, elected
like the kings themselves by the people, but whose power was
limited to one year. The position, however, of the nobles, and
the spirit of the citizens, were completely altered, and all that
followed turned upon this transformation. If we can credit
Livy, Servius had conceived the project of abdicating in order
himself to establish the consular form of government ; and, ac-
THE HISTORY OF ROMAN LAW. 87
cording to him, this change was effected by the comitia of the
centuries, but although the form remained the same the spirit
had entirely changed. 1
The consuls, though in certain respects we might agree with
Cicero in calling them two annual kings, were in reality far
from occupying the place of kings. These functionaries, su-
perior to the senators and the plebeians, had constituted in them-
selves an independent political body, and had established an
equilibrium between themselves, the people and the senate.
The consuls, on the other hand, were patricians; they were
controlled by the senate and transacted nothing except under
its influence. The equilibrium, therefore, had to be established
between the senate and the people, and the regal functions
which had been exercised by the kings had to be shared between
the two remaining political bodies.
The senate augmented its executive power; the administra-
tion was concentrated within it ; to it was entrusted the duty of
contracting all treaties with allies and with enemies ; in a word,
it held the helm of state. The revolution was in fact an aristo-
cratic revolution. It was the patrician caste that gathered its
first fruits, and the senate, adopting the expression of Cicero, so
controlled the republic, that everything was done by its authority
and nothing by that of the people. 2
The people, however, believed themselves free. They had,
in fact, tested their strength ; they knew that they made laws
and magistrates ; they knew that the yoke which they had im-
posed upon themselves they could when they should think fit
cast off. In appearance, they had increased their independence,
and they flattered themselves their power also. The fasces of
the consuls were bowed before them ; the pain of death awaited
1 Livy, lib. i. 48 : " Id ipsum tarn rcmpublicam tcmporibus illis, ut in
mite ac tarn moderation imperium, ta- populo libcro pauca per populum, pie-
men, quia unius esset, deponere euin in raque scnatus auctoritate et institute ac
animo habuisse qnidam auctorcs sunt ; more gererentur, atque uti consules po-
ni scelus intestinum liberanda; patrina tcstatem habercut tempore dnntaxat
consilia agitanti intervenisset." 60: annuam, genere ipso ac jure regiam.
"Duo consules inde comitiis ccnttiria- Quodque erat adobtinendam potentiam
tis a prafecto Urbis ex commcntariis nobilium vel maximum, vebementer id
Servii Tulli creati sunt, L. Junius rctincbatur, populi comitia ne essent
Brutus et L. Tarquinius Collatinus." rata, nisi ea patrum approbavisset
2 Cicero, De rcpuMica, lib. ii. 32: auctoritas."
" Tenuit igitur hoc in statu scnatus
88 THE HISTORY OF ROMAN LAW.
him who dared to take upon himself the office of magistrate
without their consent ; death was the penalty of aspiring to
royalty ; and to them there lay the right of appeal against the
sentence of any magistrate who should condemn a citizen to
death, to exile, or to the scourge.
SECTION XVIII.
THE VALERIAN LAWS (Leges Valeria}.
QUESTORS or HOMICIDE ( Quatstores Parricidii).
94. The laws passed at this period, owing to the influence of
the people, are known as the Valerian Laws, because it was on
the motion of the Consul Valerius Publicola that they were
decreed by the centuries Leges Valerias the last of which in
order first demands our attention.
This law prohibited any sentence depriving a citizen of life,
liberty or the rights of citizenship from being pronounced irrevo-
cably by a single magistrate, and established in all such cases
the right of appeal to the people in comitia by centuries (pro-
vocatio ad populurn). But did not this right, which Livy dig-
nifies as the unicum prcesidium libertatis, exist under the
kings? Several historians are of opinion that it did, and
Cicero, in his Republic, says : " Provocationem autem etiam a
regibus faisse declarant pontiftcales libri, significant nostri
etiam augurales"
The Valerian law transformed into written law that which
had been previously a mere custom, frequently neglected, or
perhaps respected only where the rights of the patrician caste
were involved.
As it was prohibited to create any magistrate without the
right of provocatio, a breach of this law might be punished
capitally and the offender put to death with impunity. 1
1 Cicero, De republica, lib. ii. 31. tione creasset: qui creasset, eum jus
Dig. 1, 2, De origine juris, 2, 16, f. fasque esset occidi : neve ea csedes
Pompon. Livy, lib. iii. 55 : " Ne capitalis noxee haberetur."
quis ullum magistratum sine provoca-
THE HISTORY OF ROMAN LAW. 89
95. Any private individual, equally with a magistrate, was
at liberty to prosecute before the people for capital crimes ; the
comitia, however, frequently delegated their power to citizens
called qucestores parricidii, whose duty it was to preside at the
investigation of these charges (qui capitalibus rebus prceesseni),
direct the proceedings, and deliver judgment in the name of the
people. 1 Parricidium signifies at this period paris-cidium the
murder of one's equal homicide ; and not, as in later times,
patris-cidiumthe murder of a father patricide. In Festus
we find this law ascribed to Numa, " Si quis hominem liberum
dolo sciens morti duit, parricida esto."
96. The Valerian law did not apply to foreigners or slaves,
who could be punished, scourged, or put to death by the con-
suls upon their own authority ; nor was it in force beyond one
mile from the city, 8 consequently it ceased to apply to the army
as soon as it had passed this limit; indeed, had such a barrier
been opposed to the imperium of the general, the rigid discipline
for which the Roman army was so conspicuous would soon have
been destroyed ; and, lastly, it did not reach the paternal power
(patria potestas). Hence the anomaly that a man, who could
not be capitally punished by the state except by the will of the
whole people, might be put to death by the order of his father.
SECTION XIX.
QlLESTORS OF THE PUBLIC REVENUE.
97. To the same consul Valerius is also ascribed the creation
of a new magistracy. Hitherto the guardianship and adminis-
tration of the public revenue had been entrusted first to the
kings and subsequently to the consuls. On the motion of
Valerius two quasstors were appointed by the people expressly
for these duties. They were called quaestors because it was
their duty to seek and collect the public taxes (qui pecunice
1 Dig. 1, 2, De origine juris, 2, 23, provocationem esse longius ab urbe
f. Pompon. mille passuum."
2 Livy, lib. iii. 20 : " Neque enim
90 THE HISTORY OF ROMAN LAW.
prcsessent), as those whose duty it was to seek out evidence in
cases of capital crimes had been called quaestores parricidii. 1
The creation of this office was the beginning of the dismember-
ment of the consulate: it was at first exclusively confined to
patricians, and became the first step to the highest dignities.
SECTION XX.
DICTATOR, OR MASTER or THE PEOPLE (Dictator, Ma-
gister Populi).
MASTER OF THE CAVALRY (Magister Equitum).
98. Tarquin did not remain inactive after his expulsion.
The wars that he waged against the Romans compelled them
to exert all their energies, and at the end of nine years from the
downfal of the throne, menaced from without by a powerful
army collected against them by the son-in-law of Tarquin, and
while the safety of the republic was equally in danger from
internal dissension between the two orders, the senate resorted
to vigorous action, and, following a Latin example, created a
new officer, called the dictator.
99. (B.C. 501.) Acting upon the authority of the senate, the
consuls selected from among the patricians a dictator, who was
invested for six months with supreme power. As chief magis-
trate, he ruled Home; as general, he commanded the army.
The axe was restored to the fasces of his lictors : he could con-
demn citizens to the scourge, exile or death without the appeal,
provocatio ad populum. The appeal to a colleague, as in the
case of the consuls, no longer existed ; for the dictator possessed
the sole authority: his word was law. 2 In this way the patri-
cians escaped the operation of the Valerian laws, which were
secured to the plebeians upon the expulsion of the kings; in
this way they recovered for a brief space their power and the
1 Dig. 1, 2, De origine juris, 2, 22, sent, alterius auxilium, ncque provoca-
f. Pompon. tio erat ; neque ullum usquam, nisi in
3 Livy, lib. 2, 18 : " Neque enim cura parcndi, auxilium."
ut in consulibus, qui pari potestate es-
THE HISTORY OF ROMAN LAW. 91
title " master of the people" (magister popult], which we find in
the earlier Roman writers, but which the force of custom re-
placed by a less significant appellation, attests the character of
this office. 1 An authority so absolute was well calculated to
save the state in a trying crisis: hence we find resort was had
to this measure on all subsequent occasions when the common-
wealth was in danger ; but it had also a tendency to arbitrary
despotism, and did in fact terminate in this: not, indeed, so
long as the dictators, citizens of the republic, thought only of
its salvation, and laid down their fasces when a crisis had passed
or their term of office had expired, but at a later period, when
generals fought for themselves or for a party.
1 00. The dictator was provided with a lieutenant, whom he
was at liberty to select, and who was styled the " master of the
horse" (magister equitum) a military office whose origin was
said to date from the time of the kings and to have existed even
under Romulus. 2 It is worthy of notice that this mounted
lieutenant headed the young nobles, of whom the cavalry mainly
consisted, whereas the dictator, whether in the city or in the
field, marched on foot, preceded by his twenty-four lictors, at
the head of the infantry, who were plebeians, thus appearing
rather to command them than the patricians.
101. But be that as it may, the office of dictator, as also
that of the master of the horse, was like all other high offices
confined to the patrician order, and to it was attached the dis-
tinction of the lictors and the fasces.
SECTION XXI.
THE STRUGGLE BETWEEN THE PLEBEIANS AND THE
PATRICIANS.
102. As soon as the fear of Tarquin and his party had sub-
sided, and the dictator had been deprived of his authority, the
1 Cicero, De rcpublica, lib. i. 40 : Dig. 1, 2, DC origine juris, 2, 19, f.
" Nam Dictator quidcm ab eo appcl- Pompon.
latnr, quia dicitur ; sed in nostris libris 3 Dig; 1, 2, De orig me juris, 2, 19,
vides eum magistrum populi appellari." f. Pompon. Lydus, lib. i. 1-i.
92 THE HISTORY OF EOMAN LAW.
tranquillity which for a brief period had resulted from the ap-
proach of danger and the suppression of the plebeians, was inter-
rupted, and the struggle between the two orders recommenced.
The political situation of the plebeians was by no means pro-
mising. The senate was composed solely of patricians: they
had a monopoly of religious offices, of the posts of consul,
qugestor, dictator, master of the horse ; they alone held mili-
tary command, and ruled in the comitia of the curies and the
centuries; in the one by virtue of their race, in the other by
reason of their wealth. Nor was the situation of the plebeians as
regards the conditions of private life any better ; poor, and but
little addicted to mercantile affairs or the practice of the me-
chanical arts, pursuits at that period scarcely known in Rome,
with no other resource open to them than agriculture or war,
the plebeians might be forced at any time, by an unproductive
harvest or an unsuccessful enterprise, to borrow from the wealthy.
When in due course the time for payment came, the debtor,
finding himself unable to discharge his liability, was forced to
sacrifice himself, and by the ceremony per &s et libram entered
into a condition of servitude to his creditor, known as nexus ;
or in virtue of the rights to which we have already alluded the
creditor claimed him as a slave (addictus} from the magistrate,
and took possession of him as his own property. Such suffer-
ings and personal degradations, which were far from unfre-
quent, when added to political grievances, could not fail to be
followed by disastrous consequences. Often in order to avert
a threatening storm, or allay the rising wave of popular discon-
tent, would the senate decree a general discharge of all lia-
bilities, debtors would be restored to liberty, and those who had
by pecuniary obligation been reduced to a state of servitude
(nexi or addicti} be granted their freedom. But such relief was
spasmodic the law remained unaltered. 1
1 Cicero, De republica, lib. ii. 34. condition, especially under Servius
Like ameliorations took place in their Tullius.
THE HISTORY OF ROMAN LAW. 93
SECTION XXII.
PLEBEIAN TRIBUNES ( Tribuni Plebis}.
THE SACRED LAWS (Leges Sacra).
103. One of these debtors, an old soldier, having escaped
from the house of his creditor, appeared in the public streets
covered with stripes. The spectators became excited ; discon-
tent spread rapidly, and after a brief period of popular agitation
and the failure of attempts at compromise, the plebeians retired
in arms to Mons Aventinus on the other side of the Anio
(B.C. 494). This sedition, besides the remission of their exist-
ing debts and the liberation of the debtors, was attended by
serious consequences to the patricians. They had in their order
two consuls ; they were now forced to let the plebeians have
two magistrates, plebeian tribunes (tribuni plebis), and not
" tribunes of the people," as they are frequently called.
104. These tribunes were chosen from among the plebeians,
but at first they were nominated by the curies. Their functions
originally were not initiative, nor did the office at first confer
executive power. It was, properly speaking, solely protective.
It was the province of the tribunes to shelter the plebeians from
acts of violence or injustice (in auxilium plebis ; contra vim
auxilium). This protection was secured by what was termed
their intercession (inter cedere, intercessio), or their opposition
the veto which they were empowered to pronounce upon the
acts of the consuls, other magistrates, and even upon the decrees
of the senate. At a later period they acquired executive power,
and the right of initiating action. 1
105. The strongest guarantees of these rights were exacted.
The populus confirmed them in the comitia by centuries; they
were sanctioned by the senate, and consecrated by religious
ceremonies. The tribunes themselves, the hill to which the
plebeians had retired, the laws which secured these privileges,
became sacred objects ; the hill took the name of the sacred
1 Cicero, De republica, lib. ii. 34. 2, De orlginejurls,2, 20, f. Pompon.
De Icgibus, lib. iii. 7. The Claudian Festu?, on the word Saccr mons.
Tables ; vide supra, 10, note. Dig. 1,
94 THE HISTORY OF ROMAN LAW.
mount (mons Sacer) ; the laws that of the sacred laws (leges
sacra) ; the person of the tribunes was inviolable (sacrosancta) ;
and the head of him who should attempt a tribune's life was
forfeited to Jupiter (caput Jovi sacrum), and his family sold in
aid of the sacrifices to Ceres. 1
SECTION XXIII.
THE COMITIA BY TRIBES (Comitia tributa).
PLEBISCITA (Plebis-scita).
106. This first victory of the plebeians led to all the others.
The tribunes, at first two in number, were soon raised to five
(B.C. 471), then to ten (B.C. 457). It is true that in making
this augmentation the patricians intended to deal a blow at the
power of the plebeians by introducing discord into their ranks,
but the measure had not this result at first. Eager to obtain
the favour of their order, and ready to oppose the senators and
patricians, they took counsel among themselves as to the line of
policy they would adopt ; and acting under the advice of their
most influential men, and being partly guided by circumstances,
they convoked an assembly of the mass of the plebeians dis-
tributed in the tribes. This assembly was held for the first
time, in the form of an institution recognized by the senate, for
the avowed purpose of sitting in judgment upon a patrician,
Coriolanus (B.C. 489).
These assemblies, convened without consultation of augurs,
and convoked and presided over for the most part by plebeians,
though originally intended solely for the political delibera-
tions of a single order of citizens, soon acquired the right of
pronouncing judgment in certain cases, of making certain elec-
tions, and of passing laws affecting private rights, and, in fact,
became a branch of the legislature.
The curies were an institution where the aristocracy of race
formed the principle of division ; in the centuries that principle
was the aristocracy of wealth. But the division among the
3 Livy, lib. iii. 55.
THE HISTORY OF ROMAN LAAV. 95
plebeians was by tribes ; and here the plebeian element was
paramount, whether from the fact that their order alone was
represented there, or that both orders being represented, the
plebeian preponderated. We must bear in mind that in law
all the people, whether patrician or plebeian, were partitioned
into local tribes ; but, in point of fact, the constitution of these
assemblies by tribes was purely plebeian. The tribunes were
merely representatives of this class, and, as such, the patricians
were not called upon to recognize their authority. We may
learn here how important results may follow from mere outward
classification, and how the exclusive character of the system
under which the old national race distinction was carried out,
as in the curies and in the ingenious combination of Servius,
intended to give preponderance to wealth, eventually affected
the constitution of Roman government. The unit, for the
purposes of voting, being the tribe, and each citizen having in
his tribe an equal vote, the influence of the plebeian element
preponderated ; and as unity of purpose is always characteristic
of this element, in that it is swayed by one impulse, viz., the
spirit of opposition to the antagonistic order, it is sure in the
long run to prevail.
These assemblies bore at the date of their commencement the
name of concilia, indicative of their character as secret councils
composed of one section of the people ; but they are more fre-
quently designated as comitia tributa, comitias by tribes.
Their decisions were termed plebis-scita, decrees of the ple-
beians ; and some writers, for the sake of distinction, have
designated under the term populi-scita, or decrees of the people,
the laws passed by the other comitias.
107. Thus, dating from this epoch, we have the three kinds
of assemblies which the history of Rome presents, clearly de-
fined: 1st. The ancient and aristocratic assemblies of the old
patriciate, or the ancient races of the Ramnenses, Tatienses and
Luceres, or, in other words, the comitia by curies (comitia
curiata}-, 2nd. The assemblies of the entire people with the
preponderance secured to wealth, or the comitia by centuries
(comitia centuriata) ; and 3rdly. The plebeian assemblies, or
96 - THE HISTORY OF ROMAN LAW.
the comitia by tribes (comitia tributa). Aulus Gellius, who has
given us the formula of the two former, also furnishes us with
the formula of the latter. And in order to distinguish each
clearly, we may follow him in saying that the votes were given
after the following manner : in the first by nobility of birth ; in
the second by wealth ascertained by the census and by age ; in
the third by local distinctions. 1
SECTION XXIV.
PLEBEIAN EDILES (^Ediles Plebeii).
1 08. The assemblies of the plebeians kept constantly in view
the improvement of the position of their own class. And as
the consuls had under them two quaestors, they added to the
tribunes two magistrates elected from among the plebeians, whom
they named plebeian ediles (adiles plebeii}-, officials who had
charge of the details of police administration and the protection
of the edifices where the plebiscita were deposited. 8
SECTION XXV.
ORIGIN OF THE TWELVE TABLES (Lex OR Leges XII
Tabularum, Lex decemvir alis}.
DECEMVIRS.
109. The plebeians, under the direction of their tribunes,
vigorously followed up the important advantage they had gained,
and, after a long resistance on the part of the patricians, suc-
cess, at least in part, attended their efforts. It was clear that
the law, public and private, had two fundamental defects: on
the one hand, it was indefinite and unfamiliar to the common
herd; and, on the other, it bore unequally on the two orders of
1 Aul. Gell. lib. 15, 27 : " Cum ex et locis, tributa."
generibus hominum suffragium feratur, a Dig. 1, 2, De origlne juris, 2, 21,
cnriata comitia esse ; cum ex censu et f. Pompon,
setate, centuriata; cum ex regionibus
THE HISTORY OF ROMAN LAW. 97
society. An unknown and mysterious power, it was a formid-
able weapon in the hands of the patricians, and enabled them
to keep the lower orders in check and under their control. The
efforts of the plebeians were therefore directed mainly to two
things: to secure publicity and equal laws for all classes
(aquanda libertas: summis infimisque jura csquare). 1 And,
with this object in view, they demanded that the positive laws
of the republic should be reduced to writing and promulgated.)
Notwithstanding the obscurity which attends this question,
we/can see that/the point contended for was nothing less than
tKe equalization of the two orders :\ this was what the patricians
were opposing throughout the struggle from consulate to con-
sulate, which lasted with various vicissitudes from B.C. 462 to
B.C. 451. According to some historians three patricians, whose
names are mentioned, were sent to Greece in the year B.C. 454,
in order to collect the laws of that country; and upon their
return two years afterwards with the Attic laws, Hermodorus,
an exile from Ephesus, to whose honour a statue was erected
at Rome, 2 explained them to the people. The story of their
mission to Greece was firmly believed by the Romans, but ever
since the time of Vico it has been questioned by critical his-
torians.
Treated as fable by some, and admitted to rest upon the
evidence of certain monuments by others, this story must be
allowed to remain among the numerous problems of Roman
history which cannot be cleared up. We do not consider that
much importance, in a legal point of view, attaches to this con-
troversy.
This much, however, appears certain, that Ahe Greek laws
were not unknown to the compilers of the Twelve Tables; and
though they imitated the Greek laws in certain trivial details, 3
yet the basis of the Roman civil law is not borrowed, but original,
1 Livy, lib. iii. 31. Dion. lib. x. Dig. 10, 1, Fin. regund., 13, f. Gai. ;
1 and 63. and 47, 22, De coll. et corp., 4, f. Gai.
2 Livy, lib. iii. 31 etseq. Dion. lib. Lydus, De magistratilus, lib. i. 34.
x. 64. Dig. 1,2, Deorig.jur., 2, 4, 3 See below, Table VII., and Dig.
f. Pompon. Plin., Hist, natiir., 34, 5. 10, 1, Fin. regund., 13, f. Gai. lib. iv. of
Cicero, De legib., lib. ii. 23 and 25. his commentary on the Twelve Tables.
H
98 THE HISTORY OF ROMAN LAW.
and possesses its own characteristic features, and it is as such
that we must regard it.
Be that as it may, in the year 303 (B.C. 451) from the
foundation of Rome, according to the calculation of the Romans,
and in the year which followed the return of its deputies, that
is, if we accept the fact of the mission as a reality, ten magis-
trates were chosen by the comitia from the order of the senators,
and were commissioned to draw up the civil laws of their
republic. )
J
110. (B.C. 454.) These magistrates were called decemvirs
(decemviri) ; they were endowed with exceptional powers, and
from their decrees there was no provocatio ad populum; other
functionaries were temporarily suspended ; (the consuls, the
quasstors, the ediles, and even the tribunes, laid down their
authority .J For the space of one year everything was placed in
their hands. {During this period they conducted their govern-
ment prudently ; they voluntarily submitted certain capital
cases to the decision of the people ; they permitted an appeal
from one another, which was called inter cessio collegia; and
they drew up Ten Tables of the laws, which, after having been
exposed to public view (promulgates}., were confirmed in the
comitia centuriata. \ On the expiration of the year their term of
office was completed, but their task was not finished : and ten
decemvirs, amongst whom, according to Dionysius (contradicted
in this however by^Livy), were certain plebeians, were chosen
for the new year, u'hese, far from imitating the moderation of
their predecessors^ availed themselves of their power to oppress
Rome, and maintained their position during a period of three
years. The crime of one of their number put an end to their
tyranny. (The blood of Virginia, immolated by her father, re-
called to the memory of the Romans the history of Lucretia ;
the soldiers advanced in arms towards Rome, and encamped
upon the Sacred Mount ; the people revolted in the towns, and
the poAver of the decemvirs was overthroAA r n. ) Two of them
perished in prison ; the remaining eight Avere sent into exile,
and the estates of the Avhole were confiscated in the year
B.C. 452. The consuls, the tribunes and other officers were
THE HISTORY OF ROMAN LAW. 99
immediately re-instated, and the government assumed its original
form.
111. These later decemvirs had added two supplementary
tables, which were incorporated with the former, and thus the
law was embodied in what we call the Twelve Tables.
Such was the origin of this primitive monument of Roman
jurisprudence, called for distinction " The Law," Lex (Leges
XII Tabularum, Lex decemviralis). (As a carmen necessarium
it was the custom to make children commit it to memory, for
imagination was sometimes fertile enough to enable people to
believe that they could recognize a poetical character in its
clauses, i/ These laws, which survived so many ages of Roman
history, and even outlived the republic itself, were held in such
respect that the slightest alteration was never permitted. Cicero
speaks of them in enthusiastic language. 2 The provisions,
however, of this code are in many instances rude, and even
barbarous ; the style is concise and imperative ; and although
there are passages which are unintelligible to us, yet on the
whole the Twelve Tables assist us in forming a correct view of
the manners of Rome, and the degree of civilization to which
it had at that time attained.
SECTION XXVI.
THE FRAGMENTS OP THE TWELVE TABLES AS PRESERVED
TO us.
112. The fragments of the Twelve Tables that we possess
have been collected from different authors throughout whose
pages they are scattered. In the order of their arrangement a
good deal has been presumed. However, Cicero tells us that
1 Although we find certain rhythmi- the little book of the laws of the Twelve
cal terminations in the greater part of Tables, with regard to the source and
the laws of the Twelve Tables, they principles of law, is preferable to the
cannot be regarded as verse. The ex- libraries of all the philosophers that
pression" carmen," among the Romans, ever lived, both as to the weight of au-
had a much more general signification. thority and extent of utility." Cic.,
8 " Say what they will, I shall say De Or., 144.
what I think. By heaven, in my eyes,
H 2
100 THE HISTORY OF ROMAN LAW.
the first table contained the invocatio in jus ; that the tenth
treated of religious ceremonies and funeral rites, and that one
of the last two prohibited intermarriage between patricians and
plebeians, while Dionysius indicates the existence in the fourth
of the permission of a father to sell his children.
Starting from these definite indications, and aided by other
hints and considerations, we have arrived at the probable order
of the subject of each table. 1
The qiiestion of the order of the Twelve Tables is not without
its influence upon the subsequent course of Roman law. It
served as a type and model, a framework, so to speak, in
accordance with which the whole fabric of subsequent legislation
was in after time constructed; as, for instance, the edicts of the
Prgetors, the code of Theodosius, and even the code and digest
of Justinian.
113. We are indebted to Jacques Godefroy 2 for much deep
research into this subject, and all who have followed him, whe-
ther in France or elsewhere, have benefited by the result of his
labours, but we may complain of much want of accuracy. A
slight presumption, a phrase in another author, frequently suf-
ficed to make him adopt a passage as a portion of the laws of
the Twelve Tables, to complete the context or to assign it a
given place. In the laws themselves, of which the terms, and
original phraseology, have descended to us, he did not hesitate
to make additions or alterations rendered necessary in his view
by what he supposed to be the sense.
M. Haubold, 3 in the spirit of a more accurate critic, has
accepted only those fragments which are given to us as extracts
from the Twelve Tables, and thus reduces to an exceedingly
1 Gaius wrote six books on the to have been derived from this source.
Twelve Tables. We find in the Digest * Jacq. Godefroy, Fragmenta XII
twenty fragments of this work, with Tabular-urn, sitis mine primum tabulis
references to the books from which they restitttta, probationilus, notis et in-
ure extracted. It has been supposed dice munita. Heidelberg, 1616, in 4to.
that each of these six books corre- Reprinted in his collection, Fontes IV
sponded to two of the Tables, and this juris civ His. Geneva, 1638, in 4to, and
supposition has served as a guide. The 1653, ra 4to.
arrangement of the Praetorian edicts of 3 Haubold, Instit. juris Rom. privat.
the Theodosian code, and finally of the hist, (login, epitome. Leips. 1821, p. 129.
code and digests of Justinian, appears
THE HISTORY OF ROMAN LAW. 101
small compass those which are actually in our possession. And
finally MM. Dirksen and Zell have revised the labours of
Godefroy, and remedied much of his inaccuracy. Thus, where
provisions have been lost, traces of which, however, are to be
found in different authors, they have contented themselves with
giving the passages containing these traces ; and they have sup-
plemented the old fragments with the later ones furnished by
the discovery of Cicero's " Republic," and more especially
that of the " Institutes of Gaius." l
I shall avail myself of the results of all these efforts and dis-
coveries, especially of the last, to which I give the preference.
It will be necessary, however, to make several modifications
and some additions. On the one hand MM. Dirksen and Zell
have not used the fragments in the Vatican, notwithstanding
that they contain some indications of the arrangement of the
Twelve Tables. 8 On the other hand I shall be careful to dis-
tinguish the emendations of commentators from the text of the
fragments as it has been transmitted to us ; for, in my opinion,
it is better to lay before the student incomplete and mutilated
fragments, than to attempt a reconstruction. Nor is it certain
that, even as regards the fragments themselves, we have the
actual and original text. For, in the lapse of time, language
and the mode of expressing it in writing, undergo successive
modifications, and it is in these modified forms, familiarised by
daily use and incorporated into the literature of the Romans,
that the fragments of the Twelve Tables have been handed
down to us.
1 H. E. Dirksen, Uebersicht der criticize and reconstruct the texts of
bisherigen Versuche zur Critih und Fragments of the Twelve Tables.)
Herstellung des Tcxtes der Zwolf- Leipzig, 1824.
Tafel-Fragmente. (Review of the at- 3 See below, Table V. 8, and Table
tempts made up to the present time to VI. 11.
102
THE HISTOKY OF ROMAN LAW.
FRAGMENTS OF THE TWELVE TABLES. 1
TABLE I.
THE SUMMONS BEFORE THE MAGISTRATE (De in jus vocando}.
I.
Si in jus vocat, ni it, antestator ; igitur
em capito. 5
II.
Si calvitur, pedemve struit : manum
endojacito. 3
in.
Si morbus amtasve vitium escit, qui in
jus vocabit jumentum dato ; si nolet,
arceram ne sternito. 4
If you summon a man before a magis-
trate and he refuses to go, take wit-
nesses and arrest him.
If he attempts evasion or flight, lay
hands upon him.
IV.
Assiduo vindex assiduus esto; prole-
tario quoi quis yolet vindex esto. 5
If he be prevented by sickness or old
age, let him who summons him before
the magistrate provide the means of
transport ; but not a covered vehicle,
unless as an act of benevolence.
For a rich man a rich man only can be
vindex (this is a kind of bail). In
the case of a proletarius, anyone
may be vindex.
1 Prompted by the desire to be strictly
faithful to the text of the fragments
actually existing of the Twelve Tables,
I hesitate to import the passages derived
from other authors in order to assist in
their reconstruction. I confine myself
to the analysis of the pi'ovisions con-
tained in these passages, and put the
quotations in the form of notes. It is
unnecessary to premise that the heading
of each table must not be taken as a
literal indication of its contents ; in
fact, the terms in which they are couched
are in many instances quite foreign to
the legal language of that period.
* Porphyrus, Ad Horat., sat. 1, 9,
line 65. Cicero, De leg., 2, 4. Lucilius,
Sat., lib. 17, according to Nonius Mar-
cellus, De propr. serm., cap. 1, 20, on
the word Calvitur. Aul. Gell., Noct.
attic., 20, 1. Auctor Rhetor, ad
Ilerenn., 2, 13.
3 Festus, on the words Struere and
Pcdem struit. Dig. 50, 16, Deverbor.
signif., 233, f. Gai. lib. i. of his com-
mentary on the Twelve Tables. Luci-
lius, in the passage already cited.
4 Aul. Gcll., Noct. attic., 20, 1.
Varro, in Non. Marcell., De propr.
serm., cap. 1, 270. Varro, De ling,
latin., 4, 31.
5 Aul. Gell., Noct. attic., 16, 19.
Varro, in Non. Marcell., De propr.
serm., cap. 1, antepenult.
THE HISTORY OF ROMAN LAW.
103
V.
Rem ubi pagunt, orato. 1
VI.
Ni pagunt, in comitio aut in foro ante
meridiem causam conjicito, quom
perorant ambo prsesentes. 2
VII.
Post meridiem, prassenti stlitem addi-
cito. 3
VIII.
Sol occasus suprema tempestas esto. 4
IX.
Vades .
. subvadcs .
II the parties agree, that is to say, come
to terms, let the suit be stopped and
the matter arranged.
If no arrangement is made between the
parties, let the cause be entered before
midday, either in the comitium or in
the forum, in the presence of both
parties.
After midday let the magistrate grant
judgment to the party present. (That
is to say, that the magistrate shall
either grant the thing or the right
which is the subject of the suit, or,
according to an interpretation which
we think less probable, merely the
conduct of the cause before the
judge.)
No step shall be taken in an action
after sunset.
Vades subvades. (That is to say,
it was necessary there should be bail
or sureties given by the parties re-
spectively to secure their attendance
before the magistrate on a future
day in cases where the matter could
not be at once determined, or to
appear in due course before the
judge, a kind of promise called vadi-
monium.)
1 Auctor Rhetor, ad Hcrenn., 2, 13.
Priscianns, Ars grammat., 10, 5, 32.
3 Aul. Cell., A'oct. attic., 17, 2.
Quintilianus, 1, 6. Plinius, Hist, nat.,
7,60.
3 It may be fairly doubted whether
these two fragments, VI. and VII.,
have reference to the office of the
magistrate or the judge, and conse-
quently whether they belong to the first
or second Table. The causa; conjectio,
or entry of the cause and the judgment
by default against the absent party
belonging to the procedure before the
judge, as explained in the author's third
volume on the commentaries, Explica-
tion liist. des Instit., when treating of
actions. On the other hand, the word
addictio cannot be applied except to a
magistrate. We adopt the latter sense,
explaining this difficulty by the dif-
ference of period.
4 Aul. Cell., ibid. Festus, on the
word Suprennis. Varro, De ling, latin.,
5, 2, and G, 3. Macrobius, Saturn., 1,
3. Censorin., De die nat., cap. fin.
5 Aul. Gell., Noct. attic., 16, cap. 10.
Consult Gains, Instit., comm. 4, 184
et seq., on Vadimonium; Varro, De
ling, latin., 5, 7; and Acron., Horat.
Satyr., 1, 1, verse 11.
The work of MM. Dirkscn and Zcll
104
THE HISTORY OF ROMAN LAW.
TABLE II.
JUDICIAL PROCEEDINGS (Dejudiciis).
II.
Morbus sonticus
cum hoste .
. . status dies
quid horum fuit
unum, judici, arbitrove, reove, dies
diffisus esto. 2
III.
Cui testimonium defuerit, is tertiis die-
bus ob portum obvagulatum ito. 3
IV.
The provisions of the Twelve Tables
upon the amount to be deposited,
called sacramentum, by the litigants
respectively. 1
. . . A serious illness ... an
engagement with a peregrinus . . .
should either of these circumstances
exist in connection with the judge,
the arbiter or one of the litigants, the
cause must be adjourned.
Anyone who wants a witness must
summon him by calling upon him in
a loud voice, stating that he will re-
quire his attendance on the third day
of the market (that is to say, on the
twenty-seventh day from the first
summons, the market taking place
every ninth day).
The provision which permitted the com-
pounding of a theft. 4
assigns to the first Table that which is
indicated to us by the abridgment of
Festus, the precise terms of which are
wanting as a provision of the Twelfth
Table: "Itaque in XII eautum est:
ut idem juris esset Sanatibus, quod
fortibus id est bonis et qui nunquam
def ecerant a populo Romano." Paulus
and Festus, on the word Sanates.
1 " Pojna autem sacramenti aut quin-
genaria erat, aut quinquagenaria, ( nam)
de rebus mille scris plurisve quingentis
assibus, de minoris (yero) quinquaginta
assibus sacramento contendcb( atur) :
nam (ita) lege XII Tabularum cau-
tum erat. (Sed si de libertate) hominis
(contro)versia erat, etsi pretiosissimus
homo esset, tamen ut L assibus sacra-
mento contenderetur ea(dern) lege cau-
tum est favoris (causa), ne (sa)tisda-
tione onerarentur adsertores." Gai.,
Instit., comm. 4, 14.
2 Aul. Gell., Noc.t. attic., 20, 1.
Cicero, De affic., 1, 12. Festus, on the
word Reus. Dig. 2, 11, Si quis caut.
injud., 2, 3, f. Ulp.
3 Festus, on the words JPortus and
Vagulatio.
4 " Et in caeteris igitur omnibus ad
edictum prsetoris pertinentibus, quas
non ad publicam laesionem, sed ad rem
familiarem respiciant,pacisci licet; nam,
et de furto pacisci lex permittit."
Dig. 2, 14, Depactis, 7, 14, f. Ulp.
THE HISTORY OF ROMAN LAW.
105
TABLE III.
EXECUTION FOLLOWING CONFESSION OR JUDGMENT (De cere
confesso rebusque jure judicatis}. 1
confess! rebusque jure judicatis
triginta dies justi sunto.*
II.
Post deinde manus injectio esto, in jus
ducito. 3
III.
Ni judicatum facit, aut quips endo em
jure vindicit, secum ducito ; vincito,
aut nervo, ant compedibus, quindecim
pondo ne majore, aut si volet minore
vincito. 4
IV.
Si volet suo vivito ; ni suo vivit, qui
em victum habebit, libras farris endo
dies dato ; si volet, plus dato. 5
V.
In case of debt either upon confession
., or judgment, the debtor shall have
thirty days' grace.
That term having expired, the plaintiff
shall have the manus injectio (a spe-
cies of actio legis or execution of
final process) to bring the debtor
before the magistrate.
If the debt is not paid, or (yindex}
surety provided, the creditor shall
take the debtor, put him into chains
or into the stocks, the weight of the
chains not to exceed fifteen pounds,
but less at the creditor's will.
The debtor shall be at liberty to live as
he thinks fit, provided it be at his
own expense. In the event of his
being unable to provide his own nou-
rishment, the creditor in whose cus-
tody he is shall supply 'him with at
least one pound of bread daily.
Provision relating to
1. The right of compromise.
2. The debtor's captivity in default
of compromise within sixty
days, and of his production
during this interval in the
1 Or according to the title generally
received concerning credits, De rebus
creditis. The title that we adopt for
ourselves explains both its contents and
is more consistent with the order pre-
viously followed. The first treats of
the summons before the magistrate, the
second of the trial itself, the third of
the execution of the sentence ; thus
forming a complete outline of civil pro-
cedure.
8 Aul. Gell., Noct. attic., 20, 1, and
15, 13. Gai., Instit., comm. 3, 78.
Dig. 42, 1, De re judicata, 7, f. Gai.
3 Aul. Gell., Noct. attic., 20, 1.
Gai., Instit., comm. 4, 21, on the
Manus injectio.
4 Ibid.
5 Aul. Gell., Noct. attic., 10, 1. See
also Dig. 50, ] 6, De verbor. sign., 234,
2, f. of Gai. lib. ii., Commentary on
the Twelve Tables.
106
THE HISTORY OF ROMAN LAW.
VI.
Tertiis irandinis partis secanto ; si plus
minusve secuerint, ne fraude esto. 2
comitium on three successive
market days, and the public
declaration of the amount in
which he was condemned. 1
Provision allowing the creditor after the
third market day, he not being paid,
either to put his debtor to death or
to sell him to any stranger resident
beyond the Tiber, and which, in the
case of there being several creditors,
enacts as follows :
After the third market day, his body
may be divided. Anyone taking
more than his just share shall be
held guiltless.
TABLE IV.
THE RIGHTS OF THE FATHER (Dejure patrio).
* * * * Provision as to the immediate destruc-
tion of monstrous or deformed off-
spring. 3
1 " Erat autem j us interea paciscendi ;
ac nisi pacti forent, habebantur in vin-
culis dies sexaginta; inter eos dies
trinis nundinis continuis, ad prajtorem
in comitium produccbantur, quantaeque
pecunirc judicati essent prmdicabatur."
Aul. Gell., Noct. attic., 20, 1.
2 " Tertiis autem nundinis capitc pce-
nas dabant, aut trans Tiberim peregre
venum ibant. Sed cam capitis poenam
sancicndaj, sicut dixi, fidei gratia, hor-
rificam atrocitatis ostentu, novisque ter-
roribus metuendam reddiderunt. Nam
si plures forent, quibus reus esset judi-
catus, secare, si veltent, atque partiri
corpus addicti sibi hominis permise-
runt. Et quidem verba ipsa legis
dicam ne existimes invidiam me istam
forte formidare (following the words of
the law given below in the text). Ni-
hil profecto immitius, nihil immanius;
nisi ut reipsa apparet, eo consilio tanta
immanitas pcenaB denuntiata est, ne
ad earn unquam perveniretur. Addici
namque nunc et vinciri multos vide-
mus; quia vinculorum po3nam deterrimi
homines contcmnunt. Dissectum esse
antiquitus neminem eqnidem neque legi,
neque audivi : quoniam samtia ista
pccna; contemni non quita est." Aul.
Gell. 20, 1.
" Sunt enim qusedam non laudabilia
natura, sed jure concessa: ut in XII
Tabulis debitoris corpus inter creditores
dividi licuit ; quam legem mos publicus
repudiavit." Quintilianus, Institut.
orat., 3, 6.
" Sed et judicatos in partes secari a
creditoribus leges erant : consensu ta-
men publico crudelitas postea erasa est ;
et in pudoris notam capitis conversa
est, bonorum adhibita proscriptione,
suffundere maluit hominis sanguinem
quam effundere." Tertullian, Apol.,
cap. 4.
3 " Nam mihi quidem pestifera vide-
tnr (Cicero, by his brother Quintus,
speaking of the power of the tribunes
THE HISTORY OP ROMAN LAW.
107
II.
III.
Si pater filium ter venura duit, filius a
patre liber esto. 8
IV.
Provision relating to the control of the
father over his children, the right
existing during their whole life to
imprison, scourge, keep to rustic
labour in chains, to sell or slay, even
though they may be in the enjoyment
of high state offices. 1
Three consecutive sales of the son by
the father releases the former from
the patria pote&tas.
Provision relating to the duration of
gestation : no child born more than
ten months after the decease of his
reputed father to be held legitimate. 3
TABLE V.
INHERITANCE AND TUTELAGE (De hareditatibus et tutelis).
Provision relating to the perpetual tu-
telage of women. Vestals are free
both from their tutelage and from
the patria potestas.*
of the plebeians), quippe quse in sedi-
tione et ad seditionem nata sit: cujus
primum ortum si recordari volumus,
inter arma civium, et occnpatis et ob-
sessis urbis locis, procrcatum videmns.
Deindequum essctcito aslegatus {others
read letatus or necatus) tanquam ex
XII Tabulis insignis ad diformita-
tem puer, brevi tempore recreatus,
multoque toetrior et fcedior natus est."
Cicero, De leg., 3, 8.
1 " At Romanorum legislator (Romu-
lus) omnem, ut ita dicam, potestatcm
in filium patri concessit, idque toto vitce
tempore : sive eum in carcerem con-
jicere, sive flagris cscdcre, sive vinctum
ad rusticum opus detinere, sive occi-
dere vellet ; licet filius jam rempubli-
cam administraret et inter summos ma-
gistratus censeretur, et propter suum
studium in rempublicarn laudaretur
. . . Sed sublato regno, decemviri
(cam legem) inter cseteras retulerunt,
exstatque in Xll Tabularum, ut vo-
Transl. Dion., AreJueol., 2, 26 and 27.
" Quum patri lex regia dederit in
filium vitse necisque potestatem," etc.
Papinianus, lib. sing. De adnlteriis,
extracted from Collatio leg. Mosaic, et
Rom., tit. 4, 8.
3 Ulpian., Regul.,i\L 10, 1. Gai.,
Instit., comm. 1, 132, and 4, 79.
Dion, as above.
3 Aul. Gell., Noct. attic., 3, 16.
Dig. 38, 16, De siiis et legitim., 3, 9,
f. Ulp.
4 " Veteres enim voluerunt, feminas,
etiamsi perfcctae zetatis sint, propter
animi levitatem in tutela esse. Itaque
si quis filio filiscque testamento tutorcm
dederit, et ambo ad pubertatem perve-
108
THE HISTORY OF ROMAN LAW.
II.
III.
Uti legassit super pecunia tutelave suas
rei, ita jus esto. 2
IV.
Si intestato moritur, cui suus haeres
nee sit, adgnatus proximus familiam
habeto. 3
V.
Si adgnatus nee escit, gentilis familiam
nancitor. 4
VI.
Proyision prohibiting the usucapion
of res mancipi belonging to females
under the tutelage of their agnates,
except in the case where they have
been delivered by the woman herself
with the authority of her tutor. 1
The testament of the father shall be
law as to all provisions concerning
his property and the tutelage thereof.
In the event of his death intestate and
without suus haires, the nearest ag-
nate shall succeed.
In default of agnates the gentiles shall
succeed.
In the event of no tutor being specified
in the will, the agnates are the legi-
timate tutors. 4
nerint, filius quidem desinit habere tuto-
rem, filia vero nihilominus in tutela
permanet. Tantum enim ex lege Julia
et Papia Poppsea j ure liberorum a tutela
liberantur feminax Loquimur autem
exceptis virginibus vestalibus, quas eti-
am veteres in honorem sacerdotii libe-
ras esse voluerunt ; itaque etiam lege
XII Tabularum cautum est." Gai.,
Instit., comm. 1, 144, 145, 155 and
157.
1 "(Item olim) mulieris quse in agna-
torum tutela erat, res inancipi usucapi
non poterant, prseterquam si ab ipsa,
tutore (auctore) traditas essent : id ita
lege XII Tabularum cau(tum erat)."
Gai. , Instit. , comm. 2, 47 . See Cicero,
Epist. ad Attic., 1, 5 ; and Pro Flacco,
34.
2 Ulpian, Regul., 11, 14. Gai.,
Instit., comm. 2, 224. Justinian.,
Instit., 2, 22, De lege Falcidia, pr.
Dig. 50, 16, De verb, signif., 120, f.
Pomp. Cicero, De invent, rhetor., 2,
50. Anctor Rhetor, ad Herenn., 1,
13. Justinian., Novell., 22, cap. 2.
3 Cicero, De invent., 2, 50. Auctor
Rhetor, ad Herenn., 1, 13. Ulpian.,
Regul., 26, 1, 1. Paul., Sentent., lib.
iv. tit. 8, 3, according to Collat. leg.
Mas. et Rom., 16, 3. Paul., ibid.,
22: "The law of the Twelve Tables
calls the agnates to succession without
distinction of sex." Gai., Instit. ,comm.
1, 155, 157, and 3, 9. Just., Instit.,
3, 1, De hcered. quce ab intestat., 1.
The constitution (III.) of Severus and
Antonine, code 6, 55, De suis et legi-
tim. liber., indicates as coming from a
clear provision of the Twelve Tables,
the principle that the inheritance as to
the h(eres suus was distributed per
stir})es. However Gaius, Instit., comm.
3, 15, derives this principle solely
from interpretation. But this rule does
not apply to the agnates.
4 Cicero, De invent., 2, 50. Ulpian.,
according to Collat. leg. Mas. et Rom.,
16, 4. Gai., Instit., comm. 3, 17.
Paul., Sentent., 4, 8, 3, according to
Collat. leg. Mos. et Rom., 16, 3.
5 " Quibus testamento quidem tutor
datus non sit, iis ex lege XII agnati
sunt tutores, qui vocantur legitimi."
Gai., Instit., comm. 1, 155 and 157.
THE HISTORY OF ROMAN LAW.
109
VII.
Si furiosus est, agnatorum gentiliumque
in eo pecuniaque ejus potestas esto.'
Ast ei custoa nee escit. 4
VIII.
Ex ea familia
Ham. 3
in earn fami-
X.
XI.
Cicero, De invent., 2, 50 ; Tuscul.
t., 3, 5 ; De republ., 3, 23. Auctor
Rhetor, ad Herenn., 1, 13. Ulp. Re-
gul., 12, 2, etc.
2 Festus, on the word Nee.
3 " Civis Romani liberti hacreditatem
lex XII Tabularum patrono defert,
si intestate sine suo haerede libertus de-
cesserit." Ulpian., Regul., 29, 1.
" Sicut in XII Tabulis patroni appella-
tione etiam liberi patroni continentur."
( Vatic. J. JR. Fragm.., 308.)
" Ad personas autem refertur familia}
significatio, ita, cum de patrono et li-
berto loquitur lex : EX EA FAMILIA,
inquit, IN EAM PAMIHAM." Dig. 50,
16, De verbor. siynif , 105, 1, f. Ulp.
I am by no means sure that this pas-
sage of the Twelve Tables refers to the
devolution of hereditary property here
mentioned.
The custody of an idiot and of his pro-
perty, in case there is no curator
(custos), belongs to the agnates ; in
default of agnates to his gentiles.
From this family . . . into that (a
provision by which the inheritance of
an enfranchised dying without litres
sum was transferred to his patron).
The inheritance is divided as of right
among the heirs. 4
Provision from which is derived the
actio families erciscundes, that is,
the action which must be taken to
enforce the division of an inheri-
tance. 5
The slave enfranchised by will, upon
condition of his giving a certain sum
to the heir, can, in the event of his
being alienated by the heir, secure
his freedom by the payment of this
sum to the alienee. 6
4 " Ea quac in nominibus sunt, non
recipiunt divisionem : cum ipso jure in
portiones hajreditarias ex lege XII
Tabularum divisa sint." Coil. 3, 36 ;
Famil. ercixc., 6 const. Gordian. Con-
sult Dig. 10, 2, Fa^il. ercisc., 25, 9,
f. Paul., etc.
* " Hsec actio ( action families ercis-
cundce) projiciscitur a lege XII Tabu-
larum." Dig. 10, 2, Famil. ercisc.,
1 pr., f. Gai. Ibid., 2 pr., f. Ulp.
Festus, on the word Erctum, etc.
6 " Sub hac conditione liber esse j us-
sus, si decem millia haBredi dcderit, etsi
ab hasrede abalienatus sit, emptori dan-
do pecuniam, ad libertatem perveniet ;
idque lex XII Tabularum jubet."
Ulpian., Regul., 2, 4. Dig. 40, 7,
De stat. liber., 29, 1, f. Pomp. ; and
25, f. Modest. Festus, on the word
Statullber.
110
THE HISTORY OF ROMAN LAW.
TABLE VI.
DOMINION AND POSSESSION (De dominio et possessione).
I.
Quum nexum faciet mancipiumque, uti
lingua nuncupassit, ita jus csto. 1
II.
III.
Usus auctoritas f undi biennium . . .
coeterarnm omnium . . . (annuus). 3
IV.
The words pronounced in the cere-
monies of the nexum and the man-
cipium shall be law.
Provision enforcing double payment as
penalty for denying the declarations
of the nexum or mancipium.*
Possession for the period of two years
in the case of land, or of one year in
connection with other things, vests
the property.
Provision relating to the acquisition of
the marital power over the woman
by the fact of possession of one year,
with the faculty given to the woman
of preventing this effect of possession
by absenting herself for three nights
consecutively in each year from the
house of her husband. 4
1 lestus, on the word Nuncupata.
Cicero, De qffic., 3, 16; De orat., 1,
57; Pro Ccecin., cap. 23. Varro, De
ling, lat., 5, 9.
2 " De j ure quidem praediorum san-
citum est apud nos jure civili, ut in his
vendendis vitia dicerentur, quse nota
essent venditori. Nam cum, ex XII
' Tabulis satis esset ea prcestari quee
essent lingua nuncupata, qua qui in-
ficiatus esset, dupli pcenam subiret: a
jurisconsultis etiam reticentioe poenaest
constituta." Cicero, De offic., 3, 10.
3 We cannot be certain that this is
really the text of the Twelve Tables.
The following is the passage from
Cicero whence it is extracted : " Quod
in re pari valet, valeat in hac qua; par
est : ut quoniam usus auctoritas fund i
biennium est, sit etiam axlium. At in
lege aedes non appellantur, et sunt
cceterarum omnium quarum annuus
est usus." Cic. Topic, c. 4. Consult
Cic. pro Ca;cin., 19; Gai. Instlt.,
comm. 2, 42 ; Just. 1, 6, Instlt., De
usucap. As to the interpretation of
the words usus auctoritas, which have
tormented the critics, I would remark
that the Romans, in ancient legal lan-
guage and in a particular sense, which
remained for a long time in use, called
the guarantee against eviction aucto-
ritas. Auctoritatem pra'stare means,
even in the time of Justinian, to gua-
rantee against eviction. Usus aucto-
ritas is then the prescriptive guarantee
against eviction, that is to say, the
effect of continuous possession during
a certain time. In this way we see
that this word, in ancient legal lan-
guage, is synonymous with its equiva-
lent of more modern times, usucapio.
4 " Usu in manum conveniebat, quje
anno continue nupta perseverabat : nam
velut annua possessione usucapiebatur,
in familiam viri transibat, filircque lo-
cum obtinebat. Itaque lege, XII Tabu-
larurn cautum erat, si qua nollet co
modo in manum mariti convenire, ut
quotannis trinoctio abesset, atque ita
THE HISTORY OF ROMAN LAW.
Ill
V.
Ad versus hostem reterna auctoritas. 1
vr.
Si qui in jure manum conserunt .
VII.
Tignum junctum oedibns vinefeque et
concapet ne solvito. 4
VIII.
usum cujusque anni interrumperet."
Gai., Instit., comm. 1, 111. See
Aul. Cell., JVbct. attic., 3, 2 ; Macrob.,
SaturnaL, 1, 3.
1 It is by deduction from a passage
in Gaius, taken from lib. ii of his
Commentary on the Twelve Tables,
and consequently corresponding most
probably to Tables III. and IV., that
the fragment " Adversus hostem, &c.,"
is usually placed in Table III. But
judging from the nature of the subject
it is evidently misplaced ; we therefore
put it in the fourth Table, as being
appropriate to the subject of which it
treats. We are not influenced by the
passage quoted from Gaius; in fact that
passage only contains a definition of
the word " hostis," and it is not un-
likely that this word was used in con-
nection with other provisions of the
third or fourth Tables ; for example,
where the debtor, " addictus," is per-
mitted to be, after the delay of sixty
days, sold to a foreigner.
No possession by an alien, however
long, can vest in him the property of
a citizen.
In the case of the manuum contertio.
(This was a species of feigned ju-
dicial combat, a means adopted for
trying the right to property in a
given thing.) . . . (Let the ma-
gistrate give the provisional posses-
sion (vindicias dare or vindicias
dicer e) to whomsoever he may think
fit.)
In the case, however, of a claim to li-
berty, the magistrate shall always
give the provisional possession in
favour of liberty. 3
Timber attached to a building or the
support of a vine shall not be re-
moved.
But an action to recover the double
value lies against the user of the pro-
perty of another. 5
2 Aul. Gell., Noct. attic., 2^, 10.
Festus, on the word Super stites.
3 " Initium f uisse secessiouis dicitur
Virginius quidam, qui qunm animad-
vertisset Appium Claudium contra jus,
quod ipse ex veterejure in XII Tabu-
las transtulerat, vindicias filise suse a
se abdixisse, et secundum eum, qui in
servitutem ab co suppositus petierat,
dixisse, captumque amore virginis omne
fas ac nefas miscuisse," etc. Dig. 1, 2,
De origine juris, 2, 24, f. Pomp.
Consult Dion. 11, 30; Livy, 3, 44;
Cicero, De republ., 3, 32.
4 Festus, on the word Tignum. Dig.
50, 16, De verbor. signif., 62, f. Gai.
Dig. 47, 3, De tigno juncto, 1 pr., and
1, f. Ulp., etc.
5 " Lex XII Tabularum neque sol-
vere permittit tignum f urtivum aedibus
vel vineis junctum, neque vindicare :
quod providenter lex effecit : ne vel
aedificia sub hoc pratextu diruantur,
vel vinearum cultura turbetur ; sed in
eum qui convictus est jnnxisse, in du-
112
THE HISTORY OF ROMAN LAW.
DC.
Quandoque sarpta,
erunt. 1
X.
XL
donee derapta If the material becomes detached, and
so long as it remains so ... (the
owner can recover it by vindicatio).
* * The property in a thing sold and de-
livered does not pass to the purchaser
till payment. 2
* * Provision confirming the cessio before
the magistrate (in jure cessio), as
likewise the mancipation
TABLE VII.
THE LAW CONCERNING REAL PROPERTY (De jure adium et
*****
II.
*****
Two feet and a half at least must be
left between adjoining edifices for the
purposes of proper ventilation (am-
bitus). 4
Provisions concerning plantations and
constructions or excavations upon ad-
joining plots of ground. 5
plum dat actionem." Dig. 47, 3, De
tiyn.junct., 1 pr., f. Ulp.
1 Festus, on the word Sarpuntur
(vinece).
2 " Venditse vero res et traditse non
aliter emptori adquiruntur, quam si is
venditori pretium solverit, vel alio modo
satisfecerit, veluti expromissore aut pig-
nore dato. Quod cavetur quidem et
lege XII Tabularum, tamen recte dici-
tur et jure gentium, id est jure naturali,
id effici." Justinian, Instit., 2, De rer.
dims., 41. Festus, on the words Sub
vos placo.
3 . . . " Et mancipationem et in
jure cessionem lex XII Tabularum
confirmat." Vat. J. R. Fragm., 50.
This provision is wanting, together
with some items derived from the
fragments of the Vatican (vide supra,
Table V. frag. 8, and note), in the
work of MM. Dirksen and Zell, who
have not had access to these fragments.
4 " Nam ambitus circumitus : ab
eoque XII Tabularum interpretes am-
bitum parietis circumitum esse descri-
bunt." Varro, De ling, lat., 5, 22.
" Lex etiam XII Tabularnm argu-
mento est, in qua duo pedes et semis
sestertius pes vocatur." Festus, on
the word Ambitus.
5 " Sciendum est, in actione finium
regundorum illud observandum esse,
quod ad exemplum quodammodo ejus
legis scriptum est, quam Athenis So-
lonem dicitur tulisse ; nam illic ita est.
. . . Si quis sepem ad alienum pras-
dium fixerit infoderitque, terminum ne
excedito; si maceriam,pedemrelinquito;
si vero domum, pedes duos ; si sepul-
TfiE HISTORY OF ROMAN LAW.
113
III.
Hortus . . . haeredium .
gurium . . .'
IV.
* * *
V.
Si jnrgant . . . 3
VI.
*
VII.
Si aqua pluvia nocct . .
tu-
A garden
ance .
. a small inherit-
a barn.
A space of five feet must be left be-
tween adjoining fields for the pur-
poses of access and the turning of
the plough. This space cannot be
acquired by usucapio?
If they disagree . . . (In the event
of there being any dispute about the
boundaries, the magistrate is to give
three arbiters to the parties, who shall
settle the matter.)
The breadth of a road is to be eight
feet ; at the end, where it turns, six-
teen feet. 4 If the road is impassable,
the owner of a right of way may cross
wherever he pleases. 5
If rain-water threatens damage.
The proprietor whose property is threat-
ened with damage arising from arti-
chrum aut scrobem foderit, quantum
profunditatis habnerint, tantum spatii
relinquito; si puleum, passus latitudi-
nem ; at vero oleam aut ficum ab alieno
ad novem pedes plantato, cseteras ar-
bores ad pedes quinque." Dig. 10, 1,
Fin. regund., 13, f. Gai. lib. iv. of his
commentary on the Twelve Tables.
1 Plin., Hist, not., lib. xix. cap. 4,
1. Festns, on the words Hortus,
Hceredium and Tugurium. Varro,
De re rustic., lib. i. cap. 10. Dig. 56,
16, De verbor. sigmf., 180, f. Pompon.
2 " Ex hac autem, non rerum, sed
verborum discordia, controversia nata
est de finibus : in qua quoniam usuca-
pionem XII Tabulce intra quinque
pedes noluerunt, depasci veterem pos-
sessionem Academite ab hoc acuto
homine non sinemus ; nee Mamilia lege
singuli, sed ex his (XII Tabulis) trcs
arbitrii fines r eg emus." Cicero, De
leg., 1, 21.
3 Non. Marcell., De propr. serm., 5,
34. Cicero, De republ., 1, 4, 8. Con-
sult the passage from Cicero quoted in
preceding note.
4 " Via; latitude ex lege XII Tabu-
larum in porrectum octo pedes habet ;
in anfractum, id est ubi flexum est, se-
decim." Dig. 8, 3, De sernt. prced.
rustic., 8, f. Gai.
5 " Si via sit immunita, jubet lex,
qua velit agere jumentum." Cic., Pro
Caecina, 19. Festus, on the word Am-
segetes. The sense of the law of the
Twelve Tables may be explained by
analogy, by comparison with a fragment
from Javolenus : " Cum via publica
(vel) fluminis impetu, vel ruina amissa
est: vicinus proximus viam prsestare
debet." (L)ig. 8, 6, Quemadmodum ser-
vitutes amittuntur, 14, 1.) A frag-
ment of the Twelve Tables is given in
connexion with this subject : " Si via
per amsegetes immunita escit, qua volet
jumentum agito ;" but it is a supposi-
titious text, a hypothetical reconstruc-
tion of Godefroj r .
6 Dig. 40, 7, De statuliber, 21, f.
Pomp. ; Cic. Top. 9.
114
THE HISTORY OF ROMAN LAW.
VIII.
IX.
ficial works for the collection of rain-
water, or from an aqueduct, has a
right to demand a guarantee against
this in jury. 1
The branches of a tree overhanging
adjoining property must be pruned
all round up to fifteen feet from the
ground. 2
A proprietor may go on to adjoining
land to pick up the fruit that has
fallen from his tree. 3
TABLE VIII.
Ox TORTS (De delictis}.
II.
Capital punishment is decreed against
libellers and public defamers. 4
Si membrum rupit, ni cum eo pacit, Eetaliation against him who breaks the
talio esto. 5 limb of another and does not offer
compensation.
III.
For the fracture of the bone (of the
tooth) of a freoman the penalty is
300 asses ; in the case of a slave, 150. 6
1 " Si per pxablicum locum rivus
aquseductus private nocebit, erit actio
private ex lege XII Tabtdarum, ut
noxa domino caveatur." Dig. 43, 8,
Ne quid in loc. jmb., 5, f. Paul. A
suit of this nature was decided by an
arbitrator (arbiter aquce pluvia: ar-
cendaT). Dig. 39, 3, De aq. ct aq.
pluv. arc., 23, 2, f . Paul. ; and 24, f.
Alfen.
2 " Quod ait praetor, et lex XII Ta-
tutariim effivere roliiit, ut quindecim
pedes altius rami arboris circumcidan-
tur ; et hoc idcirco effectum est, ne
umbra arboris vicino prtedio noceret."
Dig. 43, 27, De arbor, ccudend., 1, 8,
f . Ulp. ; and 2, f . Pomp. Paul., Kan-
tent., 5, &, 13.
3 " Cautum est prceterea lege XII
Tabularum, ut glandem in aliennm
fundum procidentem liceret colligere."
Plin , Hist, nat., 16, 5. Dig. 43, 28,
De glande legenda, 1, 1, f. Ulp. ; 50,
16, De verb, signif., 236, 1, f. Gai.
lib. iv. Com. Twelve Tables.
4 " Nostrce contra XII Tabula quum
perpaucas res capite sanxissent, in his
hanc quoque sanciendam tmtaverunt :
' Si quis occentavisset, sive carmen con-
didisset quod infamiam faceret flagi-
tiurnve altei'i.' " Cicero, De repnbl.,
4, 10. Paul., Sentent., 5, 14, 6.
Festus, on the word Occentassint, etc.
5 Festus, on the word Talio. Aul.
Cell., Noct. attic., 20, 1. Gai., Instit.,
comm. 3, 223, etc.
6 " Poena autem injuriarum ex lege
XII Tabnlarum, propter membrum
THE HISTORY OF ROMAN LAW.
115
IV.
Si injuriam faxit alteri, viginti quinque For any injury whatsoever committed
eris pcense sunto. 1 upon another the penalty shall be 2F
asses.
V.
. . . Rupitias . . . sarcito.* . . . For damage unjustly caus
. . . (but if by accident) repai
tion.
VI.
* * * For damage caused by a quadruped
reparation or the forfeiture of th*
animal.*
VII.
VIII.
Qui fruges excantasset* . .
alienam segetem pellexeris
IX.
* An action shall lie against him who
depastures his flock upon a neigh-
bour's land. 4
Neve He who by enchantment shall blight
. 8 the crops of another, or attract them
from one field to another . . .
* He who during the night furtively
either cuts or depastures a neigh-
bour's crops, if of the age of puberty,
shall be devoted to Ceres and put to
death ; if under that age, he shall be
scourged at the discretion of the
magistrate and condemned in the
penalty of double the damage done. 7
quidem ruptum, talio erat : propter os
vero fractum aut collisum trecentorum
assium pcena erat, velut si libero os
fractum erat : at si servo CL : propter
easterns vero injurias xxv assium prena
erat constituta." Gai., Instit., comm.
3, 223. Aul. Cell., Noct. attic., 20,
1. Paul., Sentent.. 5, 14, 6. Collat.
leg. Mas. et Rom., 2, 5.
J Aul. Cell., Noct. attic., 20, 1, and
16, 10. Collat. leg. Mos. et Rom., 2,
5. Gai., Instit., comm. 3, 223.
Festus, on the words Viginti quinque.
2 Festus, on the word Rupilias.
Dig. 9, 2, Ad leg. Aquiliam, 1 pr., f.
Ulp.
* " Si quadrupes pauperiem fecisse
dicetur, actio ex lege XII Tabular inn
descendit: quse lex voluit, aut dari id
quod nocuit, id est id animal quod
noxiam commisit, aut asstimationem
noxise offerre." Dig. 9, 1, Si quadrnp.
pauper, fecisse dicet., 6 pr., f. Ulp.
Justinian., Instit., lib. iv. tit. 9, pr.
4 " Si glans ex arbore tua in nieum
fundum cadat, eamque immisso pecore
depascam, Aristo scribit nonsibi occur-
rere legitimam actionem, qua experiri
possim ; nam neque ex lege XII Tabu-
larum de pastu pecoris, quia non in
tuo pascitur, neque de pauperie, neque
de damno injuriae agi posse, in factum
itaque erit agendum." Dig. 19, 5, De
prescript, verb., 14, 3, fr. Ulp.
5 Plin., Hist, nat., 28, 2.
6 Servius, ad Virg., Eel. 8, line 99.
Consult Senec., Natur. qutest., 4, 7;
Plin., Hist, natiir., 30, 1 ; Augustin.,
DC civ. Dei, 8, 19, etc.
7 " Frugem quidem aratro qusesitam
furtim noctu pavisse ac secuisse, pu-
beri XII Tabulis capitale erat, suspen-
sumque Cereri necari jubebant: gravius
quam in homicidio convictum ; impu-
12
116
THE HISTORY OF ROMAN LAW.
X.
XI.
XII.
Si nox fnrtum factum sit, si im occisit,
jure caesus esto. 3
XIV.
The incendiary of a house or of a hay-
stack near a house, if acting inten-
tionally and of sound mind, shall be
bound, scourged and put to death by
fire. If by negligence, he shall repair
the damage, or, if too poor, shall be
chastised moderately. 1
A penalty of 25 asses is to be inflicted
upon any one who without right has
felled the trees of another.*
Any one committing a robbery by night
may be lawfully killed.
A robber surprised during the day must
not be put to death, unless he at-
tempts to defend himself with arms. 4
A thief taken in the act, if a free man,
shall be scoui'ged and made over by
addictio to the person robbed ; if a
slave, shall be scourged and thrown
from the Tarpeian rock ; but those
under the age of puberty shall, at
the discretion of the magistrate, bo
scourged and condemned to repair,
the damage. 5
bem prsetoris arbitratn verberari, noxi-
amque duplione decerni." Plin., Hist,
natur., 18, 3.
1 " Qui asdes, acervumve frumenti
juxta domum combusserit, vinctus ver-
beratus igni necari jubetur: si modo
sciens prudensque id commiserit ; si
vero casu, id est ncgligentia, aut noxium
sarcire jubetur, aut, si minus idoneus
sit, levius castigatur." Dig. 47, 9, De
incendio, ruin., navfr., 9, fr. Gai., lib.
iv. Com. Twelve Tables.
2 Plin., Hist, natur., 17, 1. Dig. 47,
7, Arborum furtim ecesarum, 1 pr. and
11, fr. Paul. Gai., Instit., comm. 4,
11-
3 Macrob., Saturn., 1,4. Aul Cell.,
Noct. attic., 8, 1, and 11, 18. Ulpian.,
according to Collat. leg. Mos. et Horn.,
7, 3. Cicero, Pro Milan., 8. Senec.,
Controv., 10, in fine. Dig. 9, 2, ad leg.
Aquil, 4, 1, f. Gai.
4 " Furem interdiu deprehensum, non
aliter occidere lex XII Tabitlaruui.
permi.nt, quam si telo se defendat."
Dig. 47, 2, De furtis, 54, 2, f. Gai. ;
50, 16, De 'verbor. signif., 233, 2, f.
Gai. ; and passages in preceding note.
5 " Ex caeteris autem manifestis f uri-
bus, liberos verberari addicique jusse-
runt (the decemvirs) ei cui f urtum fac-
tum esset, si modo id luci fecisseut,
neque se telo dcfendissent ; servus item
furti manifest! prensos, verberibus aifici
et e saxo praicipitari ; sed pueros im-
puberes praetoris arbitratu verberari
voluerunt, noxiamque ab his factam
sarciri." Aul. Gell., Noct. attic., 11,
THE HISTORY OF ROMAN LAW.
117
Si adorat furto, quod nee uiauil'estum
escit . .*
The theft lance licioque conceptiim,
discovered by the plate and girdle ;
(that is to say, when the theft had
been discovered, recourse having been
had to the solemn search which
the law required, in order to ob-
viate the suspicion that the person
making the search had himself
brought the stolen property to the
place, he was clad simply with a
girdle (licium) for decency's sake,
and held in his hand a plate (lanx),
either that he might put on it the
object found, or that his hands being
occupied in holding this plate, it
could not be supposed he was con-
cealing anything with them), was as-
similated to furtum manifestum.
Furtum conceptiim was theft by him
upon whom the stolen property was
found, without recourse being had to
the solemn search ; and furtum ob-
latuin was the theft of him who
clandestinely lodged with another
that which he himself had stolen, in
order that it might be found on his
premises and not upon his own.
These two latter delicts were pun-
ished by a fine of triple the value of
the thing stolen. 1
In an action for furtum nee manifes-
tum . . . (the penalty shall be
double the value of the stolen pro-
perty).
18, and 7, 15. Gai., Instit., comm. 3,
189. Servius, ad Virg., ^Eneid. 8,
line 205, etc.
1 " Concepti et oblati (furti) pcena
ex XII Tabularum tripli est." Gai.,
Instit., comm. 3, 191. "Lex aut>Mi
eo nomine (prohibiti fnrti) nullam pce-
nam constituit : hoc solum praecipit, ut
qui quaerere velit, nudus quaerat, linteo
cinctus, lancem habens ; qui si quid
invenerit, jubet id Lex furtum mani-
fi stum esse." Gai., Instit., comm. 3,
192. In the following paragraph the
jurist, endeavouring to explain the em-
ployment of these objects in this cere-
mony, rather turns it into ridicule than
justifies it. Aul. Gell., Noct. attic., 11,
18, and 16, 10. Festus, on the word
Lance.
2 Festus, on the word Nee. Consult
Aul. Gell., Noct. attic., 11, 18 ; Cato,
De re rmtica, in procem. " Nee mani-
f esti fnrti posna per leg em ( XII) Tabu-
larum dupli irrogatur." Gai., Instit.,
comm. 3, 190.
118
THE HISTORY OF ROMAN LAW.
XVII.
* * * * *
XVIII.
XIX.
XX.
XXI.
Patronns si client! fraudem fecerit,
sacer esto. 5
xxn.
Qui se sierit testarier libripensve fuerit,
ni testinionium fariatur, improbus
intestabilisque esto. 6
Provision prohibiting the acquisition by
usucapio, that is to say, by possession
of stolen property. 1
Interest upon money lent must not ex-
ceed an ounce. That is to say, one
twelfth part of the principal per
annum (unciariumfcenus), which is
eight and a third per cent, per annum,
calculating according to the solar
year of twelve months, according to
the calendar of Numa. The penalty
for exceeding this interest is the
quadruple. 3
For fraud in bailment a double pe-
nalty. 3
Provision giving all citizens the right
of action to remove suspected tutors,
and imposing a double penalty for
the abstracted property of the pupil. 4
The patron who shall commit a fraud
upon his client shall be devoted to
the gods.
He who has been a witness or acted as
scale-bearer and refuses to give tes-
timony shall be accounted infamous,
and incapable of giving or receiving
testimony.
1 " Furtivam rem lex XII Tabula-
rum usucapi prohibet." Gai., Instit.,
comm. 2, 45 and 49. Justinian,
Instit., 2, 6, 2. Aul. Cell., Noct.
attic., 17, 7, etc.
3 ' Nam prinio XII Tabulis sanc-
tum, ne quis unciario foenore amplius
exerceret." Tacit., Annal., 6, 16.
" Majores nostri sic habuerunt : itaque
in legibus posuerunt, furem dupli
damnari, fomeratorem quadrupli."
Cato, De re rust., in prooem. The
signification to be given to these words,
unciarium foenus, is nevertheless the
subject of a spirited controversy, as
may be seen in the author's Explication
historique des Institute, t. iii. lib. iii.
tit. 17.
3 " Ex causa depositi lege XII Tdbu-
larum in duplum actio datur." Paul.,
Sentent., 2, 12, 11.
4 " Sciendum est, suspecti crimen e
lege XII Tabularum descendere."
Dig. 10, De suspect, tutor., 1, 2, f.
Ulp. " Sed si ipsi tutores rem pnpilli
furati sunt, videamus an ea actione,
qua proponitur ex lege XII Tabula-
rum' adversus tutorem in dupliim, sin-
guli in solidum teneantur. Dig. 26, 7,
De admin, et peric. tut., 55, 1, f.
Tryphon. See Cic., De qffic., 3, 15;
De orator., 1, 37, etc.
5 Servius, ad Virgil., JEneiA., 6,
line 609. See Dion. 2, 10; Plutar.,
Ronml., 13.
6 Aul. Gcll., Noct. attic., 15, 13, and
THE HISTORY OF ROMAN LAW.
119
XXIII.
* * *
XXIV.
* *
XXV.
Qui inalmn carmen incantasset 3
Malura venenum . . . 4
XXVI.
* *
XXVII.
Provision ordering false witnesses to
be thrown from the Tarpeian rock. 1
Capital punishment for homicide. 9
(Capital punishment decreed against)
any one who practises enchantments
or uses poisonous drugs.
Provision against seditious gatherings
by night in the city, awarding capital
punishment. 8
Saddles, or members of the same college
or corporation, are at liberty to make
what rules binding upon themselves
they may think fit, provided that they
do not contravene the law. 6
TABLE IX.
PUBLIC LAW (De jure publico}.
Provision prohibiting the passing of
any law concerning a private indi-
vidual. 7
6, 7. Dig. 28, 1, Qui testam. fao.
pass., 26, f. Gai.
1 " An putas ... si non ilia etiam
ex XII de testimoniis falsis pcena abole-
visset, et si nunc quoque, ut antea, qui
falsum testimonium dixisse convictus
esset, e saxo Tarpeio dejiceretur, men-
tituros f uisse pro testimonio tarn multos
quam videmus?" Aul. Gell., Noct.
attic., 20, 1 ; Cicero, De offio., 3, 31.
2 Plin., Hist, nat., 18, 3. Festus, on
the words Parricidii qutestores.
3 Plin., Hist, nat., 28, 2.
4 Dig. 50, 16, De verbor. signif.,
236 pr., f. Gai., lib. iv. of Commentary
on Twelve Tables.
5 " Primum XII Tabulis cautum esse
cognoscimus, ne quis in urbe coatus
noctumos agitaret." Porcius Latro,
Declamat. in Catalin., c. 19.
6 " Sodalessunt, quiejusdem collegii
sunt. . . His autem potestatem facit
Lex, pactionem, quam velint, sibi ferre:
dum ne quid ex publica lege corrum-
pant" Dig. 47, 22, De colleg. et
corpor., 4, f. Gai., lib. iv. Com. Twelve
Tables.
7 " Vetant XII Tabulae, leges priva-
tis hominibus irrogari." Cicero, Pro
domo, 17 ; De legib., 3, 19.
120 THE HISTORY OF ROMAN LAW.
II.
* * * * The great comitia, that is to say, the
comitia by centuries, have alone the
right to enact laws inflicting capital
punishment upon a citizen, that is to
say, which could deprive him of life,
liberty or citizenship. 1
III.
***** The penalty of death is awarded to the
judge or arbitrator appointed by the
magistrate who accepts a bribe. 2
* * * * Provision relating to the quaestors in
the case of homicide (qucestores homi-
cidii) ; and the right of appeal to
the people in the case of any penal
sentence. 3
V.
* * * * The penalty of death decreed against
any one who should excite the enemy
against the Roman people ; or who
should deliver a citizen to the enemy. 4
TABLE X.
SACRED LAW (Dejure sacro}.
Ilominem mortuum in urbe ne sepelito, The dead must not be buried nor burned
neve urito. 5 within the city.
1 " Turn leges prasclarissimse de XII 3 " Qusestores constituebantur a po-
Tabulis translate duas, quarum altera pulo, qui capitalibus rebus prasessent :
privilegia tollit ; altera de capite civis hi appellabantur qutestoresparricidii:
rogari, nisi maxima comitiatu, vetat quorum etiam meminit lex XII Tabula-
. In privates homines leges ferri rum." Dig. 1, 2, De orig. juris., 2,
noluerunt, id est em^lJ}ri^ileg^^lm, quo 23, f. Pomp. " Ab omni judicio pce-
quid estiiijustius ?" Cicero, De legib., naque provocari licere, indicant XII
3, 19 ; Pro Sextio, 30, etc. Tabulae." Cicero, De republ., 2, 31.
2 " Dure autem scriptum esse in istis See Festus, on the words Parricidii
legibus (XII Tabularum) quid existi- qixestores and Quastores.
mari potest ? Nisi duram esse legem 4 " Lex XII Tabularum j ubet, eum
pntas, quse judicem arbitrumve jure qui hostem concitaverit, quive civem
datum, qui ob rem dicendam pecuniam hosti tradideret, capite puniri." Dig.
accepisse couvictus est, capite punitur." 48, 4, ad leg. Jul. maj., 3, f. Marcian.
Aul. Gell., Noct. attic., 20, 1; Cicero, 5 Cicero, De legib., 2, 23.
In Vcrr., 2, 32, and 1, 13.
THE HISTORY OF ROMAN LAW.
121
II.
Hoc plus ne facito.
ascia ne polito .
III.
Rogum
IV.
Mulieres genas ne radunto ; neve les-
sum f uneris ergo habento. 3
V.
Homini mortno ne ossa legito, quo post
funus faciat. 4
VI.
Qui coronam parit ipsc, pecuiiiaveejus,
virtutis ergo duitor ci.'
Do no more than this. . . . The
wood of the funeral pile shall not be
smoothed.
Restrictions against sumptuous fune-
rals: the dead are not to be buried nor
burned in more than three robes ; nor
in more than three fillets of purple ;
nor shall the funeral be attended by
more than ten flute players. 1
Women shall not be allowed to tear
their hair nor make immoderate wail-
ings.
The bones of the deceased shall not be
collected for the purpose of giving
him a subsequent funeral (except in
the case of death in battle, or in a
foreign country).
Provision prohibiting the embalming
the bodies of slaves, funeral banquets,
expensive libations, coronal garlands,
and the erection of incense altars.*
But if the deceased has either personally
or by his slaves or horses obtained
any public trophy, he shall be en-
titled to the honour it confers. (The
crown might be worn during the fu-
neral either by the deceased or by
his father.)
1 Cicero, De legib., 2, 23.
4 " Extenuate igitur sumptu, tribus
riciniis et vinculis purpurae, et decem
tibicinibus, tollit (the law of the Twelve
Tables) etiam lamentationem : MU-
LIEBES GENAS," etc. Cicero, ibid.
3 Cicero, ibid. See Festus, on the
words Ricinium and Radere genas.
Plin., Hist, nattir., 11, 37. Servius,
ad Virgil., ^Eneid. 12, line 606. Cicero,
Tuscul, 2, 22.
4 " Cietera item funebria, quibns Inc-
tus augetur, XII sustulerunt : HOMINI,
inquit . . . etc. Exctpit bellicam
peregrinamque mortem." Cicero, De
legib., 2, 24.
5 " Haec praeterea sunt in Legibus de
unctura, quibus servilis unctura tollitnr
omnisque circumpotatio : quse et recte
tolluntur, neque tollerentnr nisi fuis-
sent. Ne sumptuosa respersio, ne longas
coronse, nee acerrae praetereantur."
Cicero, De legibus, 2, 24. See Festus,
on the words Murrata potione. Plin.,
Hist, natur., 14, 2.
6 " Inde ilia XII Tabularum lex :
Qui CORONAM, etc. Quam servi equive
meruissent pecunia partam Lege dici
nemo dubitavit. Quis ergo honos ? ut
ipso mortuo parentibusque ejus, dum
iutus positus csset, forisve ferretur, sine
122
THE HISTORY OF ROMAN LAW.
vin.
Neve aunim addito. Quoi auro denies
vincti escunt, ast im cum illo sepelire
urereve se fraude esto. 8
X.
XI.
Prohibition against more than one fune-
ral, or more than one funeral cere-
mony, for the same deceased. 1
Gold must not be buried with the dead ;
but if the teeth are fastened with
gold, this may be either buried or
burned.
No funeral pile or sepulchre shall be
erected within sixty feet of another
man's house, except with his consent. 3
Neither a sepulchre nor its vestibule
can be acquired by iisucapio*
TABLE XI.
SUPPLEMENT TO .THE FIRST FIVE TABLES.
* * * Prohibiting marriage between patri-
cians and plebeians. 5
fraude essefc imposita." Plin., Hist,
natur., 21, 3. See Cicero, De legib.,
2, 24.
1 " Ut uni plura fierent, lectique
plures sternerentur, id quoque ne fieret
Lege sanctum est." Cicer., De legib.,
2,24.
2 Cicero, ibid.
3 " Rogum bustumve novum vetat
(lex XII Tabularum) propius sexaginta
pedes adjici asdes alienas invito do-
mino." Cicero, ibid. See Dig. 11, 8,
De mortuo infer., 3, f . Pomp.
4 " Quod autem forum, id est vesti-
bulum sepulcri, bustumve usucapi vetat
(lex XII Tabularum), tuetur jus sepul-
crorum." Cicero, ibid; Festus, on the
word Forum.
5 " Hoc ipsum : ne connubium Patri-
bus cum Plebe esset, non Decemviri
tulerunt." Livy, 1, 4. See Dion. 10,
60, and 11, 28; Dig. 50, 16, De verb,
signif., 238, f. Gai., on lib. iv. Com.
Twelve Tables ; Cicero, De rejiubl.,
2, 37.
THE HISTORY OF ROMAN LAW.
123
TABLE XII.
SUPPLEMENT TO THE LAST FIVE TABLES.
n.
Si servus furtum faxit noxiamve no-
cuit. s
III.
Si vindiciam falsam tulit . . . rci
si velit is ... tor (sive litis
Prastor) arbitros tres dato ; eornm
arbitrio . . . fructus duplione
damnum dccidito. 3
IV.
V.
1'rovision establishing the pignoris
capio (the seizure of the security, a
species of legis actio) against the
debtor for the payment of the pur-
chase-money of a victim, or the hire
of a beast of burden when the hire
has been expressly made in order that
the sum paid should be devoted to
purpose of sacrifice. 1
If a slave has committed a theft or any
other injury . . . the direct ac-
tion does not lie against the master,
but the act io noxalis does.
If anyone wrongfully acquires the in-
terim possession of a thing, the
magistrate shall appoint three arbi-
trators to determine the question; and
if they decide against him, he shall
be mulcted in a sum equal to double
the profits.
It is forbidden to consecrate anything
which is the subject of a suit, and a
double penalty is inflicted for doing
Abrogates all previous and contradic-
tory enactments. 5
1 " Lege autem introducta est pig-
noris capio, velut lege XII Tabular urn
adversus eum, qui hostiam emisset, nee
pretium redderet; item adversus eum,
qui mercedem non redderet pro eo ju-
mento, quod quis ideo locasset, ut inde
pecuniam acceptam in dapem, id est in
sacrificium impenderet." Gai., Instit.,
comm. 4, 28; Dig. 50, 16, De verb,
slgnlf., 238, 2, f. Gai., on lib. vi.
Com. Twelve Tables.
3 Festus, on the word Noxia. " Nam
in lege antiqua (XII Tabularum), si
servus sciente domino furtum fecit, vel
aliam noxam commisit, servi nomine
actio est noxalis, nee dominus suo
nomine tenetur." Dig. 9, 4, De noxal.
action., 2, 1, f. Ulp.
* Festus, on the word Vindicics.
Aul. Gell., Noct. attic., 10, 10.
4 ' Hem, de qua controversia est,
prohibemur in sacrum dedicare; alio-
qnin dupli poanam patimur." Dig. 44,
6, De litigios., 3, f. Gai. lib. vi., Comm.
Twelve Tables.
5 "In XII Tabulis legem esse, ut,
quodcunque postremum populus jns-
sisset, id jus ratum esset." Livy, 7, 17
and 9, 33, 34.
124 THE HISTOKY OF ROMAN LAW.
SECTION XXVII.
CHARACTER OF THE TWELVE TABLES.
114. The law of the Twelve Tables is e \ddently a compila-
tion in writing of the customary law existing at the time that
compilation was made/^ Details are omitted which were sup-
posed to be familiar to the pontiffs and patricians; principles
only are embodied. These at least are the general features of
the code, though in certain particulars as for example the rules
for the observance of funeral ceremonies, the laws and obliga-
tions existing between neighbours, and the treatment to which
the debtor might be subjected by the creditor it descends into
the smallest minutiae.) Thus upon twelve tables, roughly en-
graved and exposed in the Forum, the whole body of the law
was inscribed. /'And, notwithstanding that we possess only a
few fragments,) we can,(by collecting the indirect notices and
allusions scattered through the works of different old writers
and juristsAdiscover in these tables the germ of a large number
of those institutions which were developed by later law, and we
can readily understand how it is that the Twelve Tables were
at all times regarded by the Romans as the basis of their civil
rights.
1 1 5/ Notwithstanding the fact that the decemvirs appear to
have had before them documents containing foreign laws, and
especially the laws of Athens, notwithstanding the fact that
they have introduced certain provisions pointed out by writers
and jurists as verbatim transcripts, and whose resemblance in
certain particulars can neither be attributed to accident, nor to
the fact of similarity between Roman and Grecian thought, 1
we are nevertheless justified in asserting that) the law of the
Twelve Tables is the Quiritarian law, the law of the men of the
lance, that it was peculiar to Roman citizens, and that it is radi-
cally different from the law of other nations.
116. ^The political constitution of the city^s not explained
1 See passages cited above in note to Table VII.
THE HISTORY OP ROMAN LAW. 1 25
by anything which the fragments, as we possess them, contain.
The division and the distribution of the people, the organization
and the powers of the comitia by curies, by centuries, and by
tribes, the consulate, the senate, and all the other public func-
tionaries, do not appear to have been dealt with by these legis-
lators. /All this organization constituted a machinery that was
allowed to work in its ordinary way. The subject to which the
attention of the legislators who compiled the tables was directed
were those public disputes which required immediate settlement.
The prohibition of class legislation, the principle that it was the
final decision of the people which should be law, and which should
have the force of precedent, the exclusive power of the great
comitia to determine questions affecting the citizens capitally,
and the right of appeal to the people, that is to say, to the
great comitia, in matters of equal importance, are among the
provisions which most directly affect the political constitution
of Rome. As to the rest, the public law does not occupy a
leading position in the code of the decemvirs. ( It is described,
together with sacred law, in the ninth and tenth Tables, that is to
say, in the two last Tables compiled by the first decemvirs.} As
to the extent to which that principle of equal laws for all classes
(cequanda libertas omnibus, summis infimisque jura aquare),
for which the plebeians contended, was admitted by the decem-
virs, and recognized in the Twelve Tables, we cannot speak
with accuracy, (because we are not acquainted with all the
shades of difference which separated the two classes prior to
this code.)
But it is clear that neither in public nor private law did the
Twelve Tables introduce complete equality between patricians
and plebeians. The exclusive right of the patrician to the ad-
ministration and to the possession of high offices still subsisted ;
clientage, which was attended with so many important conse-
quences, is consecrated by the law of the Twelve Tables ; and
the absence of the connubium between the patricians and ple-
beians shows clearly that these classes were still two distinct
classes.
117. That which most forcibly strikes us in connection with
126 THE HISTORY OF ROMAN LAW.
the Twelve Tables is that they contain the law of a people
prone to litigation. The summons of the adversary before the
magistrate, the rules governing the legal suit and the rights of
the creditor over his debtor, that is to say, the commencement,
the intermediate steps, and final execution, are matters which
occupy the first place, and in fact they comprise the first three
Tables. The form of procedure up to appearance before the
magistrate (de in jus vocando} is simple and rude. The plain-
tiff, when the defendant refuses to follow him, takes witnesses,
seizes the defendant, and drags him before the magistrate. The
entire proceeding and the administration of justice was public.
Any quarter of the forum might serve as a tribunal, but more
especially that part known as the comitium, which was covered
with a roof, and in the middle of which was the rostrum.
We find already in the Twelve Tables that characteristic and
important distinction drawn by the Roman law between jus (the
law) and judicium (the action at law), or the difference between
the magistrate (magistratus) and the judge (judex or arbiter}.
The first (magi stratus') was charged with declaring the law
(jurisdictio^ and with its execution, aided by the public autho-'.
rity (imperium}, with organizing the suit by the accomplishment
in his presence of all the solemn rites prescribed by the law or
by custom, and by appointing a judge in those cases which he
did not himself think fit to determine. The second (judex or
arbiter} was charged with the duty of adjudicating upon the
dispute referred to him by the magistrate. This difference
will be seen at a later period fully developed. But the in jus
vocatio, that is, the summons before the law, in other words,
before the magistrate, appears as early as the date of the
Twelve Tables (T. XII. 3).
118. The provisions of the laws of the decemvirs as to the
rights of creditors over the person of their debtors bear strong
testimony to the troubles of the plebeians in these early days
and to one source of political agitation. We may remember,
that it was one of the decemvirs, Appius Claudius, who im-
pudently designated the prison which he had caused to be con-
THE HISTORY OF ROMAN LAW. 127
structed for his debtors the home of the Roman plebeian? 1
With such laws in existence we cannot be surprised that debt
should have been more than once the cause of revolution.
However, it is easy to recognize, in the care that the decemvirs
took to regulate and to legalize the rigours to which the debtor
was liable, the result of scarcely suppressed rebellion. The
limit of rate and interest and the pains pronounced against those
who exceeded it, the delay of the thirty days for the condemned
debtor, the presence of the magistrate, the vindex, or of the
respondent who could claim the debtor, the limitation of the
weight of the chains, the regulations as to the food to be sup-
plied, the second delay of sixty days, the obligation to produce
the captive before the magistrate three times, during this interval,
in public, and on the market-day, together with the proclamation
as to the sum owing, in order that the parents and friends of
the debtor, or any who had compassion on him, might take
measures to discharge his debt and save him from the fate which
awaited him, are all concessions or guarantees made or given to
the debtor.
But after all these formalities had been gone through, if the
debt was not paid the debtor might be put to death or sold into
a foreign country, in order that the city might be freed from him.
In the case of there being several creditors, they might divide
his remains between them. Modern writers have refused to
read .this provision in its true and literal sense ; they have sought
in it a symbol, and regarded the partition as being that of the
possessions and not of the body of the debtor ; but the ancients,
as fragments from Aulus Gellius, from Quintilian, from Ter-
tulian show us, read this law literally : 2 they, in fact, justified
the Roman law in saying that custom indeed repudiated the
practice, but that the law was intended as a means to secure
payment of the debt as the result of fear, and that it was in no
instance put into execution.
119. The two Tables which follow, that is to say, the fourth
and fifth, present to us the system of the Roman family and the
1 Livy r lib. iii. 57. " Et illi carcerem Romanae vocare sit solitus."
adiiicatum esse, qnod domicilium plebis * See note to Table III. 6.
128 THE HISTORY OF ROMAN LAW.
rights more directly connected with it, such, for example, as
inheritance, tutelage, curatorship.
The Roman family (familia) is not a natural family: it is a
civil creation of the Quiritarian law. The civil marriage, the
Roman nuptials, is indeed an important element, but it does
not constitute a fundamental principle. The Roman family is
based not upon marriage, but upon power. The head (pater
familias} and the persons subject to his power, slaves, infants,
wife, freemen acquired or engaged by emancipation (mancipati,
next], or adjudged to him by the magistrate (addicti), are what we
must understand by the word familia. In one of its significa-
tions, in a still more extended sense, and one frequently em-
ployed in the Twelve Tables, it includes also the entire patri-
mony, all the property of the chief both persons and things ;
while in a third and in a more limited sense, it simply desig-
nates the chief, with his wife and the children under his power.
There is thus considerable elasticity in the signification of this
\vordfamilia.
120. It is doubtful whether the three terms which indicated
three kinds of power possessed by the head of the family
potestas, that over the slaves and children manus , over the
wife and mancipium, over freemen (mancipes or addicti)
were in use at the time of the Twelve Tables. This may be
doubted, especially as to the first of these expressions, potestas,
the construction of which indicates a more recent date.
121. 'The provisions of the Twelve Tables relating to the
acquisition by the husband of the wife, from the fact of posses-
sion for one year (usu), proves that we must take the greatest
care, in dealing with this period, not to confound the terms in-
dicating marriage, nuptife,justce nuptice, justum matrimonium,
and the marital power, manus. Marriage itself and the form
of marriage were questions which were left entirely to the dis-
cretion of individuals, without any legal compulsion of any kind ;
nor did the law require the intervention of any authority or of any
public ceremony. The mutual consent of the parties, consum-
mated by the tradition or delivery of the woman, was all that
THE HISTORY OF ROMAN LAW. 129
was necessary, that is to say, to place her at the disposition of
her husband. 1
It was a transaction primitive in its simplicity, but savouring
of rough justice ; it was disguised under the garb of symbolic
ceremonies devised to meet the taste and feelings of the people,
but which were in no way a necessity of the law.
However, as mere transfer did not suffice to give Quiritarian
property in any human being, a marriage thus contracted did
not place the woman under the hand (in manu), that is to say,
in the power, of her husband. In order to produce this effect it
was necessary that the nuptials should be contracted according
to the patrician formula of the confarreation, or that the woman
should be transferred per ees et libram to her husband ; other-
wise the same law that existed in reference to personal property
prevailed at the end of one year's possession (usu), with this
peculiarity that the Twelve Tables provided for the woman a
peculiar method of defeating this usucaption. This is why it is
said marital power was acquired in three different ways, by con-
farreatiO) coemptio and usus.) The woman thus acquired by
her husband (in manu contenta) no longer belonged to the
family of the chief to which she originally belonged, but passed
into that of her husband, in which she ranked as his daughter,
and was in the position of sister to her own children.
122. The mere tie of blood relationship was of no account
among the Romans. /They used the words parens, parentes, in
the strict sense of " oegetting," and not as the English, who
apply the term both to father and mother, nor as the French,
who include in it the whole relations ; they indeed confined this
term to one signification of the word par ere, viz., to beget, in
which sense it must be understood by us. *,The most general
1 Marriage in my opinion, contrary consent, it required tradition or de-
to that generally received, was amoug livery ; whereas on the other hand it
the Romans not a purely consensual might be made in the absence of the
contract, which is proved by the fact man, if the woman was by his consent,
that consensual contracts could be made however expressed, taken to his house,
either by letter or by messenger, and (See this subject treated at length by
this was not the case with marriage. the author in his second volume of the
This could not take place in the absence Commentaries upon the Institutes, lib. i.
of the woman, because in addition to tit. 10.)
K
130 THE HISTORY OF ROMAN LAW.
expression and the most comprehensive term indicating rela-
tionship in Roman law is cognatio the cognation, that is to
say, the tie between persons who are united by the same blood
or those reputed by the law as such (cognati', quasi una com-
muniter nati). \ But cognation alone, whether it proceeds from
legal marriage or any other union, does not place the individual
within the family, nor does it give any right of family. The
civil law takes no cognizance of it unless it be for the prohi-
bition of marriage. The relationship of the civil law, that
which produces civil effects, and confers the right of family, is the
agnation (agnatio\ the tie uniting the cognate members of the
same family; and the real bond of their union (ad-gnatio) is
the paternal or marital power which unites or which would
unite all belonging to one common ancestor if the same remote
ancestor of the family was still in existence. Therefore, who-
ever was subject to this power was agnated and belonged to
the family; whoever was released from this bond was no longer
an agnate, nor did he belong to the family. The same rule
held good both as to the wife and the sons, as well as to the
daughters, the brothers, the sisters, and all others. As soon as
the head of the family died, the family was broken up into a
number of small families, each son, who had thus become inde-
pendent, being the head of a distinct family; but the tie of
ao-nation still existed and continued to exist between these
O
different independent families, and even attached to new mem-
bers who might be subsequently born. So that all the members
of the family as well as their descendants remained attached to
the original head of the family, and collectively bore the name
ofihefamilia. Thus we have a new and very extended accep-
tation attached to this term.
123. In addition to agnation, the law of the Twelve Tables
treats of gentility {gens, or, in other words, generation, genea-
logy). In order thoroughly to understand this relationship,
which is purely of Quiritarian origin, we must keep steadily in
mind the ideas connected with clientage and enfranchisement.
(See 17.)
The citizens, the issue of the common stock, whose ancestry
THE HISTORY OF ROMAN LAW. 131
had always been ingenui, that is to say, who could trace a line
of ancestry among which there had not been a single member
tainted with vassalage or clientage in any form whatever, and
who consequently carried on from generation to generation
their own lineage, and who were united by the ties of civil
relationship, constituted collectively a gens. They were as to
each other both agnates and gentiles. Under this aspect one
does not see clearly, if it was this condition which constituted
the gens, wherein gentility differed from agnation, that is to
say, the condition under which no one in the whole line of
ancestry had ever been in a state of servitude or clientage.
For this was in primitive times an exclusive privilege of the
patricians, and all the earlier plebeians were clients. So that
in this point of view the gentility in earlier periods would have
been the agnation of the patricians, and the gens would have
been the patrician famili a : but in addition, these patricians, at
the same time agnates and gentiles as to each other, were also
gentiles of the entire family of the clients or enfranchised, who
were derived by civil process from the gens, and who had taken
their name and adopted their religious rites (sacra), and to
whom their gens was a civil genealogical stock. These de-
scendants of the clients or enfranchised had gentiles, though
they belonged to no one, and in relation to them the agnates
are totally distinct from the gentiles. Their agnation was
founded upon a common tie of parental or marital power, from
whatever period this dated. The gentility to which they were
attached depended on the bond arising out of the power of
patronage, whether of client or enfranchised, without reference
to the period when that power originated. 1
Thus the two systems were successively developed. As to
that of gentility Ave have two distinct races, the superior race
that of the gentiles, derived from a stock which had always
1 Notwithstanding the fact that the vassalage, were also in the course of
origin of gentility is represented as time able to form a gens a- race of
exclusively belonging to the patricians, gentiles in the first place among thcm-
yet the great families of the plebeians selves, and afterwards by relation, not
at a subsequent period, never having to the descendants of their clients be-
boen in a condition of clientage, and cause they never had any, but to the
themselves boasting a lineage perpetu- descendants of the enfranchised.
ally ingenvus, or free from taint of
K2
132 THE HISTORY OF ROMAN LAW.
been noble and pure from any taint of vassalage, and the race
of the clients and enfranchised with their descendants. This
was an inferior and derivative race, reckoning the gens as its
source, so that it had a kind of artificial lineage, deriving its
existence and its name from the operation of civil law. Hence
the term gentilhomme, gentiluomo, gentilhombre, gentleman,
which has been perpetuated even to our own times throughout
the modern languages of Europe, indicates what we under-
stand by a good extraction, a noble genealogy, a pure blood
gentilis homo, as Cicero aptly styles it. (Pro Domo, 49.)
1 24. Thus we must distinguish three terms which express the
ties of civil or natural relationship amongst the Romans. 1st. The
family (familia), to which the term agnation corresponds
(agnatio), and the title of agnates (agnati) \ 2nd. The gens,
to which corresponds the " gentility," the title of gentiles
(gentiles] ; and 3rd. The cognation (cognatio\ to which cor-
responds the title of cognates (cognati). The two former are
Quiritarian, depending upon the tie of paternal or marital
power, or the patronage of the client or enfranchised ; the third
being purely natural, based simply upon the ties of blood and
unattended by any civil effects.
125. It is upon these relations of agnation or gentility, and
upon this construction of the family or artificial lineage, that all
the civil rights of inheritance, tutelage and curatorship depend.
Any one belonging to the civic family participated in those
rights and continued to do so until he had been removed from
it, and had been freed from the power lodged in the hands
of the head of such family. And this applied equally to son,
father, mother, brother, sister or any other relation.
Thus the stranger introduced into this family by adoption, or
the wife by confarreatio, by coemption, or by usus, acquired all
the privileges of agnation and of gentility, provided that the in-
troduction was into a family of gentiles. But no right belonged
to a son, or to a daughter, or to their descendants, who had left
or had been removed from the family by the chief; no right
attached to relations of any description on the female side, be-
THE HISTORY OF ROMAN LAW. 133
cause they did not enter into the family of their mother ; and,
finally, no right accrued to the mother as against her children,
nor to the children in respect to their mother, except as they
were attached to the family by the lien of marital power.
1 26. The following is the order of succession fixed by the
law of the Twelve Tables :
1. CHILDREN. Upon the death of the chief, the children who
were under his potestas, and these included his wife, that is to say,
if she was in manu ; in fact all those who composed his private
family, who were his instruments, his representatives, and, in a
certain sense, co-proprietors with him of the common patrimony.
Thus in the language of the old Roman law, as in that of the
Twelve Tables, they were called hceredes sui, inasmuch as they
took an inheritance which in fact belonged to them.
2. AGNATES. In default of private family, the great family
succeeds in the person of the nearest agnate.
3. GENTILES. And, lastly, in default of agnati, the nearest
gentile took the inheritance (that is to say, if it was a question
of the succession to a descendant, client or enfranchised). For
there being no agnati it was necessary to pass on to the gens
from which the lineage had been derived, from which the stock
had taken its name, and whose sacra had been adopted: the
nearest member of the gens was therefore the heir."
It is remarkable, considering that we are dealing with a
society essentially aristocratic, that neither the Twelve Tables
nor the custom to which they owe their origin, conferred any
privilege either of sex or primogeniture in the division of an
inheritance. The inheritance was divided equally among all
entitled to it who were in the same degree.
1 27. The principle that the testamentary act of the head of
the family should have legal force was an important advantage
gained by the plebeians, who had to adopt a stratagem in order
to secure it. While, on the one hand, the patrician caused his
will to be sanctioned by the assembly of curies, the plebeian
was forced to resort to a subterfuge, and by a fictitious sale,
per ces et libram, to dispose of his patrimony prospectively.
134 THE HISTORY OF ROMAN LAAV.
Thenceforth the transaction acquired the validity of public law ;
and, indeed, in the formula of this fictitious sale words were
inserted to show that the testator only exercised a right given
to him by law. " Quo injure testamentum facere possis secun-
dum legem publicam." 1
128. We may also remark, that Tables IV. and V. lay down
the following :
1. The rule that the inheritance is divided as of right
amongst the heirs.
2. The origin of the action families erciscunda, that is to say,
. the division of the inheritance.
3. JAnd, thirdly, the social position of women, the subjection
in which they were constantly held either by their
ancestors or husbands, and their position in perpetual
tutelage. There was no exception save in the case of
vestals.
129. The fragments which we possess of Tables VI. and
VII. furnish the rules as to property, its rights and obligations.
The Romans had substituted for a natural marriage a civil
marriage (just<z nuptia\ for a natural relationship a civil con-
nection (agnatio,gens} ; they also substituted for ordinary posses-
sion, civic proprietary rights (mancipium, subsequently called
dominium ex jure Quiritiurn). In place of the ordinary trans-
action of alienation by sale, they substituted a sale and an
alienation peculiar to Roman citizens (mancipium, afterwards
called mancipatio\ and finally, in place of ordinary contracts,
civil engagements (nexus or nexum}. Thus the status of the
citizen was impressed upon his marriage, upon his relationship,
upon his property, upon his sales, upon his contracts; and
imparted to all these transactions and conditions the peculiar
characteristic which is the life of these institutions. The
Twelve Tables, and especially the sixth and seventh, are
stamped with this character in their mode of dealing with
property and obligations.
1 Gai., Instlt., comm. 2, 104.
THE HISTORY OF ROMAN LAW. 135
1 30. Among the Romans, ownership, which was rendered
more fixed and permanent by this characteristic, could not be
put an end to, or transferred from one citizen to another, except
under certain restrictions sanctioned by the law, and in the
greater number of instances accompanied by certain peculiar
and solemn forms. Strangers could not acquire it. A man
was either a proprietor according to Quiritarian law (dominus
ex jure Quiritium], or he was not a proprietor at all. There
was no intermediate status. Among the Quiritarian modes of
acquiring Roman property, we find distinctly expressed in the
Twelve Tables mancipatio or alienation per ces et libram this
we place in the first rank ; then the testamentary law of tes-
tators (lex} ; then continuous possession (usus auctoritas after-
wards called usucapio); and finally the in jure cessio, or more
generally the declaration of the magistrate (addictio). As to
the adjudication of the judge (adjudicatio], it can also be re-
cognized, though less formally stated, in the fragments that are
extant, in the action brought to secure the right division of the
inheritance (families erciscundd), or for the limitation of boun-
daries (Jinium regundorum), both of which were incontestably
of as early an origin as the Twelve Tables. There can be
no doubt that uninterrupted occupation and capture from the
enemy were a recognized means of obtaining Quiritarian pro-
perty. In fact, the latter was necessarily the origin, the very
type of Quiritarian right, for the Quirites were " men of the
lance," and the lance was the symbol of their power. And it
is certain, that, in the earliest times, mere tradition sufficed to
confer Quiritarian ownership in a great number of cases.
131. In effect the law of the Twelve Tables, according to
Gaius, contains the division of things into res mancipi and res
nee mancipi. As to things mancipi, Quiritarian ownership
impressed a certain character upon them which did not modify
the ownership, but imparted to it the element of permanency.
It was indeed acquired and lost with greater difficulty. Thus,
in the first place, mere consent and tradition w r ere insufficient
to transfer from one citizen to another the dominion of things
wo i. If it was desired to effect this change immediately,
136 THE HISTORY OF ROMAN LAW.
it was necessary to have recourse to a religious ceremony,
generally mancipation. On the other hand, things nee mancipi
were not susceptible of mancipation, and the ownership in them
was passed by mere tradition. In the second place, the aliena-
tion of things mancipi was not permitted in all cases, where
that of things nee mancipi was lawful. Thus the law of the
Twelve Tables prohibits a woman, under the tutelage of her
agnates, from alienating anything mancipi without the autho-
rity of her tutor : such property could not be alienated from
the family without the consent of the agnates, whereas a woman
was free as regarded things nee mancipi to dispose of them at
will. 1
Apart from mancipation, all the other methods of acquiring
Quiritarian ownership were common both to things mancipi and
nee mancipi. 2 The only transaction in regard to which the
two classes of property differ from each other is mancipation,
and for this reason they are called severally res mancipi or
mancipii, and res nee mancipi or mancipii, things that may be
mancipated and things that cannot be mancipated. 3
132. The incidents therefore of things mancipi are those
characteristics which naturally attach to them. They must
therefore be amenable to the civil law, because they involve a
judicial act essentially Roman, and this excludes all foreign soil
as well as every other foreign object ; it must be capable of
being seized by the hand, for this is the formality which consti-
tutes the mancipation (inanu capere] ; this, therefore, excludes
all incorporeal things, except, indeed, some of the more ancient
servitudes, e. g. rural servitudes, Avhich being connected with
agriculture were identified with the land itself; and except the
patrimony and all incident to it (familia], which were included by
a pure fiction ; and, finally, it was necessary that it should have a
distinct individuality in order that those citizens w r ho took part
in the judicial act, and who were called upon as witnesses to the
acquisition of the Quiritarian rights in the matter, should be able
to testify as to its identity. But these peculiar characteristics
1 Gai., Instit., comm. 2, 80. Ulp., 2 Ulp., Regid., 19, 8, 9, 16 and 17.
liegul., 11, 27. 3 Gai., Instit., 2, 24.
THE HISTORY OF ROMAN LAW. 137
are only found in a sufficient degree for the purpose of mancipa-
tion in two classes of objects, in the land, and in animate beings,
freemen, slaves, and animals ; and amongst the latter are those
only that have been tamed by man and associated with him in
his labours, because those only in fact possess as to man a
recognized individuality. If destined for other occupations, or
if wild, their identity is less distinct and their utility less great.
Thus Roman land, men and beasts of burden constituted res
mancipi. The things mancipi belonging to the head of a
primitive Roman family were his Quiritarian land, together
with the house which was incorporated with it, and the rural
servitudes thereunto attached, his wife, his children, men sub-
ject to his control, and his beasts of burden, things whose indi-
viduality was connected with his own, and which at the same
time in those primitive periods were the most valuable, and
which could not be separated from him by simple transfer, and to
which the religious act of mancipation was exclusively applic-
able. When with the growth of civilization the cultivation of
the arts and the luxuries of life spread among the citizens,
wealth increased, and large private fortunes were amassed,
foreign animals were indeed introduced for purposes of draught
and burden (elephanti et cameli; quamvis dorso collove domen-
tur}. But res mancipi were not increased in number. The
characteristic was stamped upon them by the ancient Roman
law, and this could not change. 1
133. The relations existing between contiguous proprietors
were regulated even as to the smallest minutise in the fragments
which we possess. We also learn from these fragments the
existence of certain servitudes, amongst which the most im-
portant is the right of way (yia\ which \vas therefore of earlier
date than the Twelve Tables.
134. The theory of obligations, especially those springing
from contract, is one of the points upon which the fragments of
the Twelve Tables furnish us with but few data. The name
obligatio is a more modern expression belonging to the legal
9, ! G&i., Instit., 2, 25 et seq. ; 102 and 104.
138 THE HISTORY OF ROMAN LAW.
phraseology of a period posterior to the decemviral law. The
same must be said of the term " contract" (contractus^. But
by whatever name it was known, we see clearly in the Twelve
Tables the existence of obligation resulting from torts (noxa\
and from certain peculiar provisions of the law, as in the case
of co-heirship, legacies, tutelage and the relation between neigh-
bours. The mode of contract amongst Roman citizens was the
nexum, that is to say, the transaction better known by the term
per CBS et libram, 1 that which served to transfer the Quiritarian
ownership. The solemn words pronounced by the contracting
parties constituting the law which bound them respectively
(nuncupatio], according to the expression found in the Twelve
Tables, were ita jus esto. z This was the law of mancipation
(lex mancipii); and whether it was real or purely fictitious, the
alienation per as et libram was necessary to bind the respective
parties. In this manner even deposits and pledges were made. 3
It was in this manner that the borrower bound himself to the
lender, and not unfrequently pledged his person to satisfy his
debt (nexa). (hi a later period the civil forms of the Roman
law were simplified, and the different acts of the ceremony per
CBS et libram were taken as performed, the words, detached
from the acts w T hich formerly accompanied them, being alone
preserved. The transaction thus came to consist of the solemn
interrogation (sponsio, stipulatio}, followed by the appropriate
response, or the parties contented themselves with a simple
entry in the domestic register of the sacred terms suited to
the transfer in question (expensilatio}. Thus the two civil
forms of contract verbis and litteris among the Romans were
derived from a simplification of the ancient contract per CBS et
libram of the nexum. There is nothing in the Twelve Tables
to indicate to us the existence of the contract verbis or of the
stipulatio at that period, notwithstanding the fact that traces
are to be found in earlier historians of the interrogation and
answer ; nor do the Twelve Tables furnish us with any clue to
the contract litteris.
1 " Nexum est, ut ait Gallus ^lius, a See Table IV., f. 1 and 2.
qnodcunque per ass et libram geritur, 3 Gai., Instit., 1, 122, and 2, 69.
idque necti dicitur." Festus, on the Festus, on the words JTeicum and Nun-
word Nexum. Varro, De ling. Int., 6, cupatio.
THE HISTORY OF ROMAN LAW. 139
135. We cannot, however, doubt that the ordinary sale, with-
out the solemnity per CBS et libram, did in fact exist and was
practised legally at this period. Indeed, we have clear proof
of this fact from those passages in the Twelve Tables which
provide that after certain delays the debtor (addictus^ should
be put to death or sold to a foreigner across the Tiber, which
must have reference to the form of sale common to all people,
and not to the Quiritarian alienation, inasmuch as it took place
with a foreigner. We also see it in the provision which states
that the property in a thing sold and delivered does not vest in
the buyer till payment, which must of necessity refer to a sale
other than that by mancipation and to a sale of things nee
mancipi. Indeed, as regards the great mass of things which
were not capable of mancipation and which were of daily and
hourly use, sale was a necessity and must have been constantly
practised, though it does not appear at this primitive period of
Roman history except as a fact accomplished by one or other of
the parties, and this is proved by its ancient name venumdatio,
" the being given in sale." Simple consent or simple voluntary
accord of the parties produced no obligation recognized by the
then civil law. It required time to develop the Quiritarian law
to that point which would enable it to admit the principles of
the jus gentium and to adopt contracts based solely upon consent.
136. The rules concerning torts in the eighth Table are
characterized by features common to the legislation of all rude
people still in their infancy, the interest of the individual pre-
dominating over that of the state, penalties more frequently of
a private than a public character, and their transmutation into
a species of ransom and the resolution of criminal proceedings
into a simple pact. When punishment was inflicted for public
crimes the penalty assumed the form of torture, on the principle
of retaliation : the victim v/as doomed as a sacrifice to Ceres, or
to some other deity ; or condemned to leap from the Tarpeian
rock, or to torture by fire or by the leather sack, all being out
of proportion to the crime. This was the result of ignorant
superstition, as in the case where the punishment of death was
140 THE HISTORY OF EOMAN LAW.
awarded for making use of enchantments, to blight the harvest
or transfer crops from one field to another.
1 37. The ancient name for a tort was noxa, which was a
kind of obligation resulting from something done by one man to
the prejudice of another, whether intentionally or inadvertently,
provided that it was wrongful. The fragments of the Twelve
Tables present us with three distinct examples: theft (furtum),
damage (damnum), injury (injuria).
138. We have already commented upon public and sacred
law as treated in the ninth and tenth Tables.
139. As to the last two Tables, the eleventh and the twelfth,
which were intended as a supplement to what went before,
Cicero is far from speaking of them with the same admiration
as he bestows upon the others. In his Republic he says, " Qui
(the last decemvirs} duabus tabulis iniquarum legum additis,
quibus etiam quce disjunctis populis tribui solent, connubia,
h(EC illi ut ne plebei cum patricibus essent inliumanissima lege
sanxerunt." They added two Tables of iniquitous laws, by
which marriage, which is ordinarily permitted even between
persons of different countries, was prohibited by the most odious
of laws between the plebeians and the patricians.' It was pro-
bably under the influence of the impression produced by this
prohibition of marriage between the two castes, that Cicero
applies to the contents of these Tables the epithet "iniquitous;"
but if all had merited this epithet, how was it they were adopted
by the people, especially when we have regard to the fact of the
expulsion of the decemvirs?
SECTION XXVIII.
ACTIONS OF THE LAW (Legis Actiones).
140. The law, it is true, is written, but besides abstract rule
public power is necessary in order to give it force, and a pro-
1 Cicero, De republ., lib. ii. 37.
THE HISTORY OF ROMAN LAW.
cedure adapted to put it in operation is indispensable. There
must be, together with a law, a judicial authority and a judicial
procedure. The Quirites, "men of the lance," had in their
judicial customs, even anterior to the promulgation of the Twelve
Tables, forms of procedure assimilated to acts of violence and to
the combat, in which we at once see their predominant character-
istic, the military life, and the important part played amongst
them by their favorite instrument, the lance ; as also the pre-
dominance of the sacerdotal and patrician elements, which had
regulated the forms, and which had preserved in symbols and
pantomimic action the realities of former days. The Twelve
Tables have in some of their provisions treated of these forms
of procedure as they then existed. They allude to them as
institutions then in full force, but do not prescribe any rules or
formulas concerning them. 1
This duty devolved upon the college of pontiffs, which was con-
fined to the patricians, to which caste was confided the exclusive
juridical and judicial power. However, in the presence of the
Twelve Tables, which had given a written law and laid down
a permanent system, it became indispensable to provide a pro-
cedure suited to and in harmony with the new code. This is
why the national historians inform us that immediately after the
passing of the Twelve Tables a second effort was made to
prescribe regulations for the form of procedure or the actions
of the \aw(legis actiones} f so called, says Gains, either because
they were a creation of the civil law, and not of the praetorian
edict, or because they were prepared to suit the provisions of
the law (legum verbis accommodate^)?
141. The term action, at this period, is a generic designation
which signifies a particular form of procedure, the procedure
taken as a whole, including the ceremonies, the acts and the
words which constituted it.
1 See especially Table II. f. 1, and institueret, certas soleranesque esse vo-
Tablc XII. f. 1. lucrunt : et appellatur haec pars juris
8 " Deinde, ex his legibus, eodcm Icgls actiones, id est Icgitimac actiones."
tempore fere, actiones composite sunt, Dig. 1, 2, I)e vrlg. jvr., 2, 6, f.
quibue inter se homines disceptarent : Pompon,
prut- tiones, ne populus prout vellet 3 Gai., I/istit., 4, 2.
142 THE HISTORY OF ROMAN LAW.
At the period of the Twelve Tables there were only four
actions ; one more was subsequently added. Of these four
actions two are forms of procedure instituted in order to arrive
at a decision of the point in dispute, the other two are forms of
procedure used to put the judgment into execution.
Of the first two first is the actio sacramenti, the most an-
cient of all, which, with certain variations of form, \vas employed
in suits whether to enforce obligations or in suits relating to
rights of property or other real rights, the predominant charac-
teristic in all cases consisting in the sacr amentum, or sum of
money which each litigant had to deposit in the hands of the
pontiff, and which was forfeited by the unsuccessful party for
the benefit of public worship. It is concerning this form of
action that we have the most information, and we know that the
Twelve Tables fix the amount of the sacramentum. 1 And,
secondly, thejudicispostulatio, which was an application made
to the magistrate calling upon him to appoint a judge to try a
given case without having recourse to the sacramentum, and
was consequently a simplification of the procedure which was ad-
mitted in certain cases. 2
Of the last two first the manus injectio (the putting on of the
hand), the corporeal seizure of the person of the debtor when
either condemned by the judge or surrendered by himself in
default, as the result of which the debtor was addictus, that is,
adjudged to his creditor by the prastor ; the second, \kepignoris
capio (the taking a pledge), or seizure of the property of the
debtor, concerning which also we know that there was a specific
provision in the law of the Twelve Tables. 3
142. The actiones legis were completed in jure before the
magistrate, and this was the case even when it was necessary
for him to appoint a judge. This was the form, the preliminary
step. There is no exception, save in the case of the last, legis
1 See Table II. 1, and note 1. of this section was contained in these
Festus, on the word Sacramentum. words : J. A. V. P. U. D. (judicem
2 This was especially provided for in arbitrumve postulo iiti des). Vale-
the Twelve Tables (vide Table VII. rius Probus.
il). It is supposed that the formula 3 Vide supra, Table XII. 1.
THE HISTORY OF ROMAN LAW. 143
actio, the pignoris capio, and indeed it was a question with the
jurists whether the pignoris capio was in fact a legis actio. 1
143. But notwithstanding the fact that the sacr amentum and
\\iQJudicis postulatio were generally forms for the enforcement
of all substitution of rights, and that they had in all cases a cer-
tain uniform characteristic, however much the details and the
necessary formulas adapted to each individual case might vary
in each instance according to the nature of the law or accord-
ing to the provisions of the law upon which the right was based,
it was necessary that the parties should be familiar with the acts
and formulas suited to their particular case.
1 44. Such was the early system of procedure amongst the
Romans. Its characteristic is symbol ; it is here that we find the
lance (vindicta), the tuft of grass, the tile, and the other material
representations of ideas or of objects. It is here that we find
the gesture, the legal pantomime, the simulated act of violence,
the fictitious combat (manum consertio^, for the most part
symbolizing the transactions and processes of an earlier and
barbarous period : here we find the utterance of sacred terms,
and he who should be so unfortunate as to say " vine" (vites),
in an action concerning " vines," instead of using the word
arbores, which was the religious term peculiar to the law of the
case, would lose his action : 2 here we find the impress of the
sacerdotal finger ; we see it in the sacramentum, the preliminary
deposit of a sum of money in the hands of a pontiff for the
benefit of public religious service ; we see it in the pignoris
capio, accorded subsequently on occasions in which religious
sacrifices were concerned, and it is here that we find the weight
of patrician influence. The magistrate was a patrician, the
judge could only be selected from the order of patricians ; in
one word, the jus and thejudicium were in their hands.
145. The first and the principal of these actions, the actio
sacramenti, in those forms which related to the vindication
1 Gai., Instit., 2(5, 20. a Gai., Insiit., 4, 11 and :!0.
144 THE HISTORY OF ROMAN LAW.
(vindicatio) of a thing or of a real right, had been diverted
from its original intention and by custom came to be employed
in a manner purely fictitious, in order to arrive at certain results
which were not authorized by the civil primitive law or suited
to a more complex state of things. The ingenious spirit of
this fiction exhibited itself when it was desired to transfer a
thing or real right which was not actually in the possession of
the party desirous of making the transfer. A fictitious action
was in such cases brought before the magistrate (in jure) by
the party who claimed as his own the object which was intended
to be transferred to him. The party against whom the action
was brought, that is, the person who wished to transfer the
property, raised no objection to the plaintiff's claim, whereupon
the magistrate pronounced in his favour, and adjudged (addi-
cebat) the object to the claimant. This is what was known as
the cession before the magistrate (in jure cessio], which existed
even before the time of the TAvelve Tables, but which was
confirmed by them in the provisions to which we have already
referred. 1 The enfranchisement before the magistrate (manu-
missio vindicta), the emancipation (emancipating, and the adop-
tion of the sons of a family, the transfer of the tutorship from
one person to another, a means employed by Avomen in order to
place themselves under tutors less severe than their agnates, are
but peculiar applications of this process injure cessio ; and it is
for this reason that these actions are frequently styled even by
the Roman jurists actions of the law or legitimate actions Cactus
leyitimi\ though they were but simulations of certain formalities
belonging to one of these actions.
1 46. But these forms, and especially the sacred words of the
legis actiones, specifically applied to the object or cause of each
demand, were not made public, and were only known to the
patricians, who had composed them or who were in the habit
of using them. The college of the pontiffs was charged with
their safe keeping. An action could only be commenced upon
certain given days named fasti: the knowledge of these days
1 See Table VI. 1 1.
THE HISTORY OF ROMAN LAW. 145
was possessed only by the pontiffs, who were charged with the
necessary intercalations of the calendar. In this way every
private individual had to rely upon the pontiffs and upon those
in high position, and to them it was necessary to have recourse
whenever he found himself in difficulty. Add to this the fact
that the laws of the Twelve Tables, laconic and obscure as they
were, required to be explained and adapted by interpretation to
the different cases which they had not specifically comprised ;
that the patricians alone were versed in the study of these laws ;
that they alone held high magistracies, and that to them be-
longed the sole right to manage the various cases ; and the con-
clusion is forced upon us that even after the promulgation of
the Twelve Tables the patricians, as to all that concerned civil
rights, still preserved an exclusive and predominant influence. 1
147. We may here conclude the discussion upon the time
which had elapsed since the expulsion of the kings. In this
short interval both public and civil law have assumed a new
aspect. We find the patricians and the plebeians residing
together in the same city: the former have their magistrates,
their consuls and their quaestors; the latter also have theirs,
their tribunes and their asdiles. All the influence that springs
from nobility of birth, from sacerdotal functions, from high
position in the army, from the eclat attending victories, from
knowledge of politics and the laws, is on the side of the pa-
tricians. The weapons in the hands of the plebeians are num-
ber, strength, impatience and sedition. But a danger threatens
the state : enemies are pressing hard upon Rome, private ani-
mosity is sunk, a dictator is appointed, the energy of an indi-
vidual saves the republic ; but the peril past, the magistrates
resume their ordinary functions, and rivalry and discontent
return.
The civil law is written, and the Twelve Tables, exposed
1 " Et ita eodem pene tempore tria actiones, apud collegium pontificum
haec jura nata sunt ; leges XII Tabula- erant : ex quibus constituebatur, quis
rum; ex his fluere ccepit jus civile quoquo anno prseesset privatis. Et fere
(the interpretation ) ; ex iisdem legis populus annis prope centum hac con-
actiones composite sunt. Omnium ta- suetudine usus est." Dig. 1, 2, De
men harum et interpretandi scientia, et orig.jur., 2, 6, f. Pompon.
L
146 THE HISTORY OF ROMAN LAW.
to public view, have taught each citizen his rights and his
duties. The legis actiones indicate the course that must be
pursued in order to secure redress. Acquaintance with these
proceedings, equally as necessary as knowledge of the laws, is
a secret. The greater part of the patricians in the college of
the pontiffs are the sole possessors of these legal mysteries, and
the plebeian is constrained to have recourse to his patron, to the
pontiffs, or to a patrician.
This is the point at which we have now arrived in the his-
tory of Rome, and the course we have traced is that which we
may always trace in the history of a rising commonwealth : class
distinctions become less easily maintained, the spirit of emulation
has its sway, complex political interests arise, the civil law is
stereotyped, and legal procedure reduced to regular forms.
II. FROM THE TIME OF THE TWELVE TABLES TO
THE SUBMISSION OF ALL ITALY.
1 48. In the struggle between the patricians and the plebeians
victory now began to lean towards the latter, and their progress
henceforth is more easily marked. Every advantage gained by
a party increases its strength and contributes to its future
success.
In the period we are about to consider, we shall see that the
patricians, who, in the first instance, retained all the powers in
the state, are about to cede some of them, and that they will be
obliged shortly to admit the plebeians to share in all. We find
the glories of the nobility day by day decay, till patrician supre-
macy gradually dies out.
The Valerian Horatian law, De plebiscitis, the plebiscitum
Canuleium, De connubio patrum et plebis, the creation of the
military tribunes, as well as that of the censors, are changes
directly due to the perpetual dissensions between the two
orders.
THE HISTORY OF ROMAN LAW. 147
SECTION XXIX.
LEX VALERIA HORATIA, DE PLEBISCITE.
149. B.C. 449. This law, passed in the centuries under the
consuls Valerius and Horatius immediately after the expulsion
of the decemvirs, recognized the general authority, up to that
time disputed, of the assemblies by tribes, and declared plelis-
cita decreed in these assemblies obligatory upon all citizens:
" Ut, quod tributim plebes jussisset, populum teneret" 1
The contents of this law are not very clearly known ; either
its provisions were far less complicated than this formula seems
to indicate, or more remained to be done, or renewed dissensions
caused this grave change in the constitution again to be seri-
ously questioned, for we see at different intervals two similar
laws re-enacted at different times and subsequent periods and in
almost identical terms. It would be interesting to study the
letter of these laws.
SECTION XXX.
THE CANULEIAN LAW (JDe connubio patrum et plebis}.
150. B.C. 445. This plebiscitum, proposed by the tribune
Canuleius, abrogated the provision of the Twelve Tables which
prohibited marriage between the patricians and the plebeians.
It was very quickly acted upon, and to the introduction of
the plebeian families into the families of the patricians may be
ascribed one of the most powerful causes which led to the anni-
hilation of the distinctions between the two castes. 2
1 Livy, lib. iii. 55 : " Omnium pri- dignitas, ut plebes cum patriciis jun-
nium, quum veluti in controverso jure gerentur : qui tumultus in Monte Jani-
esset, tenerenturne patres plebiscitis, culo, duce Canuleio tribune plebis,
legem centuriatis comiciis tnlere, ' Ut, exarsit." Although the prohibition
quod tribntim plebes jussisset, populum against the marriages between patri-
teneret.' " cians and plebeians may have been the
9 Florus, lib. i. 25, seems to connect cause of these troubles and dissensions,
with the plebiscitum the third sedition yet we must not attribute the retirement
of the plebeians and their retreat to the of the plebeians to this cause. The
Janiculum. After speaking of the first authors who mention the Canuleian law,
on Mons Sacer, and the second on as for instance Cicero, De republ., lib.
Mons Aventinum, he adds, " Tertiam ii. 17, do not allude to these circum-
seditionem excitavit matrimoniorum stances, and Pliny, Nat. hist., lib. xvi.
L 2
148 THE HISTORY OF ROMAN LAW.
SECTION XXXI.
MILITARY TRIBUNES ( Tribuni Militum).
151. The plebeians still lacked one of the most important
public rights, the privilege of aspiring to the high dignities of
the republic. They demanded admission to the consulate. It
was not without a struggle that they attained it; but already
they and their tribunes had become formidable : seditions were
feared, and their demand was conceded. We may notice in
reference to this an instance of political dexterity on the part of
the senators. Inasmuch as it had become necessary to divide
their consular power with their rivals, they resolved, if possible,
to weaken it. Instead of two magistrates they desired that
three should be chosen, and instead of giving them the name
of consuls they were termed military tribunes. It thus looked
as if the consulate had not departed from the patriciate; for
rather than abandon it, they had extinguished the office, or it
would perhaps be more correct to say that they had thus tem-
porarily put it in abeyance, waiting an opportunity for its re-
institution. At first the advantage about to be obtained by the
plebeians was nothing more than one of right. They became
admissible to the military tribunate, but were not, in fact, ad-
mitted, nor need we be astonished at this. Indeed, we might
rather have been surprised had the contrary been the case. The
elections belonged to the comitia by centuries, and we already
know how it was composed; nor was it till about forty years
after the creation of these tribunes, and when their number had
been increased to six, that we begin to find plebeians among
them. The power of the first military tribunes was of short
duration : it existed a few months, and gave place to the govern-
ment by consuls, who some years after, in their turn, were re-
placed by tribunes, and these alternate changes continued to
take place from time to time. It is a curious fact, that for
more than forty years, as the power of the contending parties
oscillated, the consuls and the military tribunes successively
10, represents the sedition as taking in Janiculum legem in Escnleto tulit,
place long after, in 289 B. c. "Q. Hor- ut quod ea jussisset, omnes Quirites
tensius dictator, cum plebs secessisset teneret."
THE HISTORY OF ROMAN LAW. 149
appear and disappear; and sometimes in place of either, and
superior to both, we find the dictator created.
Rome's success, however, increased day by day: it enlarged
its inroads into Latium and advanced towards the conquest of
Italy. Indeed, so long as the republican spirit existed amongst
the citizens, devotion to country was but a natural instinct;
the soldiers thought of nothing but Rome and its triumphs;
and an enemy who dared to march against the city at once
caused the suspension of all internal division, and found himself
opposed by the strength of the whole Roman people.
SECTION XXXII.
THE CENSORS ( Censores).
1 52. B.C. 443. The consuls had presided every fifth year at the
numbering of the citizens. They had constructed the tables of
the census, had assigned to each citizen his class in his tribe
and in his curia, and had inscribed whom they thought fit in
the ranks of knights and of senators. In this way they had at
their will opened or closed the entrance to the order of knight-
hood and to the dignities of the senate. We must inquire whether
this power was conceded to the military tribunes, or, in other
words, to those who might perchance be plebeians, to see whether
such concession was made or whether the policy we have already
noticed was still observed; whether, in fact, they did not con-
sider it better to detach these peculiar functions from the office
to which they had hitherto belonged in order to reserve them to
themselves. This was unquestionably the idea which originated
the new office, the censor.
153. The censors were two in number; they could only be
selected from the members of the senate ; they were elected by
the comitia of centuries. The same senator could not occupy
the post twice, and the term of office was five years, that is,
from census to census. At a later period the term was reduced
to one year and a half, there being in the interval no censor at
all.
150 THE HISTORY OF ROMAN LAW.
1 54. It is not difficult to understand the extent of the in-
fluence possessed by those who had the power of determining
the class to which a citizen should belong ; l and the exercise of
this power, in the composition of the different tribes, was not
without its use. There were not at any time more than four
urban tribes, whereas the number of rural tribes ultimately
reached thirty-one. 2
In the former the censors inscribed all those who, not possess-
ing any rural property, were included in the city : the enfran-
chised, the artisans, the proletarii. As to the proprietors, they
were classified by the censors, with the agricultural lists, in the
rural tribes where they had their estates. It was in this way
that the votes of the more turbulent, and, at the same time,
more dangerous, class were reduced, even in the plebeian assem-
bly, to four out of thirty-five. This class frequently made the
attempt to get itself divided amongst the rural tribes, an attempt
which always excited the strongest opposition.
155. But the most extraordinary attribute of the censors is
not that to which we have already referred. The entire moral
influence that can exist in a state was lodged in their hands.
As guardians of public and private morals they could blast the
reputation of a plebeian, a senator, a consul, and even of the
people. Thus they restrained the luxury of the rich ; the
licence of the libertine ; the ill-faith of the truthless ; the in-
dolence of the knight, of the soldier, of the cultivator ; 3 and the
weakness of the magistrate who, in danger, despaired of the
republic. We have had instances of censors noting entire
tribes. Such was the power which owed its great influence
to public opinion and to the patriotism of every Roman !
1 Varro, Dr, lingua latina, lib. v. eumque indiligenter curabat, ac ncque
81: "Censor ad quojus censionem, araverat, neque purgaverat; sive quis
id est arbitrinm, censerctur populus." arborem suam vineamque habuerat de-
3 Nevertheless, at the date at which relictui : non id sine poena f uit ; sed
we have arrived, A.u.c. 311, B.C. 443, erat opus censorium ; censoresque cera-
the number of tribes had not been in- rium faciebant. Item si quis equea
creased beyond thirty-five, according to Romanus equum habere gracilentum
Livy. Vide supra, par. 73, and note. aut parum nitidum visas erat, impo-
3 Aul. Cell. lib. iv. 12 : " Si quis litiw notabatur. Id verbum significat,
agrum suum passus fuerat sordescere, quasi si tu dicas {ncurice."
THE HISTORY OF ROMAN LAW. 151
1 56. The notes of the censor were not without their effect.
Thus, independently of the senators whom they could remove
from the senate, of the knights whom they could deprive of
their horses, even in the case of the simple citizen, they could
effect his exclusion from any class whatever, and, in that manner,
deprive him of the suffrage. A citizen thus excluded was not
inscribed in the census, but his name was written in tables
known as the tables of the Cerites (Ceritum tabula or tabula
Cerites), \n allusion to the municipality of Caeres, the inhabitants
of which enjoyed all the rights of Roman citizenship except that
of the suffrage. For the same reason they no longer appeared
in the census for taxation in proportion to their wealth, but
became cerarii, subjected in this capacity to an arbitrary capi-
tation as their modicum of taxation. 1
The arbitrary power of the censor was however modified by
the influence of his colleague, who could at any time intervene
either to stop or to annul the effect of his acts, but when both
were in accord, their decision was final, and determined the
status of each citizen for the ensuing five years.
157. During these political changes, the Roman armies
were not inactive, as we see by the fate of the Equi and the
Volsci, who were vanquished in many combats. Fidenaa was
delivered to the flames, Falerii subjugated, and Veii captured
after a siege of ten years. The soldiers had sworn never to
re-enter Rome till they had captured this town, and they ob-
served their oath. It was during these wars that, for the first
time, the senate voluntarily, and without any demand either
upon the part of the plebeians or of the tribunes, decreed that
a bounty (stipendium) should be paid from the public treasury
to the soldiers, whereas up to this time each soldier had been com-
pelled to defray the expenses of his service from his own private
1 Asconins, Dlvinatio in Cfucilium, suo tributi nomine sera penderet."
ch. 3 : " Hi prorsus cives sic notabant, Aul. Gell. lib. xvi. 13: "Primes
ut qui senator esset, ejiceretur senatu; antem municipes sine suffragii jure
qui equus Romanus, equum publicum Cerites esse factos accepimus . . .
perderet ; qui plebeius, in tabulas Ceri- Hinc tabulce Cerites appellatae, versa
turn referretur et cerarius fieret, ac per vice, in quas censores referri jubebant
hoc non in albo esset centurise suae, sed quos notae causa suffragiis privabant."
ad hoc esset civis tantum, ut pro capite
152 THE HISTORY OF ROMAN LAW.
means; a share in the booty pillaged from the captured towns,
and plots of land granted to the soldier from the territory of the
conquered enemy, being the sole reward for military services.
As soon as the news of this decision became known, the plebeians
flocked in crowds to the door of the senate-house, and, taking
the senators as they came out by the hands, they called them
their true fathers. Rome in this way emerged from the condi-
tion of a collection of petty states, constantly carrying on hosti-
lities with each other, to that of a great power bearing arms
into distant countries and waging war upon remote enemies.
And thus the citizen soldier became transformed into the stipen-
diary. 1
158. B.C. 390. But these triumphs were shortly to be suc-
ceeded by terrible reverses. Barbarians of a gigantic stature,
and said to have been laden with ponderous arms, came from
the other side of the Alps and made a descent upon Italy.
These invaders were the Senonian Gauls. The Roman army
was vanquished, Rome itself pillaged, sages and senators were
massacred in their curule chairs, and public buildings razed to
the ground. The city, in fact, was reduced to a heap of ruins
and ashes. But Rome did not consist in mere walls and houses.
It was in the Capitol and in the Romans themselves. And the
Gauls, hurled by Manlius from the rocky heights, and torn in
pieces by CamiUus, cruelly expiated their momentary triumph.
Rome rose from its ashes and soon recovered its ascendancy
throughout Latium.
1 59. About twenty-one years after this, B.C. 367, the plebeian
order achieved what it had previously been contending for, and
secured the privilege of admission to the consulate; and from
that moment the military tribunate disappeared for ever. Two
sisters had married ; the one a patrician, the other a plebeian.
The latter heard one day in her sister's house the ringing of the
1 Livy, lib. iv. 60 : " Additum rumve decerneret senatus, ut stipen-
deinde omnium maxime tempestivo dium miles de publico acciperet, quum
principum in multitudinem munere, ut ante id tempus de suo quisque functus
ante mentionem ullam plebis tribune- eo munere esset."
THE HISTORY OF ROMAN LAW. 153
fasces a sound that she had never heard in her own. She was
terrified, and the raillery to which she was subjected by the
wife of the patrician touched her pride. Her husband sympa-
thized in her humiliation; he attained to the tribunate, and
avenged himself by opening to the plebeians the door to these
magistracies. In this way, according to legendary lore, was a
change accomplished whose effects were wholly disproportionate
to the trivial incident out of which it arose. 1
The same policy which upon the establishment of the mili-
tary tribunes had induced the senate to create censors now led
it, upon the admission of the plebeians to the consulate, to
detach from the consular office two magisterial functions. To
this we must ascribe the origin of the prsetors and the curule
aediles. 4
SECTION XXXIII.
PR^TOR (Prcetor}.
160. B.C. 367. The word prcetor is derived from pros ire,
and was in use in Latium to designate the first or chief magis-
trate of the city, and appears to have been sometimes employed
in early periods by the Romans as an honorary appellation of
the consuls. It is thus that we meet with it in the historians
who refer to the time of the Twelve Tables and to the judicial
functions of the consulate. 3 But at the period with which we
are now engaged this word became the exclusive title of a special
magistrate. The senate detached from the functions of the
consul all that related to his judicial office, together with the
powers consequent upon it, and conferred them upon a special
palrician magistrate, under the title, from that time peculiar to
him, of praetor, which was qualified by the term " urbanus," on
account of his functions being limited to the city of Rome:
" Qui urbanus appellatus est" said Pomponius, " quod in urbe
jus redder et"
1 Florus, lib. i. 26. nobilitati de pnetore uno, qui jus in
8 Livy, lib. vi. 42 : " Quum tamen urbe diceret, ex Patribus creando."
per dictatorera conditionibus sedataj 3 Vide supra, Table III. f. 5, and
discordiae sunt, concessumque a nobili- note ; and Table XII. f . 3.
tate plebi de consule plebeio; a plebe
154 THE HISTORY OF ROMAN LAW.
At first there was only one praator, who was nominated by
the centuries and selected from the patrician order. This official
became the second dignitary in the republic. He was preceded
by lictors, and considered the colleague of the consuls ; and by
some writers this title is given to him in this sense, that during
the absence of the consuls, and while they were employed on
military service, the praetor took their place in Rome. It was
he who convoked the senate and who presided over it, who
assembled the comitia and presented to them any suggestions
as to new laws. We shall notice the gradual growth of the
praetorian functions and trace the process by which a species of
legislative power became attached to this office. 1
SECTION XXXIV.
CURULE JEDILES (JEdiles Curules).
161. There already existed two plebeian magistrates called
adiles, charged under the supervision of the tribunes with the
details of police. At this period two patrician magistrates were
created bearing the same name and having analogous though
superior functions. They were called cediles majores, cediles
curules, while the others took the name of plebeii <zdiles. z The
latter thus found themselves limited to the exercise of inferior
functions, and charged with the surveillance of the market, the
price and quality of the commodities, the accuracy of the weights
and scales, and the security and good order of the public streets ;
but all the higher offices of police were confined to the curule
azdiles. To them belonged the maintenance and improvement
of roads and bridges, the preservation of temples and amphi-
theatres, and the improvements in the city, together with the
security of the public thoroughfares. They had a jurisdiction
of their own, and a tribune for the administration of matters
peculiar to their office. But the privilege which conferred the
greatest distinction upon the office, and which came to be an
essential part of it, was the direction of the public games.
1 Dig. 1, 2, De orig., 3, 27, f. Pomp. a Ibid. 25, f. Temp.
THE HISTORY OF ROMAN LAW. 155
Rome already possessed its circus, where pugilistic encounters,
combats, horse and chariot races, borrowed from the Olympic
games of Greece, were celebrated. In their amphitheatres were
to be seen the contest of gladiators and wild beasts, a bloody
spectacle, but popular and suited to the national taste. Theatres
for dramatic representations were erected at a later period.
These games served as the means of celebrating public and
private fetes, especially the funerals of the great. Each citizen
was at liberty to offer a spectacle to the people, but in every
case it must be under the supervision of the sediles, who them-
selves were compelled, at least once during the year, to present,
at their own private expense, a public exhibition, and they took
good care never to fail in this, for nothing was lost by it ; the
presentation of an acceptable spectacle to the crowd being at
all times a sure means of securing its suffrage.
Next to the creation of the office of praetor, or, more properly
speaking, the separation of its functions from those of the
consulate, our attention is called to certain institutions whose
origin is obscure and cannot therefore be assigned with accuracy
to any particular date, but of which it is necessary to form a
correct idea in order to complete our outline of the judicial
system of the Romans.
SECTION XXXV.
JUDGE (Judex\ ARBITRATOR (Arbiter), RECUPERATORS
(Recuperatores}.
162. From the earliest period of Roman history, under the
kings, under the consuls, and after the creation of praetors, there
existed a characteristic distinction, to which we have alluded
already in treating of the text of the Twelve Tables, between
the office of the magistrate and the functions of the judge,
attached to the special commission given to him in each case to
hear and determine a suit. This jurisdiction was vested at
first in the kings, afterwards in the consuls, and finally in the
prfetors. It was before them that the vocatio in jus had to take
place ; it was before them that the solemn ceremonies peculiar to
156 THE HISTORY OF ROMAN LAW.
the legis actiones had to be performed : upon them rested, at
least during their term of office, the duty of declaring the law
(jus dicere), of arranging the suit, and, in every case which they
did not themselves determine, it was they who appointed the
judge charged with the duty of hearing the suit and pronounc-
ing judgment.
163. The judge, it must be remembered, was not a magis-
trate ; he was a simple citizen, converted by the magistrate into
a judicial officer in the individual case, at the conclusion of
which his judicial functions ceased. It was a principle of
Roman law that, whereas the magistrate had to be selected and
created by the state, the judge, in each case, was to be nomi-
nated, or at least accepted, by the litigants, unless they were
unable to agree, in which case he was selected by lot ; but,
although this was the case, all citizens were not eligible to be
selected. From the earliest period, and at the time now under
notice, this privilege was monopolized by the patrician caste.
Senators alone could be judges. It was from the list of the
three hundred senators (or do senatorius) that the judge on each
occasion had to be selected. The magistrate invested him with
his powers, and he took the oath; judices jurati as Cicero
says. 1
Such was the ingenious separation of the juridical from the
judicial functions by which the Romans were enabled, with
comparatively few magistrates, to provide for all the wants of
the administration of the law, appointing a judge for each case
as it arose.
The generic name given to the citizen thus invested with
judicial functions was judex, sometimes also arbiter, which
appears to have been nothing but a modification of the former
title, indicating that the magistrate, in consideration of the
peculiar nature of the case, had given to him greater latitude.
From the earliest times we find mention made both of judex
and arbiter, and it is certain that but one judge, unicus judex,
1 This institution is in fact " the which is German and not Roman in its
jury," only that when contrasted with origin, we find several radical dif-
our modern system of trial by jury, ferences.
THE HISTORY OF ROMAN LAW. 1 57
was appointed to each suit. It was usually the same with the
arbitrators, although we see from the Twelve Tables J that their
number might extend to three.
164. At a subsequent date, which, however, cannot be
precisely determined, we find another kind of judge, called
"recuperators" (recuperatores}. This institution did not super-
sede that of judge or arbitrator, but existed side by side with
it, so that the prsetor in organizing the suit gave to the litigants,
according to the circumstances, either a judge, an arbitrator, or
recuperators.
But, notwithstanding the obscurity in which the origin and
nature of the institution is involved, there are certain salient
points by which the recuperator may be readily distinguished
from thejudex or arbiter. Thus, while there never was more
than one judex, and usually only one arbiter for each case, the
recuperatores were several, three or even five. 2
Again, whereas the judge or arbitrator must of necessity be
chosen from the order of senators, and at a later period from
the annual list of citizens who were liable for judicial duty, the
recuperators could be taken indiscriminately from all citizens at
random, or from amongst those who happened at the moment
to be before the magistrate, and who were at once appointed,
" Quasi repente apprehensi." * And, finally, questions were
decided by them more speedily. "Recuperatores dare ut quam-
primum res judicaretur" says Cicero. " Recuperatoribus
suppositis, ut qui non steterit, protinus a recuperatoribus . . .
condemnetur." *
In effect, by the employment of recuperatores business was
despatched more speedily ; the monopoly of the judicial func-
tions by the senatorial order was broken through, and the ple-
beians made good their first step in advance towards the judicial
office.
1 Table VII. f. 5, and XII. f. 3. sic nos in his comitiis, quasi repente
9 Livy, lib. xxvi. 48 ; lib. Ixiii. 2. apprehensi sincere judices fuimus."
Cicero, In Verr., 3, 13 and 60. Gai., Plin., Eplst., 3, 20.
Jnstit., 4, 46, 105 and 109. * Cicero, Pro Tullio, 2; De divin.,
3 " Nam ut in recuperatoriis judiciis, 17. Gai., Instit., 4, 185.
158 THE HISTORY OF ROMAN LAW.
165. The fact that the Romans in earlier times gave the
name of reciperatores or recuperatores to officials appointed by
virtue of international treaties to settle differences either between
Rome itself and foreign cities or nations, or between Roman
citizens and foreigners, affords general ground for the belief
that the recuperatores were employed originally solely for the
purpose of determining disputes between Roman and foreigner. 1
This conjecture is corroborated by another circumstance, that
at a later period the judges in the provinces never had any other
title than that of recuperatores, so that the judex existed only
in Rome, whereas the title of recuperator is found in connection
with the provinces. As to the period immediately under our
notice, that is to say, the commencement of the fifth century, a
hundred years before the creation of the prcetor peregrinus, we
are of opinion that the employment of recuperatores was of rare
occurrence, and resorted to only in cases where Roman law
could not be applied ; in other words, in suits in which peregrini
were litigants. It is natural that at a later period this custom
should have developed into a regular system of procedure,
and we shall see that it ultimately extended to the citizens
themselves, and that the determination of cases, generally of an
urgent character, devolved upon these recuperatores. 2 But we
must be careful not to confound with the procedure of the legis
actiones now before us, details which belong to a much later
regime. The employment of recuperatores commenced during
the period of the legis actiones, but was independent of and
never had any connection with them.
SECTION XXXVI.
CENTUMVLRS ( Centumviri).
166. To the judges, arbitrators, and the recuperators, who
derived their official powers from the magistrate, must be added
1 " Reciperatio est, ut ait Gallus on the word lieciperatio. We see an
-ZElius, cum inter populum et reges instance of a similar provision in the
nationesque et civitates peregrinas lex plebiscite, De T7iermensibns.
convenit quomodo per reciperatores red- 2 See especially Gai., Instit., 4,
dantur res, reciperenturquc, resque pri- 46, 141, 183, 185, 187.
vatas inter se persequantur." Festus,
TJIE HISTORY OF ROMAN LAW. 159
the centumvirs, an institution whose origin, organization and
jurisdiction are involved even in greater obscurity than those of
the three former functionaries.
The characteristic differences between the centumvirs and
these three functionaries a difference so well established as to
be beyond dispute was, that instead of being nominated for an
individual case, the centumvirs constituted a permanent tribunal,
whose members were elected in equal number from each tribe,
whether, as we think, from among all the citizens of the tribes
indifferently, or whether they were confined to the senators.
There is little doubt that this institution was another instance
of plebeian triumph, and an invasion on the monopoly of the
patricians. The existence of the plebeian tribes, the tribunes
being nominated by them, and the fact of the centumvirs also
coming from their ranks, all indicate the political progress ac-
complished by this class, and show that they had made their
way into the domains of the magisterial, the legislative and the
judicial functions of the state.
167. The rule limiting the tenure of office of magistrates
and other public functionaries to one year may be taken as a
sufficient reason for assuming that the citizens composing the
tribunal of centumvirs were also elected for one year ; and that
although the tribunal itself was permanent, the individuals con-
stituting it were elected annually. It is a disputed point whe-
ther the election was made by the praetor alone or separately by
each tribe, or by all the tribes united together in comitia. In
the absence of precise information, the public character of this
tribunal, and the political nature of its origin, authorize us in
adopting the latter opinion. As to the number of members
elected in each tribe, we find at a subsequent period, and
when the tribes were in all thirty-five (B.C. 242), that each fur-
nished three members to the centumviral tribunal, making a
total of 105 centumvirs; 1 and at a still later period Pliny speaks
1 " Centnmviralia jndicia a centum- candum, qui centumviri appellati sunt;
viris sunt dicta. Nam, cum essent et licet quinque amplius quam centum
Horn a: triginta et quinque tribus, terni fuerint, tamen quo facilius nominaren-
ex singulis tribubus sunt electi ad judi- tur, centumviri sunt dicti. Centumvi-
160 THE HISTORY OF ROMAN LAW.
of 180 as sitting in a single cause. 1 - Varro also intimates that
the number of centumvirs must only be taken approximately
and not literally. 2
168. The centum viral tribunal was divided into four cham-
bers or councils (consilia, tribunalia), and we find in contem-
porary writers certain positive indications of the fact that cases
were sometimes tried before two chambers (duplicia judicia,
dues hastte s ), sometimes before the four sitting together but each
voting separately (quadruplex judicium 4 ), though it is impos-
sible for us to determine what the object was of this division into
chambers, or of judgment being delivered by the four chambers
sitting together. Certain fragments of the Digest appear to.
indicate traces of the existence of this division. 5
1 69. The centumviral tribunal thus constituted was a tribunal
essentially Quiritarian. The Quiritarian symbol of Roman
property, the lance (hasta], was erected before it as an indica-
tion of its actual power, and, perhaps, of its attributes. 6 It
assembled in the Forum ; at a later period the Julian basilica
was appropriated to it. The quaestors upon going out of office
were empowered to convoke it (hastam cogere), and to preside
over it (hastce prceessi). It is, however, under the presidency
of the prffitor that contemporaneous writers represent the four
sections as united. 7 Under Octavius it was presided over by
ralia judicia, quae centumviri judica- recordatio egisse me juvenem seque in
bant." Festus, on the word Centumvi- quadruplici." Plin., Epist., 4, 24.
ralia. " Femina . . . quadruplici judicio
1 Plin., Epist., 6, 33. bona paterna repetebat. Sedebant ju-
a " Si, inquam, numerus non est ad dices centum et octoginta : tot enim
amussim, ut cum dicimus mille naves quatuor consiliis conscribuntnr .
ad Trojam isse, centum virale judicium sequutus est varius eventus : nam dno-
Romse." Varro, De re rustic., 2, 1. bus consiliis vicimus, totidem victi su-
3 " Aut quum de eadem causa pro- mus." Plin., Epist., 6, 33. See also
nunciatum est, ut in reis deportatis, et Epist., 1, 18 ; and Quintil., Instit.
assertione secunda, et partibus centum- orat., 12, 5, 6.
viralium, quae in duas hastas divisre * Dig. 5, 2, De inojfic. test., 10, pr. f.
sunt." Quintil., Instit. orat.,B, 2, 1. Marcell. ; 31, DC legat., 2, 76, pr. f.
" Etiam si apud alios judices agatur, ut Pomp.
in secunda assertione, aut in centumvi- 6 " Unde in centumviralibus judiciis
ralibus judiciis duplicibus." Quintil., hasta prueponitur." Gai., Instit., 4,
Instit. orat., 11, 1, 78. 16.
4 " Proximequum apnd centumviros 7 Plin., Epist., 5,21 : "Descenderam
in quadruplici judicio dixissem, subiit in basilicam Juliam . . . Sedebant
THE HISTORY OF ROMAN LAW. 161
special magistrates, called judiciary decemvirs {decemviri in
litibus jndicandis), whose creation was of earlier date, but
whose complete functions are unknown to us. 1
1 70. Notwithstanding the fact that the centumviral tribunal
was a permanent institution, the centumvirs themselves were but
simple citizens, annually elected to their post. This tribunal
had not Avhat the Romans called jurisdictio. The appearance
in jure had, in all cases, to take place" before the magistrate.
Before him the religious ceremonial of the legis actiones had to
be performed, and the litigants were by him sent for trial before
the centumviri if it was a case within their proper cognizance.
The only legis actio applicable to matters within the cognizance
of the tribunal was the most ancient of all the sacr amentum, , 2
171. It would be worth while to inquire in what the functions
of the centumviral tribunal consisted. Cicero in his treatise
De oratore furnishes us with a long and minute enumeration of
matters of which it took cognizance, all of which may be ar-
ranged under three distinct heads : State questions, Quiritarian
property and testamentary or intestate succession 3 that is to
say, the whole fundamental basis of Quiritarian society, except
possession and the rights thereunto attached, and obligations.
judices, decemviri venerant, observa- lege agitnr sacramento apud praatorem
hantur advocati ; silentium longum, tan- urbanum vel peregrinum." Gai., Instit.,
ilein a prajtore nuntius . . .(Thismes- 4, 31.
senger announces an adjournment of 3 " Nam volitare in foro, hterere in
the sitting) praetor, quicentujnviralibus jure ac praetorum tribunalibus, judicia
prtrsidet . . . inopinatum nobis otium privata magnarum rcrum obire, in qui-
dfrtit." bus srepe non de facto, sed de asquitate
1 " Auctor . . . fuit (Octavius') ac jure certatur, jactare se in causis
. . . nt centumviralem hastam, quam centumviralibus, in quibus usucapio-
qnrcstura functi consueverant cogcre, num, tutelarum, gentilitatum, agnatio-
decemviri cogerent." (Sueton., Octav., nurn,alluvionum, circumluvionurn,nex-
c. 36.) Dig. 1, 2, De orig. jur., 2, orum,mancipiorum,parietum,luminum,
29, f. Pompon. : " Deinde cum esset stillicidiorum,testamcntorum ruptorum
necessarius magistratns qui hastaj prrc- et ratorum, cajterarumqne rerum innu-
esset, decemviri in litibus judicandis merabilium jura versentur, cum omnino
sunt constituti." Pomponius, however, quid suuin, quid alicnum, quare deni-
when speaking of the decemvirs never quc civis an pcregrinus, servus an liber
mentions the centnmvirs, probably be- quisquam sit, ignoret, insignis est im-
cause, as he was treating of magistrates, pudentiic." Cicero, De orator., 1, 38.
he did not consider them as such. See also Pro Milan., 27; Eylst. ad
* " Cum ad ccntumviros itur, ante fftm., 1, 32.
M
102 THE HISTORY OF ROMAN LAW.
The fact of their taking cognizance of questions of succession
is noticed in the Digest and in Justinian's Code, 1 which also
bear testimony to the importance and authority of this tribunal.
" Magnitude etenim et auctoritas centumviralis judicii non
patiebatur per alios tramites viam hcereditatis petitionis in-
fringi" z We may also gather from certain passages that the
litigants themselves had a limited power to elect by consent
whether their suit should be heard by the centumviral tribunal
or by any other, 3 also that the court had in addition to its civil
a criminal jurisdiction. 4
1 72. The date of the origin of this institution is uncertain,
unless we adopt Niebuhr's opinion, that Servius Tullius intro-
duced a complete system of balance of power when he created
the thirty plebeian tribes as a counterpoise to the thirty patri-
cian curies. In that case the centumviral tribunal would date
from that period, and being especially empowered with the
right of determining questions affecting Quiritarian property,
it would attach itself to the institution of the census, organized
by the same king.
On the other hand, if we adopt the view which Livy
appears to indicate of the successive creation of the tribes, for
it was not till li.C. 242, or A.u.c. 512, that the number of the
tribes reached thirty-five, which would give one hundred and
five centumvirs at the rate of three for each tribe, we must
ascribe the institution of the centumvirs to that period. 5
This, however, appears to us untenable, for even assuming
the accuracy of Livy's statements as to the gradual growth
of the tribes, there is nothing to warrant the assumption that
originally three centumvirs only were selected from each tribe,
1 Dig. 5, 2, De inoffic. test., 13, f. 10, 34.
Scsevol., et 17, pr. f Paul. Cod. 3, 31, 5 According to this writer there were
Depet. hcerad., 12, pr. Const. Just. 25 tribes B.C. 387
2 Cod , ibid. 27
3 " Post hoc, ille cum cteteris sub- 2SJ
scrips! 1, centumvirale judici urn, mecum 31
non subscripsit." PUn., Eplst., 5, 1. 33
Gai., Inst., 4, 31. 35
4 Quintil., Inst. orat., 4, 1, 57; 7, See Livy, 6, 5 ; 7, 15; 8, 17; 9,
4, 20. Senec., Controv., 3, 15. Ovid., 20 ; 10, 19. Livy, Epist., 19.
Trist., 2, 91 et seq. Phrcdr., Fall, 3,
359
333
319
300
242
THE HISTORY OF ROMAN LAW. 163
for we have seen that this number existed when the tribes were
thirty-five. And the fact of the centumvirs being increased in
the time of Pliny to a hundred and eighty, shows that this
number was at no period irrevocably fixed, and it is quite
possible that the number representing each tribe was greater
when the tribes themselves were few. This view is confirmed
by the fact that at the period when, according to Livy, there
were twenty-five tribes, the centumviral tribunal was composed
of four citizens from each tribe, thus consisting originally of
exactly one hundred.
So that we should fix the date of the creation of this institu-
tion somewhere between the years B.C. 387 and B.C. 359; that
is to say, the period marked by the increasing power of the
plebeians, their admission to the consulate, and the creation
of the praetorship.
It appears to us, that to ascribe the origin of the centumvirs
to the year B.C. 242, the time when the legis actiones were
suppressed, is to deprive that institution in a great measure of
its principal characteristic, its antiquity.
Dating from the suppression of the legis actiones, it entered
upon a gradual decline, though the progress of this decline was
slow, and continued even to the time of the Lower Empire,
carrying with it down to that period vestiges of the ancient
sacramentum. We might conjecture from the title of one of
the works of Paul, De septemviralibus judiciis (D. 5, 2, De
inoff. test.}, that is to say, if it is not an error on the part of the
copyist, that in the time of this jurist the number of judges at
least for each chamber was reduced to seven.
173. In conclusion, assuming the date to which we have
ascribed the origin of this institution to be correct, we may
define the jurisdiction of the different judges as follows: the
centumvirs took cognizance of questions of state, Quiritarian
ownership, and succession ; the judge, or one or more arbitra-
tors, took cognizance of oMigationes and possessiones ; and,
finally, the recuperators of those matters in which the interests
of the peregrini were involved, which were necessarily beyond
the pale of Quiritarian law and the legis actiones.
M2
164 THE HISTORY OF ROMAN LAW.
174. B.C. 338. At this epoch the Gauls had been driven
beyond the Po, all Latium was subject to the Roman yoke,
and the conquest of the rest of Italy had been commenced.
The plebeians were already admitted to the consulate, and had
made good their footing in the censorship. These two offices
opened the road to the senate, and shortly after to the praeto-
riate ; their next step was the law Petillia Papiria, De nexis,
and the publication of the dies Fasti by Flavius.
SECTION XXXVII.
THE LEX PETILLIA PAPIRIA (De nexis').
175. B.C. 326. This law, which Livy calls the commence-
ment of a new era of liberty for the plebeian, owes its origin to
the reaction caused by the excesses of a creditor, L. Papirius.
The cruel fate which awaited the debtor, and the severity with
which he was liable to be treated, was the instrument which
the tribunes used in exciting the animosity of the plebeians
against the patricians. " Do they wish," said Sextius and
Licenius, on one occasion, " that the houses of the nobles
should be full of captives, and that every patrician residence
should be a private prison" (et ubicunque patricius habitet, ibi
carcerem privatum esse 9 1 The lex Petillia Papiria prohibited
debtors from assigning themselves per ces et libram in slavery
to their creditors as security for their debts, and in this way
terminated the servitude of the nexi. But we must not
interpret this expression as including the suppression of the
captivity of the addicti, that is to say, the execution issued
against the person of the debtor by means of the Icais actio,
manus injectio. It was the nexum alone that was modified by
this law, and from this it became illegal to pledge the person,
but not the goods, per tes et libram to the creditor. 2
1 Livy, lib. vi. 36. nem, simul crndelitatcm insignem. . .
2 " Eo anno (428) plebi Romans, Jussique consulcs fcrre ad populum, nc
velut aliud initium libcrtatis factum est, quis, nisi qui noxam nicruissct, donee
quod necti desierunt. Mutatum autem pcenam luercfc, in compedibus aut in
jus ob unius fceneratoris simul libidi- nervo tencrctur : pecuniaj creditae, bona
THE HISTORY OF ROMAN LAW. 165
SECTION XXXVIII.
ON THE DISCLOSURE OF THE DIES FASTI AND THE ACTIONES
LEGIS (Jus Flavianum.)
1 76. B.C. 304. Rome was indebted to the grandson of the en-
franchised Cnaeus Flavius for the promulgation of the dies Fasti
and for the publication of a work setting out in detail the steps
and the formulae necessary for conducting the legis actiones.
This book was a species of practical manual upon the actiones
legis, and acquired the name of jus civile Flavianum. It is
worth while to inquire how this book came to be published
whether Flavius was the scribe or secretary of Appius Claudius
Cascus, and whether Pliny is right in saying that it was by the
advice of this jurist that Flavius, aided by his own ingenuity
and power of observation, took the step of bringing out the
manual ; or whether we may depend upon Pomponius, who says
that the compiler plagiarised from a manuscript work upon the
actiones composed by Appius Claudius. In either case the pub-
lication would seem to have been so acceptable to the people that
they allowed the author to be successively raised to the dignity of
tribune, of senator, and of curule sedile. 1 But was he already a
curule aedile, and did he profit by the opportunities afforded
him by his office to discover and popularise the actiones legis
(civile jus, repositum in penetralibus Pontiftcium, evulgarei},
and to publish in the forum, in the shape of an edict, a list
of the fasti (fastisque circa forum in albo proposuit)? The
last is the view adopted by Livy. 2 " He thus put out the
crows' eyes" (qui cornicum oculos confixerii), says Cicero, in
derision, alluding to the pontiff and patricians, to whom it had
previously been necessary to have recourse as to the Chaldeans
in order to ascertain these days. 3 Pomponius relates that Appius
Claudius Cascus had also, so tradition alleged, written at the
same period a book then no longer extant, which commenced
with a chapter upon the interruption of prescription (De usur-
pationibus}.*
dcbitoris, non corpus obnoxium cssct. also Macrobius, Saturnalia, 1, 15.
Itanexisoluti: cantumque in posterum, * Livy, 9, 46.
no necterentnr." Livy, lib. viii. 28. 3 Cicero, Pro Mitrena, 11.
1 Pliny., Hist, nat., 33, 6. Dig. 1, 2, * Dig., 1, 2, De orig. jur., 2, 36, f.
De orig. jur., 2, 7, f. Pompon. See Pompon.
166 THE HISTORY OF ROMAN LAW.
177. Be this as it may, the progress thus made by the
plebeians in the course of their advancement to political power
was immense. The consulate, the prastorship, the censorship,
the greater aedileship, and the senate, they already shared with
the patricians ; as recuperators and centumvirs they took a part
in judicial proceedings, and the publication of the dies fasti
and the legis actiones initiated them into the sacerdotal and
patrician formulae, which were indispensable for the right con-
duct of legal matters. The only office that remained beyond
their reach was the sacerdotal, and three years afterwards,
B.C. 301, they attained this also. The number of pontiffs was
raised to eight, that of the augurs to nine, and four plebeians
were admitted to the former and five to the latter.
SECTION XXXIX.
LEGES PUBLILIJE LEX HORTENSIA (De plebiscitis).
178. B.C. 286. Two laws had already been passed concern-
ing the authority of the plebiscita, the lex Horatia and the
lex Publilia of the dictator Publilius Philo, B.C. 339. Under
the name of this dictator, with whom the office of dictator
became popular, Livy 1 mentions three laws (leges Publilice]
which were favourable to the plebeians and unfavourable to the
nobility (secundissimas plebei, adversas nobilitati}. By one of
these it was ordained that one of the censors should be taken
from the plebeians. Another related to the laws decreed by the
centuries. Notwithstanding the fact that the convocation of
these assemblies (as also that of the curies) and all projected
laws were submitted to and required the previous consent of the
senate, it was also necessary that, after the vote in their favour
had been obtained, the senate should give its auctoritas. This
double power is distinctly indicated by Livy, who ascribes its
origin to the legendary period of Rome, and mentions it as
being in force upon the "nomination of the successor of
Romulus. 2
1 Lib. viii. 12. * Livy, 1, 17.
THE HISTORY OF ROMAN LAW. 167
Livy adds that, in his time, and so far at any rate it must
have been a fact, this practice prevailed both as regards the
laws and the magistracies, only with this difference that prior
to the vote the senate gave its auctoritas by anticipation.
Such was the provision of the lex Publilia. " Ut legum qua
comitiis centuriatis ferrentur, ante initum suffragium, patres
auctores fierent" l
The third Publilian law to which we here especially direct
attention related to the plebiscita.
We remark that Livy 2 alludes to it in terms almost identical
Avith those of the lex Valeria Jforatia, passed upon the same
subject 1 10 years previously, 3 " Ut plebiscita omnes Quirites
tenerent."
1 79. Again, fifty-three years after the publication of the lex
Publilia, we have, thirdly, the lex Hortensia, De plebiscitis
(B.C. 286), of which Pliny gives us the initiatory clause in the
same terms which we find in Aulus Gellius. 4
The passage quoted by us in the note from Pliny shows that
the plebeians, for a third time, had retired from Rome and
were encamped upon the Janiculum, when the dictator Hor-
tensius caused the law which bears his name to be passed, which
for the third time confirmed and extended the force of the
plebiscitum.
These three identical laws, enacted upon the same subject at
different intervals during a period of a century and a half, can-
not fail to embarrass the critic. There was some cause for
this reiteration, whether in the recurrence of circumstances or
1 See above, GO. * Livy, 8, 12.
Livy, 1, 17: "Quirites, regem ere- 3 See above, 149.
ate; ita Patribns visum est," behold 4 Pliny, Nat. hist., lib. xvi. 15:
the initiative of the senate. " Patres " Q. Hortensius dictator, quum plcbs
deinde, si dignum, qui secundns ab secessissetin Janiculum, legemin Escu-
Romulo numeretur, crearitis, auctores leto tulit, ut quod ea jussisset, omnes
fient," see the later law thus expressed Quirites teneret." Aul. Gell. lib. xv.
by Livy : " Decrcverunt enim, ut quum c. 27: "Plebiscita appellantur, qua;
populus regem jussisset, id sic ratum tribunis plebis ferentibus accepta sunt:
esset si Patres auctores fierent ;" then quibus rogationibus ante patricii non
he adds : " Hodieqne in legibus magis- tenebantur, donee Q. Hortensius dicta-
tratibnsque rogandis usnrpatur idem tor" earn legem tulit, ut eo jure quod
jus. vi adempta. Priusquam populus plebes statuisset, omnes Quirites tenc-
snffragium incat, in incertnm comitio- rentur."
rum cventum Patres auctores fiunt."
168 THE HISTORY OF ROMAN LAW.
repetition in the text of the laws themselves, which is unknown
to us. The following considerations may to some extent afford
an explanation. The comitia by tribes gave the tribunes this
advantage, that they had the initiation of laws without the prior
consent of the senate ; but, in order to become law, our know-
ledge of the constitution shows us that it was necessary that the
decision of the tribes should be confirmed by a vote of the
centuries, and afterwards by the auctoritas of the senate, which,
as we have already seen, was necessary in connection even with
the decisions of the centuries. 1 Among other suppositions, it
has been suggested that the lex Valeria Horatia was only
enacted in relation to certain questions already determined, and
that the lex Publilia rendered the confirmation by the centuries
unnecessary in all cases, though it did not interfere with the
necessity of obtaining the auctoritas of the senate ; and, finally,
that the lex Hortensia completed the system by abrogating this
auctoritas altogether. But, be this as it may, after the last
of these enactments the validity of the plebiscitum Avas never
disputed. We may therefore attribute the plebiscita to this
period in the legal history of Rome, not merely as regards
public but also in connection with private civil law. Indeed
most of the enactments regulating private law originated with
the plebeians.
Theophilus, in his paraphrase on the Institutes, 2 says that the
lex Hortensia, while it secured the force of the plebiscita, also
established that of the senatus-consulta ; but this unsupported
assertion, to which we shall subsequently refer, has met with
little favour.
180. At this period the Roman arms had successively and
rapidly overcome the different states of Italy. The Samnites,
notwithstanding their victory of the Caudine Forks, had been
destroyed : their overthrow was followed by that of the Etruscan
nations, the Larentini, aided by Pyrrhus, the Picentini and the
Salentini, and finally the Volsci. The diorama of military
successes closes with a triumph over the soldiers of Macedonia
1 See above, 69 and 178. 2 1, 2, 5.
THE HISTORY OF ROMAN LAW. 169
and Thessaly, with the procession of golden statues and pictures
the spoil of Tarentum, and the elephants of Pyrrhus, which
those soldiers had been unable to defend.
B.C. 266. At the epoch at which we have now arrived Rome
had been in existence but a few centuries ; but what had become
of the people who at the birth of Rome occupied the lands she
now held? The Albans, the Sabines, the people of Veii
have been incorporated in the new state ; the Equi, the Volsci
and the Samnites, who struggled against their fate, no longer
exist; the Etruscans, the Campanians, the Tarentines have
submitted to the yoke and been received as allies, and all
Italy is subservient to Rome. Still its empire was destined to
increase, and as we watch its progress we shall mark the gradual
disappearance of the barbarism, the poverty and the vigour of
the republican period, as the rude and primitive institutions of
its early days yield to the progress and influence of civilization.
Before we proceed, it will be as well to review the outline of
those institutions whose origin and birth has been already
traced.
REVISION OF THE PRECEDING PERIOD.
THE FOREIGN POLICY OF ROME.
181. T^ ) sow discord among different nations in order to
array one against another, to assist the vanquished in conquer-
ing their conqueror, to husband its own resources, and under
the pretext of defending its allies to exhaust them, to invade
the territories of its neighbours, to interfere in the disputes of
other states, so as to protect the weaker party and finally subju-
gate both, to wage unceasing wars, and prove itself stronger
in reverses than in success, to evade oaths and treaties by sub-
terfuge, to practise every kind of injustice under the specious
guise of equity this was the policy that gave Rome the sceptre
of all Italy, and which was destined to secure for it that of the
entire known world.
170 THE HISTORY OF ROMAN LAW.
182. But it is rather with its legal history in relation to
other nations that we are now concerned.
The subject is obscure and complicated, for many reasons.
First, because it contains a number of different elements which
must be carefully distinguished ; secondly, because there was
no uniform policy applicable alike to all the cities and territo-
ries connected with the ruling state, but its relation with each
depended on the terms and conditions of treaties ; and, thirdly,
because up to the period at which our history has arrived we
have but few trustworthy records upon which we can rely for
that accuracy which is necessary for the satisfactory pursuit of
legal study.
1 83. We must consider this subject, first, in relation to the
cities themselves ; secondly, in relation to the soil or territory ;
thirdly, in connection with the persons or inhabitants.
1st. As to the cities : what was their organization, adminis-
tration, and legislation ? Were they independent, or were they
dependencies of Home ? Had they a legislature of their own,
or were they subject to Roman law, private or political, or to
both united ?
2nd. As to territory : was it the property of the state, or of
Rome ? In either case, by what system of legislation was it
administered ? Was it considered as foreign soil, to which
neither Quiritarian ownership nor any other legal institution of
Rome could be applied? Or was it assimilated to the Ayer
Romanus, and susceptible of Quiritarian ownership and amenable
to the processes of the civil law ?
3rd. As to the persons or inhabitants : were they admitted to
the enjoyment of civil rights as Romans, either in part or in
whole, in the character of private citizens only, or as regards
political rights, or in both ; or were they excluded from both
and but in the position merely of foreigners ?
These points, which it is necessary to examine in connection
with this subject, may be all comprised in the answer to the
question whether there was, as regards the city, the soil or the
individual, any participation in the public or private privileges
of Roman citizenship.
THE HISTORY OF ROMAN LAW. 171
184. The subject is a complex one, because so much depends
upon the nature of the conditions under which alliances were
made, and the ' concessions granted by Rome to the states
which it admitted into alliance, or which were in the position
of conquered people, the nature of treaties, the character of the
plcbiscitum, and the law and procedure {lex, formula) which
regulated the condition of each town, besides the innumerable
details regarding local matters which the consideration of these
questions involves.
185. In the first place, the Quiritarian law, which was con-
fined to the Roman citizens (jus Quiritium, jus civitatis, jus
civile), may be considered under two heads, private law and
political rights. The former comprised First, the connubium,
conferring upon those who enjoyed it the right of contracting
between themselves, or with Roman citizens, thejustce nuptia or
Roman marriage, whence sprang the patria-potestas, agnation,
and all the effects of the civil law. Secondly, the commercium,
which affected the individual and the soil : as to persons, con-
ferring the right to make contracts with citizens and to acquire
and alienate property under the operation of civil law ; as
to land, constituting it Quiritarian property, also under the
operation of the civil law. And, thirdly, there was the factio
testamenti, the capacity of receiving from citizens, or of making
dispositions in their favour by will, under the provisions of
Roman law. This privilege appears to follow, not indeed neces-
sarily but generally, from the right of commercium, from the
time that the testament or will was made with the fictitious
ceremony of the mancipatio.
Under the second head of the jus Quiritium may be classed
political rights, the jus honorum, or the capacity to hold office
and magistracies in the state; and, secondly, the jus suf-
fragii, or the right of voting in the comitia. These were the
principal features of the jus civitatis, conferring rights and
privileges which could be granted separately or collectively by
the ruling power to cities, to territories, or to individuals, and
which as a whole was called the optimum jus*
172 THE HISTORY OF ROMAN LAW.
1 86. Taking these subjects in order, and confining ourselves
to general remarks, we have in the first place to consider cities.
Here we find
(1.) Rome the dominant city, the sovereign power.
(2.) The Roman colonies {colonial Romance, colonies togatce),
which were offshoots from Rome, constituted on the Roman
model, with their petty senate (curia), their two consuls (duum-
viri}, their order of patricians and plebeians admitted, both as
to the population of the colony and to the soil assigned to
it, to a complete participation in the rights of private Roman
citizenship (connubium, commercium, factio testamenti, domi-
nium ex jure Quiritium) ; but deprived of those of public citizen-
ship (civitas absque suffragio). This, at least, is our opinion,
though the fact has been disputed. Daughters of Rome, they
did not cease to observe its laws, to be dependent and under its
government. 1 They served as a bulwark for its defence and a
point d'appui for its attacks. As Rome's power increased these
colonice multiplied, and Avhen it came to embrace all Italy
(which was the case at the period at which we have arrived)
they were necessary as stepping-stones, or foundations laid at
different points in its progress, upon which it could plant its
foot. In those towns which had presented the firmest resist-
ance to Roman arms a senatus-consultum decreed the establish-
ment of a colony, and commissioners, called triumviri or
quinqueviri according to their number, were appointed. These
functionaries enrolled the enfranchised, the proletarii, who volun-
teered, conducted them to the spot, and distributed amongst
them, in some cases, a portion of the territory of the conquered
town ; and sometimes, but more rarely, the whole of it, without
leaving anything to the former inhabitants, and the colony was
then founded upon the model of the mother city. Nothing less
than a law or a senatus-consultum could authorize the establish-
1 Aul. Gell., lib. xvi. 13: " Coloni- magis obnoxia et minus libera, potior
arum alia necessitudo cst ; non cnim tamcn et prastnbilior existimatur, prop-
veniunt extrinsecus in civitatem, nee tcr ampliturlinem majestatemque populi
suis radicibns nituntur ; sed ex civitate llomani, cuj us istrc colonial quasi effigies
quasi propagate sunt, et jura instituta- parvaj simulacraque esse quoedam vi-
que omnia populi Romaui,non sui arbitrii dentur."
habent. Qua: tamcn conditio, cum sit
THE HISTORY OF ROMAN LAW. 173
ment of a colony in this way, could regulate the grant of the
lands, and bestow upon it the title and privileges of a Roman
" colony." At the period to which we now refer more than
thirty of these colonies had been thus established.
1 87. (3.) The cities of Latium bore different titles, and were
placed under various conditions, according to the treaty entered
into with each ; they were either free towns or allied towns
(civitates libcrce, civitates fcederatce}. These were the nearest
neighbours of Rome, the earliest subjected to its power or
taken into its alliance. Occasionally they had thrown off the
burden which the obligation of the observance of treaties laid
upon them, but only to subject themselves at a later period to
a more onerous yoke. But the defeat at the lake Regillus,
B.C. 496, of which the Romans frequently reminded them, and
later on the issue of the war, B.C. 338, in which the consul
Decius Mus devoted himself for the Quirites and for the legions,
bound them irrevocably to the fortunes of Rome. After the
severe treatment to which they were subjected upon defeat,
those cities which had escaped destruction in the Avar, or which
had not been transformed into colonies, were allowed to remain
in the enjoyment of independence under the conditions of the
treaties admitting them to alliance, and concessions more or
less liberal, in the shape of admission to the rights of Roman
citizenship, were made to them. Thus we find that they had
generally the commercium, and that their soil was susceptible
of Quiritarian ownership. Having the commercium, their
citizens consequently enjoyed ihefactio testamenti, possibly with
certain restrictions. 1 They had not the connubium, but they
1 The situation of the LatinlJunianA factio est." (Ulp. tit. 20, 8.) But
at a later period is described by the they had not the right to receive, or, in
Roman jurists in precise terms, which the technical terms of the law, the right
enable us to judge by comparison of the to take the inheritance which had been
condition of the Latlnl vetcres. The conferred upon them (jus caplcndl ex
Latlni Jwniani could take part in a testamento), unless at the death of the
testamentary act made per cesctllbram testator, or during the period allowed
in the capacity of scale bearers, wit- for the purpose, which was called cretin,
nesses or purchasers of the patrimony, he had become a Jloman citizen. " Si
that is to say, they could be lucrcdcs quidem mortis testatoris tempore vel
inxtltuti: " Latinus Junianus et fami- intra diem cretionis civis Romanus sit,
liae emptor et testis et libripens fieri haeres esse potest ; quod si Latinus man-
potest, quoniam cum eo testamenti serit, lege Junia capere han-editatem
174 THE HISTORY OF ROMAN LAW.
could acquire in different ways, regulated by special enact-
ments, the entire rights of Roman citizenship, and it is this
which particularly distinguished them from others. There
were cases in which the connubium, and a participation to a
certain extent in political rights, were conceded to certain cities.
These were cases in which the inhabitants had been long in
alliance with Rome {Latini veteres\ and had remained faithful
to it in the insurrection of B.C. 338, or for some reasons of state
policy had been treated with more than ordinary indulgence.
In such cases the citizens of the favoured towns, who happened
to be at Rome at the time of the sittings of the comitia, were at
liberty to vote, and the tribe to which they should for the time
attach themselves was determined by lot.
Such are the chief characteristics of the law which governed
Latium {jus Latii, jus Latinitatis). We have not the infor-
mation necessary to enable us to deal with this subject in the
detail and with the accuracy which a study of this kind
demands, and have therefore been compelled to depend upon
traces, doubtless more or less defaced or obliterated, of a later jus
I^atinitatis which we meet with in Gaius and Ulpian, as the
personal condition and status of a certain class of enfranchised. 1
The jus Latinitatis became in course of time extended to
towns and countries beyond Latium, and still later to those
beyond Italy ; for example, to Spain and Gaul, to the inhabit-
ants of which the jus Latii, and not the full rights of Roman
citizenship, was accorded.
188. (4.) The Latin colonies (Latince, or Latini nominis
were colonial communities, assimilated not to Rome,
prohibctur." (Ulp. tit. 22, 3.) As that this law met the case with the
to his taking part as testator in such a Latini vetercs. A passage in Gains,
ceremony he could not, because he was 1, 23, confirms the restriction imposed
expressly excluded from this right by by the Jnnian law on the Latini vcteres
the Junian law. " Latinus Junianus, in the following terms : " Non tamen
item is qui deditiorum numcro cst, tes- illis permittit lex Junia, necipsis testa-
tamentum facerc non potest : Latinus mentumfacere, nee ex testamento alieno
quidem quoniam nominatim lege Junia capere, nee tutores testameuto dari."
prohibitus est." (Ulp. tit. 20, 14.) ' Gai. 1, 22 ct seq., G6 et seq.
We are authorized to conclude from this Ulp. tit. 3 ; tit. 5, 9 ; tit. 2, 16 ; and
express exception made by the Junian the passages quoted in the preceding
law with regard to the Latini Juniani note.
THE HISTORY OF ROMAN LAW. 175
but to the towns of Latium, and consequently were not in the
enjoyment of full Roman citizenship, but only of the jus Latii.
These colonies were chiefly composed of Latins, or of other
people, settled either by the arms or the policy of Rome in a
conquered country. The Romans who enrolled themselves in
these colonies forfeited their entire Quiritarian rights, and only
enjoyed those peculiar to the colony.
In order to establish these colonies, a decree of the senate
was not necessary. Generals or consuls could create them
whenever success in war or other circumstances suggested the
expediency of so doing.
189. (5.) The towns of Italy which submitted to Rome at
the conclusion of the struggle, and at the total subjection that
took place in the latter part of the fifth century from the foun-
dation of Rome, remained, in virtue of treaties, free cities in
alliance with Rome (civitates liberce, feeder at (B). Being located
at a greater distance, having joined the alliance at a later
period, and having rendered and being in a position to render
less assistance to the state than the towns of Latium, they in
general received far less favourable conditions and fewer con-
cessions. However, the fundamental principle of their consti-
tution was liberty and independence. They were governed by
laws made and magistrates appointed by themselves. 1 The
commercium was conceded to them, and their territory enjoyed
the rights of Quiritarian property (dominium ex jure Quiritium},
in -virtue of which they were free from the tax or annual tribute
imposed upon the possessors of conquered lands, but their inha-
bitants could not, like the Latins, attain the enjoyment of the
full privileges of Roman citizenship. Such was the germ of
what is styled the jus Italicum, to which our attention will be
more fully directed hereafter, a concession made to certain cities
and colonies outside of and beyond Italy : but it must be pre-
1 Those who in the towns either of to Koine the rights of Roman citizens,
Latium or of Italy, and at a later or that their inhabitants were such citi-
period beyond Italy, had adopted the zcns, but it was without doubt a means
Roman law, were called civitates fun- of obtaining with greater ease a more
dana; or populi fundi. This does not liberal share in the rights of Roman
imply that they enjoyed with respect citizenship.
176 THE HISTORY OF ROMAN LAW.
mised that the sense in which this expression jus Italicum will
be hereafter used does not correspond with the outline which
has been here given, inasmuch as it will only refer to the con-
dition of Italian soil as compared with that of provincial soil,
but for this we must wait for the creation of provinces and
the issue of the social war.
1 90. The allied towns of Latium or of Italy might, in virtue
of their treaties, in the case of attack invoke the assistance of
Rome, but they were bound to furnish a certain number of
soldiers, who would be under the orders of a Roman general.
Another clause in these treaties aimed at the principle of
confederation by prohibiting the peoples of these cities from
holding general assemblies, and so raising a league which
might prove formidable to the Romans. Each town was thus
kept isolated, unity of action prevented, and Rome made the
central point of political life.
191. (6.) The distinctive characteristics of municipal towns
(rnunicipia) did not rest, as in the former case, upon the basis
of origin or geographical position, but upon the peculiar con-
stitution of the city to which the term was applied, irrespective
of its locality. Thus in Latium and Italy there were certain
cities erected into municipia. These were cases in which com-
munities had been in alliance, but in course of time had lost all
individuality, and become merged in the Roman polity as part
of its system ; and as they had originally enjoyed the status of
allies and confederates, and the rights secured to them by the
observance of international law, they could not but remain free,
and thus came to be incorporated with the municipia. As Rome's
conquests increased, these municipia extended beyond Italy. By
this policy of assimilation, foreign cities and conquered terri-
tories were transformed into a species of quasi-Roman communi-
ties, without becoming actually colonies, or forfeiting altogether
their independent exercise of legislative functions and internal
administration.
192. The signification of the word municipium has not at
THE HISTORY OF ROMAN LAW. 177
all times been identical. It has been modified in proportion
as the assimilation of municipal towns to the constitution of
Home became more and more limited. We find the trace of
these changes in Festus and Paulus, and in the exposition of
Verrius Flaccus, who treats of this term in three different
acceptations. 1
1 93. The dominant idea of a municipal town is a town to
which liberty of legislation and freedom of internal administra-
tion (legibus suis utunto] have been accorded, so long as it does
not place itself in antagonism to imperial interests, nor oppose
the \aw (lex , formula) which constituted its municipal existence.
The greater number of the municipia, although they enjoyed
the free exercise of their own institutions, had, like the colonies,
a political system somewhat analogous to that of Rome. Thus,
under the name of curia, they had a species of senate ; under that
of decurions or curiales (decuriones, curiales\ orders answering
to senators, patricians and, below these, a plebeian order ; under
that of duumviri, quatuorviri, a species of consul, and in addition
aediles, censors and quaestors for their police and local finance,
offices designed to maintain the balance of power in the state
just as they had at Rome, only differing in some details owing
to local peculiarities. This, as regards Latium and the greater
part of the Italian cities surrounding Rome, was the natural
result of their all having one common origin. And the same
1 Festns (by Paul) on the word Mu- Arpinates, Nolani, Bononienses, Pla-
nioipiltm: " Municipiumid genus ho- centini, Nepesini, Sutrini, Lucentes."
minum dicitur, qui, cum Honiara venis- (The text of this last phrase is altered
sent, neque cives Komani essent, parti- in such a manner as to make it difficult
cipes tamcn fuerunt omnium rerum ad to render the exact sense in construing.)
munus fungendum una cum llomanis We find under another word in
civibus, praiterquam dc suffragio fcren- Festus, Municeps, another definition
do, aut magistrate capiendo ; sicut f ue- derived from the first acceptation :
runt Fundani, Formiani, Cumani, Acer- " Item municipes erant, qui ex aliis
rani, Lanuvini, Tusculani, qui post civitatibus Romam venissent, quibus
aliquos annos cives Romani effeeti sunt. non licebat magistratum capere, sed
Alio raodo, cum id genus hominum tantum muneris partein. At Ser. filius
definitur, quorum civitas universa in aicbat initio fuisse, qui ca conditione
civitatem Romanam venit ; ut Aricini, cives Romani fuissent, ut semper rcm-
Cairites, Anagnini. Tertium cum id publicam separatim a populo Romano
genus hominum definitur, qui ad civi- habercnt, Cumanos videlicet, Acerra-
tatcm Romanam itavenerunt, utimuni- nos, Atellanos, qui axme cives Romani
cipia (perhaps municipes) essent sua erant, et in legione merchant, sed dig-
(perhaps svw) cuj usque civitatis et colo- nitates non capicbant."
niae; ut Tiburtes, Prrencstini, Pisani,
N
178 THE HISTORY OF ROMAN LAW.
result was observable even in those cities outside of and beyond
Italy, which, on being raised to the rank of municipia, adopted
Roman institutions in order to assimilate themselves more to
the sovereign city to which they were attached. And so for
similar reasons, though in the free enjoyment of legislative
power, their legal systems approximated closely to that of Rome,
whose institutions they voluntarily adopted. 1 The plebiscitum,
which conferred upon a town the title of municipium, deter-
mined the extent to which the privileges of Roman citizenship
were accorded to its inhabitants. This grant was frequently
expressed in general terms by laying down that the jus Latii
should be conferred, although the grant was not in all cases the
same. In some instances, all the rights of Roman citizenship
as to private law, including the connubium, were conceded,
together with the rights of Quiritarian ownership as to the soil.
In others the concession was restricted to the commercium and
ihefactiu testament i. In other instances again even the public
rights of citizenship were accorded, perhaps partially, perhaps
wholly, together with the capacity to hold magistracies (jus
honorurn) and to exercise the suffrage (jus suffragii). In all
cases, however, the municipia were said to have enjoyed greater
privileges than any other class of towns (optima jure). Their
inhabitants were citizens of two countries, of the municipality
and of Rome itself. Nor were they ordinarily refused the name
of " Romans," though they were unhesitatingly reminded, in
case of need, of the fact that they were but municipes.
194. At the epoch at which we have arrived, participation
in at least the public rights of citizenship was not widely
extended. Casres is the first municipal town, founded B.C. 389,
as a reward for having preserved for the Romans, during the
war with the Gauls, their valuables and treasures consecrated to
1 Aul. Gell. lib. xvi. 13 : " Muni- rum fundus factus cst. Primes autera
cipes ergo sunt cives Romani ex muni- municipes sine suffragii jure Caerites
cipiis, legibus suis et suo jure utentes, esse factos accepimus: concessumque
murieris tantum cum populo Romano illis, ut civitatis Romance honorem qui-
honorarii participes: a quo miinere ca- dcm capcrcnt, sed negotiis tanien atque
pessendo appellati videntur, nullis aliis oneribus vacarent, pro sacris bello Gal-
necessitatibus, ncque ullapopuli Roman! lico reccptis custoditisque."
lege astricti, nisi, inquam, populus eo-
THE HISTORY OF ROMAN LAW. 179
religious worship, but the right of suffrage was not accorded to
it. Some recent discoveries of archaeologists have fortunately
placed at our disposal several valuable relics of antiquity, which
enable us to form a pretty accurate idea of the municipium
as it existed at the date of these relics.
195. (7.) We find, under the title of prefectures (prafec-
tur(B\ towns, municipalities or colonies to which Rome, while
leaving to the inhabitants the free exercise of their own admi-
nistration, yet sent a prefect for the administration of justice.
This prefecturate could merely have been temporary. The first
instance we have belongs to the historical period to which we
have just referred (B.C. 323), and was the result of an applica-
tion made by the inhabitants themselves, who, wearied with
intestine divisions, implored Rome to put an end to their
unsettled condition by sending them a prefect. 1
This outline will show the different nature of the relations
that existed between Rome and her colonies. Velleius Pater-
culus 2 devotes two paragraphs to the enumeration of the
colonies founded by Rome, and of certain communities to
which the rights of citizenship were accorded.
196. As regards the land belonging either to the Roman
colonies (that is to say, the land assigned to them as colonies,)
or to the allied towns of Latium and Latin colonies, or to the
allied towns of Italy, and if we include the towns which were
distinguished from them by the peculiarity of their constitution,
the municipia, it was in ah 1 these cases, as a result of the privi-
leges of citizenship, or the commercium only having been
accorded to them, held and treated as Quiritarian property,
and consequently assimilated to the Ager Romanus.
We must not overlook the importance of this assimilation.
The proprietors of this class of soil had the territorial rights
of Roman citizens (dominium ex jure Quiritium^) ; they were
1 Livy, lib. ix. 20 : " Eodem anno The expressions, of Festus on the word
(431) primura prscfecti Capua; creari Prefect lira : " neque magistrates suos
coepti, legibus ab L. Furio prajtore datis: habebant," apply to the duumviri jtiri
quum utrnmque ipsi pro remedio ajgris dlcundo.
rebus discordia intestina petissent." 2 Lib. i. 14 and 15.
N 2
180 THE HISTORY OF ROMAN LAW.
subject to the civil law, so far as it applied to this species of
property, and whereas in every conquered territory the Roman
law only recognized the occupiers of the soil as tenants subject to
the payment of a rent or annual tribute (vectigat) as the price of
the enjoyment permitted to them (because the proprietary right
was supposed to be lodged in the Roman people), this land, on
the contrary, was held under a proprietary title, and conse-
quently its owners were free from rent or tribute.
197. As regards personal status, the inhabitants were divided
into citizens (cives\ colonists (Romani coloni, or simply coloni),
the allied Latins (socii Latini, or simply Latini), Latin colonists
(Latini colonarii}, the citizens of the municipalities, or the
municipia (municipes), foreigners (liostes, or, in more modern
language, peregrini), and, finally, barbarians (barbari).
Cives. The title of citizen, Avhich was originally conferred
upon all the vanquished, was, at the time to which we are allud-
ing, regarded with great jealousy. It carried with it the enjoy-
ment of civil rights, both of public and private citizenship, the
privilege of electing and being elected to magistracies, and of
voting in the comitia. Entire cities were eager to obtain it.
At first it was confined to those who belonged to Rome, or to
its then narrow territory. From time to time, however, it was
conferred by a plebiscitum ; in some cases collectively to all the
inhabitants of an Italian city, in others to individuals distin-
guished by wealth or influence.
Romani Coloni. These colonies enjoyed the full right of
private citizenship (connubium, commercium,factio testamenti),
but had no share in political rights.
Socii Latini. The allied Latins, or simply Latins, possessed
the rights of private citizenship accorded to the city of which
they were members. Generally speaking this consisted of, 1st,
the commercium thus we see them emancipating their sons
to Roman citizens in order that by being enfranchised they
may become citizens; 1 and 2nd, the factio testamenti, with the
rights attached to' the testamentary act per ces et libram, but
1 Livy, 41,8: " Libcros snos qnibus- manumittcrentur, manciple dabant,
quibus ilomanis in cam conditionem ut libertiuique cives cssent."
THE IIISfOUY OF ROMAN LAW. 181
not the connubium, if we except the early and legendary period
of Roman history. The Latins could acquire complete rights
of citizenship in various ways, especially by virtue of having
held an annual magistracy in their own country, or by the
removal of their domicile to Rome, provided always that they
left a child in their own country, 1 or by the fact of their having
brought a public accusation, carried through to conviction,
against a citizen for extortion. The Latini veteres had in
addition the right of voting, provided they happened to be at
Rome at the time of the sitting of the comitia. z
Latini colonarii. Latin colonies held a position analogous
to that of the Latins.
Municipes. This class, called by the Romans municeps,
and in the plural municipes, signifying that they took a part in
the munera, that is to say, in the charges, functions, and conse-
quently in the advantages of Roman citizens, 3 enjoyed a personal
status which varied according to the concessions made to each
municipality. This status was frequently analogous to that of
the Latins, the municipia being said to have received the right
of " Latinity," but differed in different cases.
Foreigners. Three different expressions were applied to the
foreigner : he was either peregrinus, hostis, or barbarus. The
peregrinus was the foreigner whose country was already under
the dominion of Rome, but which did not enjoy the rights of
Roman citizenship. There were a great number of this class
established in Rome, and in this respect the title was applicable
to the majority both of Latins and Italians. The hostis was a
foreigner whose country had not yet submitted to the dominant
power, and was therefore considered an enemy. In early times,
before the commencement of Rome's grand career, every
foreigner was called hostis., and those against whom hostilities
1 Livy, 41, 8: " Lex sociis ac nominis mw<V,'ij?es, quiunamnnus fungi debent,
Latini qui stirpem ex scse domi relin- dicti." Aul. Gell., in the definition
qnerent debet ut cives Komani fierent." quoted above, 193, note: "A quo
* Ibid. 25, 3 : " Tribnni populum mimerc eapessendo appellati videntur."
summoverunt : sitellaque allata est, ut Dig. 50, 1, Ad mimicipalcm, 1, 1, f.
sortirentur ubi Latiui suffragium fer- Ulp. : " Et proprie quidcm municipes
rent." appellantur muneris participes, recepti
* Varro, De lingua latina, lib. v. in civitate ut munera nobiscum face-
179: "Alteram munus, quod mu- rent."
niendi causa imperatum; a quo etiam
182 THE HISTORY OF ROMAN LAW.
were undertaken were styled perduelles. These are ancient
expressions. 1 The barbarus was one beyond the limits of civili-
zation and the scope of Roman geographical knowledge, the
sphere of which however rapidly expanded. From the Cisal-
pine Gauls this title passed to the Gauls beyond the Alps, to
the borders of the Ocean, to the island of Great Britain, to the
forests of Germany, and finally to the unknown regions in the
north of Asia, whose hordes were destined in after years to
overthrow the Roman empire.
These were the relations in which the peregrinus, the hostis
and the barbarus stood to Rome : the one in her bosom, or at
least under her dominion ; the other, beyond the pale of her
influence ; and the third, outside the limits of the empire and
beyond the reach of its civilization.
PUBLIC LAW
(FROM THE TIME or THE TWELVE TABLES TO THE SUBMISSION
OF ALL ITALY).
198. We have been considering the whole body of Roman
citizens under three heads the people, the senate, and the king.
We shall now consider them under another tripartite division
the people, the senate, and the plebeians.
At the period at which we have arrived the order of the knights
has grown in strength and importance, but has not yet attained
to the full enjoyment of the privileges and the power which it
is destined hereafter to exercise. The people, as a political class,
must be regarded as composed of the whole body of citizens Avith-
out respect to rank or fortune. The senate, as of persons inscribed
by the censors in their lists as members of that body. The ple-
beians, no longer excluded from the enjoyment of political rights,
1 Varro, De lingua latina, lib. v. " Hostis apud antiques peregrinus dicc-
3 : " Et multa verba aliud imnc os- batur, et qui nunc hostis pcrducllis."
tendunt, aliud ante significabant, ut Wig- 50, 16, De verborum signified-
hostis, nam turn eo verbo dicebant pere- tione, 234, f. Gains : " Quos nos hostes
grinum, qui suis legibus uteretur, nunc appellanms, eos Vctercs perduelles ap-
dicunt cum quern turn dicebant perduel- pellabant, per earn adjectionem indi-
lem." Festus, on tbe word Hostis: cantes cum quibus bellum esset."
TIIEIIISTOKY OF ROMAN LAW. 183
have now their assemblies and their own laws ; they take a pai-t
in the government, are eligible to the principal civil magistra-
cies, are enrolled amongst the knights, and classed with senators.
199. The people, the senate and the king no longer monopo-
lise all the power in the state. Magisterial offices have been
multiplied ; the sovereignty of a single ruler has given place to
the consulate of two ; the consulate in its turn has disintegrated
and given birth to the offices of the censor, the prsetor and
the aedile major ; the plebeians are headed by their tribunes,
and, in addition to these, there are the inferior magistrates, the
quaestors and the plebeian aediles. All these offices, except that
of censor, are annual : some confer the right of the curule chair
and images (sella curulis, imagines majorum) ; others enjoy
neither of these distinctions, and the subordinate magistrates are
styled magistratus pedarii.
The distinction of the curule chair consisted in the privilege
of being carried and seated upon a chair of honour, and was
enjoyed both during the tenure of office and after it had been
vacated. 1 The dignity of the "images" was a right which
some enjoyed to bequeath to their family their images or busts.
These statuettes were representations of any member of a family
who had filled any high magisterial office, and it was a point of
honour to preserve them. In funeral processions they were car-
ried in state to show the distinction to which the family of the
deceased had attained. 2
1 C. Flavins, who published the the respect which was paid to the ex-
" Dies Fasti," being an acdile, went to terual symbols of office,
visit his colleague who was ill. There 2 These images were not simple por-
happened to be a number of young traits, nor were they merely full length
patricians present. Seeing the aedile figures. There are grounds for believ-
coming, they agreed that no one should ing that, at least in the funeral pro-
rise on his entrance. The little plot cession, some person assumed the cha-
was carried out ; but Flavius, who racter, the robes of office and insignia
noticed what they were about, ordered of the deceased, and played his part
his attendants to bring in the curule so that it might appear that the de-
chair, and mounted on that elevated ceased was present in the procession,
seat of honour he confounded, by the But be this as it may, the represen-
ted of the magistracy, those who had tation of the ancestors of the deceased
attempted to humiliate him. (Livy.) following the funeral car in their curule
I relate this anecdote because it ex- chair, must have looked as if they
hibits both the light in which the patri- were conducting to the tomb with pomp
cians regarded the admission of the the deceased whom death had asso-
plebeians to the high magistracies, and elated with them. We cannot wonder
184 THE HISTORY OF ROMAN HAW.
200. THE LEGISLATIVE POWER. This was exercised by the
people, the senate and the plebeians ; by the people and the
senate in enacting leges, the one voting the other initiating ; by
the plebeians in their plebiscita.
We must say a few words upon these three sources of law
the leges, the plebiscita, and the senatus consulta.
First, the leges were enacted by the comitia centuriata, for
we may regard the curies as having only a fictitious existence,
and constituting a machinery merely for the investiture of the
imperium, or in connection with the determination of certain
family rights for which ancient custom rendered the confirmation
by the curies necessary. The province of the senate was to
concur in the enactment of laws. Projected laws were usually
prepared and discussed by it ; the comitia were convoked by a
senatorial magistrate with their authority, and by him the laws
were proposed. The centuries, on their part, had no power
to make any alteration whatever in the proposed law. Each
citizen in passing before the scrutineer simply pronounced an
affirmative or a negative in favour of or against the proposed
enactment, and the vote was given audibly. An inauspicious
omen, or the sound of thunder, could at any time dissolve the
assembly. (Jove tonante cum populo agere nefas.} The auc-
toritas of the senate, as given to the decisions of the comitia
centuriata, was a mere form, for after the lex Publilia was
passed, that auctoritas had to be given before the votes were
taken.
Secondly, the plebiscita emanated from the plebeian assem-
blies convoked by tribes in the forum or Capitol, the tribunes
having the initiative ; the vote was given audibly, as in the
case of the centuries, and after the Publilian and Hortensian
law came into force neither the vote of the centuries nor the
sanction of the senate was necessary to make the plebiscita
binding upon both orders.
at the Romans so accurately distin- the number attested publicly the recent
guishing between the old and the new origin of the family ; but where a long
families, since at each funeral proccs- line of ancestors appeared in the funeral
sion the dead and the living were thus cortege, they represented the dignity of
reunited. When two or three only of a race which was able to trace its origin
these deceased consular dignitaries ap- to the earliest periods of Rome,
peared in the procession, the paucity of
THE HISTORY OF IIOMAN LAW. 185
Thirdly, the authority of the senatus consulta, BO far as
relates to the government and the higher branches of the
administration, is indisputable, but Roman jurists question their
authority in matters of private law, even at a later date ; and
the few of this description quoted relate to some public matters
besides. 1
201. To these sources of the written law must be added
others derived from customary law, such as the interpretation
and authority of the jurists (inter pretatio), opinions of the bar
resulting from discussion, litigation and decisions (disputatio
forf), usages long observed though unwritten, and especially
those handed down from antiquity (mores majorum), which
were always regarded as binding. Laws of this kind, says
Pomponius, had no categorical appellation, as was the case
with the leges, the plebiscita and the senatus consulta, and
were only distinguished by the generic term jus civile,* a term
applicable to all the laws peculiar to citizens, but here used in
a technical sense.
Finally, in order to have a complete picture of the elements
of legislation at this period it is necessary to add the actiones
legis, for notwithstanding the fact that the formulas attached to
the different classes of suits had been published by Flavius,
they nevertheless continued to comprise a separate department
or branch of the law.
202. EXECUTIVE POWER. Properly speaking, the entire
executive power as to deliberation and determination of matters
affecting the superior departments of the administration was
lodged in the senate ; its action, however, was not in every case
direct, inasmuch as it was frequently exercised through the
intervention of senatorial magistrates. It directed the consuls
1 Whenever a plebeian tribune inter- disputatio et hoc jus, qnod sine scripto
fercd by his veto with the decision of venit, compositurn a prudentibus, pro-
the senate, it was then called a senatus pria parte aliqua non appellatur, ut
avctoritas and not senatus consultum. easterns partcs juris suis nominibus de-
* "His legibuslatis coepit, ut natura- signantur, datis propriis nominibus ca>
liter evcnire solet, ut interpretatio de- teris partibus : sed communi nomine
sideraret prudcntium auctoritate neces- appellatur Jus civile." Dig. 1, 2, De
sariam esse disputationem fori. Hasc or ig. juris, 2, 5, f. Pomp.
186 THE HISTORY OF ROMAX LAW.
and the praetors, imposed conditions upon vanquished nations,
rewarded or punished the colonies and the allies according as
they merited the pleasure or displeasure of Rome, and deter-
mined disputes in cases where nations were the litigating parties.
The senate was not inaptly described by the eulogy of Pyrrhus
" as an assembly of kings."
203. The executive magistrates personally and directly
charged with the duties of the administration were : 1st, The
consuls, who not only held sway in Rome, but one of whose
special functions was the command of the army ; 2nd, The
two urban prastors, who, independently of their judicial office,
could act for the consuls during their absence from Rome, and
also in their turn, when necessary, be replaced by the consuls ;
3rd, The two censors, who conducted the census, arranged the
citizens in classes and fixed the rate of taxation for each ;
4th, The two cediles majores, who superintended the higher
departments of the police administration ; and 5th and finally,
The quaestors and plebeian aediles, though, properly speaking,
these were but magistrates of a particular class.
204. The plebeian tribunes, who were elected by the tribes,
at the period to which we are referring, to the number of ten,
that is, two for each class as determined by the census, 1 were
not exactly part of the executive administration, but were in-
tended to act as a sort of balance of power within the state.
They were not, in the sense in which the word was understood
by the Romans, magistrates exercising any actual executive
functions or jurisdiction (imperium, jurisdictio). While the
consuls enjoyed the imperium, the authority which the tribunes
exercised, called the auxilium? only empowered them to offer,
1 Livy, lib. ii. 58: " Turn primum (consules), penes sc (tribunes )auxilium
(an. 283) tributis comiciis creatitribuni tantum sit." Lib. ii. 33: " Quibus
sunt; numeroetiam additos trcs, pcrinde (tribunis) auxilii latio advcrsus con-
ac duo antea fuerint, Piso auctor est." sulcs esset." Cicero, De leglbiis, lib.
Lib. iii. 30 : " Tricesimo sexto anno a iii. 3 : " Plebes quos pro se contra
primis tribunis plebis (an. 21)7), deccm vim, auxilii ergo, decem creassit."
creati sunt, bini ex singulis classibus: Claude, from the Tables of Lyons: "In
itaque cautura est nt postea crearentur." auxilium plebis creates tribunes."
a Livy, lib. vi. 37: " Non posse Festus, on the words Sacer mons:
zcquo jure agi, ubi imperium penes illos " Sacer mons appellatur trans Anienem
THE HISTORY OF ROMAN LAW. 187
individually, their support or opposition to measures put forward
either by the consuls or by other magistrates. Their support
consisted in merely abstaining from interference when any mea-
sure was put forward of which they approved. Their oppo-
sition was called intercessio, and might be exercised with
reference to any action taken by their own 'Colleagues. 1 This
power of intercessio extended even to the decrees of the senate ;
and as at the time we are speaking of the tribunes had not been
admitted into the senatorial body, they used to be seated, as
Valerius Maximus says, upon their bench before the door of
the hall, where they carefully examined the decrees which were
there submitted to them, and marked with the letter T those
which they purposed allowing to pass without opposition. 2
Their authority, however, was soon to extend. They had in
fact already begun to take a more active part in the govern-
ment, as it was they who convoked the comitia by tribunes
and introduced plebiscita (rogationes). They summoned before
them citizens and even magistrates, and more than once they
had condemned consuls, upon laying down their consulate, who
during their office had proved themselves hostile to the interests
of the plebeians. The senate, in calling them to their aid in
order to restrain the consuls from nominating a dictator in
B. c. 432, had given them a coercive power of which they were
not slow to avail themselves. And this was the origin of the
potestas or vis tribunicia 3 which occupies so important a place
paulo ultra tcrtium miliarium ; quod bat ; ante valvas autem positis subscl-
eum plebes, cum secessisset a patribus, liis, decreta Patrum attentissima cura
crcatis tribunis plebis, qui sibi essent examinabant, ut, si qua ex eis impro-
auxilio, disccdentes Jovi consecrave- bassent, rata esse non sinercnt : itaquo
runt." veteribus Senatus consultis T littera
1 The patrk-ians frequently interfered subscribi solcbat, eaque nota significa-
by means of intercessio with the acts batur, ilia tribunes quoque censuisse."
of plebeian tribunes of which they dis- 3 Livy> lib. iv. 20 : " ' Vos, inquit,
approved. See in Livy, lib. vi. 38, tribuni plebis, quoniam ad extrcina
the case of the tribunes C. Licinius and ventum est, Senutus appellat, ut in
L. Sextius, who refused to yield to the tanto discrimine rcipublicic dictatorem
intercessio of their colleagues, and the dicere consules pro potestate vestra
efforts of M. F. Camillus, irregularly cogatis.' Qua voce audita, occasioncm
elected dictator by the patricians, to oblatam rati tribuni augendas potcstatis
support this intercessio. accedunt, proque collegio pronuntiant :
8 Val. Max. lib. ii. ch. 3, 7 : " Hind ' Placere consules Senatui dicto audi-
quoque memoria repetendum est, quod entes csse : si adversus consensum ain-
tribuni plebis intrare curiam non lice- plissiini ordinis ultra tendant, in vincula
188 THE HISTORY OF ROMAN LAW.
in the political history of Rome, for when once the tribunes had
been invested with this power they took care to retain and to
improve the advantage thus gained.
205. ELECTORAL POWER. The people and the plebeians
exercised the privilege of electing different magistrates. The
people, assembled by centuries, created consuls, praetors and the
cediles major es. The plebeians nominated the quaestors, the
plebeian aediles, and especially the plebeian tribunes. They
also elected the Pontifex Maximus from among the College of
Pontiffs, whenever a vacancy occurred, for this office was held
for life. Here we find a remarkable instance of a symbolic
ceremony being retained long after the reality was gone. The
election of the Pontifex Maximus belonged originally to the
curies, and when the privilege came to be conferred upon the
tribes, it was necessary that there should be a curial law to
sanction the election. And this respect for ancient usage was
also evinced by retaining the thirty lictors, each representing
one of the thirty old curies, and the augurs, who conducted the
religious ceremonies, the lictors adopting that which the tribunes
had already determined upon.
206. JUDICIAL POWER. This power was in the hands of
the people, the plebeians and the prastors ; but we must distin-
guish between jurisdiction in civil and criminal matters. In
criminal matters the jurisdiction was in the comitia centuriata
and the comitia tributa : in the quaestors, as commissioned by
the comitia ; in the senate, as commissioned by the comitia, and
as acting on its own inherent authority according to the nature
of the case ; in the consuls and praetors, as commissioned by
the senate. The comitia centuriata could alone pronounce
sentence of death ; the comitia tributa that of exile or fine,
chiefly as a political punishment. If it happened to be a matter
of some public offence to which the attention of the citizens
se duel eos jussuros."' Lib. v. 9 : auctoritate Senatus essent, se in vincula
" Inter hcec tribuni plebis . . . feroces eos duel jussuros esse."
repente minari tribunis militum, nisi in
THE HISTORY OF ROMAN LAW. 189
was directed, and in which the accused was a magistrate, or
consular dignitary, the centuries or the tribes very rarely re-
mitted their right to any other body. If the accused person
was in a humble position in life, or the offence with which he
was charged was a trivial one, or a private crime, they generally
delegated their power to a quaestor parricidii, and the senate
also in such cases generally commissioned a quaestor or magis-
trate to try the prisoner, the people very rarely claiming their
privilege. And in the case of foreigners or slaves or other
persons who were not in the enjoyment of the rights of citizens,
or where it was merely a matter which required some slight
penalty, the praetor was the proper person to try it. The cen-
tumvirs also appear to have had some criminal jurisdiction,
but we know very little of its nature and extent.
207. In civil cases the action was commenced before the
praetor, in whose presence all the religious formulas of the legis
actiones were performed and the suit organized. It was he who
had thejurtsdictio (jus dicit, addicit, edicit\ and the public au-
thority (imperium). The formalities having been gone through
before him (injure), if the matter was such as could not be
determined by him, that is to say, by a simple declaration of
the law, he appointed either a single judge, or one or more
arbitrators, who were selected from the senatorial order, or
agreed upon by the parties, or ascertained by lot, to determine
the matter. In certain instances he remitted the case to the
centumviral tribunal to be heard either by the whole chamber,
its four sections sitting together, or by one or more of them.
The centumviral tribunal took cognizance of state matters,
questions of Quiritarian property and succession ; the judge or
arbitrator of matters of obligatio and possessio. In cases in
which strangers were concerned, who could not have recourse to
the actiones legis, the parties were remitted by the magistrate
to recuperators, selected at the time, usually either three or five
in number, from among the people who happened to be on the
spot.
208. M. Laboulaye, in his Essai sur les lois criminelles cles
190 THE HISTORY OF ROMAN LAW.
Romains concernant la responsabilite des magistrals, has traced,
in a most interesting manner, the machinery by which the poli-
tical equilibrium in the republic was maintained. He has
shown how the different powers, which were ill-defined and
allowed of the principle of reciprocal action, were yet kept in
harmonious co-operation ; how the magisterial offices, which, for
the most part, ran two or more abreast of one another, yet worked
without clashing ; how the magistrates themselves, some of
whom resembled a class of hierarchs enjoying the dignity of
their caste, but without actual authority, such as a superior has
over an inferior, carried on the duties of their office ; and how, in
a state where every official was independent and irresponsible
during the tenure of office, and where all the different parts of this
system were constantly coming into contact, the whole machi-
nery of the administration was yet maintained in good working
order.
One of the chief instruments of this equilibrium in the state
machinery was the principle by which two or more magistracies
existed co-extensive and parallel with one another, the right of
veto and power of check Avhich each magistrate might exercise
upon his brother official whether equal or inferior, and which
the tribunes of the plebeians might exercise over all magistrates
and even the senate. Thus, though without having actual
authority one over another, the one was able to control, to check
or annul the acts of another. They thus came into frequent
contact, and although each could act separately, yet all being
similarly situated in this respect, they were obliged to act in
concert, or at least to ascertain that they were not likely to
be opposed or interfered with before they could be sure that
their proceedings would not be annulled. And in this manner,
even in the case of the colleague of a consul, a censor or a
plebeian tribune, there was a check and a safeguard against
abuse of authority, against injustice or arbitrary power. This
principle, instead of resulting in establishing equilibrium in the
machinery of the administration, might have degenerated into
a mere obstacle to all progress, had it not been that public spirit,
attachment to national institutions, and reverence for precedents,
prevented the system from being abused.
THE HISTORY OP ROMAN LAW. 191
209. The process by which an individual plebeian tribune
or a magistrate could intervene to arrest the action or decision
of a colleague or of any other authority, equal or inferior to his
own, was styled, as we have already seen, intercessio, interce-
dere, and the fact of demanding the interference of a tribune or
of a magistrate was called the tribunum appellare, collegam or
in<i<jistratum appellare.* These proceedings, combined with
the provocatio ad populum, originated the institution of appeal
(appellatio or provocatio), an institution which underwent cer-
tain modifications under the emperors. That is also the origin
of our word " appeal," which we have to a certain extent di-
verted from its original grammatical signification, usage having
familiarized the idea of " appealing to a superior judge," instead
of" appealing the superior judge."
As regards the intercessio as it existed under the republic,
Cicero in his treatise De legibus has given us an example of the
formula in these words : " Par majorve potestas plus valeto,"
and he adds, to check an abuse by intercession is the act of a
good citizen, " Intercessor rei malce salutaris civis esto" z
SACRED LAW.
210. Sacred law, whose influence on the government and on
the civil law was always felt and frequently exercised, had also
undergone several changes.
After the abolition of the regal power, the functions of
_ ' Livy, lib. ii. 27. In early Roman prfflsidii, sublata provocatione, inter-
history, under the consulate of P. Ser- cessionem quoque consensu sustule-
vilius and Appius Claudius, in a case rant : quum priores decemviri appel-
where the latter acted harshly towards latione college corrigi reddita ab se
a debtor, the debtor happening to be jura tulissent; et quajdam, qua; sui
a soldier, appealed to his colleague. ;judicii videri possent, ad populum re-
" Quod ubi cui militi inciderat collega jecissent." Further on (lib. iv. 26):
appcllabat." And at a later period " Vos tribuni plebis Senatns appellat."
(lib. iii. 3G), when speaking of the See 181, note 2. See also Dig. 49, 1,
second decemvirate, which had sup- De appellatwnilms, 1, 3, f. Ulp. :
pressed not merely the provocatio ad " Cum alium appellare deberet alium
populum but also the intercessio, appellaverit Praefectum urbis appel-
which had not been interfered with by lasset."
the first decemvirate, he says : " Nam, a Cicero, De leg., lib. iii. 4. See
prseterquam quod in populo nihil erat also 3.
192 THE HISTORY OF ROMAN LAW.
Pontifex Maximus, which had been exercised by the kings,
became a distinct office, the election to it being made by the
tribunes and confirmed by the curies. It differed from other
magistracies, inasmuch as it was for life and not annual. The
Pontifex Maximus had the dignity of the curule chair and
" images," and a tribunal, where he determined all matters
connected with religion. He Avas the custodian of the annals
of historical events, Avhich he recorded by entering them in
tables. These tables, which were exposed to view in his resi-
dence, were known as the Annales Maximi. The eclipse of the
sun which took place on the 5th June, B. c. 399, and which
was entered in these Annals, and from which astronomers made
their calculations as to the dates of eclipses which had taken
place as far back as the reign of Romulus, as we learn from
Cicero (De republica], fixes a date from which historical critics
cannot question the existence of these Annals, or the fact that
Roman authors could avail themselves of such calculations. 1
At the period at which we have arrived, the College of the
Pontiffs had been increased and its number raised to eight, that
of the augurs to nine, and the plebeians had become eligible to
these offices.
CIVIL LAW.
211. The civil law, in its relation to persons, things, pro-
perty, wills, successions, contracts, and actiones let/is, is stamped,
in each case, with features of an essentially Roman character.
212. PERSONS. Under this category are classed the rights
exercised by men, whether heads of families, that is, sui juris,
or, alieni juris, that is, subject to another ; the authority over
slaves ; paternal power, potestas ; marital rights, manus. All
1 Cicero, De repnllica, lib. i. 26: sollertia, ut ex hoc die qnem apud
" Qui (Ennius) ut scribit, anno CCC. Ennium et in Maximis Annalibus con-
quinquagesimo fere post Romam con- signatum videmns, supcriores soils de-
ditam, fcctiones reputato: siut usque ad illara
. . . Nonis Junis soli luna obstitit ct nox. quag nonis quintilibus f uit rcgnante
Atque hac in re tanta inest ratio atque Romulo."
THE HISTORY OF ROMAN LAW. 193
those at the period at which we have arrived were still intact
mid in the condition we have shown. In addition to these, we
have the mancipium, or the rights acquired over the freeman
who has been purchased, and over the debtor who has been
adjudged to his creditor by the magistrate in payment of a debt
or for the reparation of any damage, addictus (after the Papirian
law the condition described by the word nexus ceased to exist)
agnatio, the civil bond confined to the relationship existing
between the members of the same family, and entirely distinct
from the relationship by blood, cognatio the gentilitas, or the
agnation of families, which had been from the earliest times
ingenui, or free from the taint of vassalage, a species of civil
parentage which had relation to clients or the enfranchised de-
rived from clients and, finally, the perpetual tutelage to which
a female was subject during her entire life.
213. THINGS. Under the head of things and property we
have res mancipi, and res nee mancipi, the two classes of things
according as they were or were not susceptible of mancipation
the mancipium or ownership of a Roman citizen, Quiritarian
tenure, relating to ordinary property, and indestructible except
by legal process (mancipatio, in jure cessio or addictio, adjudi-
catio, usucapio, lex, according to the Quiritarian law traditio
according to the jus gentium for things nee mancipi} ; so that
he who had delivered to another or had abandoned a thing
could nevertheless, within a certain time, if it was a res mancipi,
recover it unless it had been alienated in the form required for
the transfer of that class of property.
214. TESTAMENTS (WILLS). The absolute liberty enjoyed
by the head of a family of disposing at will of all his property,
even including that acquired by the members of his family, and
without their interference forms of Avill which heretofore had
required a decree of the curies to validate them (testamentum
calatis comitiis\ but at this period were made by a solemn and
fictitious sale of the inheritance (testamentum per ces et libram,
per mancipationem).
1 94 THE HISTORY OF ROMAN LAW.
215. SUCCESSION. This was the right of inheritance, not
according to the ties of blood relationship, but to those of civil
connection (agnaiio, gentilitas). The son transferred from his
family lost all rights in connection with it, neither could the
mother succeed to the child, nor the child to the mother.
216. CONTRACTS. The ceremony per as et libram, or the
mancipatio, generically the nexum, was the mode of contracting
obligations as well as of transferring property, inasmuch as the
words pronounced in this formula (mancipatio) constituted the
binding transaction between the parties (lex mancipii) ; subse-
quently a new form of contract Avas introduced, the contract
verbis (or sponsio, stipulatio). This was the first offshoot from
the nexum, inasmuch as the words were detached from the cere-
mony, the weighing per ces et libram being held as performed,
and the parties confining themselves to the formal question and
answer, in Quiritarian phraseology, that being alone admissible
and exclusively peculiar to Roman citizens : Spondes-ne ?
Spondeo. Every form of contract not conducted with this
form of the nexum or the sponsio failed to produce any obliga-
tion ; the sale (venum datio), the letting and hiring (locatio
conductio), the bailment (man-datum), the partnership (socie-
tatem co-ire), not constituting a binding contract (as their
respective denominations clearly indicate), except by the part
performance of one of the parties to the agreement, and not by
the simple agreement itself.
217. The ACTIONES. Under this head are classed the
representative symbols, the sacerdotal acts and consecrated
formulas in the four Icrjis actioncs tl\c sacrament it m and the
judicis postnlntio, in the institution and conduct of suits the
manus injectio chiefly, and the pianoris capio exclusively, as
forms of execution ; the suit was dismissed, and the claimant
deprived of redress, if he failed to observe accurately every
detail of formality, without the power of reinstituting the suit.
218. Such were the elements and characteristics peculiar to
Roman law, and not to be found in any other legal system.
THE HISTORY OF ROMAN LAW. ] 95
\Vr have arrived at the middle of the republican period, when
Koine still enjoyed the full vigour and hardihood of early youth,
strong in the freshness of the first principles of its constitution
and the success of its arms ; but we have approached the ex-
treme limit of this epoch. Successful military enterprise in
distant lands was followed by the increase of wealth and the
growth of luxury. With the consequent influx of foreigners
came a recognition of the principles of the jus gentium and the
praetorian laws, gradually superseding the public and the Quiri-
tarian civil law.
MANNERS AND CUSTOMS.
219. The early customs connected with the legal system of
the Romans had been at the epoch at which we have arrived
for the most part transformed into laws. There Avere, however,
several ancient usages in vogue which are worth attending to,
inasmuch as they serve to depict some characteristic features of
the age. Thus, for instance, we find leaders devoting them-
selves to the gods for the sake of the republic, in order that the
legions and auxiliaries of the enemy might be involved in the
same fate ;* dictators laying aside the sword in order to return
to the plough, and resigning the command of an army to attend
to the cultivation of their fields ; and consuls receiving the
envoys of foreign nations seated at a rustic table decorated with
vases of clay. We find luxury controlled by sumptuary laws,
and, what is of infinitely greater importance, by public opinion,
so that a consul was branded by the censor because he possessed
a silver vessel weighing ten pounds. Purple was scarcely per-
mitted upon the official robe of the magistrate, the prcetexta z
was forbidden to the simple citizen, and the toga to which he
was entitled could neither be worn by the slave or the foreigner ;
1 Livy, lib. viii. 9 : " Dcorum ope terms recorded by Livy.
opus est. Agedum, Pontifex publirus 3 We must not confound thepr&texta
populi Romani, praei verba, qnibus me of the magistrate with that of the youth
pro legionibusdevoveam." And under between the age of twelve and the time
the direction of the Pontifex Maximns when as a citizen he assumed the tut/a,
he pronounces a sacred formula in the virilis.
02
196 THE HISTORY OF ROMAN LAW.
hospitality was exercised in the most simple fashion, and every
feature in the social condition of the state was stamped with the
double impress of vigour and poverty. But as in the case of
law, so also in that of the manners of the people, the period at
which we have arrived in the history of Rome was soon to be
followed by an era of progress. The riches of Tarentum and
of Italy were preparing the way for the reform ; while, on the
other hand, the decline of the patriciate and the elevation of the
plebeians resulted in the displacement of certain ancient land-
marks of custom ; clientage had begun to decline preparatory
to its total decay; the bond of union which it produced was
becoming relaxed, and the utility of the institution decreasing.
A large portion of the plebeians had become altogether inde-
pendent ; as new comers they were no longer of necessity
attached as in the early days of Rome to a patron, and the
adoption of the allied towns and entire provinces as clients, in
the place of citizens, by the great, was coming into vogue.
III. FROM THE TOTAL SUBJUGATION OF ITALY TO
THE EMPIRE.
220. History records few instances of a sudden revolution in
the political laws of a state ; an abrupt change in the manners of
a people is a phenomenon never witnessed. It is true a super-
ficial observer may believe in the occurrence of such revolutions,
for he only sees events when they have become conspicuous to
all mankind ; but the judicial mind, that takes notes of causes
and calculates their effects, will never be so deceived. At this
epoch the Romans were flushed with the glory of success.
Italy had already acknowledged their sway, and another cen-
tury was to see it extended over Africa and Asia. But we
must not overlook the fact that they did not always retain the
primitive simplicity and the austere manner of former days, nor
leap suddenly to that height of power, where in the plenitude of
their prosperity, and in the pride of art, luxury and wealth, they
could cease to regard the virtues of self-restraint and mag-
nanimity.
THE HISTORY OF ROMAN LAW. 197
The remaining period of the republic which we have to con-
sider may be divided into two portions. The first terminates
with the destruction of Cartilage, Numantia and Corinth. The
other, commencing at that period, reaches down to the empire.
During the former of these two periods events are preparing
the way for the second. Every fresh victory increases the
wealth of the victors ; the number of slaves is multiplied, and
habits of luxury are encouraged by a growing familiarity with
the habits of the conquered nations. Occasional defeat, the
panic caused by the approach of Hannibal to the gates of Rome,
and the thirst for universal dominion, keep alive sufficient public
spirit to prevent absolute degeneracy. Here, too, the austerity
of the early days is to be seen side by side with the effeminacy
of a later age, the old citizen with the new. We find censors
ordering the erection of magnificent porticoes for a theatre, and
a consul directing them to be demolished. We find luxurious
habits in dress, extravagance and luxury at the table being
introduced, while sumptuary laws become a thing of the past.
Orators, stoics and epicureans disseminate the principles of their
respective schools, while the senate, by its decrees, denounces
them. As the success of Roman arms increases the purity of
morals declines, and, in proportion as Rome is victorious, she
becomes corrupt.
221 . As regards the political history of this period, it may
be summed up, if I may be allowed so to state it, in the follow-
ing scheme. From the expulsion of the kings to the sub-
jugation of Italy there was an internal struggle for supremacy
between the two classes patricians and plebeians ; there was a
struggle without upon the issue of which depended the fate of
Italy. From the date of the subjugation of Italy to that of
Africa and Asia, the internal conflict had ceased, for the
plebeians were supreme, but externally the struggle for uni-
versal dominion continued to rage. From the time when that
object had been attained to the overthrow of the republic, the
annals of Rome record no important wars, but she was again
rent by internal dissension, and civil war instituted for the per-
sonal aggrandizement of some general, consul or dictator. A
1 98 THE HISTORY OF ROMAN JLAW.
contest carried on for such a purpose can have but one termi-
nation. The natural hatred and animosity kindled by such a
struggle can result in nothing short of the triumph of one
leader and the destruction of his opponents in other words,
it leads to empire. Let us trace these events, the sources of
which we have thus indicated, a little more in detail.
SECTION XL.
PRAETOR PEREGRINUS.
222. B.C. 266. The attachment of Italy to Rome was speedily
followed by the extension of its commercial relations. The crowds
of foreigners who flocked to the capital, to practise mechanical
arts or to follow the commercial pursuits Avhich the citizens de-
spised, brought with them new objects and new wants, followed by
new agreements and new disputes, and it is without doubt to this
epoch that we must refer the creation of a new magistracy called
the prcp.tor peregrinus, or prretor of the stranger. A passage
in Lydus 1 fixes the date of the institution of this office in B.C.
247. The jurisdiction of this magistrate extended to all matters
between foreigners or between a foreigner and a Iloman citizen
(plerumque inter peregrinos jus dicebat ; inter cives et pere-
grinos jus dicebat]. He did not apply to foreigners the rules of
the civil law, that is to say, those which were exclusively con-
fined to Iloman citizens, but he applied to them the rules of the
jus gentium, or, in other words, the law applicable to all men.
The dignity of urban prnetor ranked infinitely higher than
that of prcBtor peregrinus : for example, the urban praetor had
the distinction of the lictors which the pra>tor peregrinus had
not. 2 Kotwithstanding this, however, these officers, when ne-
cessary, could act for each other.
223. From B.C. 2G4 to B.C. 146. After the whole of Italy
1 Lydus, DC mayixtr., 1, 45. the trhtmrlri- rapitales, subsequent to
2 Pomponiua places the creation of the creation of the pra>tor peregriniis.
certain magistrates, such as the tribuni Dig. 1, 2, DC oriy. jur., '2, 30, 31,
terarii, the triumviri monctales, and f. Pomp.
THE HISTORY OF ROMAN LAW. 199
liad been subdued, the Roman arms were carried beyond her
border, and it will be as well to glance at the condition of the
then known world. In Europe, to the north, the country inha-
bited by the Gauls and Germans was almost unknown. Of those
immediately in the neighbourhood of Italy, Illyria belonged to
its aboriginal races; Sicily to the Carthaginians and to the
kings of Syracuse ; Sardinia and the islands of the Mediter-
ranean, for the most part, to the Carthaginians ; Macedonia to
the successors of Alexander ; Greece existed in the form of a
number of confederate states. The southern Spanish seaboard
belonged to the Carthaginians, whereas the interior of Spain
was still in the possession of its aboriginal inhabitants. In
Africa there were the Carthaginians, the Numidians, the
Egyptians. In Asia the empire of Alexander was divided
into numerous kingdoms. From this, it is easy to see, that the
Carthaginians had, at this time, a dominion more widely ex-
tended than other nations, and that its influence, in several
directions, extended to Italy ; this power therefore naturally be-
came Rome's first rival. It happened that the king of Syracuse
implored the aid of the Romans against the Carthaginians ;
the Romans availed themselves of the opportunity to interfere,
and the struggle between these two great powers commenced in
Sicily. It occupied a space of more than a century, and finally
resulted in the ruin of Carthage. The intervals of repose
which the contending parties permitted each other to enjoy
divide this lengthened struggle into three parts, which are
known to historians as the three Punic wars. 1
1 The first Punic war lasted from Punic wars there was an interval of
B.C. 204 to B.C. 241. It was then that twenty-three years, during which a great
Regulus conducted the legions to the portion of Illyria was subdued, and the
neighbourhood of Corinth, where they Gauls, who again made their appearance
were destroyed by the Macedonian gene- within a few days' march of Rome,
ral Xantippus. The high-souled devo- were, as before, cut to pieces,
tion of the illustrious prisoner who was The second Punic war commenced in
deputed to Rome will remain an ex- the year B.C. 218 and terminated in the
ample to all ages of public spirit and year B.C. 19(i. The passage of llanni-
chivalrous honour. The war terminated bal across Spain and Gaul in order to
after a twenty-four years' struggle by a make a sudden descent upon Italy, the
naval engagement, in which the Car- disasters and checks experienced by the
thaginians, after losing more than a Romans till the battle of Cannaj, the
hundred vessels, submitted to the con- lustre of such generals as Scipio Afri-
ditions imposed upon them by the canus the elder, the diversion to which
Romans. Between the first and second he hud resort in making a descent upon
200 THE HISTORY OF ROMAN LAW.
The record of this eventful period contains some features
which are new to the history of Rome ; the mention of fleets,
of tempests, of shipwrecks, first appears in the annals of its
defeats and victories. The result of each of the three Punic
wars was advantageous to the Romans, who did not lay down
their arms till they were in a position to dictate conditions to
their enemies. The first war left them in possession of Sicily ;
the second in that of Sicily, Sardinia and Spain ; and the third
in that of Sicily, Sardinia, Spain, and Carthage in Africa.
In the intervals between the Punic wars, while the Cartha-
ginians were enjoying repose, the Romans had successively
repulsed the Gauls, made themselves masters of Cisalpine Gaul,
subjected Illyria as far as the Danube, and made their appear-
ance in Greece.
Contemporaneously with the three struggles with the Car-
thaginians, the three great Macedonian wars took place, which
terminated in the conquest of Macedonia, against which the
Romans had taken up arms in the cause of Greece, as well as
of Greece itself, whose cause they had at first espoused ; and,
finally, the war in Asia against Antiochus gave them the pos-
session of Asia Minor to the confines of Greece. All these
conquests were achieved in the same year, and the only coun-
tries that remained free from the Roman yoke were the distant
territories of Transalpine Gaul, Germany, Egypt, the interior
of Asia, Thrace, Parthia, and India.
224. There are certain legal institutions and reforms belong-
ing to this period upwards of a century of conquest which
Africa, all give to this period of Roman in the first instance, and his son Perseus
history a charm and an interest which in the second, were successively van-
it will never lose. The war was tcrmi- quishcd.
nated by the battle of Zaina, when The third Pmiic war broke out in the
Hannibal was compelled to yield to year B.C. 150, and terminated in the
Scipio, and Carthage to accept from year B.C. I4(i by the ruin and dcstruc-
Ilome a treaty the terms of which were tiou of Carthago under Scipio, grand-
much less favourable than those from son of Scipio Africanus, who was sur-
which she had sought deliverance by named the second Afrieamis. The same
arms. year also the third Macedonian war
Fifty-one years passed between the was concluded. Corinth was destroyed
second and the third Punic war, during in Greece. Numantia in Spain, and
which period the first and second Mace- Asia Minor was to a considerable extent
donian wars took place, in which Philip subdued.
THE HISTORY OF ROMAN LAW. 201
deserve notice : such as the establishment of the provinces, the
increase of the number of pnctors, the creation of the proconsuls
and propraetors and of certain other magistrates, the introduc-
tiun of the practice of the responsa prudentum, and, finally, the
abolition of the actiones legis.
SECTION XLI.
THE ESTABLISHMENT OF THE PROVINCES.
225. Of the new countries that came under Roman sway,
some were attached to the conquering state by treaty ; others,
and the greater part, were reduced to the condition of provinces. 1
Among these were Sicily, B.C. 241, Sardinia, B.C. 228, Cis-
alpine Gaul, Illyria, Spain and Carthaginia in Africa. Each
province was under the direct domination of Rome, and go-
verned by Roman magistrates according to the terms of the
plcbiscitum or the senatiis-consultum which had regulated its
condition (formula provincial}. It Avas a principle of the law
of conquest among the Romans that the ownership in the soil
of a conquered country, even as to that portion of it which was
left to the enjoyment of its original inhabitants, passed to the
conqueror, the former ceasing to be proprietors and having only
the status and rights of occupants. As a price of the possession
conceded to them by the Romans, and as a proof or mark of
their superior title, the conquered people were subjected to the
payment of an annual rent, vectt'yal.
In addition to this payment, which was a tax on the pro-
vincial soil, the inhabitants were also called upon to pay a per-
sonal impost or tribute, and they were then not citizens but
subjects and tributaries.
226. As between each other, the distinctive features of the
different provinces varied in accordance with the laws which
1 Fcstus, on the word Prorlnchr: rendering not less equivocal, and derives
" Provincijc appellantur, qnod populus the word from prorcnt-its, on account
Romannseas provicit, id est ante vieit." of the tribute or revenue exacted from
Niulmhr substitutes for this another the provinces.
202 THE HISTORY OF ROMAN LAW.
gave to each its individual organization. And the towns and
different localities of the same province also possessed each its
peculiar characteristics. Colonies, both Roman and Latin,
were founded in them ; and even free cities erected into muni-
cipalities and enjoying their own government with a greater
or less share in the rights of Roman citizenship, either with
reference to the people or to the soil, were allowed to exist. At
other times prcefectura were established in which justice was
administered by a prasfect sent from Rome. As to the condi-
tion of these different cities we must refer the reader to what
has been already said. 1 All land which had received the pri-
vilege of Quiritarian ownership (dominium ex jure Quiritium)
ceased ipso facto to be provincial soil, and its possessors, in the
full enjoyment of proprietary rights, could dispose of it accord-
ing to Roman law, and were free from vectigal or the annual
rent peculiar to the tenancy of provincial soil.
The entire province was, without doubt, under the general
supervision of the Roman governor ; but while on the one hand
the colonies and free towns, mancipia, attended to their own
individual administration, the subject towns and the adjacent
territory were under his direction and authority.
SECTION XLII. .
THE INCREASE IN THE NUMBER OF PR^TORS.
S27. The provinces w T ere in the first instance administered
by magistrates, nominated by the comitia specially for this
service. These magistrates were styled prgetors, and it was
thus that in B.C. 227, in addition to the two functionaries in
Rome, two new offices were created, the one for Sicily, the
other for Sardinia. In B.C. 197 two were appointed to Spain,
which had been divided into two sections ; there were thus in
all six praetors, four of whom were for the provinces. When
the number of provinces increased, a new method was adopted
for their administration, which was confided to the consuls or
1 Vide supra, ISO et seq.
THE HISTORY OF ROMAN LAW. 203
] motors who had just retired from office, and who, when their
functions at home had expired, went to continue them abroad in
tin' provinces under the title of proconsuls or proprietors. As
to the four praetors created originally for the provinces, they
remained one year at Home, where, having no special jurisdic-
tion, they aided their colleagues in the administration of home
justice.
SECTION XLIII.
PROCONSULS.
228. At the period of its history when Rome had but a
single enemy to contend with, a single army sufficed for its
purpose, and two consuls were all that it required for its com-
mand. But when in process of time war came to be maintained
simultaneously in Italy, in Sicily, in Spain and Africa, it was
necessary to keep several armies in the field. And so when the
consular authority of the officer at the head of the legions
expired, it was frequently extended by a lex curiata, and the
same officer retained his post as a representative of the consul,
pro consule. Thus Scipio Africanus the Second acted as
general for ten years till the ruin of Carthage was accomplished.
Hence originated the proconsulate. Upon the termination of
war the provinces which had been recently subjugated had to
be occupied and governed; and as there was always more or
less fear of an insiirrection, it became necessary to keep up a
military force in the recently subjected territory, the government
of which was entrusted to the proconsuls, who also held com-
mand of the troops quartered there. In this way the title came
to have a new signification, viz., that of provincial governor.
229. The proconsul was to a great extent absolute in his
government ; lie had no colleague, no censors, no tribunes, no
pnetors. The army and the administration of justice were all
in his hands, and he was restricted only by the law that had
been passed regulating the mode of government of the particu-
lar province. A certain number of the citizens in conjunction
20-i THE HISTORY OF ROMAN LAW.
with the proconsul constituted a body of recuperator es, which
exercised judicial functions. The proconsul had under him
certain delegates elected by himself, the number alone being
determined by the senate. These delegates were styled legati
proconsulis (a term which has been rendered by " lieutenants");
they represented the governor in his absence, and were pre-
ceded by a lictor and exercised whatever functions might be
confided to them by the proconsul.
230. Independently of and in addition to the governor a
quaestor was sent by Rome entrusted with the exchequer of the
provinces. Taxes were not levied directly, but the most vicious
of all systems was employed in their collection that of farming
for it invariably happened that the farmers (publicani, publi-
cans) burdened the tributaries, and by secret means extorted
from them double the legitimate impost. This farming had up
to a given time been exclusively enjoyed by the knights, and
was considered as in some way attached to their peculiar order.
SECTION XLIV.
PROPRIETORS.
231. Some provinces were consular, others praetorian. The
consular provinces were those in which it was necessary to
maintain a military force, and they were ordinarily entrusted to
consuls retiring from office. The latter were provinces in
which it was only necessary to quarter a small body of troops,
and these were generally conferred upon pragtors. This classi-
fication of provinces into consular and praetorian might depend
upon various causes, such as the condition of the country, or
its position with respect to the seat of war ; and the senate-
would determine in which category to rank them accordingly.
It followed that the character assigned to each might vary from
year to year. The praetorian provinces had attached to them,
like the consular, a qutestor, lieutenants and publicans.
THE HISTORY OF ROMAN LAW. 20.3
232. The proconsuls and the propraetors, as a general rule,
were appointed for one year only, and were required, upon re-
signing their post, to render an account to the senate ; but we
find that, almost without exception, they failed to render any-
thing but an illusory statement, maintaining themselves by
intrigue or by force in their office, attaching to themselves their
lieutenants, quaestors, and publicans, in order to oppress the
provinces by extortion, or to crush them by tyranny.
SECTION XLV.
THE PUBLIC CONSULTATIONS OF THE JURISTS (Responsa
Prudentum).
233. The importance and credit which appears to have been
enjoyed in the Roman republic from the earliest time by
those who devoted themselves to the practical study of law, and
who, by their counsels, directed the citizens in their private
affairs and litigation, is one of the most remarkable features in
the history of this people. The tendency of the early Romans
to judicial studies and legal pursuits, their readiness to recog-
nize the services of men who distinguished themselves in these
matters, and to accord to them their suffrages when applicants
for office, is apparent in every page of their history.
It was different in Greece, although that country also en-
joyed a republican form of government, and its people the
rights of citizenship. There, as Cicero remarks, trials were
conducted in private, and the profession of the lawyer, who lent
his services to the advocate, was a humble occupation remu-
nerated by a scanty fee. 1 This characteristic of Roman man-
ners may be traced to an instinctive love of law peculiar to this
people, and to their historical origin.
In the first instance the patricians were the only class initiated
into the mysteries of the law, the actiones and the dies fasti.
Seated in his atrium, surrounded by his clients and those who
1 Cicero, De oratorc, 1, 45: "Non, dula addncti, ministros se prosbent in
ut apud Grsecos iufimi homines, merce- jiuliciis oratoribus."
206 THE HISTORY OF ROMAN LAW.
had come to consult him, the aristocratic jurisconsult pronounced
his dictum as a species of oracle. Those who had acquired the
greatest reputation were surrounded bj a proportionately large
crowd.
It was not as if, in exercising these functions, the patricians
gave an exposition of the civil law, or practised any profession
in connection with it ; it was rather, as Pomponius says, that
they liked to keep the civil law as a mystery known only to
themselves, and limited themselves to giving answers to those
who came to consult them. 1
234. But after the publication of the Twelve Tables, after
the divulging of the dies fasti and the secrets of the actiones
legis, and especially after the plebeians had broken down by
degrees the barriers previously existing between themselves and
the patricians, the mystery attached to these things disappeared.
The study and practice of the civil law, like the honours and
magistracies of the republic, became open to the plebeians, and
thenceforward the public profession of the jurists assumed a
more liberal character; the consultation and advice to the
litigants ceased to be mere opinions given in individual cases:
they became a system of legal interpretation which constituted
to a great extent the lex non scripta. Tiberius Coruncanius,
the first plebeian who attained to the dignity of Pontifex
Maximus, was also the first plebeian who devoted himself to
the public profession of the law. Cicero says of him (Brutus,
14), that the memoirs of the pontiffs attest his great capacity.
He died in the year 245 B.C. Many others subsequently
imitated his example. About fifty years afterwards the senate
gave to Gaius Cornelius Scipio Xasica, the descendant of an
illustrious family, who was appointed consul B.C. 191, a house
in the Via Sacra, in order that he might be the more easily
consulted. 2
235. Cicero, speaking in reference to his own time, after
1 Dig. 1,2, De orig. jnr., 2, 35, f. toribus (vat'are) potius qnam discere
1'omp. : " Vel in latent! jus civile re- volentibus se prsestabant."
tiucre cogitabant, sol unique consulta- * Dig. 1, 2, Deorig.jur., 27.
THE HISTORY OF ROMAN LAW. 207
passing over the instruction which formed a less essential part
of the profession, summarises in these four words the office of a
jurist : respondere, cavere, agere, scribere. 1 Respondere, that is,
to give advice according to the facts laid before the legal adviser
upon the matters submitted to him, and frequently upon matters
not in litigation, e. g., the marriage of a daughter, the purchase
of an estate, or the culture of a field. 2 Cavere, that is, to indi-
cate the forms that must be pursued, or the precautions taken,
in order to secure the rights of an individual or the protection
of his interests. Ayere, that is, to interfere actively for his
client in the Forum before the magistrate or before the judge,
to appear with him there to support his advice with his presence,
and to give such counsel as the exigency of the occasion should
require. Scribere, that is, to compose and publish collections,
commentaries or treatises upon certain parts of the law.
Pomponius, in his historical precis inserted in the Digests of
Justinian (lib. i. tit. 2, 35 et seq.), traces the origin of this
species of publication to Papirius, to whom he ascribes the col-
lection of the leges rcyice (Jus Papirianum) about the year
B.C. 531 (see above, par. Xo. 76); to Appius Claudius Caecus
or Centummanus, a censor in 307 B.C., who published a work
entitled De usurpationibus, now lost; to Sextus ./Elius, consul
in B.C. 199, whose book, which we shall notice hereafter, was
entitled Tripertita. He does not however mention the work
prior to that of Flavins upon the dies fasti and the actiones
Icgis (Jits civile Flavianum\ alluded to above (par. 176),
probably because Flavins was not a jurist by profession ; but he
gives a long list of the jurists of the period of the republic, the
greater part of whom were consular personages, who left behind
them works upon the law. It is interesting to observe what
Cicero says, in his De oratore and in his Dialogue dedicated to
Brutus, concerning the illustrious orators, a certain number of
1 By uniting the two following pas- " Hie nobiscum hanc nrbanam militiam
sages, De uratore, 1, 48, where Ckero respondeitdl, seribendi, cavendi . . .
defines the true jurist, " Qui legum, sceutus est."
consuetudinis ejus, qua privati in civi- 2 Cicero, DC orator., iii. 33 : " Non
tate uterentur, et ad respon-dendiim, et solum ut de jure civili ad cos, veruui
ad agendum, et ad cavendum, peritus etiain de filia collocanda, de fundo
esset;" and in 1'ro 31 arena, '.), where eniendo, dc agro colendo, de onmi deni-
he is speaking against Scrvius Sulpicins, quo aut oilicio nut negotio referretur."
208 THE HISTORY OF ROMAN LAW.
whom were great jurists as well as eloquent speakers. Amongst
these must be mentioned Cato, to whom Cicero (De oj-at., 1,
37) ascribes these two qualifications in a high degree " cujus
et libri ezstant" says Pomponius, and his eldest son, who has
left a stih 1 greater number: " sed plurimi filii ejus" (Dig. 1, 2,
De orig.jur., 2, 38). It is to this latter that the phrase in
Aulus GeUius refers (xiii. 19): " egregios de juris disciplina
libros reliquit" We must also include the illustrious plebeian
family of Mucius Scsevola, the various members of which trans-
mitted the study of jurisprudence from one to the other as an
inheritance ; first the Pontifex Maximus Publius Mucius
Scasvola, and next, of still greater fame, his son Quintus
Mucius Scsevola, consul at Home in B.C. 96, and Pontifex
Maximus in succession to his father. Pomponius says of him,
that he was the first to establish the Jus civile, that is to say,
jurisprudence as a science, by reducing it as a whole to eighteen
books. 1 His opinions are frequently cited in the Digests of
Justinian and in the fragments of later jurists. It was under
him, and by taking an active part at his consultations, that
Cicero was trained as a jurist. 2 Amyot, in his French transla-
tion of Plutarch's Lives ( Vie de Cicer., o), says that he also
frequented the consultations of Mucius Scasvola. Cicero did
not however himself become an eminent jurist till after the death
of the Augur Quintus Mucius Screvola, to whom from the time
of his taking the toy a virilis he had been confided by his father
(De amicitia, i.), and of whom he has made mention in his
works De oratore, De amicitia and De republicd. This is not
the Mucius Scaevola before referred to. In this practice, and
from the number of publications which it had become the fashion
of the jurists of the time of the republic to produce, we may see
why Cicero places amongst their functions that of scribere.
This acquaintance with and practical profession of the law
served as a means of acquiring popularity and election to the
higher magistracies. " You all know how to come and consult
1 Dig. 1, 2, De oriff. jitr., 2, 41 : juris civilis studio, multum opera da-
" Jus civile primum constituit, gene- bam Q Scsevolae, Publii filio, qui, quan-
ratim in libros deccm et octo redi- quani nemini se ad docendum dabat,
gcndo." tamen, consulentilms respondendo, stu-
2 Cicero, Brutus, 89 : "Egoautem, diosos audiciuli cloccbat."
THE HISTORY OF ROMAN LAW. 209
hut you don't know how to make a consul," said a disappointed
candidate to his clients, who presented themselves in his
</fr rum in great numbers on the day after the election. 1 It
\\as also reckoned as an accomplishment, and added some-
what to the dignity and respect accorded to an honourable old
age. 8
236. Such were, in the time of the republic, these juris-
consulti, or simply consulti, jurisperiti or periti, jurispru-
dentes or prudentcs, to whose opinions so much weight was
attached, in consequence of their reputed wisdom, that they
came to occupy a place as one of the sources of Roman law.
The young men who were the pupils of these jurists attended
them during their consultations, accompanied them to the
forum, collected the replies that were given to the suitor, and
thus prepared themselves for their destined career. Cicero
himself pursued this course as the pupil of Scsevola. The
lessons thus learnt were a collection of decisions upon various
points, rather than a scientific and systematic arrangement of
principles, and required for their completion a study of the
Twelve Tables, which were committed to memory. The re-
sponsa prudentum thus collected, after having served their
purpose as a guide to the litigant, the magistrates or the
judges, were formed into a body of principles and maxims which
were continually being added to and becoming every day more
accurately defined. We constantly meet with the expression
juris interpretation auctoritas prudentium, in the works of
writers from the time of the republic, and especially in the
latter part of that period in the writings of Cicero. We must
not read the expression juris interpretatio in the strict and
narrow sense of a bare interpretation ; for we know that, while
always referring to the fundamental principles of Roman law,
such as the Twelve Tables, the jurists gradually developed a
progressive system, sometimes laying the foundation, at others
1 Valerius Maximus, ix. 3,2: "Om- 2 Cicero, Devratorc, 1, 45: "Sencc-
ncs consulere scitis, consulem facerc tuti vero celebrandm et ornandaj quod
nescitis!" Ascribed to C. Figulus, a honcstius potcst csse pcrfugium, quam
jurist of reputation about the year juris interpretatio."
133 B.C.
210 THE HISTORY OF ROMAN LAW.
adding the superstructure. Nor must we take the term aucto-
ritas in an absolute sense. The decisions of the jurists were
not till long after this period obligatory, nor were the judges
bound to observe them, as for instance in the case of Scsevola
himself, whose opinion could be rejected by the judge, as we
learn in Cicero, Pro Ccecina, 24, if the opposite party was
in a position to show that it was not good law. (Sed ut hoc
doceret, illud quod Sccevola defendebat non esse juris.} This
auctoritas was that general authority which resulted from the
force of reason, and from the application of sound practical
common sense to the circumstances of the case, the conclusion
being grounded, at least in appearance, on the accepted basis
of the law the Twelve Tables and other legislative enactments.
It is in this sense that the juris interpretatio or the responsa
prudentum, which were styled, speaking strictly, jurispruden-
tia, that is to say, the logical deduction and correct application
of the law, formed a part of the Roman lex non scripta, or un-
written law (quod sine scripto venit) ; which did not receive,
says Pomponius, as other branches, a special denomination, but
which bore the common appellation of jus civile, 1 that is to
say, the civil law generically, including text and commentary.
Modern German historians and commentators upon the Roman
law, speaking still more laconically, have styled it simply jus.
237. Already, towards the close of the republic, men of
superior understanding saw and felt the necessity of collecting,
arranging, pruning and restoring to a more simple and har-
monious whole, the large, and not unfrequently conflicting, mass
of matter which had been accumulated by direct legislation and
the labours of the jurists. Cicero had himself commenced the
compilation of a work upon the civil law, entitled Dejure civili
in artem redigendo,- and amongst the projects conceived by
1 Dig. 1, 2, De oriff. jur., 2, 5, f . s Aul. Gcll. 1,22: " M. autem Cicero
Pomp.: "fixe disputatio, et hoc jus, in libro qui inscriptns est De jure civili
quod sine scripto venit, coinpositura a in artem redigendo verba base posuit.
prudentibus, propria parte aliqua non 'Nee vero scientia juris majoribus suis
appellatur, ut cajtenvj partes juris suis Q. ./Elius Tubero defuit ; doctrina etiam
nominibus designantur, datis propriis superfuit.' " Quintilian, xii. 3 : " M.
nominibus caeteris partibus : sed com- Tullius, non modo inter agendum nun-
muni nomine, appellatur jus civile." quam est destitutus scientia juris, sed
THE HISTORY OF ROMAN LAW. 211
Julius Caesar was that of reducing the civil law to circumscribed
limits, by eliminating from the immense and diffuse bulk of law
the portions that were of the smallest value. 1 Those parts
which appertained to the manners and customs of the republic
would unquestionably have disappeared.
In proportion as the science of the civil law and the profession
of the jurist became popular, the relationship resulting from the
ancient system of clientage became enfeebled. The growth of
the plebeian body and the accession of its new members, who had
never been subjected to the patrician, together with the political
emancipation of the entire plebeian body, rendered the connection
useless ; and thus the ancient clientage, that political legal sub-
jection so characteristic of Rome, disappeared day by day, giving
place to an entirely new clientage, a clientage rather of fact than
of right, the influence of knowledge and reputation rather than
that of race.
238. We must take care not to confound the expressions
publice respondere and publice prqfiteri with any notion of advis-
ing or instructing at the public expense. Such an idea is re-
butted by the manners of the period and by the language of
Pomponius, who evidently applies the word publice, not to any
salary but to the publicity with which the responses were given
and the teaching conveyed, to distinguish it from the secrecy or
mystery with which the earlier jurists had enveloped themselves.
He tells us, in addition, that the right of thus publicly giving
legal advice was not a right that had to be obtained from any
source whatever, but that whoever felt himself competent was at
liberty to give his opinion publicly upon any point of law. 2
etiara componere aliqna de eo cceperat : habebant, consulentibns respondebant."
nt appareat, posse oratorem non di- Dig. 1,2, Deorig.jur., 2, 47, f. Pomp,
cendo tantum juri vacate, sed etiam Pomponius, in the historical summary
docendo." which he has left us, after setting forth
1 Suet., J. C(ssar, 44 : " Jus civile the origin and the progress of the laws,
ad certum modum redigere : atque ex and other sources of Roman law (juris
immensa diffusaque legum copia, opti- oriyinem atque processum, 1 et seq.),
ma quoeque et necessaria in paucissi- then the various magistracies (quod ad
mos conferre libros." magistrates attinet, 14 et seq.), passes
a " Ante tempore Augusti publice re- to the biography of the principal jurists
spondendi j us non a principibus dabatur ; ( 35 et seq.).
sed qui tiduciam studiorum suorum
P2
212 THE HISTORY OF ROMAN LAW.
SECTION XL VI.
A NEW WORK ON THE ACTIONES LEGIS ( Jus JElianum vel
Tripertita}.
239. Amongst the jurists of these times we must distinguish
Sextus ^Elius (curule ffidile in B.C. 201, consul in B.C. 199 and
subsequently censor), who, as Pomponius tells us in alluding to
the words of the ancient poet Ennius, was mentioned by him,
Sextum ^Elium etiam Ennius laudavit, in the following flatter-
ing terms :
Egregie cordatus homo Catus ^Elius Sextus.
Catus .ZElius Sextus, a man of noble heart.
Sextus ZElius composed a work known as the Tripertita,
because it consisted of three parts : first, the law of the Twelve
Tables ; secondly, their interpretation ; and thirdly, the actiones
leg is. 1
According to one account, which is however without confir-
mation, the pontiffs and patrician jurists, after the formulae of the
actiones legis had been divulged by Flavius, invented new ones,
which they took the precaution to write in symbols or initial
abbreviations (per siylas express^. 2 If this were so, the book
of Sextus ZElius would be a revelation of this new secret.
Pomponius, however, says nothing of all this; he simply men-
tions the fact of the publication of the Tripertita, and says that
the actiones legis are treated of in the third part. Add to this
the fact that Sextus ^lius himself composed certain new for-
mula? for those cases which were wanting. It indeed appears
most unlikely that, after the admission of the plebeians to the
various magistracies, to the pontificate itself, and to the study
of the civil law, and especially after the commencement of the
practice of publicly teaching law, which, as we have seen, began
with Tiberius Corimcanius, himself a plebeian, and was steadily
1 Dig. 1, 2, De orlg. jiir., 2, 38, f. dierum, ratione pervulgata et cognita,
Pompon. . sine sua opera lege posset agi, notas
2 This rests upon the passage in quasdam composuerunt, ut omnibus in
Cicero, which; in speaking of the patri- rebus ipsi interessent." Cicero, Pro
cians after the publication of the dies Mitren., 11. See also Festus, on the
fasti and the actions by Flavius, says : word Nota.
" Itaque orati illi, quod sunt veriti, ne
THE HISTORY OF ROMAN LAW. 213
continued it is most improbable that the formulae of the actiones
legis, even supposing that they had been renewed, would be
made, or could remain, a mystery. This work of Sextus ^Elius
also received the title of jus
SECTION XL VII.
THE GRADUAL DECLINE OF THE ACTIONES LEGIS THE
CREATION OF A FIFTH ACTION (THE Condictio, Lex
Silia, AND Lex Calpurnia) THE PARTIAL SUPPRES-
SION OF THESE ACTIONS (Lex jEbutia).
240. The actiones legis exhibit in the highest degree the
characteristics of judicial proceedings peculiar to the earliest
stages of civilization. They were ceremonies expressing ideas
by means of external representations or pantomimes, symbolizing
the objects and incidents of a still earlier and more barbarous
age. They were rigid forms long regarded as mysteries, all
the minutiae of which were invested with a sacred character.
Such institutions must necessarily experience the vicissitudes
incident to the progress and growth of civilization. Their sacer-
dotal, patrician, symbolic and sacramental character became in
the course of time more and more at variance with the manners
and social condition of the times ; and above all these charac-
teristics were to the Roman plebeians a vestige and unwelcome
reminiscence of a past servitude.
Everything, therefore, tended to bring the actiones legis into
discredit, and we shall find that the decline of this institution
kept pace with the progress of history.
241. Flavius by divulging these formulas, Corancanius and
every plebeian after him by publicly teaching the law, Sextus
-ZElius by giving to the people his work concluding with the
actiones legis, had effectually stripped them of their mysteries
and sacerdotal characteristics.
' " Quia deerant quzcdam genera dedit qui appellatur jits JEllanum."
agcndi . . . Sextus ./Eli us alias Dig. 1, 2, DC oriy.ju-r., 2, 7, f. Pomp,
actioues couiposuit, et libruni populo
214 THE HISTORY OF ROMAN LAW.
242. The actio sacramenti, the most ancient of the actiones
legis, was applicable to all cases, and was without doubt the
most rude as well as rigorous in its symbols and material cha-
racteristics, in its sacramental words, and, finally, in the pre-
liminary deposit which it required to be made to the pontiff.
Already, and even before the Twelve Tables, the judicis postu-
latio, the second of the actions, had introduced a simplification
of procedure, viz., the suppression of the sacramentum, or
pecuniary deposit, and was used in cases where the necessity of
less formality had become manifest. We recognize the same
character in the fifth of the actiones legis, the condictio, intro-
duced by the lex Silia, in the first instance exclusively confined
to disputes respecting specific sums of money (certce pecunice),
and extended by the lex Calpurnia to every species of obliga-
tion, provided that it was definite in its character (de omni certa
re). 1 The precise date of these laws is not known, but they are by
conjecture assigned to the years B.C. 244 and 234, and this brings
their origin down to the period when the actiones legis became
almost extinct. We know but little of the details of the forms
of the condictio beyond the fact that it was so called because
the plaintiff announced (denuntiabat, condicebaf] to his adver-
sary that he would have to appear before the magistrate, in order
that a judex might be appointed. 2 This is sufficient to show
that the symbolic and material acts of the sacramentum were
dispensed with ; that more simple ideas and practices prevailed ;
that in one word their introduction was a partial abrogation of
the ancient actio sacramenti and mysteries, first in the case of
a dispute concerning a liquidated amount, and afterwards con-
cerning that of any ascertained subject. 3
243. In fact, not far from this period, toward the end of the
sixth century, the general antipathy and the discredit attached
to the system of the actiones legis resulted in their suppression,
1 Gai., Instit., 4, 19. we refer the explanation of the creation
9 " Et hax: quidera actio proprie con- of the condictio, the motive for which
dictio vocabatur: nam actor adversario was discussed, as Gains tells us, even in
denuntiabat, ut ad judiccm capicndum his time. The lex Silia and the lex
die XXX. adesset." Ibid. Calpurnia were the precursors of the
3 It is to these facts and dates that lex JEbntia.
TIIE HISTORY OF ROMAN LAW. 215
if not absolutely, at least practically, that which remained being
in fact rather regarded as an exception to the new system of
procedure then introduced than a part of it.
This event is alluded to in a passage of Aulus Gellius, which
has long been in our possession, but was unintelligible till the
discovery of the manuscript of Gaius : " Sed istae omnes legis
actiones paulatim in odium venerunt, namque ex nimia subti-
litate veterum, qui tune jura condiderunt, eo res perducta est
ut vel qui minimum errasset, litem perderet. Itaque per legem
^Ebutiam et duas Julias sublatae sunt istae legis actiones,
effectumque est ut per concepta verba, id est per formulas,
litigaremus." l
244. The extent of the provisions of the lex JEbutia as to
the suppression of the actiones legis is not accurately known,
because it is to this law, concurrently with the two leges Julia,
that Gaius attributes the suppression, without telling us the
part performed by each. If we rely upon the words of Aulus
Gellius just cited, we might be induced to believe that the
abrogation, especially as to the actiones legis relating to ordi-
nary trials, was the work of the lex j?Ebutia, and that the two
leges Julia, enacted at a subsequent period, fixed and regulated
several important points concerning the new procedure and
confirmed and completed the lex ^Ebutia. Be this as it may,
the procedure by the actiones legis was preserved in two classes
of cases, of which mention should first be made of those cases
which were of necessity heard by the centumviri. 2 This
tribunal, which was eminently Quiritarian and derived from
the tribes, confined itself to the Quiritarian action of the
sacramentum.
245. The date of the lex ^Ebutia is as uncertain as is the
1 Gai., Instit., 4, 30. Aul. Gell., 2 Gai., Instit., 4, 31. The second
Noct. attic., 16, 10: "Sed enim was the case of injunction in the event
([in n 1 1 proletarii, et assidui, et sanates, of threatened damage from an adjoin-
et vades, et subvades, et viginti quinque ing building (propter damnum infcc-
asses, et taliones, furtorumque qutestio tv-m}; but the aetio legis in this in-
cum lance et licio evanuerint, omnisque stance was only facultative and soon
ilia XII Tabularum antiqnitas, nisi in fell into disuse, the edict of the priutor
legis actionibus centumviralium causa- having furnished a far more convenient
ruin, lege ^Ebutia lata, consopita sit." and preferable remedy.
216 THE HISTORY OF ROMAN LAW.
extent of its provisions. It is mentioned neither by Gaius nor
Aulus Gellius ; but by an examination of the records of Roman
history, and searching for the year in which there were tribunes
of the name of .ZEbutius, we are brought down to a period be-
tween B.C. 234 and 171. The earliest of these dates is that
usually fixed upon, B.C. 234 ; but this appears to me the least
admissible. Looking at the connection of the dates alone
first, at the lex Silia, which created the condictio, probably in
B.C. 244; secondly, at the lex Calpurnia, which extended the
condictio, probably in B.C. 234; thirdly, at the jus j?Elianum of
Sextus ^Elius, which published the actiones legis and at the
same time made certain additions to them in B.C. 202 ; fourthly
and finally, at the lex Furia testamentaria, which, according to
Gaius, made a new application of the manus injectio to a case
which had recently arisen, in (probably) B.C. 183 l looking at
these facts we shall be justified in rejecting the year B.C. 234 as
that in which the lex JEbutia was promulgated, and giving the
preference to the year B.C. 177 or 17 1. 2
246. The same uncertainty exists with regard to the two
leges Julia, one of which is usually recognized as the law of
Augustus, concerning procedure in private matters, lex Julia
judiciariaprivatorum, and is ascribed approximately to B.C. 25;
1 Gai., Instit., 4, 23. It is true lex Furia.
that it might be objected to this last 2 There is doubtless great uncertainty
observation, first, that it is not astonish- concerning all these dates, but it appears
ing that the lex Furia, testamentaria, to me singular that the chronological
in the case of disputed legacies, caused tables which place the creation of the
a new application of the actio manus centumviri in the year B.C. 242, the lex
injectio at a period when the actiones Silia in the year B.C. 244, the lex Cal-
legis had been suppressed, because they purnia in the year B.C. 234, and the
were already preserved in those causes jus JSJUianum in the year B.C. 202, arc
which necessarily came before the cen- precisely those which adopt the year
tumviri, amongst which were all testa- B.C. 2154 as the date of the lex sEbutia,
mentary disputes ; secondly, that, al- so that the creation of the centummri
though a conjecture, it is supported by would only have preceded the suppres-
various passages from Cicero, that the sion of the actiones leg Is by a period of
actiones legis, which were only forms eight years ; the fifth action of the law,
of execution, that is to say, the manus the condictio, would only have been
injectio in the greater number of in- created ten years before its suppression,
stances, and faQpignoris capio in all, and extended to omnicertarc precisely
had not been abrogated by the lex at the moment of its suppression ; and,
sElmtia. But if we pay attention to finally, the publication of the actiones
this passage in Gaius, it will not be ley is by Sextus ^'Elius would have taken
difficult to see that he speaks of the place, according to this, after these
lex sHltttia as being posterior to the actions had been abolished.
THE HISTORY OF ROMAN LAW. 217
the other may be cither the law of Augustus concerning pro-
cedure in criminal matters, lex Julia judiciaria publicor urn, or
a judiciary law of Julius Ca3sar, lex Julia (C(Bsaris)judiciaria,
probably of B.C. 46. These laws are therefore dated a century
later than the lex JEbutia, and do not belong to the period to
which our attention is at present directed.
SECTION XL VIII.
THE ORDINARY OR FORMULARY PROCEDURE (Ordinaria
Judicia, vel per Formulas).
THE EXTRAORDINARY PROCEDURE {Extraor dinar ia Ju-
dicia).
247. The system of the actiones legis was replaced by that
of the formula, or, as it was called, the ordinary system, which is
the second phase of Roman legal procedure. This system, re-
markable for the ingenuity with which it was devised, was the
result of a gradual process of development, and did not make
its appearance in the first instance in the complete or perfect
form which it ultimately attained. It is well worthy of the
consideration even of modern publicists, for it was the result of
the development of praetorian law and philosophic jurisprudence ;
it marked the passage of law as an instrument of patrician
power into a system of judicial administration ; it was the legal
genius of Home undergoing the process of transformation the
growth of the plebeian and Quiritarian elements into the plebeian
and humanitarian. Under it the plebeian was enfranchised and
the foreigner entitled to participate in lioman justice in fact,
it worked an entire revolution.
248. The student must be careful not to confound the
formulas to which we are now alluding Avitli those in use in the
actiones leyis. The material representations, gestures, symbols
and mystic words of the old actiones had disappeared. The
dominant idea of the new system is, that, after the magistrate!
had heard the statement of the parties briefly made before him
218 THE HISTORY OF ROMAN LAW.
injure, he organized the suit by delivering to the judge written
instructions, or a formula, by which the judge was appointed ;
the points to be decided between the litigants were defined, and
the extent of his power determined.
249. The study of the constituent parts of the formula
furnishes the key to the whole system. It invariably com-
mences with the appointment of the judge, Judex esto. In
addition to which, there are usually three or four other clauses
(partes).
1st. The demonstratio, or statement of the fact or facts
alleged by the plaintiff as the ground of his case : " Quod Aulus
Agerius Numeric Negidio hominem vendidit." This element
did not necessarily form a part of the formula, inasmuch as
this preliminary statement might be sufficiently set forth in the
second part.
2nd. The intentio (from in and tendere), which was the state-
ment in precise terms of the claim made by the plaintiff, which
was to be determined by the judge, and which, consequently,
involved the question of legal right, juris contentio, according
to the expression of Gaius : " Si paret .... &c. if it
appears that, .... &c." This is the vital element of the
formula and could in no instance be wanting when the ques-
tion was the existence or non-existence of a civil right.
3rd. The condemnatio, which was the authority or order
given to the judge to condemn or to acquit according as the facts
were proved or not, and which determined the latitude of his
authority: condemnato ; si non paret absolvito."
Every condemnatio was pecuniary. The judge, whatever might
be the nature of the action, was only empowered to condemn in
a pecuniary penalty. This is therefore a "characteristic feature
of the formula system. The expedients resorted to in order to
avert the inconveniences which attached to this peculiarity in
many instances were ingenious, and are worthy of consideration.
4th. The adjudicatio. This was the power of partition con-
ferred by the magistrate upon the judge, in addition to that of
merely finding for or against the plaintiff. And it authorized
him to make such division or distribution of the property in
THE HISTORY OP ROMAN LAW. 219
question as the circumstances of the case required, " quantum
adjudicare oportet, judex Titio adjudicate." 1 This section of
the formula was confined to three classes of action : viz.,
families erciscunda, or suits brought for the partition of an
kcereditas ; communi dividundo, for the division of a thing held
jointly ; an&jinium reaundorum, for the fixing and settling the
boundaries of contiguous landowners.
260. In this system of procedure the signification of the word
actio is fundamentally altered. It here designates the authority
conferred in each individual case by the magistrate upon the
judge to try and determine its merits.
The words actio, formula, judicium, are often used as
synonymous.
251. In fact this system is nothing but an ingenious method
of constituting and directing a jury in civil matters. We must
start from the principle that the judge was not the magistrate,
but simply a citizen ; that he had not consequently any func-
tions save those conferred by the magistrate, and beyond the
terms of the formula itself he was powerless. The main point,
therefore, in this form of procedure was the construction of the
formula, and hence it was that so much skill and labour were
bestowed upon its development. To this end the most cele-
brated jurists were consulted both by the magistrate and the
litigant. The conciseness and accuracy of the terms employed
are admirable. But these terms, it must be remembered, were
no longer, like those of the actiones legis, symbolic ; nor was the
misuse of them followed by the penalty which attached to that
of the terms of the actiones legis, the loss of the suit, but they
enjoyed a flexibility which permitted their adaptation to the
peculiar circumstances of any given case.
Each case, however slightly it might differ from another, was
provided for, because each required its appropriate formula.
The formulas themselves forming to a certain extent the models
or general types were prepared beforehand, incorporated into
the general body of jurisprudence, inscribed upon the album
1 Gai., Instit., 4, 39 ct seq.
220 THE HISTORY OF ROMAN LAW.
and exposed to the public. 1 The plaintiff, when before the
magistrate (in jure), specified what he required. The limits
of the specific terms were discussed between the parties, the
formula was adapted to the actual case in question, and finally
delivered by the prsetor (postulatio, impetratio, formula, vel
actionis, vel judicii)"* Afterwards the judge, whose duty it
was to determine the fact or law in dispute according to the
nature of the case, heard the respective parties, received what
evidence was presented, resolved the problem submitted to him,
and delivered his judgment (sententid), always taking care to
confine himself within the limit of the power conferred upon
him by the formula.
252. We may well ask how a system so remarkable in its
character, and which was substituted by the lex ^Ebutia for
that of the actiones legis, was originated? Was it an instan-
taneous production, or was it the result of some gradual
development ? It is a question of doubt whether, even under
the system of the actiones legis, something of a similar character
did not exist, that is to say, whether the magistrate, after the
symbolic rite of the actiones legis had been performed before
him, in submitting the parties to the decision of the judge did
not give to that judge some sort of form or formula, specifying
what he was to find and the extent of the powers conferred. If
so, the innovation made by the lex ^^Ebutia was comparatively
slight and simple, and in fact was rather confined to the suppres-
sion of the ritual of the actiones legis as then practised than to
the creation of a new form. The residue of the procedure in
that case alone remained, and as all but the formula was gone
it would naturally become the procedure of the formula. We,
however, join in the opinion of those who decline to ascribe to
it this origin, and who reject the notion that in the actiones
legis any species of formula was given to the judge.
253. However, the new system at the period when the lex
1 Gai., Inxtit., 47. Cicero, Pro Circ'in., .'? ; J)c i-nrcnt., 1!); In, Terr.,
ROM., 8. 4, GO.
9 Cicero, Part, orat., 28 ; Pro
THE HISTORY OF ROMAN LAW. 221
.F.lnttia sanctioned it, was not a novelty. In our opinion it
liiul constituted the mode of administering justice between
peregrini , or between citizens and peregrini; and tracing it to
this source we ascribe to the prcetor peregrinus the credit of
having developed and elaborated it into a system.
254. In fact from the moment that it was admitted that the
peregrini could have, whether as between themselves or as
between themselves and citizens, legal redress for their wrongs,
the consideration of which might be referred to a Roman
magistrate, it became a matter of necessity to proceed in a
manner entirely different to that peculiar to the actiones legis.
These actions could not be brought into operation, inasmuch
as their application was confined to Roman citizens ; nor could
the civil law be made to apply, whether it was a question of pro-
perty or of obligation, inasmuch as the peregrini were strangers
to it ; nor was the ordinary citizen judge the proper tribunal,
inasmuch as he was taken from the senatorial class, and much
less were the centumviri suitable. The proper persons to adju-
dicate, the proper procedure to be used, and the proper law to
govern the case, had each to be settled or created, or, at least,
regulated by the sole power (imperium} and jurisdiction of the
magistrate.
The practice therefore had prevailed, as long as the necessity
had existed, for the Roman magistrate, by virtue of his imperium
and jurisdictio, to regulate the conduct of the suit, sending as
he did the litigants before the recuperatores, who were, as
custom and the principles of the jus gentium had determined,
the proper arbitrators in matters where the interests of pere-
grini were involved.
When the influence of the foreigner at Rome had given rise
to the creation of the prcetor peregrinus as a distinct magistracy,
he adopted and continued this practice, daily improving the
formula, and imparting to it precision and accuracy by his
annual edict.
The order which conferred power upon the recuperatores, and
which was to serve them as a guide in the discharge of their
duty, was either from the commencement written, or as the result
222 THE HISTORY OF ROMAN LAW.
of subsequent improvements was reduced to a written form.
This became their instructions, at the same time indicating
the point which it was their business to determine, and telling
them the judgment that they were to pronounce according to
their finding. This was the formula.
255. The citizens, especially in the earlier part of the sixth
century, daily saw this system pursued amongst the peregrini
and in those matters in which they were jointly interested with
the peregrini ; and having experienced the advantages of its
simplicity and observed the flexibility of its character, which
enabled it with ease to be adapted to the progressive wants of a
growing civilization, abandoning the formality of the actiones
legis, they commenced, without any enacting law and by the
sole influence of custom, to have recourse to the same system
and to demand formulas from the praetor in cases amongst
themselves, as Roman citizens. These applications were re-
ceived with favour amongst other reasons for this, that with the
Romans the various magistrates invested with specific functions
could at will supply each other's office, for instance, the prcetor
peregrinus might act for the prcetor urbanus, and vice versa.
256. The formula first designed for the sole benefit of the
peregrini had originally but two parts, the demonstratio and
the condemnatio ; but as soon as it was to be applied to disputes
between citizens and to questions of civil law, it required ampli-
fication. It was at this time that the four distinct parts of
which the full formula is composed took their origin. The
prastors then endeavoured, as far as possible, to approximate the
procedure of the actiones legis, so that the transfer from one
system to the other might easily be made. It is curious to
observe the traces of this imitation, exhibiting the successive
steps by which the new procedure came ultimately to entirely
supplant the old. 1
257. The formula in some of its parts appeared a simplifica-
tion of the most important features of the actiones let/is. The
1 Sec Explication historique dcs Instituts, vol. iii. title " Des actions."
THE HISTORY OF ROMAN LAW. 223
administration which indicated the object of the suit, replaced
tin' pantomimic gestures of the old system; and it is to be ob-
served that the intentio, which was the statement of the claim
of the plaintiff, was clearly founded upon the very words uttered
by the plaintiff in the actiones legis. " Hunc ego hominem ex
jure quiritium meum esse aio? were, for example, the words
used by the plaintiff in the sacramentum, in asserting his claim
to some material object, at the same time that he placed his
lance, the vindicta, upon the object (in this case the man) that
he claimed as his. 1 " Si paret hominem ex jure quiritium Auli
Agerii esse" were the words used by the praetor in the formula
of the real action. 2 The same ideas were materialized in the
actiones legis, and, if we may so express it, spiritualized by the
praetor in the formula.
258. If we wish to ascertain the effect produced by the lex
^Ebutia, we must take into consideration the condition in which
the procedure was at the time of its publication.
Amongst the actiones legis the sacramentum was solely con-
fined to state questions and real rights, and to certain other
special matters, that is to say, to questions which must come
before the centumviri.
The actiones legis, per judicis postulationem et per condic-
tionem, were those applicable to the case of disputed obligations ;
but as a matter of fact, in questions of this kind, the citizens
imitated the practice pursued in similar cases in which the
interests of peregrini were involved and applied to the prsetor
for & formula. It was, to a certain extent, therefore, merely
the legalization of this practice that was introduced by the lex
^Ebutia. It did not, in fact, invent or introduce a new system,
but gave the sanction of the legislature to that which custom
had already adopted.
259. The judicis postulatio and the condictio, relative to
obligations, were however suppressed and replaced by the
formula.
As to the sacramentum, it still survived. State questions,
1 Gai., Instit., 4, 1C. * Gai., Instit., 4, 41, 93.
224 THE HISTORY OF ROMAN LAW.
disputes concerning Quiritarian property, or real rights, as also
those concerning successions, continued to be litigated by the
procedure of the actiones let/is, and were heard by the centum-
viri. This college was still too powerful and popular an in-
stitution to be suppressed. And it required the lapse of time
and the gradual operation of praetorian influence to introduce
the application of the formula system to the matters submitted
to its jurisdiction.
260. The legalization of the procedure by formula did not
produce any immediate or considerable modification in the
magisterial and judicial authority. However there are two
changes which can with justice be ascribed, if not wholly at
least to a considerable extent, to this system. These were, in
the first place, the application to disputes between citizens,
not as a universal rule, but in certain cases, of the employment
of recuperator es, who had hitherto been exclusively confined
to the cases of peregrini : and, on the other hand, the em-
ployment of the unus judex, or arbiter, who had hitherto
been exclusively confined to disputes between Roman citizens,
to those between peregrini, or between Roman and perigrinus.
This was therefore, to a certain extent, a reciprocal exchange of
privileges, and mainly resulted from the tendency of the praetor
to level the distinction between the two classes. In the second
place, the gradual decline of the college of the centumviri, which
had retained the procedure of the sacramentum, but which also,
by degrees, abandoned it in practice as the advantages of the
formula system became apparent, and ultimately confined it to
disputes concerning the validity of testamentary wills.
261. At the period to which our attention is now directed
the privilege of furnishing the unus judex, or arbiter, was still
confined, at Rome, to the senatorial order. In the provinces
the judges, notwithstanding the fact that they were inscribed on
the lists of the decuries, prepared by the governors in imitation
of the Roman practice, were called recuperatores ; and we must
take care not to confound these with the recuperatores employed
at Rome in certain cases.
THE HISTORY OF ROMAN LAW. 225
262. Sometimes the magistrate, instead of sending the case
to the judge, heard it himself. There were, indeed, certain
suits which, from their nature, were always determined in this
way. This mode of procedure was termed extra ordinem cog-
noscere; extra ordinem cognitio ; whence was derived, at a later
date, the title ofextraordinariajudicia, to distinguish this form
of procedure from the ordinary mode under the formula system,
known as the ordinaria judicia.
SECTION XLIX.
THE INTRODUCTION OF PHILOSOPHY AND ESPECIALLY or
STOICISM ITS INFLUENCE UPON JURISPRUDENCE.
263. While the Roman jurists were carrying on their public
consultations a new class of rhetoricians and philosophers made
its appearance. According to Suetonius, it was during the
interval between the second and third Punic war that a Grecian
deputy, who had broken his arm, employed the period of con-
valescence by lecturing on philosophy, to an audience he col-
lected for the purpose of listening to him. Similar schools were
soon opened by others. 1 At a later period, B.C. 150, three
Athenian deputies, Diogenes, Critolaus and Carneades, by their
great eloquence attracted the attention of the Romans. It is
said that Carneades on one occasion maintained the existence
of justice as a fact, and on the following day undertook to prove
that it was nothing but a word ; and that this conduct so affected
1 These rhetoricians and their schools that certain men, under the name of
were disapproved of both by the senate Latin rhetoricians, have established new
and the censors. Suetonius furnishes schools ; that the youth are crowding
us with two measures which may per- after them, and passing entire days in
haps be of interest : " Under the con- their company. Our ancestors have
snlate of the case of the philoso- decreed that which our children should
phers and the rhetoricians having been learn and the schools they should attend,
discussed, the senate decreed that M. We disapprove of these innovations
Pomponius should take steps to protect upon our ancient customs, considering
the interests of the republic and not them mischievous; and we thus make
suffer these men to remain in the eity." known our decision both to those who
The second is a declaration made by the keep and to those who frequent these
censors: " E. Domitius ^Enobarbus and schools. They displease us.' " Suet.,
Licinius Crassus, censors, have declared DC clar. rhetor., 1.
as follows : ' We have been informed
Q
226 THE HISTORY OF ROMAN LAW.
Cato that he demanded that such ambassadors should be imme-
diately dismissed. The principles of the Stoics were developed
side by side with those of the Epicureans. Stoicism appeared
to be especially adapted to the Roman genius, and it accordingly
took root and rapidly acquired a strong and permanent hold
upon the Roman mind, especially among men of superior
intelligence, whereas the Epicurean system was embraced by
men of a different class. Stoicism ultimately made a profound
impression upon Roman jurisprudence, and introduced the
principle of law based upon reason and justice rather than on
power. It contributed largely to the decline of Quiritarian law
and to the erection of a scientific and philosophic system which
was ingeniously substituted for the former. Its influence upon
jurisprudence extended both to principle and to practice.
264. We have now arrived at a period in our history where
the student may observe a rapid decline in ancient Roman morals ;
where the institutions of the republic have given way, the suf-
frages of the comitia are purchasable, justice sold, the censor-
ship abolished or degraded, the dictatorship made perpetual, and
the provinces pillaged. We find enormous wealth in the hands
of a single citizen, profligate luxury, armies the property rather
of their general than of Rome, the reckless sacrifice of Roman
blood, and the natural termination of the whole Absolutism.
SECTION L.
THE SEDITIONS OF THE GRACCHI ( Gracchance).
AGRARIAN LAWS (Leges agrarici).
265. B.C. 133. The two Gracchi were deadly enemies to the
senatorial aristocracy of race and fortune which at this time
oppressed the plebeian no longer, it is true, by the ancient
privileges of caste, but by the influence which results from
wealth. Tutored in the doctrines of the Stoics, democratic tri-
bunes who aimed at improving the condition of the proletarii,
they took to agitating and fomenting the passions of the
THE HISTORY OF ROMAN LAW. 227
plebeians, and the latter, worked upon by their marvellous
eloquence, and impressed with the nature of their schemes,
facilitated their election to office, and assisted in the promulga-
tion of their laws by sedition and by the sword. These instru-
ments were equally resorted to by their opponents. Both
ultimately perished, and the attempted reforms, notwithstand-
ing that they were founded on principles of justice and ex-
pediency, and were calculated not only to benefit the poorer
classes, but to contribute to the future well-being of the republic,
were handed down to posterity as " seditions."
266. The conquered lands, which had been reserved as
public property under the title of ager publicus (see par. 92),
had considerably increased, owing to the extended operations
of the Roman arms. A portion of these lands, according to
custom, was held as forest or common pasture land, or let out
to be farmed for the benefit of the treasury. The residue was
divided by the censors in the name of the republic, to be held
and cultivated for a certain rent, sometimes a tithe, or even less,
and at others on a simple fine. These lands, instead of being
distributed in small lots among the poorer members of the ple-
beians, so as to provide them and their families with a rural
habitation, and to attach them to agricultural pursuits, had
accumulated in the hands of the patricians, the senatorial
families, and the wealthy and powerful plebeians.
From the time of Servius Tullius, as we find from the his-
torians, distribution had been made of lands after various con-
quests ; but if, in this early period, the lower orders received,
under any title whatsoever, any portion of the lands so distri-
buted, it is clear that the lion's share fell to the wealthy, and
this in proportion as it became a question of more extended
conquest or of larger territory.
Those to whom these lands were conceded did not enjoy
proprietary rights in them, inasmuch as these were lodged in
the state ; but, under the title of possessiones, they had the
privilege of disposing of them as of a patrimony : they trans-
mitted them as an inheritance, freeing them in the course of
time from every kind of taxation or rent due to the treasury,
Q2
228 THE HISTOEY OF ROMAN LAW.
and settling upon them, for the purpose of their cultivation, the
servile classes and slaves acquired in war, who owed no service
to the republic ; so that, in fact, the result of this system was
that the poorer plebeian was not merely excluded from the
possession of these lands, but even from their cultivation. The
long enjoyment of these privileges, the sales and various changes
which the lands underwent, became so many titles in favour of
the pretentious of those to whom they had ultimately passed ;
and, as a result, every effort to alter this state of things was
regarded by the possessors as an attempt at spoliation.
267. Such were the agrarian laws, which were and still are
misconceived when represented as applicable to private pro-
perty. More than once during the course of the republic,
attempts were made and laws were proposed to remedy the
existing evil, to limit the abuses connected with these posses-
sions, and to restore them to the state, in order that they
might be distributed among the poorer citizens ; these attempts
were attended by insurrections of the plebeians. The proletarii
revolted, and great clamour was raised for participation in that
which they, with reason, called the usurped property of the
republic.
268. Already by the lex Licinia, De modo agrorum, one
of the three laws proposed, advocated with indomitable perse-
verance and ultimately carried by the tribunes C. Licinius
Stolo and L. Sextius in the year B.C. 367, there was a prohi-
bition under a penalty of 10,000 asses against any one possessing
more than 500 jugera of land (we quis amplius quam quingenta
agrijugera possideref). 1 Was this, it may be asked, an agrarian
law, that is to say, a law exclusively relating to the possession
of ager publicus, or was it a provision concerning the territorial
rights of private individuals (dominium), to which it affixed a
maximum not in any case to be surpassed? This latter opinion
prevailed with our ancient classical commentators. Kiebuhr
has, on the contrary, upon his own authority, held that the lex
Licinia was an agrarian law, and this opinion for a time
1 Valer. Max. viii. 6, 3.
THE HISTORY OF KOMAN LAW. 229
obtained favour, but, like its predecessor, has in its turn been
abandoned and confuted with arguments which are certainly
not without weight. In effect, of the three laws passed by the
tribune Licinius, one enacted that one of the consuls should be
elected from among the plebeians, while the other two related
to the embarrassed condition of the poor citizens, oppressed by
debt and by the want of landed property ; whether they had never
possessed any, which was the condition of the greater portion,
or whether they had been reduced to the necessity of denuding
themselves of it in payment of their debts. As to the first
those embarrassed by debt the lex Licinia, De cere alieno,
ordered that money already paid under the head of interest
should be taken in reduction of the capital, and that the surplus
should be paid by equal instalments within three years. As to
the second those who were destitute of land the lex Licinia,
De modo agrorum, appears to have provided that the rich
should sell whatever land they possessed in excess of the 500
jugera, and, as the price obtainable at a forced sale would
naturally be lowered, land would become more accessible to the
plebeian. 1 Such is the sense in which the lex Licinia, when
held to apply to private property, ought to be understood, not
as a spoliation of the landed proprietors, but as placing a legal
limit upon the ownership of realty, with the obligation of aliena-
tion consequently attaching to all that they held in excess of
the prescribed limit. This law was, however, ill observed, and
its prohibitions disregarded from its very enactment. And,
according to the historians, the very person who had been its
promoter and who had given to it his own name, Licinius
Stolo, acquired either by purchase or otherwise a thousand
jugera of land ; he then emancipated his son, in order to make
him the head of a family and consequently empowered to
hold property, and transferred to him 500 of these jugerd.
Upon the accusation of M. Popilius Lenas he was condemned to
1 Livy, vi. 35 : " Creatique tribuni superesset, triennio aequis portionibus
C. Licinius et L. Sextius promulgavere pcrsolveretur : alteram, De modo agro-
leges omnes adversus opes patriciorum rum, ne quis plus quingenta jugera
et pro commodis plebis; unam De cere agri possideret : tertiam, ne tribunorum
alieno, ut, deducto eo de capite, quod militum comitia fierent, cou&ulumque
nsuris pernumeratum esset, id, quod utique alter ex plebe crearetur."
230 THE HISTORY OF ROMAN LAW.
a fine of 10,000 asses for having fraudulently violated his own
law. 1 There are also several other instances recorded at
different intervals of condemnation on this ground, but in the
course of time the zeal for bringing accusations against those
who exceeded the limits abated, and as a result the lex Licinia
became obsolete.
269. If absence of detail and obscurity of expression
impart to this first law a degree of uncertainty, 2 the same
at least cannot be said concerning the agrarian laws of the
period of the Gracchi. These are unquestionably laws concern-
ing the distribution of ager publicus. The ancient monopolies
were yet in existence, and the conquest of all Italy, and after-
wards of the provinces, had opened up a new and vast territory.
The evil was at its height when the first of the Gracchi,
Tiberius Sempronius Gracchus, elevated to the tribunate, ad-
vanced his project for the distribution of the ager publicus.
His propositions were conceived in a moderate spirit and
moulded upon the provisions of the lex Licinia, into which he
introduced certain modifications intended to lessen the losses of
those who were to be subjected to deprivation. No citizen was
to be allowed to possess more than 500 jugera of ager publicus,
with an addition of 250 for each child ; those who had more
1 Livy, vii. 16 : " Eodem anno C. vi. 39. An extract from another speech
Licinius Stolo a M. Popilio Lcnate sua still further corroborates this view, in-
lege decem millibus aeris est damnatus: asmuch as the subject under discussion
quod mille jugerum agri cum filio pos- was the actual distribution of these lands:
sideret.emancipandoque filium fraudem "Auderentne postulare, ut quum bina
legi fecerit." Valer. Max. viii. 6, 3 : jugera agri plebi dividerentur, ipsis
" C. Licinius Stolo, cujus beneficio plus quingenta jugera habere liceret ?"
plebi petendi consulatum potestas facta Livy, vi. 36. But on the other hand the
est, quum lege sanxisset, ne quis am- expression " dominos," in the speech of
plius quam quingenta agri jugera pos- the patrician App. Cl. Crassus :" Altera
sideret, ipse mille comparavit : dissimu- lege solitudines vastas in agris fieri,
landiqne criminis gratia dimidiam par- pollendo finibus dominos," Livy, vi.
tern filio emancipavit : quamobcausam 41, and especially that of "dimidiam
a M. Popilio Lenate accusatus, primus partem filio emanciparit," in the pas-
sua lege cecidit." sage of Valerius Maximus previously
* If we only consider the expression quoted, that is to say, the use of m.an-
"possidere" as used in its legal sense cipatio (emancipavit), in order to trans-
to designate possession of ager publicity, fcr the half of one's possessions to a
we see its force more distinctly in the son, indicates not merely simple pos-
oration of Licinius to the plebeians : session, but the right of property ex
" Liberos agros ab injustis possessoribus jure Quiritium.
extemplo, si velit, habere posse." Livy,
THE HISTORY OF ROMAN LAW. 231
were to be deprived of the surplus, but to be indemnified by
the public treasury for any outlay which they had incurred for
the benefit of the property. Lands thus recovered were to be
distributed among the poorer citizens, and to be held by them
at an annual rental payable to the state. Such was the ple-
biscitum he succeeded in passing B.C. 133 (lex Sempronia
agraria). He was appointed with his brother Caius Sempronius
and his father-in-law Appius Claudius as triumviri for the
execution of this law. He had not, however, time to accom-
plish his task, for being accused of aspiring to arbitrary power
he was assassinated in the Capitol, and fell together with his
partisans in the midst of a violent reaction in favour of the class
which, for the benefit of the public at large, he had attacked. 1
270. Caius Gracchus, the second of the Gracchi, who suc-
ceeded his brother in B.C. 122, was also elevated to the tribunate.
Full of ardour, and enjoying great powers of eloquence, his
temper was embittered by the death of his brother, and in an
attempt to sustain his brother's law and to promulgate new ones
of his own he also perished in a revolt, during which he found
himself compelled to have recourse to his sword and to the
arm of a slave in order to escape death by the hand of his
enemies.
This method of removing the exponent of a principle could
not, however, extinguish the principle itself, and consequently,
at various intervals, down to the time of Cicero, we find laws
either decreed or projected upon the same subject. Of these
1 The whole of Roman literature testimony to the Gracchi, in which he
posterior to the period of the Gracchi distinctly marks the characteristic fea-
abonnds with allusions to them. But tures of the agrarian law : " Nam vere
it is to two Greek writers Plutarch dicam, Quirites, genus ipsum legis agra-
(The Qracchi, Getseq.) and Appian riaj vituperare non possum. Venitenim
(On the Civil Wars, !,8etseq.) that mihi in mentem duos clarissimos, in-
we are especially indebted for details, . geniosissimos, arnantissimos plebis ro-
and particularly with reference to the manse viros, Tib. et Ca. Gracchos, pie-
agrarian law. The h'fty-eighth book of bem in agris publicis constituisse, qui
Livy, which is especially devoted to this agri a privatis antea possidebantur.
subject, is among those now lost. The Non sum ego is consul, qui, ut plerique,
epitome or summary of this book is nefas esse arbitror Gracchos laudare :
limited, as regards this subject, to these quorum consiliis, sapientia, legibus,
words : " Ne quis plus quam quinpenta multas esse video reipublicae partes
jngera agri public! possideat." Cicero, constitntas."
DC leg. agr., ii. 5, bears the following
232 THE HISTORY OP ROMAN LAW.
we only possess fragments of one, the lex Thoria agraria (B.C.
107), which was written on a table of bronze, and which was
discovered in the 16th century and lodged in the collection of
Cardinal Bembo, at Padua. This law indicates reaction, inas-
much as it is in favour of the possessors of the public lands, to
whom it guarantees their possessions free from all incumbrance.
Cicero designates it a vicious and useless enactment. 1 The lex
Thoria was succeeded, within a space of fifty-two years, by
seven agrarian laws, having various provisions tending to nullify
the effect of the lex Thoria and to procure from the public
lands certain advantages for the lower classes. Of these laws
some were only proposed, others were adopted ; but all remained
inoperative till the time of Julius Ca3sar(B.c. 59). 1. Rogatio
Marcia. Marcius Philippus, in support of this law (B.C. 104),
which was rejected, said that there were not two thousand men
in Rome who were proprietors (non esse in civitate duo millia
hominum qui rem liaberent\ a statement which Cicero considered
treasonable. 2. The lex Apuleia (B.C. 100). 3. The lex Titia
(B.C. 99). 4. The lex Livia (B.C. 91). Of the three tribunes by
whom they were proposed, the first, Apuleius Saturninus, was
forced into the Capitol and there stoned ; the second, Sextus
Titius, was condemned to exile for having kept the portrait of
Saturninus; and the third, Livius Drusus, was assassinated
on his way to his own house. This was the method adopted
to prevent the enactment of objectionable laws, and the way in
which their promulgators were treated, as in the case of the
Gracchi. 5. The rogatio Servilia Rulli (B.C. 61) of the
tribune Servilius Rullus, celebrated by the eloquence of Cicero,
which secured its rejection. The former, which, by one of
its provisions, had conceded the right of citizenship to the
Italians, had caused the social war, and the latter, probably,
was the cause of the Catiline conspiracy. 6. The projected
lex Flavia (B.C. 61), supported by Cicero, but which mis-
1 Cicero, Brutus De clar. orator., been published in several selections.
36 : " Sp. Thorius satis valuit in Sigonius undertook its reconstruction
populari genere dicendi, is qui agrum (He ant. jur. Ital., ii. 2), and later
publicum, vitiosa et inutili lege, leva- Haubold (Antiq. Rom. montimenta,
vit." (Appian., Civil Wars, \, 27.) &c., Berlin, 1830), Klenze, and lastly
The fragments of the lex Thoria have Rudorff.
THE HISTORY OF ROMAN LAW. 233
carried. And, finally, 7. Lex Julia agraria (B.C. 59) of Julius
Caesar, the consul, which ordered that the public lands of Cam-
pania .-hould be distributed amongst the poor citizens who had
three or more children ; a distribution which, it is said, benefited
more than 20,000 heads of families. The agrarian agitation thus
terminated in laws respecting the division of public lands in
certain districts ; to which must be added those relating to the
establishment of colonies and the distribution of lands among
the soldiery.
271. In connection with the agrarian laws, though of less
importance, were the leges frumentarice, regulating the distri-
bution, sometimes at a reduced price and at others even gra-
tuitously, of wheat. These commenced with the lex Sempronia
frumentaria (B.C. 123) of Caius Gracchus, and were followed
by several others of a similar nature. Suetonius tells us that
the number of persons receiving corn from the state was, at the
time of Julius Caesar, no fewer than 320,000, and that this
number was reduced by Caesar to 150,000.*
Toward the middle of the seventh century from the founda-
tion of Rome, and during a period of rather more than thirty
years, our attention is fixed upon four prominent features : first,
the qucBstiones perpetucB, which followed one another in succes-
sion ; secondly, the leges judiciaries, by which the judicial
power was transferred first from the senate to the knights and
again from the knights to the senate ; thirdly, the authority of
the senatus-consultum in matters of civil law, and lastly, the
jus honorarium.
1 Lex Marcia : CICERO, De qffic., ii. Three Speeches, De leg. agr. ; PLU-
21. Lex Apuleia: APPIAN, Sell. TARCH, Cicero, 16 and 17. Lex Fla-
civ., i. 29 and 30; CICERO, Pro JBalb., via: CICERO, Epist. Attic., i. 18 and
21; AUR. Vic., De vir.illust., 73; 19, ii. 1. Lex Julia agraria: AP-
PLTJTARCH, Marius, 29. Lex Tltia: PIAN, Bell, civ., ii. 1014; DION.
CICERO, Pro Rabir.,9; De leg., ii. 6; CASS. xxxviii. 1 et seq. ; SUETON., J.
De orat., ii. 11 ; VAL. MAX., viii. 1, Ccesar, 20; PLUTARCH, J. Ccesar, 14;
2. Lex Livia: APPIAN, Bell, civ., VELL. PATERC. ii. 14 ; CICERO, Epist.
i. 35 and 36 ; VELL. PATERC. ii. 13 et Attic., ii. 16.
seq. Lex Sen-ilia Hulli: CICERO,
234 THE HISTORY OF ROMAN LAW.
SECTION LI.
QTLESTIONES PERPETU^:.
COGNITIONES EXTRAORDINARLE.
272. From the earliest period of Roman history there is
nothing to mark with any particular characteristic feature the
jurisdiction in criminal matters. Under the kings this jurisdic-
tion belonged to them, right of appeal (provocatio} in all capital
cases lying to the people, that is to say, to the aristocratic
comitia by curies. After the foundation of the republic, and
especially after the passing of the leaes Valerias and the Twelve
Tables, it became a fixed principle that the comitia by centuries
could alone pass capital sentence in the case of citizens.
273. The comitia tributa had also acquired by custom a
Certain repressive jurisdiction, and we even find them, contrary
to the fundamental law of the state, deciding a capital case with
reference to Coriolanus ; but it must be observed that a senatus-
consultum declared that this should not be a precedent. 1 As a
general principle, the power possessed by the tribunes was
rather that of political than judicial repression, whereas the
comitia centuriata had jurisdiction in criminal matters and
capital offences. The comitia tributa summoned magistrates
before them upon the termination of their office, as also men of
station and rank when accused of having infringed any public
law, either affecting the rights of the people or the plebeians ;
and though, properly speaking, they exercised no criminal juris-
diction, yet in these exceptional cases they sentenced offenders
to fine, or to such other penalty as the justice of the case de-
manded. In the case of the comitia centuriata and the comitia
tributa the right of accusation was not at this period a public
right enjoyed by every citizen. The magistrates who convoked
these assemblies, the consuls, the prastors and the tribunes
alone had the right of charging the offender, and therefore it
was necessary for a citizen to appeal to these magistrates in
order to get them to lodge the necessary accusation.
1 Dion. 7, 58.
THE III8TOHY OF ROMAN LAW. 235
274. In addition to the comitia, the senate also exercised the
functions of criminal jurisdiction, for being charged with the
executive administration of the republic at a period when the
various powers in the state had not been accurately defined,
they did not hesitate to take an active part in the supervision
of public affairs and to arrest obnoxious characters, especially
in cases in which the state was liable to be compromised. Ex-
cepting, therefore, capital offences, committed during periods
of agitation, as for instance, in political seditions, and even
sometimes in the case of sacrilege, and excepting certain
particular cases, such as pontifical matters, the senate had and
exercised a criminal jurisdiction undefined by any precise law,
and itself regulated the penalty or punishment for crime ; pro-
vided, of course, that it was not capital. This power was
especially applicable to all matters connected with the provinces
or the person of an individual peregrinus. We may observe
that a great number of inferior offences, less directly affecting
the state, were, under the title of delicta privata, left entirely
to be dealt with by persons who might seek redress before the
civil tribunal.
275. The superior authorities then in criminal matters were
1st, the kings; 2nd, the comitia curiata, subsequently the
c. centuriata, and finally the c. tributa ; and 3rd, the senate.
But there was an important custom which dated from the time
of the kings, and continued through subsequent periods, which
should be noted, viz., that these superior authorities, when any
criminal matter was presented to them, either took cognizance
of and determined it themselves, or delegated the investigation
(qutzstio] to a comitia (qucestores}, specially summoned for the
particular case.
We find from history that this practice was constantly re-
sorted to. In this way the king delegated the investigation
(qucestio} to the patricians; the comitia delegated it, at one
time, to the senate, at another, to qucestores. The senate de-
legated it to consuls, to praetors, and to the various governors
of provinces. These delegations of criminal jurisdiction, or,
adopting the technical language, these gucestiones ) 'were generally
236 THE HISTORY OF ROMAN LAW.
speaking, made with reference to the particular case ; and when
it was determined, the commission or qucestio expired. In cer-
tain circumstances, however, these qucestiones had a more general
character : the commission (qucestio} was appointed either by
the senate within the limits of its jurisdiction, or by the comitia,
for some specific class of public crime as, for example, de
clandestinis conjurationibus, as in the matter of the Bacchanalian
orgies, B.C. 186 ; x for the crime of poisoning, qucestio de veneficiis,
B.C. 184 ; 2 for the crime of homicide, qucestio de homicidiis.
Thus we see throughout this period of Roman history the
comitia delegated certain functions to the senate, and it the
senate in the same way delegated its authority to the consuls,
to the preetors, to the governors of provinces, or to the qucestores
appointed by it for a given purpose.
276. Thus this practice, which had its origin in custom,
became more and more a necessity in proportion as the popula-
tion increased and crime multiplied. It was subsequently
regulated by plebiscita and successively applied to the most
flagrant crimes, and finally developed into what was known as
the qucestiones perpetuce. The origin of these qucestiones per-
petuos may be ascribed to the lex Calpurnia repetundarum, B.C.
149. 3
277. The system of the queestiones perpetuce rescued the
Roman criminal law from the arbitrary character which, in
several respects, it had acquired, and determined, with the
exactitude of a legislative enactment, each crime as it was sub-
mitted to the qucestio, its penalty and the method in which it
should be dealt with.
In fact, in place of qucestiones being given for each particular
case, or for certain crimes committed upon a given occasion, or
in any given locality, without any general legislative enactment
in place of this uncertain and arbitrary system, a special law
1 Livy, 39, 6. quas antea nullaj fuerunt. L. enim
3 Livy, 39, 38. Piso tribunus plehis, Icgem primus de
3 Cicero, Brutus, De clar. orat., pecuniisrepetundis,CensoriiioetManilio
27 : " Qusestiones perpetuas hoc ado- consulibus, tulit."
lescente (C. Carbon) constitutor sunt,
THE HISTORY OF ROMAN LAW. 237
for each delict (for example, a law for bribery, another for ex-
tortion, and so on) organized a qucestio perpetua ; that is to
say, the crime was itself defined, the penalty regulated and
the class of tribunal, together with the mode in which it should
be conducted, definitively determined.
278. Although this delegation, this right of investigation
(qucestio}, was called perpetual, and although, by a figure of
speech, the name qucsstio perpetua was applied to the tribunal
itself, nevertheless, in accordance with the principle which
regulated the constitution of Roman magistracies, the tribunal,
as regards the individuals composing it, was simply annual,
though its organization was fixed and perpetual. It was pre-
sided over by a praetor ; generally by one of those officers who
had no other special jurisdiction. The sentence was not passed
by permanent judges, but by citizen judges, or a species of
juges jures (jurymen), selected for the occasion ; the governing
principle being that the judges in each case were selected by
the consent of the parties. These judges were numerous,
sometimes as many as one hundred sat in the same case, as
determined by the law regulating the qucestio perpetua.
279. Any citizen could be the prosecutor before a qucestio
perpetua. It was his business to point out the accused, the
law upon which he brought his accusation, and the crime that
was imputed. At the same time he had to take an oath that
his accusation was not calumnious. He thus became a party
to the cause, and was compelled to furnish the necessary proof.
The jury was obliged to pronounce its verdict according to the
law of the particular case, either to acquit, to condemn, or to
declare that they had not sufficient proof ( Condemno, Absolvo,
Non liquef}. They had no power to modify the punishment
prescribed. 1
280. Under this system each crime had its law, its penalty,
its tribunal, and its procedure. Every detail was regulated by
the law which organized the qucestio : the number of judges or
1 Cicero, Pro Cluentio, 10, 20, 33, 53 et seq. ; Pro Sylla, 22.
238 THE HISTORY OF ROMAN LAW.
jurymen (these were sometimes thirty-two, fifty, sixty-five or a
hundred, as the case might be); the mode of selection ; the right
of rejection ; the witnesses ; the time allowed to the accuser and
the accused; in short, every detail connected with the entire
proceeding.
There is inscribed upon the back of the bronze, upon which
is written the lex Thoria agraria, a specimen of one of these
enactments. It consists of certain fragments of the lex Ser-
vilia repetundarum, passed either in the year B.C. 106 or B.C.
100, from which we get an insight into the organization of
these qucestiones.
281. The crimes thus provided for by a special law became
the object of their respective qucestio perpetua, and were thus
withdrawn from the arbitrary and uncertain procedure of the pri-
mitive system. Those crimes, to which this system had not been
applied, continued to be subject to arbitrary decision, and were
dealt with as before, being entertained either by the comitia or
by the senate, or being delegated to the consuls, the praetors or
to special qucestores. This is what is termed the cognitiones
extraordinarice, extra ordinem cognoscere, in criminal matters.
282. The following is a table of the early qucestiones per-
petuce : B.C. 149, lex Calpurnia, De repetundis, qucestio pe-
cunice repetundce, against extortions or exactions in the pro-
vinces. B.C. 119, lex Maria, De ambitu, qucestio ambitus, against
bribery in the purchase or illegal attempt to obtain a magis-
tracy. In the same year the qucestio peculatus, against pecu-
lation, that is to say, theft, or misappropriation of public funds,
whether sacred or secular. B.C. 102, the lex Apuleia, Majes-
tatis, qucestio de mojcstate, or treason, including all overt acts
prejudicial to the sovereignty of the people. In the same year
the lex L,uctatia, De vi, qucestio de vi. In B.C. 95, lex Licinia
Mucia, De civitate, qucestio de civitate. In B.C. 89, lex Fabia,
De plagio, qucestio de plagio. And finally, under Sylla, we find
the establishment of qucestiones perpetuce for crimes committed
against private persons, such as fraud and murder.
THE HISTORY OF ROMAN LAW. 239
*
SECTION LII.
THE JUDICIARY LAWS (Leges judiciaries.}
283. The Romans, as we have seen, had from the earliest
times the trial by jury both in civil and in criminal matters.
Informal and indefinite as was this proceeding in the beginning,
the formula system organized a most ingenious method for the
trial of civil causes, and the qucestiones perpetuce regulated in
each case the mode of trial for the crimes submitted to each
individual quastio. It was also a fundamental principle, that
the parties should agree to their judge ; whether they themselves
chose him by common consent, or whether he was indicated by
the magistrate, or whether his choice was determined by lot.
And it is certain that, to a great extent, the parties retained
the power of rejecting ; but we have to inquire who the citizens
were who might act as these judges or jurymen both in civil
and criminal matters. For a long time the patricians had the
monopoly of this right, which monopoly was only broken by
the institution, already referred to, of recuperatores, and by the
interference of the Quiritarian tribunal of the centumviri ; but,
except as to these encroachments, the patricians retained this
monopoly till the time of the Gracchi. The judge must be
taken from the senatorial order.
284. Under the tribunate of the second Gracchus an obsti-
nate struggle commenced concerning the qualification necessary
for a judge. This struggle, which continued for a lengthened
period, introduced various changes, till at last the monopoly
was destroyed, and the right became general. It was upon
the rogation introduced by C. Gracchus that a plebiscitum
took from the senators this right and transferred it to the
knights. This is the first judiciary law (lex Sempronia judi-
ciaria, B.C. 122), destined to be followed by a series of laws
abrogating or modifying one another, as the senators or the
knights happened to gain the temporary ascendancy. B.C. 122,
the lex Sempronia judiciaria gave it to the knights; B.C. 106,
the lex prima Servilia jud. divided it between the two orders;
240 THE HISTORY OF ROMAN LAW.
*
B.C. 100, the lex secunda Servilia jud. conferred it upon the
knights; B.C. 91, the lex Lima jud. divided it between the two
orders; B.C. 82, under Sylla, the lex Cornelia jud. gave it to the
senators; B.C. 70, under Pompey, the lex Aurelia jud. and the
lex Pompeia jud. B.C. 55, divided it between the two orders.
To these we must add the leges Julias, judiciaries, either under
Cassar, B.C. 46, or under Augustus, B.C. 25.
285. We have next to inquire to what class of cases this
much disputed privilege, which was the subject of such bitter
and prolonged contention between the rival orders the privilege
of acting as judge appertained ; whether to criminal matters
only or to both criminal and civil, or to civil suits exclusively.
Notwithstanding the doubts raised by certain passages, we con-
clude that it extended to civil and criminal matters. There is
no doubt this was the case in the reign of Augustus. 1
286. At the time when the senatorial order enjoyed the
monopoly the list of judges was fixed and permanent. It was
a senatorial list (ordo senatorius), and in number three hun-
dred. But when the qualification was extended, it became
necessary to make an annual list. The duty of constructing
this list was imposed upon the prater urbanus, who, after taking
an oath not to admit any but citizens of the better sort, pub-
licly, in the forum, selected the prescribed number from the
duly qualified class. 2 The list, when complete, was attached to
the " album," and these judges were known as thejudices selccti
or judices in albo relati, and acted for the period of one year.
By the lex Aurelia the list consisted of three decuries (decuricB
judicum): the first giving the number of senators, the second
the knights, and the third the treasury tribunes. This system
of decuries, with certain variations as to number and the status of
the members, was permanently maintained. At a later period,
under Augustus, it was divided into four; under Caligula
1 "Ad tres judicum decurias quartam benrfic., 3, 7.
addixit ex int'eriori censu : quse duce- * " Proe tores urbani, qui, jurati, de-
nariorunt vocarctur, judicaretque de bent optimum qnemque in sclecto ju-
levibus summis." . Suet., Oct., 32 ; Aul. dices referre." Cicero, Pro Cluent., 43.
Gell., Noct. attic., 14, 2; Seneca, Ue
THE HISTORY OF ROMAN LAW. 241
there were five decurice, each distinguished by a particular
name. 1 The qualification for inscription became less stringent:
even the military were admitted, whatever might be their posi-
tion in the census, nor was the right denied to citizens occupy-
ing a lower position than the knights (ex inferiori censu). The
total number of these judices that was inscribed upon the annual
lists was successively raised from three hundred and three hun-
dred and sixty to eight hundred and fifty, and finally, under
the Emperor Augustus, to about four thousand. 2
SECTION LIII.
ON THE AUTHORITY OF THE SENATUS-CONSULTA.
287. Notwithstanding that the assertion of Theophilus as
to the double effect of the lex Hortensia, that by a species of
compromise it at one and the same time gave the authority
of law to the plebiscita on the one hand and to the senatus-
consulta on the other, is not to be found in any other writer
who refers to this law, the suggestion that it had a double
action is not improbable. The right of the senate as to the
enactment of laws was considerably restrained from the time
of the passing of the lex Hortensia) for so far as the ple-
biscitum was concerned it was not necessary that the senate
should give its auctoritas either for the initiation of the enact-
ment, nor for its final sanction when once it had been voted ;
and as this form of legislation became more and more frequent
the legislative powers of the senate gradually passed away. It
was, therefore, forced to seek from other sources the means of
intervening upon extraordinary occasions ; as, for instance, when
by a senatus-consultum it prohibited the tribune, L. Saturninus,
from laying before the comitia the proposition for the lex fru-
1 " Dccurise quoque ipsae pluribvts to Velleius Paterculns, 2, 76, and Plu-
discretrc norainibus fuere, tribunorum tarch, Pomp., 55. Eight hundred and
!Rris,etselectorwn,Qtjudicum." Plin., fifty according to Cicero, Ad Attic., 8,
Hist, natur., 33, 7. To which we 16. About four thousand, one thousand
must add the fourth, the diicenarii. in each decuria, under Augustus. Vide
Vide note, 285. Pliny, Hist, nat., 33, 7.
* Three hundred and sixty according
R
242 THE HISTORY OF ROMAN LAW.
mentaria in B.C. 654. " Senatus decrevit, si earn legem ad
populum ferat, adversus rempublicam videri eum facere"
When the tribune, notwithstanding the senatus-consultum, and
notwithstanding the intercession of his colleagues, persisted in
his course, the quaestor urbanus, Q. Cepio, regarding his act
as one of revolt against the senate and injurious to the republic,
together with some other citizens, broke into the comitia, over-
turned the platform, threw away the ballot boxes, and pre-
vented the vote being taken. This conduct resulted in a charge
of treason. 1 Even in the comitia centuriata it more than once
happened that, contrary to principle, propositions were carried
by the magistrates without the preliminary authority of the
senate having been obtained.
There was a political struggle and a disturbance of the
ancient regime, and it is more than probable that Theophilus
had before him certain judicial documents, lost since the com-
pilation of Justinian, which was the field of Theophilus's labours.
And in these documents there were probably accounts of these
struggles, and upon this basis Theophilus may have grounded
his assertion.
288. But be this as it may, Cicero enumerates the senatus-
consulta among the contemporary sources of the civil law in
terms almost identical with those which at a later period were
adopted in the Institutes of Gains and of Justinian. 8 And
Pomponius, without referring it to the lex Hortensia, of which
he has spoken in the previous paragraph, mentions the scnatus-
consulta as a source of law, and represents it as having become
so at a later period (dcinde), to a certain extent as a result of
necessity and custom (necessitas ipsa curam reipublicce ad
senatum deduxit}, and from the interposition of the senate. "Ita
coepit senatus se interponcre; et quidquld const ituissct obser-
vabatur, idgue jus appellabatur scnatus-consultum" 3 The
1 Cicero, Rhetorica ad Ilcrenn'mm, tnnm, more, rcqiritate consistit." See
1, 12. Gai., Inst., 1, 2, and Justinian, i. 2,
2 Cicero, Topic., 5 : " Ut si quis 3.
jus civile dicat id esse, quod in legibus, 3 Dig. 1, 2, DC oriy. jur,, 2, 9, f.
senates-consul tis, rebus judicatis, juris- Pomp,
peritorum auctoritate, edictis magistra-
THE HISTORY OF ROMAN LAW. 243
reason which he assigns, viz. the difficulty of assembling the
plebeians or the people, is a reason conceived at a later period
under the empire. But what Pomponius has said is sufficient
to convince us that there never was any law conferring on the
senate, in addition to its governmental or administrative func-
tions, the right of legislating. If certain senatus-consulta
(which is incontestable) were at a later period of the republic
enacted concerning points of private law, this was because these
matters referred more or less directly to public interests which
were confided to the keeping of the senate, or came under the
head of those instructions or orders given from time to time by
magistrates.
289. The number of the senatus-consulta, upon matters of
private right, prior to the empire, is exceedingly small. The
most important is that which introduces the principle that the
freeman who fraudulently, and in order to participate in the
price paid, should suffer himself to be sold as a slave, could not
recover his liberty. This provision remained in force even till
and under Justinian, and appears from Sempronius to be derived
from a senatus-consultum. From a fragment of Paul it ap-
pears that it was in existence at the time of Quintus Mucius. 1
The senatus-consultum (the provisions of which we learn from
Ulpian) upon the right to bequeath the usufruct of the entire
patrimony, and consequently of consumable articles, 5 is also of
ancient date, but we may conclude from a passage in Cicero's
Topics that it did not exist at the time when Cicero wrote that
work. 3 The date is uncertain. At a much earlier period,
namely, B.C. 177, we find the senatus-consultum by which the
senate enjoined upon magistrates, before whom an enfranchise-
ment could be made by the vindictor, the duty of imposing
upon the parties, under pain of nullity, the oath that the manu-
mission was not made for the purpose of affecting his citizen-
ship (civitatis mutanda causa manu non mittere). We find
from a passage in Livy the effect of this senatus-consultum
1 Dig. 40, 13, Quibus ad libert.pro- J Dig. 7, 5, DC itsiifr. ear. rer. q\ice
clam, non licet, 3, f. Pomp. ; 40, 12, iisu consum., 1, f. Ulp.
De liberal, caus., 23, pr. f. Paul. 3 Cicero, Top., 6.
R2
244 THE HISTORY OF ROMAN LAW.
upon the census and status of the Latins in respect to citizen-
ship.
A still earlier date, B.C. 236, 1 must be ascribed to the senatus-
consultum, by which the senate, in order to recompense the en-
franchised Hispala Fecenia for having discovered the Baccha-
nalian orgies, conferred upon her, as to marriage and tutelage,
extraordinary privileges. But this senatus-consultum was
carried as a proposed enactment before the comitia and voted
for. 2
It was a principle in fact that the senatus-consultum could
not directly abrogate any civil law, and even in later times and
under the empire we find that the senate, in the innovations in-
troduced by it, preferred the form of giving orders to the consuls,
to the prastors, or to the other magistrates, of giving advice, or
interposing its authority, of giving or refusing certain actiones.
The two senatus-consulta, Velleianum and Macedonianum,
which belong to the imperial period of which we have the text
in the Digest, furnish us with two remarkable examples. 3
SECTION LIV.
JUS HONORARIUM EDICTUM EDICTUM PERPETUUM
EDICTUM REPENTINUM INTERDICTUM EDICTUM
TRALATITIUM LEX CORNELIA, DE EDICTIS.
290. Our attention is now turned to a new branch of law,
and the question hoAv it came into existence, whether it was
the result of a special enactment, or whether it derived its force
from custom ? The latter hypothesis appears to me the more
probable.
From the earliest periods the magistrates, that is to say, the
consuls, and at a later epoch the praetors, the curule asdiles,
the censors, and even the plebeian tribunes, had the right of
publishing orders and notices connected with their respective
1 Livy, xli. 9. doniano, 1 pr. f. Ulp. ; 10, 1, De sen.
* Livy, xxxix. 19. cons. Velleiano, 2, 1, f. Ulp.
3 Dig. 14, 6, De sen. cons. Mace-
THE HISTORY OP ROMAN LAW. 245
functions ; this right was styled the right e-dicere, which is the
symbolic terra of 'the Roman magistracy (see Dico, 42).
291. The use of this expression, however, more particularly
belonged to those magistrates who had a certain jurisdiction ; for
instance, at Rome, to the praetor urbanus, the pr&tor peregrinus
and to the two sediles, and, in the provinces, to the governor. The
jurisdiction, as the term itself indicates, consisting in the general
capacity to declare the law. This power could be exercised in
various ways ; for example, jus dicere was to declare the law,
to organize the formula in the suit ; addicere was to award the
property in controversy by the declaration of right ; edicere was
to declare the law in a general manner, so that such enuncia-
tion of it should serve as a rule for the guidance of all ; inter-
dicere was to declare a similar rule which should govern the
conduct of a particular suit. Jus dicere, addicere, edicere,
interdicere, belonged to the same family of words ; the two
last have more especial reference to the jus honorarium.
292. Under a system of legislation like that of Rome at a
period when the separation between the legislative and the
judicial functions, now familiar to us, did not exist, the magis-
trates charged with any given jurisdiction were of necessity
compelled to publish rules or instructions as to the mode in
which they proposed to act during their tenure of office ; as to
the means that they intended to employ to secure the execution
of the laws with whose administration they were charged ; as to
the course that must be pursued by private individuals seeking
to establish their claims. "Judicium dabo; in duplum judicium
dabo; agere permittam ; actionem causa cognita dabo" "I will
allow an actio; I will allow an actio in duplum; I will allow an
actio to be brought ; I will allow an actio after examination."
" Interdicam" " I will give an interdictum" " Animadver-
tam" "I will punish or I will provide for." " Ratum non
habebo" "I shall not consider valid." " In integrum resti-
tuam" " I shall restore in its entirety." Such were the
phrases which formed the conclusion of various provisions of
the praetor. These rules thus published (e-dicta) occupied a
246 THE HISTORY OP ROMAN LAW.
place side by side with the law, invested with the authority of
the magistrate, as the living and flexible portion of the civil
law. " Viva vox juris civilis" as says the jurist Marcianus. 1
293. The prcetor urbanus would, in the discharge of his
duties, necessarily meet from time to time with cases for which
there was no provision, or with others to which the application
of the law appeared unjust. He would therefore feel the
necessity of supplementing this law or correcting it by such
means as were within his power, and he would consequently
declare that in such cases he should adopt a given course.
The prcetor peregrinus, on his part, had, so to say, to ascertain
and to build up a new system of law, the jus gentium. He
found nothing of this in the civil law ; and it was consequently
necessary, in order to avoid arbitrary action, that he should
state certain rules and lay down certain principles. As to the
sediles charged with the general administration of the police,
they had also to draw up certain rules concerning the public
games, the construction and maintenance of roads, markets and
sales, and other matters which came under their cognizance and
jurisdiction. And in the provinces, again, the governor on
arriving in the conquered country which had become his charge
found that he was called upon to amalgamate the laws of the
country with those of Rome ; so he, too, was equally under
the necessity of laying down the principles by which he intended
to be guided. Thus, as Papinian says, the right to make edicts
designed originally as a function of the executive power, and as
an auxiliary to the civil law, came to be employed to supple-
ment and to correct the law, and this without there being any
definite initiatory legislative act. It grew up as the result of
custom an offshoot generally of the ideas and institutions of
the period, having its origin in expediency {propter utilitatem
publicam}. " Adjurandi, vel supplendi, vel corrigendi juris
civilis gratia" says Papinian. 2
1 Dig. 1, 1, Dejustitia et jure, 8, f. rinm est, qnod praetores introduxerunt,
Marcian. : "Nam et ipsum jus hono- adjuvandi, vel supplendi, vel corrigendi
rarium viva vox est juris civilis." juris civilis gratia, propter utilitatem
3 Dig. 1, 1, De justitia et jure, 7, publicam: quod et honorarium dicitm,
1, f. Papinian : " . . . Jus prasto- ad honorem prastorum sic nominatum."
THE HISTORY OF ROMAN LAW. 247
294. In the course of time the precedents relating to the
right of publishing edicts (jus edicendi) were systematised. It
became necessary to publish the edicts at the commencement of
the magistrate's term of office. " You must," says Cicero,
" as soon as you have entered upon your magistracy and taken
your seat, publish by an edict the rules that you intend to
observe during the term of your office." 1 The magistrates who
had published their edicts were bound by them ; and this neces-
sity was imposed upon them by a special law, the lex Cornelia,
enacted in the time of Cicero. 2 This deprived the prgetors of
the power of varying their judicial decisions as partiality or
ambition might dictate. Cicero makes deviations from his pub-
lished edict one of the chief accusations which he brought against
Verres. 3 The edicts thus became obligatory for one year, and
for this reason Cicero calls them the lex annua. " The calends
of January put an end," says he, " to the edict of the praetor."*
In fact, as the edicts were nothing more than the orders pub-
lished by a magistrate and were not legislative enactments,
they expired with the power from which they emanated, and
each new magistrate, by appropriating or rejecting them, either
maintained or abolished the decrees of his predecessor. More
1 " Est enim tibi (jam quum magis- noticed, is anterior to the lex Cornelia.
tratum inieris et in concionem adscen- We also find in a law discovered in the
deris) edicendum, qua; sis observaturus last century, the lex de Gallia Cisal-
in jure dicendo." j)ina, mention of the edict of the Praitor
a Asconius, Inargum. Cornel. : ("Le- Peregrinus, but we cannot infer any-
gem Cornelius tulit) ut prsetores ex thing certain from it, inasmuch as we
edictis suis perpetuis jus dicerent, quue do not know whether this was anterior
res turn gratiam ambitiosis praetoribus, to the lex Cornelia ; and it can be
qui varie jus dicere assueverant, sus- placed either during the Punic wars,
tulit." It is to this lex Cornelia that when Cisalpine Gaul was reduced to
certain authors refer the right conferred the condition of a province (Beaufort,
upon the magistrates of publishing ii. p. 318), or, in our opinion, to a later
their edicts. The fact is, that it com- period, namely, B.C. 49, when this part
manded the prajtors to publish an edict of Gaul received the right of citizen-
at the commencement of their term of ship (see 312). I adopt the opinion
office and to conform themselves to it that the edicts owe their origin to cus-
throughout the year. It regulated the torn, and that the laws were published
publication of the edicts, but we must to regulate them in the early part of
not suppose that it introduced them. the seventh century from the foundation
Cicero, in his oration against Verres, of Rome.
complained of the provisions introduced 3 Cicero, In Vcrrem, 1, 42, 46.
by that magistrate in his edict, and at 4 Cicero, In Verretn, 1, 42 : " Qui
the injustice of some of his decisions, plurimum tribuunt edicto, pra;toris
which conformed to his interest and edictum legem annuam dicunt esse."
not to the terms of his edict. The pro- " Finein edicto prastoris afferunt ka-
ceeding against Verres, it must be lendw Januarii."
248 THE HISTORY OF ROMAN LAW.
frequently, however, and in proportion as the edicts, by the
force of this constant revision and annual publication, became
perfected and such as no objection could be taken to them,
they came to be considered as complete, and, with the excep-
tion of some occasional modifications in points of secondary
importance, were generally retained. Some provisions were of
such obvious utility that they were transmitted year by year,
and came at length to be regarded as unchangeable. In this
way long use imparted to them the force of law, and it is for
this reason that Cicero ranks them as an important portion of
the customary law. 1 At a later date the praetorian edict
became a portion of the lex scripta.
295. We must distinguish the various edicts, those at least
which are particularly connected with the history of Roman
private law. These were, first, the edicts of the praetor, prce-
toris edictum ; second, of the rediles, edictum (edilium or cBdili-
tium edictum; third, of the proconsuls or propraetors, edictum
provinciale. These were called edicta perpetua, because they
were not made for any particular case, but, although annual,
for the perpetual jurisdiction to which they severally appertained
(Juris dictionis perpetuce causa; non prout res incidif). The
magistrate, and the edict published by him, both went at the
same tune, but the office of the magistrate, together with the
perpetual edict, remained. This was not the case with those
edicts which were declared for a specific matter on the spur of
the moment (repentine), in order to meet a case in point.
Edicts of this kind, which were matters of pure accident, might
exist under one praetor and not under another, and had no con-
tinuing force ; they were called edicta repentina.* Sometimes
even the praetor declared, as a special edict, the law which
1 Cicero, De invent., ii. 22 : " Con- quis frumentum dc area tolleret ante-
suetudinis autem jus esse putatur id qnam cum decumano pactus csset."
quod voluutate omnium sine lege ve- " Illud cdietum repcnte ubovrimuiu et
tnstas comprobavit. In ea autem jura qurcstnosissimum nascitur," &c. He
sunt quscdam ipsa jam certa propter here refers to two edicts of Verres,
vetustatem, quo in gencre et alia suiit made during his pnvtorate in Sicily,
multa, ct eorum multo maxima pars, the object of which was, under the form
qua?, prrctores edicere consueverunt." of a general order, to sanction the con-
8 Cicero, In Verrem, iii. 14 : " Exo- duct of a certain collector.
ritur peculiare edictum repentinum, nc
THE HISTORY OF ROMAN LAW. 249
should govern the litigation in the individual case between two
parties. This was termed interdiction, that is, a species of
edictum inter duos. The edictum tralatitium was that which
was retained, and handed on from one magistracy to the other.
The edictum novum described the innovations or amendments
made from time to time.
296. Those decisions which had been established by custom
and transmitted from edict to edict, formed a species of magis-
trate-made law known as the jus honorarium or "honorary
law. It consisted of two principal parts, praetorian law (jus
prcetorium} and a?dile law (jus cedilium), of which the former
is far the more important. This is the origin of that praetorian
law which advanced, so to say, in a parallel line with the
Roman civil law. It did not rest upon any direct legislation ;
it admitted of modification, and was grounded on the principles
of equity and natural justice ; it contributed in a great degree
to Roman civilization, and prepared the way for the gradual
disappearance of the old legal system. It was a work of
science, of philosophy and of progress, and step by step sup-
planted the primitive Quiritarian law. We find Cicero, even
in his time, complaining that the Twelve Tables were no longer
studied as heretofore, and saying that they were replaced by
the edicts of the prastor.
297. The Romans, not content with the success which they
had achieved against Carthage and Macedonia, carried their
conquests into remote regions. Jugurtha, the king of Numidia,
resisted their power, not however with arms, but with gold.
He bought the suffrages of the senate and purchased peace;
nay, he purchased the defeat of a Roman army. Rome, he
said, would perish, could it find a buyer to purchase its destruc-
tion. Ultimately, however, he adorned the triumph of Marius,
and Numidia was ranked amongst the Roman provinces. It
had assisted in the subjugation of Carthage, and was in its turn
subdued. On the banks of the Varus, the Rhone and the
Iser, the Roman legions encountered the barbarians of Gaul.
The Cimbri and the Teutons, emigrants from Germany to a
250 THE HISTORY OP ROMAN LAW.
southern clime, were exterminated; and our attention is now
directed to the social war, the civil wars, and the servile wars,
which rapidly followed each other.
SECTION LV.
THE SOCIAL WAR.
298. B.C. 91. The allies of Latium and of Italy had been
instrumental in building up the power of Rome, but the title
and the rights of Roman citizenship were denied them. For
many years past, tribunes who had been solicitous to obtain
supporters had been in the habit of promising laws which
should remedy this state of things. Upon such occasions the
allies crowded into Rome, thronged the public places of as-
sembly, and waited for fulfilment of these promises, but without
effect. Italy rose in arms ; the standards of the allied towns,
of the municipal towns, and of the colonies themselves, were
borne from every part of Italy towards the Roman capital.
The war was a short but a bloody one. Consuls, Roman
legions and allied legions perished in the struggle. Italy lost
no fewer than three hundred thousand men, and Rome finally
triumphed, by first enrolling within the numbers of its citizens
those who had not taken up arms, or who were the first to lay
them down, and afterwards by admitting those who were still
able to retain them (lex Julia, B.C. 90; lex Plautia, B.C. 89).
Thus in the space of two years the rights of Roman citizenship
were acquired by nearly the whole of Italy, including the
suffrage, the only condition imposed being that of a declaration
that the new citizens should adopt the civil law of Rome. But
in order to diminish the influence of these new citizens, they
were placed in eight new tribes, which were added to the
already existing tribes, so that in all public deliberations the
whole of Italy had but eight votes, whereas Rome had thirty-
five. This disproportion did not last long, for the Italians soon
succeeded in securing their distribution amongst the thirty-five
Roman tribes.
THE HISTORY OF ROMAN LAW. 251
299. Thenceforth Roman territory became in a general
manner assimilated to the ager Romanus and was recognized
as the property of its inhabitants, who had thus become Roman
citizens, and who were in consequence free from the tribute or
annual rent (vectigal) which was ordinarily imposed upon the
occupiers of conquered territory; and thenceforth to indicate the
existence of the proprietary right, dominium ex jure Quiritium,
and for the application of the civil law which they had now ac-
quired, the usual practice was to distinguish between Italian and
provincial soil. The importance of considering whether a town
was a colony or a municipality, and what concessions had been
made to it, ceased, except as a matter of history or in con-
nection with the form of government. As to the condition of
the inhabitants and the land they occupied, the importance of
the distinction as regards Italy disappeared and was exclusively
confined to the provinces. *
SECTION LVI.
THE CIVIL WARS.
300. B.C. 87. When governors rendered themselves inde-
pendent of the senate, and tribunes endeavoured by force to
retain themselves in power after the natural termination of their
office (Marius had been named consul during six successive
years), a fatal blow was struck at the constitutional law, which
required that an interval of ten years should elapse between the
two consulships of the same individual. But amid all these
political troubles and violations of the public law there had been
no rising of one section of the community against another.
The social war was a prelude to that which followed, and
Marius and Sylla brought on the civil wars. It was then no
longer a question of a struggle for power by the plebeians, or
by the senate, nor for the preservation of the laws, but for
individual aggrandizement. Rome then became a scene of
indescribable misery and crime, and the historian may, with
252 THE HISTORY OF ROMAN LAW.
Montesquieu, pray to be permitted to turn away his eyes from
the wars of Marius and Sylla.
Sylla having triumphed and been proclaimed perpetual dic-
tator, humbled the plebeians, compromised the tribunes, debased
the knights, and elevated the senators. The assemblies by
tribes were dissolved, and the comitia centuriata invested with
all power. Sylla, in fact, desired to restore to the senate its
pristine splendour, and to the republic its primitive energy.
He wished to restore its virtues, its public spirit, and, above all,
its liberty ; and it was perhaps this last consideration which in-
duced him, after having retained his office of dictator for five
years, to abdicate an act which history has regarded with
astonishment.
Some of his laws must be noticed (B.C. 81). The lex Cor-
nelia judicaria deprived the knights of civil power and restored
it to the senators. The lex Cornelia defalsis, also called testa-
mentaria, and the lex Cornelia de sicariis, which established
two new qu&stiones, one for crimes involving fraud principally
in matters connected with wills, and the other against murderers.
It is probably to this last law that the Institutes of Justinian
refer ' as making provision for the case of certain injuries com-
mitted with violence.
SECTION LVII.
THE SERVILE WARS.
301. B.C. 72. So violent were the struggles and so great the
troubles of this period that the wars of the slaves passed almost
unnoticed. It is a question, however, whether they are not more
worthy of our attention than either of the others. An innumer-
able number of captives, collected from all parts of the Avorld,
were crowded together on the estates of the wealthy Romans,
some of whom possessed even thousands of these unhappy
people. At the time to which our attention is now directed the
slaves of Italy rose in arms, broke their fetters, and, assuming
1 Lib. iv. tit. 4, 8.
T1IE HISTORY OP ROMAN LAW. 253
the character of soldiers, took the field to the number of 60,000.
The troops which were sent against them were defeated ; the
forces of four praetors were destroyed ; but the slaves eventually
succumbed to a consul, and received, instead of the liberty which
they had sought, the cruel death of the slave, the punishment
of the cross. But they had left successors, and a new army ap-
peared in the field. This second attempt was at first rewarded
by success, but the success was only temporary. The slaves
allowed themselves to be blockaded, and reduced to the last
extremity by famine ; they killed each other in order to escape
the vengeance of their masters. The gladiators of Capua,
escaping from their bondage and raising the cry of liberty,
caused the third servile war. The illustrious Spartacus, clad
in consular purple, at the head of the insurgents, ravaged Italy
and put the Roman legions to flight. But he fell before the
united strength of Rome, and the chief, with his followers,
perished by their own hands rather than seek for quarter.
Thus terminated the efforts of the slaves to obtain their
freedom.
302. B.C. 70. The civil wars had not died out with Marius
and Sylla. Catiline, Pompey, and Cassar, Antony and Octavius
followed in their wake. The work of Sylla was destroyed by
Pompey. The plebeians recovered their assemblies, the tri-
bunes their privileges, the knights their judicial power, and
this they shared with the senate and the treasury tribunes.
But it is of no avail to study these ephemeral laws which clash
against and alternately annul each other convulsive move-
ments indicative of the approaching dissolution of the republic.
Pompey, it is true, marched his legions into Asia, vanquished
Mithridates, overran Armenia, Colchis, Albania, Syria, Arabia,
and led his legions even to Jerusalem, but it was only to hasten
this dissolution.
303. We pass rapidly over these latter years of the republic,
over the compact or rather league formed between Pompey,
Crassus and Caesar, under the name of the triumvirate, B.C. 64.
They united themselves in order that they might command the
254 THE HISTOKY OF ROMAN LAW.
senate, dictate the choice of candidates, and divide between
themselves the provinces. Pompey had Spain, Crassus Syria,
and Caesar the Gauls. It was at this period that this general,
who retained the power in his hands for ten years, explored
those unknown regions described in his immortal Commentaries,
and penetrated as far as Great Britain, conquering on his route
all the barbarians with whom he came in contact.
304. Let us pass over the struggle between Pompey and
Caesar. Ambition united them, and ambition brought about
their separation. Caesar had passed the Rubicon with, as Cicero
tells us, 1 these lines of Euripides upon his lips, thus rendered by
the Roman orator :
" Nam si violandum est jus regnandi gratia,
Violandum est ; aliis rebus, pietatem colas."
He vanquished Pompey in Thessaly, Scipio and Cato in Africa,
and the sons of Pompey in Spain. The senate and the Roman
people gave themselves into his hands. Consulates were lavished
upon him, and he was finally made perpetual dictator, a con-
dition of affairs which Brutus and his co-conspirators terminated
at the end of six months by the assassination of the dictator in
the midst of the senate, as if they would destroy this office
with the same weapon as that with which they had destroyed
the laws the sword. B.C. 45.
Before Cassar's death all Cisalpine Gaul had received the
rights of citizenship (B.C. 49 to B.C. 47), two new asdiles had been
created (cediles cereales qui frumento praessent}, and the pro-
prastors had been increased to ten, and subsequently to sixteen.
305. We pass over the wars which followed the death of
Caesar, during which the republicans were commanded by
Cassius and Brutus. The latter, who imitated the first Brutus,
wished to regenerate the republic which had been founded by
his predecessor, as if, when the country, its inhabitants and its
resources had all changed, the institutions could remain the
same.
1 De offic., iii. 21.
THE HISTOHY OF ROMAN LAW.
255
306. We pass over the second triumvirate of Antony, Le-
pidus and Octavius, or, to express it more correctly, of Octavius
Caesar, 1 for Julius Caesar had adopted him by his will and left
him an inheritance, which he did not fail to acquire.
"We pass over the terrible proscriptions which characterized
this second triumvirate. But these proscriptions recall to our
mind a man whom it would be unpardonable to overlook, who
is to this day regarded as the greatest of all advocates, Cicero.
His works are regarded as the most valuable sources, both of
the history and law of Rome. While reading his letters to
Atticus and Brutus, we feel ourselves taking part in the critical
events to which he refers ; we see before us the struggles of
opposing factions ; we realize the fears and sympathize with the
hopes of the contending parties. We see the ancient consul, in
the midst of anarchy and corruption, 2 meeting his opponents at
one time with the arts of the politician, at another confounding
them with his eloquence, supported by his clients and his friends,
and the cities over whose interest he watches. His character,
1 The adopted took the name of the
adopter by adding to his own name the
adjectival termination ianus. Octavius
after his adoption, should be called Oc-
tavianus Caesar.
* From two quotations from these
letters we are able to judge to what
extent corruption existed in Rome.
One of these refers to judgments, the
other to magistracies. Cicero relates
how Clodius cleared himself from the
accusation brought against him : " In
two days he (a trusted friend of Clodius)
had concluded the affair through the
instrumentality of a gladiator slave :
he caused the judges to come to him,
and corrupted them by promises, threats
and gifts, and threw in as an additional
inducement the offer of the honour of
certain Koman ladies. The forum, de-
serted by honourable men, was usurped
fly slaves ; and there were only twenty-
five judges courageous enough to expose
themselves to the peril of death rather
than sacrifice the republic. There were
thirty-one who listened to the promp-
ting of rapacity rather than honour.
' Why,' said Catullus, addressing one
of them, ' did you seek protection from
us ? Was it that yon feared that the
money you received from Clodius would
be stolen from you.' " Ejpist. ad Att.,
lib. i. ep. 16.
The second quotation is as follows :
" The consuls are steeped in infamy.
C. Memmius has read to the senate an
agreement they have made ; here it is :
' In case the two consuls should nomi-
nate Memmius and his competitor for
the next year, they on their part agree
to pay 400,000 sestertii to the consuls,
provided they furnish three augurs who
shall state that they have seen the lex
curiata passed in their favour, although
none has been passed ; and further, two
consuls who shall swear to having
signed the decree for the organization,
of their provinces, although there has
been no decree.' " Ibid. lib. iv. ep. 18.
What depravity ! And at the same time
what confusion ! that it should be pos-
sible that one could be made to believe
in a lex ciiriata for the investiture of
office M'hich had not been passed. It is
true that this was a fictitious lex curi-
ata brought about by the intervention
of thirty lictors, and it is true that peo-
ple could be made to believe in the ex-
istence of a decree which had never even
been proposed.
256 THE HISTORY OF ROMAN LAW.
it is true, is not free from weaknesses, but perfection is not to be
found in human nature, and the existence of these failings only
renders the picture more true to life. Amid them all there
stand out in marked prominence the love of the good and an
honourable ambition. He had saved Rome from Catiline ; he
had been hailed as the father of his country ; he had followed
the fortunes of Pompey in the struggle with Caesar, but in his
turn he fell a victim to political animosity. And when, after
the second triumvirate, the heads of those who had fallen under
the proscription were exposed in the forum, the head of Cicero
was seen among them.
It is impossible to refrain from quoting here a passage from
Velleius Paterculus. This writer often lapses into rhetoric, but
we who derive so much assistance from the works of Cicero in
our study of the history, the philosophy and the law of Rome,
must endorse the sentiments expressed in the following eloquent
denunciation of his murderer : " A burst of indignation," he
says, " which I cannot suppress, compels me for a while to in-
terrupt this narrative. In vain, Mark Antony, hast thou put a
price upon the head of the most eloquent, the most illustrious
of men ; in vain hast thou counted out the price of blood to the
assassin of that magnanimous consul who saved the republic !
Thou couldst at best but deprive Cicero of a few unquiet days
at the close of a life which, under thy rule, would have been
more wretched than was his death under thy triumvirate. Didst
thou vainly imagine it was in thy power to tarnish the glory of
his actions, of his eloquence ? Thou hast but added to its
brilliancy. The name still lives, and will live in the memory
of all ages. And posterity, while admiring his writings with
which he has branded thy name, will detest his assassin ; for the
human race will become extinct ere the name of Cicero be
forgotten." 1
307. Friendships formed by ambition always end in hatred.
Discord was not slow to show itself among the second trium-
virate as among the first. Lepidus was abandoned in Sicily by
1 Velleius Paterculus, lib. ii. GO.
THE HISTORY OF ROMAN LAW. 257
his army, who followed Caesar. Antony, defeated at Actium,
committed suicide, and Octavius remained master of Rome.
He at once entered the city with the universal approbation of
the senate and the people, and the republic expired never to
revive. It had been a republic of aristocrats, hostile to liberty
and equality ; and such republics ought not to endure.
REVIEW OF THE PRECEDING PERIOD.
ROMAN FOREIGN POLICY.
308. In reviewing the history of the period embraced in the
preceding pages, we observe that the principles upon which
Rome conducted her foreign policy had always remained the
same. The field to which they were applied, it is true, had
been extended, but it was the same principle that brought about
the subjugation of Italy, which subsequently came into play in
the conquest of the entire Roman world. More than once we
have seen a foreign king by will create the Roman people his
heir, and that people upon his demise enter upon and take pos-
session of his kingdom.
309. Italy: the Provinces. The civil and political rights
of a Roman citizen were at this period enjoyed by all Italy.
The countries beyond Italy that were subject to Rome were so
many provinces, each being governed by a Roman magistrate
upon the basis of the enactment made at the time when the
country was created a province. Their inhabitants were not
admitted to the rights of citizenship, except where conces-
sions had been made in individual cases. The territory was
tributary, its occupants enjoying but a tenancy, subject to the
payment of the annual rent or vectiyal.
310. Colonia, Municipcs, Prafectura, Urbes. In regarding
the condition of cities, even when situated in Italy, it is important
s
258 THE HISTORY OF ROMAN LAW.
always to examine their internal organization and local adminis-
tration ; this is especially so when the cities under consideration
were situated in the provinces, inasmuch as the question of the
concession of the rights of Roman citizenship, and the extent to
which this concession extended, is involved in it.
311. Those colonies, like the allied towns, that were situated
in Italy, enjoyed the rights of citizenship both private and
public ; but other colonies, founded in newly subjected countries,
such as Africa, Asia, Spain, and the Gauls, were either Roman
or Latin colonies, i. e. the latter enjoyed the jus Latinitatis.
Under the name of colonize militaries, a system of spoliation
was introduced by which generals rewarded those who had
assisted them in furthering the efforts of their ambition. Towns
that resisted them were despoiled, and the plunder of the terri-
tory was divided among the soldiery. In this way Sylla, Julius
Ca3sar, and the triumvirs, recompensed their adherents. We
see Virgil coming to Rome to implore Octavius to restore
his little patrimony ; we read in his eclogue the description of
the unhappy shepherd flying with his little flock, his native
pastures wrested from him by the heartless soldiery ; we see
him shortly after the favoured guest of Cassar !
312. Notwithstanding minor differences, the different muni-
cipia were essentially governed in the same manner. Rome
was the summa respublica; each municipium a respublica
municipalise
Some idea of this principle may be gained from certain frag-
mentary inscriptions which modern research has brought to
light.
1. The plebiscitum de Thermensibus , which is written on a
table of bronze, conferred the rights of a free town upon Ther-
messus in Pisidia. The date of this is about B.C. 72. -
2. The Tabula Ileracleensis, so called from the fact of the
1 The consul Seaurus addressing the 10.
grandfather of Cicero : " Utinam isto 2 " Legibus sneis ita ntunto itaque
animo atque virtnte in summa republica ieis omnibus sneis legibus Thcrmensis
nobiscum vcrsari, quam in municipal! majoribus Pisidcis utei liccto quod ad-
maluisses!" Cicero, De lag., lib. iii. versus lianc legcm 11011 fiat."
THE HISTORY OF ROMAN LAW. 259
fragment having been discovered partly at Heraclea, near the
gulph of Tarentum, in 1732, and partly in the same locality in
1735. 1
3. Some fragments of a plebiscitum, upon a bronze table, in
two columns, discovered in 1760 amongst the ruins of Velleia. 8
The portion we possess treats of the organization and applica-
tion of judiciary procedure in Cisalpine Gaul, whence it is
called Lex GallicB Cisalpince. The date of this plebiscitum is
doubtless posterior to the enactment which conferred the jus
civitatis on Gallia Cispadana, B.C. 49, and that which extended
it to Gallia Transpadana, B.C. 47. But, in effect, the fragments
we possess are too scanty to afford a general outline of municipal
government, nor do they touch upon the most essential points
of this system. A recent discovery made at Malaga of tables
belonging to the Imperial period presents us with some more
interesting details. These we shall consider in their proper
place.
313. We have sufficient evidence of the existence of a lex
Julia municipalise by which Julius Caesar, when dictator,
1 Notwithstanding that these are but 74. According to the conjecture of
fragments, they contain matter of such M. de Savigny, of whom we shall have
diversity that it is doubtful whether occasion to make further mention, its
they refer to one law or a code of laws. date is B.C. 45. The two fragments,
These fragments appear to deal with one of which is sometimes called <BS
three distinct subjects : 1. Declarations Britannicum, because upon its dis-
to be made at Rome to the consul, or in covery it was carried to England, the
default to the preetor urbanus or to the other CBS Neapolitanum, are now at
prator peregrinus ; 2nd, certain rules Naples. M. Blondeau has given their
concerning highways and the duties of text in his Recueil antejustinien,
the sediles; 3rd, a collection of special p. 81.
provisions for the municipia, the colo- 2 The contents of this plebiscitum
ni&, the prefectures, the fora and the are confined to the oppidum, munici-
conciliabula, relating to the city magis- pium, colonia, prcefectura, forum, vl-
tracies, age, qualifications, disburse- cum, concilia bttlum castellumve qua:
ments and incapacity. Certain pro- in Gallia Oisalpina sunt, and refer to
visions which they contain would lead operis novi nunciatio, damnum infec-
to the conviction that their promulga- turn, pecunia certa credita, signata
tion must be ascribed to a period when forma publica populi Romani, and the
the Italian towns enjoyed the rights of families erciscundat. This plebiscitum
Roman citizenship, and consequently is sometimes called the lex Rubria, but
subsequent to the social war. M. this must be an error, inasmuch as we
Mazochi (1755) was of opinion that it find in one of its sections (article 20)
might be regarded as a pleblsclturn the expression Prcrfectusve ex lege
regulating the application of the leges Rubria, evidently referring to some
Julia et Plautla de ciritate (B.C. 00 other plebiscitum. The text of this
and B.C. 89). M. de Haubold, in his plebiscitum will be found in M. Blon.-
Chronology, places it in or about B.C. dean's Recueil antejustinien, p. 77.
S2
260 THE HISTORY OF ROMAN LAW.
decreed certain general rules to be observed in the constitution
and administration of municipes, at least in Italy. Cicero, in
one of his Epistolcs ad fam., refers to some of its provisions,
and it is from this letter that we fix the date of the lex Julia
municipalis at B.C. 4 1. 1 The text of this law is lost. Savigny,
not without reason, is of opinion that the articles inscribed on
the table of Heraclea concerning municipal regulations were
taken from the lex Julia municipalis.
314. Passing from the condition of towns to that of persons,
we observe analogous modifications :
Civis. This title, frequently granted to individuals, to the
inhabitants of a given town, or even of a given locality, at this
period was conferred upon the inhabitants of all Italy, including
Cisalpine Gaul. Even kings, with the sanction of Rome,
adopted it, preferring it to the style of king.
Latini, Italici, Coloni, Municipes. From the termination of
the social war the inhabitants of Latium and Italy enjoyed the
rights of Roman citizenship, both private and public, and day by
day became more closely identified with the Romans. The various
distinctions between persons was confined to the provinces.
Socii. Rome had- its allies as well as and before its subject
states. The Achaians had aided it in the overthrow of Mace-
donia, the king of Syracuse to drive the Carthaginians from
Sicily, the king of Numidia in the destruction of Carthage ; but
all in their turn fell under the yoke they had assisted to place
upon others. Their title of ally was either dropped altogether,
or became a meaningless expression. The subject kings placed
themselves under the protection of the senate, the consuls, or
of a successful general. Their kingdoms and their thrones
were divided, destroyed or taken at pleasure. Pompey and
Caesar regarded them as gifts at their disposal; and Antony
placed at the feet of Cleopatra the kingdoms of Phoenicia,
1 G\cc,ro,.A(lfamHiarcs,Y\\). vi. cp. 18: Qnarc bono animo sint ct tui et mci
" Simul (ac) accepi a Selcuco tuo lit- fainiliarcs : ncqiie enim erat ferendum,
teras, statini quaesivi a Balbo per codi- quum qui hodic aruspicinam facerent
cillos, quid esset in lege. Rescripsit cos in scnatum Roinaj legerentur, eos qui
qui facerent prseconium vctari esse in aliquando pneconium i'ecisscnt, in mu-
decurionibus : qui fecisscnt non vctari. nicipiis dccurioncs cssc non lic-ere."
THE IIISTO11Y OF KOMAN LAW. 261
Cyprus and Judiua, which lie had previously conferred upon
Herod.
Subjecti. This term includes the inhabitants of those pro-
vinces to which the concession before referred to had not been
made. The soil was subject to the vectigal, or annual rent-
charge, the person to tribute and to a multitude of other
burdens, heaped upon them indirectly, as a consequence of
their subjection to Rome, by the proconsuls, the lieutenants,
the quaestors and the publicans, who were let loose among
them, and who rapidly acquired wealth by the ever-increasing
oppression of the despoiled peoples. The pictures drawn by
Cicero, in his orations in support of the lex Manilla and in that
against Verres, and by Ctesar in his writings, give a terrible
view of these nefarious practices. The value of the respective
provinces was estimated, and calculations made as to the
amount that could be extorted from them in order that candi-
dates for their government might ascertain to what extent it
would serve their purpose to carry their bribery.
PUBLIC LAW (Jus pullicum).
315. The three political bodies are still the populus, the
senate and the plebeians. Between the two last there are the
knights, who, having greatly increased in number and wealth,
are frequently in conflict with the senators. But what had
become of and what was the influence of these bodies during
the civil wars? Amid the despotism of ambitious leaders,
and the oppression of military rule, they followed the fortunes
of parties and fell before the success of triumphant generals.
They were approaching the period when they would have to
recognize but one duty to obey. So, in speaking of legisla-
tive, of executive and of judicial power, if the inquiry is made
" What are the laws ?" ; it might be supposed that order and
political principle still prevailed ; but if this inquiry is followed
by another, "What are the facts?" ; the answer must be that all
order and principle were overthrown.
316. Legislative Power.- This power is still lodged in the
262 THE HISTORY OF ROMAN LAW.
comitia centuriata, the comitia tributa, and the senate; to these
should be added certain magistrates, whose edicts were law, at
least, during the term of their office.
During the period we have just considered, a remarkable
revolution took place in the composition of the comitia centu-
riata. Of this fact we have indisputable documentary evi-
dence, but what it was precisely, or the exact date at which it
occurred, we do not know. As by the transformation to which
the populus was subjected, the terms Ramnenses, Tatienses
and Luceres had ceased to be applicable to any section of the
populus, so by the fluctuations of wealth the standard imposed
by Servius Tullius for the division of the classes became of no
value. It is clear that figures, which represented the class
wealth of former years, had lost all application to more modern
institutions; and if we assume that changes had been made
from time to time to suit the altered condition of things, we
cannot suppose that those who had gradually extended the
influence of the comitia tributa would be content with the
continuance of a system in which the first class reckoned by
the money standard should contain within it almost as many
centuries, and consequently be almost worth as many votes, as
all the others put together. Livy and Dionysius, after describ-
ing the system of Servius Tullius, both tell us that it had
ceased to exist in their times. Dionysius says it had assumed
a more plebeian form ; J and we learn from Livy that the centu-
ries were formed from or distributed amongst the thirty-five
local tribes, the distinction, however, being preserved between
the seniores and the juniores. z From the date of the Punic
wars, changes had from time to time taken place in the desig-
nation of centuries of local tribes, whether seniores orjuntores; 3
1 Dionysins, lib. iv. 25. other interpretation.) Cicero, In Ver-
2 Livy, lib. i. 43. "Nee mirari rem, 2, lib. v. 15.
oportet hunc ordinem qui mine est, post 3 Livy, 24, 7 : " Qnum sors prsero-
cxpletas qninta et trigiiita tribus, dupli- gativae Anietisi juniorum exisset."
cato earum numero ccntnriis juniorum Ibid. 8. Prcco, " Aniensem junio-
seniorumque, ad institntam ab Servio rum in snffrapium revocn," 26, 22 ;
Tullio summam non con venire." (This " Praerogativa Veturia juniorum," 27,
is the principal document, and seems to 26; Galeria juniorum, quse sorte
indicate that each tribe formed two preerogativa erat." (Vide supra, 66,
centuries, the one seniores the other and note.)
junior et. It is however susceptible of
THE HISTORY OF 11OMAN LAW. 263
hence the confusion we sometimes meet with in the Latin
writers between tribes and centuries. 1
The points still doubtful are, 1st. Whether each local tribe
was simply divided into two centuries, the one seniores the
other junior es, making in all seventy centuries; or whether,
preserving in each local tribe a distribution into five classes,
they formed, following these classes, in each tribe five centuries
seniorum, and five centuries juniorum, making in all three
hundred and fifty ? 2nd. Were the twelve centuries of knights
maintained ? 3rd. Did the sex suffragia, i. e. the six centuries
of ancient Ramnenses, Tatienses and Luceres, also exist ? It
would appear from the evidence we possess, that the division by
classes in the local tribes and the twelve centuries of knights
remained. 2
317. The most important change that had taken place as to
matters of form was the adoption of secret voting. 3 Each
citizen received two voting tablets, the one for the affirmative,
having the letters U R. (uti rogas] ; the other for the nega-
tive, with an A (antiquo] written upon it. The barriers
within which the citizens, in tribes or centuries, were packed
(septa, ovilia)', the use of narrow bridges over which ihey
passed one by one ; the deep wicker basket into which each as
he passed dropped his vote ; the scrutiny and proclamation of
the result ; and, above all, the manoeuvres practised to secure
and even to purchase votes, when it was the question of an
1 Cicero, Pro Plancio, 20, 22; the appointment of magistrates; the
De lege agrarla, 2, 2. lex Cassia, tabellaria, B.C. 138, affect-
a Livy, 43, 16: " Qunm ex duode- ing the judgments in criminal prosecu-
cim centuriis equitum octo censorem tions, high treason excepted (perdiiel-
condemnassent, multrcque alioe primse lionis) ; a law of Papirius Cajlius Cal-
classis . . &c." (Case of Claudius, dus, B.C. 108, including high treason ;
colleague of T. Gracchus.) and finally the law of Papirius Carbo,
1 Cicero, De legibus, 3, 15, 16, 17, B.C. 92, as to the votes for the passing
discusses the relative advantages of of laws. It is however evident from
public audible voting and secret voting the same passages of Cicero that the
by means of tabellfe, and from his people were of opinion that the ballot
remarks upon the supporters of the was the guarantee of their liberty in
ballot, his strong aversion to it is ap- voting, to which Cicero assents, "Habeat
parent. The leges upon this subject sane populus tubellam, quasi vindicein
enumerated by him, and styled leges libertatis," provided that they acted
tabellarice, are four in number: the conscientiously.
lex Gabinia, tabellaria, B.C. 140, for
264 THE HISTOEY OF ROMAN LAW.
election, the decision in a criminal case, or the enacting of a law,
are worthy of consideration, and are in many respects not want-
ing in analogy with the practices of our own times.
318. The sources of legislation at this period are, as to
written law, leges, which had become more and more rare ;
plebiscite, which had been multiplied and almost superseded
the former ; senatus-consulta, which commence, though at first
rarely, to deal with points of private law, and which were
destined in their turn to take the place of both leges and ple-
biscita.
As to the lex non scripta, we have 1. The edicts of the
magistrates, 1 certain provisions of which, transmitted from year
to year, and confirmed by usage, became the customary law,
and supplemented the civil law, leading it in many cases from
the austerity of its first principles to conformity with those of
natural justice ; 2. The responsaprudentum, which, received by
the litigants, adopted by the judges, and repeated in analogous
cases, formed a second branch of the lex non scripta., and intro-
duced certain principles, maxims and modes of procedure.
Both of these were the result of the incessant efforts of science,
philosophy and civilization. In the words of Cicero, we can
recapitulate the sources of Roman law thus : " Ut si quis jus
civile dicat id esse quod in legibus, senatus-consultis, rebus
judicatis, juris peritorum auctoritate, edictis magistratuum.,
more, cequitate consistat. 2
319. Executive Powei Electoral Power. In principle these
two continued to remain in the same hands : the elections be-
longed to the populus and to the plebeians; administration to
the senate and to certain magistrates; the command of armies
1 The edicts of the magistrates are with his functions (lex anmia). They
ranked as lex non scripta, notwith- therefore differed widely from laws
standing the fact that they were written regularly enacted, and such only of
in albo, iibi de piano reetc legi possit; these edicts could be regarded as form-
because at the period at which we have ing a part of the customary law as had
arrived the edict was not, properly by custom been perpetuated and were
speaking, a law ; it was only obligatory considered by the praetors as continu-
for one year, it formed a part of the ously binding,
executive administration of the magis- 2 Cicero, Top., 5.
trate who promulgated it and ended
TOE HISTORY OF ROMAN LAW. 265
to the consuls, or, by a lex curiata, to proconsuls and pro-
pnutors. 1 In fact, however, money, intrigue or force carried
the elections. Each candidate brought to Rome his satellites,
his soldiers, and even entire towns that he had taken under his
protection. Certain citizens, by an illegal association, domi-
neered over all the political bodies, and in a certain manner
divided the entire empire between themselves ; governors of pro-
vinces rendered themselves independent of the senate ; generals
maintained themselves at the head of their armies ; consuls and
dictators ceased to be limited to the ancient term of office. 2
320. The lex Atinia, B.C. 130, conferred senatorial dignity
upon the plebeian tribunes, who thus were admitted to the
senate. Long before this, however, though not being senators,
they had arrogated to themselves the right to convoke the
senate (senatus habendi} ; 3 their right and practice of intercessio
had been established and largely extended. 4 In certain cases,
however, the tribunes, as well as the other magistrates, had by
law been prohibited from the exercise of this power (ne quis
posset intercedere) ; and the senate, about this period, drew up
the following formula. Qui impedierit,prohibuerit, eum Senatum
cxistimare contra rempublicam fccisse. 5 Sylla, B.C. 82, stripped
them of all the advantages they had gained, and reduced them
to their primitive auxilium, but under Aurelius Cotta, B.C. 76,
and especially under Pompey, B.C. 71, they recovered all that
had been taken from them by Sylla. 6
1 Military power could only be con- 4 See Aul. Gell. lib. vii. ch. 19.
fcrred upon a proconsul or a propraetor * Cicero, De provinciis consular.,
by a special law passed by tbe curies. 8; Ad familiar., lib. viii. ep. 8.
a Prior to Sylla no dictator had been 6 Cicero, De leg., lib. iii. 9 : " Vehe-
appointed for nearly one hundred years. mentor Sullam probo,qui tribunis plebis,
The senate in cases of danger had con- sna lege, injuriaj faciendac potestatem
tented itself with increasing the power adcmerit, auxilii ferendi reliquerit."
of the consuls for the time being, using And as regards Pompey : " De tribu-
the following formula : " Videant, or nitia potcstate taceo : nee enim rcpre-
Caveant consulex ne quid detriments hendere libet, nee laudare possum."
retmtblica capiat." J. Caesar, De hello drill, lib. i. 7:
3 Aul. Gell. lib. xiv. ch. 8: "Nam- " Sullam, nudata omnibus rebus tribu-
que ct tribunis, inquit (Atleius Capito), nitia potcstate, tamen intercessionem
plebis senatus babendi jus enit, quain- liberam reliquisse : Pompeium, qui
quam scnatorcs non csscnt, ante Ati- amissamrcstitnissevideatur, donactiam
nium plebiscituni." qua) ante habuerit adcinisse."
266 THE HISTORY OF ROMAN LAW.
321. The newly-created magistrates were the Tribuni
s&rarii, Triumviri Monitales, Triumviri Capitales, Quatuor-
viri Viarum, Quinqueviri, the two j^Ediles Cereales, Proconsul,
Legati, and the Qucestores Provincial.
322. Judicial Power. The praetors, now sixteen in number,
the centum virs, the decemvirs, the juges-jures or arbitrators,
and the recuperators, co-operated in the administration of jus-
tice, the praetors, as magistrates, having a jurisdiction; the
others simply as judges selected in each individual case ; the
sediles had also a tribunal and a jurisdiction.
323. Criminal Matters. The establishment of qucestiones
perpetuce, it is true, took out of the hands of the people a con-
siderable portion of their power in criminal matters ; but, on the
other hand, it removed the vague and arbitrary character of the
law, at least so far as those crimes were concerned for which
qucestiones had been instituted. As to these, the law, the
tribunal and the mode of procedure were fixed. No one could
be brought before one of these permanent tribunals except by
virtue of a lex, a plebiscitum or a senatus-consultum approved
by the tribunes, these enactments at the same time permitting
and regulating the mode of execution. Then came the ap-
pointment of the judges ; these were taken from a table pre-
pared once a year by the praetor, and by him affixed to the
Forum. The mode of selecting the judges as well as the num-
ber necessary was determined for each delict. As a general
rule the accuser made the selection : he drew up a list contain-
ing double the number necessary for the quastio ; the accused
then struck out one-half of the names. In certain cases the
judges were determined by lot, the accuser and the accused
having each the right to reject those that they disapproved- 1
The right to be inscribed in the list from which the judges
were to be selected was at one time confined to the senators,
at another to the knights, and at a third divided between the
1 Cicero, Ad Attic., 1, 16, 3, 4 and D.
THE HISTORY OF ROMAN LAW. 267
two orders, and at the period to which we now allude was
extended to other classes of the citizens. 1 Cognitio extraordi-
naria was the term applied to any investigation made by the
senate, the magistrates or the qucssitores that did not fall within
the scope of a qu&stio perpetua.
324. Civil Matters. The actiones legis had been almost
entirely suppressed, their use being confined to cases falling
within the cognizance of the centumviri. The formula system,
which had replaced the actiones legis, had ingeniously regu-
lated the application of a jury system to civil cases, retaining
the ancient distinction between jurisdictio anAjudicium. The
prsetors were the principal magistrates invested with the juris-
dictio. The unusjudex, the arbiter or the recuperatores had
for each case the judicium. The judges were taken from the
annual list. The tribunal of the centumvirs and of the decem-
virs, the origin and province of which are not clearly known to
us, had gradually been falling into decay since the adoption of
the formula system. In civil matters the term cognitio extra-
ordinaria or judicia extraor dinar ia was applied to those cases
where the magistrate himself determined the suit without send-
ing it to ajudex, arbiter or recuperatores.
325. In the provinces the proconsul, the propraetor and their
lieutenant, as magistrates invested with jurisdiction, and the
recuperators, as juges-jures, selected in a manner analogous to
that in vogue in the case of the juges-jures at Rome, adminis-
tered justice both civil and criminal. Sometimes, however,
the governor left to certain towns, especially in connection with
civil matters, the native tribunals.
326. Public Revenue and Expenditure. Up to the time of
Servius Tullius taxation consisted of a capitation arbitrarily
fixed, without regard to the means of the individual. After
the institution of the census, and the division into classes made
1 It must be remarked that any citi- in which case his goods alone were con-
zen who was accused of a capital offence fiscated.
was at liberty to go into voluntary exile,
268 THE HISTORY OF ROMAN LAW.
by Scrvius Tullius, this arbitrary tax was replaced as to those
inscribed in the five classes by one proportioned to the fortune,
the proletarii and the capite ccnsi being exempted altogether.
Those not enrolled in a tribe, and consequently not in a census,
but classed amongst the ararii, were, as heretofore, subject to
a poll tax arbitrarily fixed by the censor, and were bound to
provide for the pay of the soldiery and the maintenance of the
cavalry (CBS militare, CBS hordiarium}. Widows and unmarried
women, orphan minors, and consequently heads of families,
who were unable to take military service, were subject to this
capitation, as were also the ccelebes. When Rome, by its vic-
tories, had amassed the wealth of other nations, these imposts
for a long time disappeared, and in the year B.C. 168, after the
conquest of Macedonia, the citizens were freed from all direct
contribution. 1 From this time the public revenue was derived
from the rents of the public lands, the plunder of the enemy,
the tribute paid by the provinces, the profits arising from mines,
and the monopoly of salt, which belonged exclusively to the
state, certain port dues, and the fine of one-twentieth of the
value upon the sale or enfranchisement of slaves. Public dis-
bursements met the support of the troops, their pay, the ex-
penses of distant wars, the construction and maintenance of
public buildings and monuments, highways, aqueducts and the
distribution gratuitously made of grain to certain portions of
the community. When we picture these citizens in the public
places, stretching forth their hands to receive their share of the
public grain as a charity, when we see them streaming into
the circus to enjoy a gratuitous spectacle, it is not difficult to
realize the force of the words which represent all these debased
Romans as wanting nothing from their leaders but bread and
amusement. Magistrates were not at this time salaried, but
the proconsuls, the proprietors and their lieutenants had learned
how to enrich themselves by their office, if not at the expense
of the state, at least at that of the provinces.
1 Cicero, DC qfficiis, lib. ii. 22 : tantum in aerarium pccunije invcxit,
"OmniMacedonumgaza, qnaefuitmaxi- ut nnius imperatoris pneda finem
ma, potitus est Paullus (^Emilias) : attulcrit tributorum."
THE HISTORY OF ROMAN LAW. 269
Jus SACRUM.
327. The jus sacrum, although it no longer had the influ-
ence it formerly enjoyed over the jus civile, was nevertheless
still connected with the administration of the state. The
augurs, whose college since the time of Sylla had been com-
posed of fifteen members, still continued to consult the auspices,
and we find Cicero aspiring to the honour of becoming a member
of it. At this period the right of nomination to the college, as
also to that of the pontiffs, was vested in the comitia.
With the conquests of Rome the number of its deities was
multiplied, and at this period the divinities of all the nations it
had conquered were included in its theological system. The
practice was for a Roman general, when he had taken and
destroyed a town, to entreat its tutelary deities to abandon the
place and to go to Rome, where altars and a form of worship
were provided for them. Scipio did not fail to address this
prayer to the gods of Carthage, and the formula, which was
probably the same in all cases, has been preserved. " If there
is a god or a goddess who protects the Carthaginians and their
city, and thou, great god, who hast taken under thy protection
this city and its people ! I pray, I entreat, I conjure you to
abandon the people and the city, to quit their dwellings, their
temples, their worship, their walls ; to withdraw from them ; to
cast among them fright, terror, oblivion. Accompany me to
Rome, make our dwellings, our temples, our worship, our city,
thine own ; take the Roman people into thy protection, take
my soldiers, take me ; grant us knowledge and intelligence.
If thou wilt grant my prayer, I here vow to dedicate to thee
temples and sacred games !"
Jus PRIVATUM.
328. The development of civil law follows close upon the
increase of wealth, the expansion of territory and improvement
in manners ; and it was impossible that Rome, when it had ex-
panded into an empire, had accumulated wealth and advanced
in civilization, should have existed under the same system of
laws as suited it in the early days, when its territory was com-
270 THE HISTORY OF ROMAN LAW.
paratively small, its people poor and their manners rude. We
now find the system of the civil law of the time of the republic,
marked as it was with the hard lines of austere and imperious
power, yielding to principles more in accordance with the re-
quirements of civilized human nature. The interchange of ideas
between the Roman and foreign nations caused the introduc-
tion of laws of more general application, but there was a kind
of inconsistency, an incongruity within the system itself, which
becomes more and more marked as time goes on. Whilst the
edicts of the praetors, the responsa prudentum and the works of
the jurists were incessantly leaning towards the principles of
natural equity, the primitive system of law, founded on a basis
in which those principles were entirely disregarded, was still
retained. And it presents the curious anomaly of principles
most rigorous in their character and extraordinary in their
nature, amalgamated with words, distinctions and hypotheses
which served as means to evade them.
329. Persons. The various powers exercised over slaves
and children had assumed the name of potestas ; that over
women, manus ; that over free men acquired by mancipation,
mancipium. These powers were, however, beginning to be con-
siderably modified. The potestas over slaves indeed remained
the same, although their number and their actual position were
very much changed. The paternal power (patria potestas} had
been very much weakened. The marital power (manus} had
almost entirely disappeared. Of the three ways of acquiring it,
the coemptio was now seldom used; confarreatio was confined
to the pontifical class; and usage (usus} appears to have been
no longer practised. The power over freemen bought or given
away aspi'operty, mancipium, hardly existed except as a fiction;
and in cases where this power was still exercised it was con-
siderably modified. Gentilitas, in consequence of the disap-
pearance of clients, of the extinction of old families, and of the
incessant addition of superstrata of population, had already
become very rare. Blood relationship, cognatio, was beginning
under the praetors to have some effects and to give rise to some
bonds and obligations. The perpetual tutelage over women
THE HISTORY OF ROMAN LAW. 271
was almost abolished; the tutor interfering only in the most
important acts, as a matter of form and without having the
power of refusing his authorization, unless, indeed, he hap-
pened to be one of the agnates; but women had found the
means, by a fictitious sale, 1 of escaping the tutelage of these
agnates.
330. Things and Property. The term mancipium, formerly
given to property at the period when violence was the means of
acquiring it and the lance was its symbol, had been modified.
Property was now, as it were, centred in each family; the
chief alone enjoying an individual personality, alone possessed all
rights over it ; but the children under his power, who could
hold nothing individually, were all, as it were, co-proprietors
with him. Property was considered as something belonging to
the dominus and his family in domo ; whence its new name
dominium. This however was no longer the sole form, of pro-
perty. Parallel with it the law had brought into existence a new
form. Res were either in dominio or in bonis. The dominium
was Roman ownership dominium ex jure Quiritium. In bonis
was the new form introduced by the prastor, but for which no
exact term exists. This Avas a species of natural property,
called by the commentators dominium bonitarium, an expression
which is not in itself Roman. This division of property exists
side by side with the division into res mancipi and res nee
mancipi. The classification of things under the head res
mancipi, as has been already stated, was unalterable.
331. Wills. Interpretation and custom had much restricted
the absolute rights of the father of a family. If he should
wish to disinherit his children, he must now formally declare his
wish, which was called exharedatio, otherwise his will was in
some cases altogether void, or, in others, void so far as to pre-
1 Women, by a simulated sale, per renta, 121 and 125, the agnates lost
<psetlibram(coemptio), feigned to pass their right, and their tutelage ceased,
under the power, in manu, of the pur- This is a case in which they used the
chaser. And as they then got out of procedure of the ancient law to evade
their family, as we have shown when the law.
speaking of the woman in manu con-
272 THE HISTORY OP ROMAN LAW.
vent the children from participating in the inheritance. It
was also necessary that he should be actuated by a just motive,
otherwise his will might be impeached before the centumvirs
under the fiction of insanity, as being contrary to the dictates
of nature, testamentum inofficiosum. 1
332. Successions. The civil bonds, agnatio and gentilitas,
were now no longer the only ones that gave rights of succession.
The praetor, whose duty it was, in order that the law might be
carried out, to deliver up to the heir the possession of the
property of the deceased, contemplated making that possession
a kind of praetorian inheritance, bonorum possessio, which was
often given to persons to whom the inheritance was refused by
the civil law. 2
Thus he granted the possession of the property to the eman-
cipated child ; sometimes to the adopted child, although no
longer in the family ; so, when there was neither heir proper
nor agnate, instead of giving possession to the public treasury,
he delivered it up to the nearest cognate.
333. Obligations and Contracts. The number of contracts,
or binding conventions, was increased. The nexum, by which
a man bound himself, had been transformed and had given
birth to other contracts. It was replaced by the four civil
contracts made re, that is to say, by the delivery of the thing ;
mutuum, that is to say, the loan of things consumed in the use,
termed fungibiles , and which were to be returned in kind ; com-
modatum, the loan of a thing to be used and returned according
1 " Hoc colore quasi non sana? mentis them of their rights by a formal decla-
fuerint cum testamentum ordinarent," ration of his intention so to do.
say the Institutes, lib. ii. tit. 18, pr. 2 This is an instance where, with the
This affords an illustration of a case in help of one word, they changed the
which one ground of nullity, which did ancient law, whilst appearing to respect
not exist under the ancient law, is assi- it. They did not give to the child the
milated to a ground of nullity which inheritance, or the title of heir, because
did actually exist. In the same way the civil law refused them to him ; but
the necessity of exlifcredatio is derived they gave him the possession of the
by the jurists from the civil-law prin- property, bonnrum, posscssio, the title
ciple of the co-ownership of a family; of possessor, which, under the praetorian
the children being, as it wcro, co-pro- system, came to nearly the same thing
prietors of the family patrimony, the in other words,
head of the family could only deprive
THE HISTORY OF ROMAN LAW. 273
to the terms of the agreement ; depositum, a simple bailment ;
pignus, a bailment or loan by way of pledge.
The stipulatio, which was the first offshoot from the nexum
the ancient Quiritariaii formula expressed by the terms spondes ?
spondeo, which were exclusively applicable to citizens was ex-
tended and made applicable to all by the substitution of the
terms " promittis ? promitto" and other similar expressions.
To this first derivative of the nexum must be added a second,
the contract litteris, or the expensilatio, which, exclusively
appropriated to the citizens in certain forms, had also been,
with the help of certain modifications, extended to foreigners.
Lastly, the civil law had admitted four contracts under the jus
gentium, depending entirely on the exercise of the will, and in
which obligations are produced by consent alone : the sale,
emptio venditio ; hiring, locatio conductio ; the mandate, man-
datum; and partnership, societas. The praetor, moreover, had
recognized as obligatory some of those conventions, which,
according to civil law, produced no obligation nor action when
they were not accompanied by stipulations. Those conventions,
not obligatory, named in general pacts, pacta, although not
conferring an actio, received, however, from the jurists and
praetorian influence, certain effects which were deemed inci-
dental to natural obligations ; and, having received praetorian
sanction, were called and recognized as praetorian pacts. In
the same way the jurists, under praetorian influence, in addition
to the acts classified as delicts by the ancient civil law, recog-
nized others, such as deceit, violence, taking, as also giving
rise to obligations. So that, in brief, they had begun now to
distinguish three classes of obligations: the civil, the praetorian
and the natural.
334. Actiones. The procedure in the actiones far/is, abolished
by the lex ^/Ebutia and by the two leges Juliee, was replaced
by the formulary system. The actiones legis, however, were
still preserved in tAvo cases, one of which was the case where
the action lay before the centumvirs. The word actio had
notably changed its signification. It no longer designated
T
274 THE HISTORY OP ROMAN LAW.
a modus operandi. Each right gave rise to its appropriate
action.
The actio was the right to enforce a claim, conceded in
general by the law, either civil or praetorian, and obtained
chiefly from the praetor in each individual case. In many
cases where the civil law gave no action, although equity or
expediency seemed to require it, the praetor permitted actions
called honoraria actiones : and universally in cases where the
strict law gave actions contrary to equitable principles, the
prastor granted the means of repelling them, which were called
exceptiones, and which were in fact simply restrictions engrafted
by him in the formula, regulating and placing restrictions upon
the judge as to the decision at which he should arrive. 1
335. This is the date which has generally been considered
to be the commencement of the most flourishing epoch of
Roman law. While, on the other hand, if we take the words
" Roman law" to signify " Quiritarian," or primitive law, we
must trace from this epoch the commencement of its decay.
And it is apparent at once, from the rapid sketch we have
given, that the simple and rude legal system of the earlier days
of Rome had disappeared, although the main principles of this
system were still recognized. Every day witnessed the intro-
duction of some fresh modification, which was rendered neces-
sary by the advance of civilization and ever-growing improve-
ment in the manners of the people. Law had begun to de-
velope into a science, closely bound up with the principles of
natural equity ; but it is true that it had one great defect, in
that it contained two opposing elements. There were the old
fundamental principles of the early system co-existing with the
decisions of more recent times and the new institutions to which
they were giving rise. Thus the civil law was placed in anta-
gonism with the praetorian law, and the principles contained
1 This is another instance of an in- The civil law gave it, and he would not
genious method of correcting the an- allow himself to repudiate that law, but
cient law. When an action was con- he in fact rendered it useless by creating
trary to natural equity, the pnetor did an excejrtio, which was a means of
not declare that he abolished it, nor defence against the attack {actio).
did he prohibit it from taking place.
THE HISTORY OF HOMAN LAW. 27o
in the response, prudentum ; and hence came those ingenious
and subtle subterfuges designed to apparently reconcile real
inconsistencies.
It must be confessed, however, that when once we admit the
existence of these contradictory elements, it is impossible not
to recognize the ingenuity, the ability and the judgment which
was evinced by the jurists and the praetors in harmonizing
them.
In fact, if we regard the question on general principles, apart
altogether from Rome and Roman history, and look at the
system only as it bears upon the common instincts of human
nature, we cannot but admit that the changes alluded to were
symptoms of progress and improvement, and the worthy pre-
cursors of a vast system of scientific jurisprudence which was
destined one day to influence the whole civilized world. If
we regard the question, on the other hand, from a historical point
of view, estimating the laws by the manner in which they
affected the people who made them for themselves, and taking
into account also the peculiar character of that people and of
their institutions, w r e are forced to admit, that it was the rigid
cast-iron legal system which had made the republic what it
was, and that, when one fell to pieces, the other disappeared
with it.
MANNERS AND CUSTOMS.
336. It is obvious that, when the political institutions and
the civil law of a state undergo great modifications, the national
habits, manners and mode of thought which gave rise to those in-
stitutions and laws must have also undergone a great change. It
is scarcely necessary, however, to describe the habits, manners and
modes of thought which succeeded. But there are two customs
in particular which deserve attention. 1 Men of consular dig-
1 It may not, perhaps, be useless to therefore they were generally written
give an idea of the way in which the only with the initial letter. The eldest
Romans designated persons: 1st. The son took that of the father ; the daugh-
pre-name, prcenomen, served to distin- ters in general did not bear any; they
guish the various members of the same were distinguished in the family by the
family; the Roman language did not epithets of major, minor, prima, se-
coutain a great number of them, and cunda, tertia, and so on. 2nd. The
T 2
276 THE HISTORY OF ROMAN LAW.
nity, the first magistrates of the republic, used to appear before
the judges to plead the causes of the citizens in public, their
presence having considerable influence in the determination of
the cause, particularly in matters of a civil or criminal character
affecting the state. The other practice had no connection with
the law, but it was not on that account less remarkable ; it
was the astonishing facility with which the Romans of these
later times used to commit suicide. On the defeat of a party,
the chiefs would either put an end to their lives with their own
swords, or solicit a friend to destroy them. Thus perished
Scipio, Cato, Cassius, Brutus, Antony to cite only the most
illustrious names. Montesquieu, in his usual facile style, sug-
gests several reasons for the practice ; it appears to me that
there is one sufficient reason to account for it, and it is this.
In the earlier days, when the consuls fought for the republic, if
they were vanquished, the republic still lived, and they lived
with it. But when leaders fought only for a party, if they
failed, they failed altogether, and there was nothing left to
them ; their party was annihilated, and they were crushed with
name, nomen, which came after the and Asiatics s the particular surname
former, belonged to the whole race. of each of the brothers.
It was applied to the daughters in the The adopted took the name of the
feminine gender. 3rd. The surname, adopter, and preserved that of his for-
cognomen, was a kind of epithet, given mer family, transformed into an adjec-
on the occasion of some great deed, tive, thus ; Ccrsar Augustus was styled
or in celebration of some brilliant sally Octaviamis, because being the son of
of wit, or in consequence of some pe- C. Octavius, he had been adopted by
culiar charm of person, or else some the will of J. Csesar.
deformity. Sometimes the cognomen Married women added to the name
remained in the family of the man who of their family that of their husband,
had borne it first, and in such cases, in in the genitive case, as a mark of their
addition to that general surname, the dependance. Thus Caljj urn iaAntistii,
various members could bear a second Calpurnia wife of Antlstius, the lady
surname personal and peculiar to them; who swallowed hot charcoal when her
this second surname is called by some husband had fallen a victim of the party
authors agnomen. Thus in the desig- of Marias.
nation of the great pontiff App. Claudius Slaves never had more than one name,
Csecus, we find the pro; nomen Appius, as Stichus, Geta, Duetts; when once
the nomen Claudius, and the cognomen they were freed, they joined to it the
Ca3cus. In the family of the Scipios, prccnomen and the nomen of their
we have P. Cornelius Scipio Africa- patron. In this way Terence, whose
nus, L. Cornelius Scipio Asiaticiis; name as a slave we do not know, took,
here Publicus and Lucius are the pr<e- upon gaining his freedom, that of his
nomlna of the two brothers, Cornelius master, P. Terentius, which he has
the nomen of the race, Scipio the gene- transmitted to posterity,
ral cognomen of the family, Africanus
THE HISTORY OF ROMAN LAW. 277
it. And, we may observe, that this practice came in with the
civil wars and the proscriptions, and those who died by their
own hand were in reality men condemned to death, who killed
themselves to escape an ignominious end. 1 It was necessity
that made suicide a point of honour.
1 There was no hope of escape for an asylum anywhere, it would only be
these men, for the power of their con- to meet the fate of Pompey and his son
qnerors extended over the whole of the Sextus.
then known world; and if they sought
278 THE HISTORY OF ROMAN LAW.
THE THIRD EPOCH.
THE EMPERORS.
I. FROM THE ESTABLISHMENT OF THE EMPIRE TO
CONSTANTINE.
B.C. 31. CAESAR AUGUSTUS (Casar Octavianus, Augustus
cognomine).
337. AFTER the battle of Actium and the triumphs which
followed, Caesar Octavius, instead of proclaiming at once that
the republic was overthrown, and that one man would henceforth
rule over the empire, proceeded step by step to make his way
to supreme power. " Sylla, a man of violence," says Montes-
quieu, "led the Romans by violence to liberty; Augustus, a
crafty tyrant, led them gently to servitude." He gained over
the soldiers by liberality, his enemies by clemency, and the
Romans generally by extravagance and by gratifying their love
for public spectacles. The stormy period of the civil wars was
followed by a period of tranquillity and the revival of the fine
arts; and it was in the midst of a crowd of rhetoricians, poets
and historians that the power of Augustus increased day by
day. It seemed as if both the senate and the people riveted
their own chains more firmly each succeeding year. The former
conferred on Octavius the title of " Imperator" in perpetuity, 1
confirmed all his acts, and swore obedience to him. This was
in B.C. 29. Two years later it decorated him with the title of
1 This was an ancient and honour- joy with which they greeted him on a
able military title, derived from the successful field. More than one person
Oscan language, and is still to be seen could bear the title at the same time,
on the old Oscan coins, spelt according and it conferred no particular authority,
to the early system of writing, now ob- (Tac., Ann., 3, 74.) It afterwards
solete, embratur. It was given by the came to designate the supreme chief
Roman soldiers by acclamation to a ruler of the state,
victorious general in the transport of
THE HISTORY OF ROMAN LAW. 279
" Father of his country " and of " Augustus," a term heretofore
confined to sacred things. It confirmed the supreme power in
his hands for ten years, and made over to him, as his own, the
finest and most important provinces of the empire, provincia
Ccesaris, reserving for the people, as provincice populi, the
provinces which were the most quiet and submissive. This was
in B.C. 27. Four years later the people conferred on Augustus
the power of the tribunes in perpetuity, as also in perpetuity
the proconsular power, B.C. 23. Four years later the consular
power in perpetuity. Two years later, B.C. 17, the senate
renewed the ten years' term of absolute pow r er, and four years
after that it gave him the title of Pontifex Maximus, formerly
enjoyed by the kings, and entailing the duty of presiding over
the public worship, B.C. 13. It was thus that, without appear-
ing to subvert the magistracies of the republic, Augustus an-
nulled them by accumulating their functions in his own hands,
and by thus grasping the whole of them he acquired absolute
sovereignty.
338. There were still, however, consuls, 1 proconsuls, praetors,
tribunes, who were appointed as colleagues to the emperor, to
whom they were immediately subordinate. Those candidates
who were nominated by the emperor were certain of election.
Augustus did not fail to keep these offices in his family, confer-
ring them on his nephews, sons-in-law and grandsons even when
they were scarcely adults. But to complete the new system
then in its infancy, it was necessary that the new dignitaries
should be appointed by the emperor, be attached to his fortunes
and dependant on him ; and therefore we find several new offices
springing up under Augustus, which were destined to be more
or less developed under his successors, the legati Ccesaris,
the procuratores Ccesaris, the prcefectus urbi, the prcefectus
prcetorius, the qucestores candidati principis, the prcefectus an-
nonarum and the prcefectus vigilum.
1 As the consuls were in fact deprived they had enjoyed in former times was
of the general direction of the state, restored to them, and they shared with
which the emperor had taken on him- the praetor some functions of criminal
self, a portion of the jurisdiction which jurisdiction.
280 THE HISTORY OF ROMAN LAW.
SECTION LVIII.
LIEUTENANTS OF THE EMPEROR (Legati Ceesaris).
339. The provinces, as we have already shown, were divided
between the people and the emperor. That portion of them
which was considered as more especially belonging to the
people (provincicB populi) was governed, as formerly, by the
consuls and by the prastors after leaving their office. The revenue
derived from them, and paid into the public treasury, was called
stipendium. The others were the property of Caesar (provincice
CcBsaris], and the revenue derived from them was called tri-
butum.^ They were administered by officers appointed by the
prince, legati Ccesaris. There were, however, some distinc-
tions between the privileges and powers enjoyed and exercised
by the proconsuls and by the legati Ccesaris, the principal of
which was, that as the emperor was the commandant of the
army, and as he had reserved to himself the provinces most
liable to disturbance, or the frontier provinces in which, or
from which, it was necessary to make war, his legati were mili-
tary officers wearing the military insignia and costume, and
commanding soldiers ; whereas the proconsuls of the senate
were only civil magistrates without military command. The
emperor had the army under his control. But each of these
functionaries was styled prases provincial
SECTION LIX.
PROCURATORS OF THE EMPEROR (Procuratores Ccesaris}.
340. The treasury, like the provinces, was divided into
two parts one for the public, cerarium, the other for the
prince, Jiscus.
1 Gai., Instlt., 2, 21. also to depute into that province a
* Dig. 1, 16, De officio proconsulis functionary whose duty it was to ad-
et legati; ib. 18, De officio pr/vs'idis. minister justice, in concert with the
The government of Egypt ranked above president ; he bore the name oijuridi-
that of all the other imperial provinces; cits per JEgyptum, juridicus Alexan-
the lieutenant there had a particular dritc. Dig. 1, 17, De officio prafecti
title, pr&fectus augustalis. They used augustalis; ib. 20, De officio juridici.
THE HISTORY OF ROMAN LAW. 281
In order to secure his own interests and to manage the pro-
perty which constituted his peculiar domain, Augustus ap-
pointed to the provinces a steward or agent a functionary
who filled somewhat the same position as the quaestors, only
the latter were not employed in the imperial provinces. These
officials, procuratores, ought not to be classed as magistrates,
for they were merely the agents, so to speak, of Caesar ; and,
accordingly, they were at first selected solely from the freed-
men. But under a system where the emperor is all in all, his
agents are important personages, and the procuratores Ccesaris
acquired afterwards an important administrative position, were
empowered to adjudicate on all questions connected with the
Jiscus, and sometimes even replaced the presses provincial
SECTION LX.
THE PREFECT OF THE CITY (Prcefectus urbi).
341. From the most remote period of Roman history, we
frequently meet with mention of the prcefectus urbi. It was
the duty of this functionary when the king, and afterwards the
consuls, went away at the head of the army, to remain in
Rome, to protect the city and preside over the administration.
Augustus made this office permanent. The prcefectus urbi
was, in concert with the consuls, to try certain criminals in
extraordinary cases ; he exercised also some of the functions
formerly belonging to the cediles curules. The increase of his
powers kept pace with those of the emperor, and we shall find
him at last invested with almost entire criminal jurisdiction,
and superior to the praetors. There was, however, no prsefect
except in Rome, and his powers were restricted to the narrow
limits of the urban jurisdiction, and did not extend beyond
a radius of a hundred miles around the city. 2
1 Dig. 1, 19, De officlo procnratoris * Dig. 1, 12, De officlo prcefecti iirbi.
CcB&aris, vel rationalis.
282 THE HISTORY OF ROMAN LAW.
SECTION LXI.
PRJSTORIAN PREFECTS (Prafecti Pratorio).
342. Augustus raised for himself a body of troops called
prastorian guards, who were soldiers exclusively attached to the
person of the sovereign. At their head were two knights,
styled praetorian prsefects, in imitation, so says a fragment of
the Digest, of the ancient dictators, who were in the habit of
appointing a magister equitum. The number of these praefects
varied at different times. Their status and office was at first
purely military, but under succeeding emperors they acquired
in addition civil powers, and eventually retained these alone.
The illustrious jurists, who at a later period held this office,
shed that lustre upon it for which it is so remarkable. 1 His-
torians derive them from the celeres, or guards of Romulus.
SECTION LXII.
QlLESTORES CANDIDATI PRINCIPIS.
343. These were functionaries differing from the quasstors
charged with the administration of the treasury, whether in
Rome or in the provinces. They were created by Augustus for
the purpose of reading aloud in the senate the despatches which
the emperor addressed to that body, and all the transactions
which he thought proper to communicate to it. 2
SECTION LXIII.
THE PR^EFECTUS ANNONARUM.
344. The title of this official is sufficient to indicate his
functions as connected with the supply of provisions ; he was
subordinate to the prcefectus urbi.
1 Dig. 1, 11, De officio pr&fecti 2 Dig. 1, 13, De officio qu&storli.
prcetorio.
THE HISTORY OF ROMAN LAW. 283
SECTION LXIV.
PREFECT OF THE NIGHT GUARDS (Pr&fectus viyilum).
346. The duty of securing public tranquillity during the
night had formerly been entrusted to five magistrates, called the
quinque viri, to whom we have already alluded. 1 Augustus told
off for that duty seven cohorts, each commanded by its tribune,
and distributed about the city, so that each had two districts
to protect, which shows that Rome was divided into fourteen
districts. To superintend all those cohorts, a special magis-
trate, prcefectus vigilum, was created, whose business it was to
make nocturnal rounds, to prescribe to the inhabitants all the
precautions necessary to prevent fires, and to punish breaches of
his law. In addition to which, he exercised jurisdiction over,
and took cognizance of, certain offences connected with the
public safety, such as robberies with housebreaking, and thefts
committed in the baths. When, however, the crime was such
as to be amenable to a heavy penalty, the prcsfectus vigilum
was required to send the case before the prcefectus urbi. z
346. All these imperial offices, as they came into existence,
superseded by degrees the republican magistracies. Several of
the latter disappeared entirely ; some remained only in name ;
a few, such as that of the prsetors, partially retained their
importance, and the absolute power of the emperor was erected
amid new institutions w r hich it had itself created, and which
contributed to its support. This remarkable change in the
administration corresponds with that which took place in the
department of the legislature.
Under the influence of the imperial will, not only did the
senatus-consulta acquire more extensive proportions and more
frequently determine points of civil law, but the emperor him-
self adopted the practice of promulgating his own orders, and
gave to them the force of law under the name of constitutiones.
1 Vide supra, 222, note 2. * Dig. 1, 15, De officio prcefecti
vigilum.
284 THE HISTORY OF ROMAN LAW.
SECTION LXV.
THE SENATUS-CONSULTA : THEIR EFFECTS UPON THE
Jus PRIVATUM.
347. The commencement of the transfer to the senate of
legislative power, so far as regarded the jus privatum, has been
ascribed to the time of Tiberius, on the faith of a passage in
Tacitus. When speaking of the reign of this emperor, he says :
" Then, for the first time, the comitia were transferred from the
field (of Mars) to the Senate (e campo comitia ad patres trans-
lota sunt}." But Tacitus is only alluding to the election to the
magistracies. Suetonius has made use of analogous and still
more emphatic expressions about Julius Csesar : comitia cum
populo partitus est ; which, however, merely indicates that the
elections to all the magistracies, except those of the consuls,
were made one-half by Cassar and one-half by the people.
Tacitus adds : " The people did not complain of this usurpation
of its powers except by empty murmurings ; and the senators,
relieved from the necessity of buying or begging the suffrages
of the electors, were thankful to Tiberius for the moderation
he exercised in recommending only four candidates." 1 This
practice of the emperor officially nominating persons to office
commenced with Julius Caasar. But while electing himself
one-half only of the candidates, he left the other half to be
elected by the people, and distributed, as Suetonius informs us,
tablets with the following words upon them : " Cassar, dictator,
to such a tribe : I recommend to you N. or M., that he may
receive the honour of your votes." 2 These recommendations
then " from Cassar to the tribes," " from Tiberius to the senate,"
can refer only to the appointment of officers and not to legislative
acts. We have already shown how, speaking for his own times,
1 Tacitus, Annales, 1, 15: "Turn consulatus competitoribus, de cetero nu-
primum e campo comitia ad patres mero candidatorum, pro parte dimidia
translata sunt. . . Neque populus quos populus vcllet pronunciaretur, pro
ademptum jus qusestus cst, nisi inani parte altcra, quos ipse cdidisset. Et
rumore : et Senatus, largitionibus ac pre- edebat per libellos, circum tribus missos,
cibus sordidis exsolutus, libens tenuit, scriptura brevi : ' Crcsar, dictator, illi
moderante Tiberio, ne plures quam tribui: Commando vobis ilium et ilium,
quatuor candidates commendaret." ut vestro suffragio suam dignitatem
2 Suetonius, Julius Ca-sar, 21 :"Comi- teneant.' "
tia cum populo partitus est ; ut cxceptis
THE HISTORY OF ROMAN LAW. 285
Cicero reckoned the senatus-consulta among the sources of civil
law ; and how a few, although only a few, can be cited belonging
to the time of the republic which had reference to the jus pri-
vatum. 1 There are, however, a few also bearing on the jus priva-
turn which can, it is thought, without precise proofs, be attributed
to the epoch of Augustus: such are the senatus-consultum on the
usufruct of perishable goods, and the senatus-consultum Sila-
nianum, both of uncertain date ; two under Tiberius ; a greater
number under Claudius, among which are the two famous
senatus-consulta Macedonianum and Velleianum ; and still
more under Nero, among wlu'ch are the senatus-consulta Tre-
bellianum and Neronianum. This form of enactment con-
tinued to be applied under succeeding emperors to important
questions of the civil law, and has produced great and im-
portant materials for the study of this law. Pomponius, under
Antoninus Pius, and Gaius, under Marcus Aurelius, declare
the authority of the senatus-consulta completely established. 2
Gams, after having said " Idque Icgis vicem obtinet" adds this
observation : " Quamvis fuit qu&situm," which has reference,
no doubt, to the times anterior to the empire, when the jurists
must have asked themselves whether the senate had the power
thus to quit its execiitive and administrative sphere in order to
regulate, with the authority of the lex or of the plebiscitum,
matters which had reference to the jus civile privatum.
348. This power was no more conferred upon it by a formal
act under the emperors than it was in the time of the republic.
In the early times of the empire, the project of the enactment to
be submitted to the comitia was, by a fictitious imitation of the
ancient system, presented to the senate by the emperor in virtue
of his consular or tribunitian power ; and the senate having given
its auctoritas, it Avas carried as a royatio to the tribes. Several
plebiscita indeed belong to the imperial era ; those of Augustus
and of Tiberius, for instance, are well known. On several occa-
1 Vide supra, 287 ct seq. consultum." Gains, Instit., comm. 1,
3 Dig. 1, 2, De orig. jur., 2, 9, fr. 4 : " Senatus consultnm est quod
Pompon.: " Ita cocpit senatus se inter- senatus jubet atque constituit : idqne
ponere ; et quidquid constituisset, obser- legis vicem obtinet, quamvis fuit qua:si-
vabutur: idque jus appellabatur senatus- turn."
286 THE HISTORY OF ROMAN LAW.
sions, which became more and more numerous, the progress of
imperial institutions caused the assembly by tribes to be given
up, the rogatio to be set aside, and the senatus-consultum to be
passed upon the mere proposition of the prince, epistola, oratio
principis. Then the language becoming corrupted as well as
the institutions, the assemblies of the senate came to be called
comitia, and the senatus-consulta, leges. 1 A sign of the en-
croachment of the senatus-consulta on the civil law is the name
which, in imitation of the leges and of the plebiscita, these
enactments had begun to take, whether from the emperor or from
one of the consuls in office, sometimes even from some other
individual, as, for instance, in the senatus-consultum Mace-
donianum. It is, however, to be remarked that the termina-
tion ianum was specially reserved for them.
349. The series of senatus-consulta affecting the jus priva-
tum continued, during the imperial era, to run for about two
centuries, till the time of Septimius Severus. After this date
there is a degree of uncertainty whether there were any, and, if
any, to what date they are to be ascribed. For a long time,
however, we may set it down as a principle, as Ulpian remarks,
in the time of Caracalla, " non ambigitur Senatum jus facere
posse" 2 It is not difficult to account for this. In proportion
as the form which the legislation took in the senatus-consultum
acquired strength and permanence, by being frequently em-
ployed, the plebiscite diminished in number, and soon disap-
peared; and in proportion as the imperial constitutions increased
in number and in power, the senatus-consulta, in their turn,
became more rare, and they, in their turn, at last ceased : the
abstract principle of the authority, in each case, still remaining
in the law.
1 Thus, J. Capitolinus (JIarc. Ant. dixisset, Nllnl ros moramur, patres
pliilos.,% 10), speaking of the assiduity conxcripti." Thus Gains (Instit., com.
of Marcus Aurelius at the sittings of 1, 86) says, " Ilia pars ejusdem legis"
the senate, expresses himself in these speaking of the Senatus-consultum
terms: " Co w.# m proeterea etiam usque Claiidianum.
ad noctem frequenter interf uit : ncque 2 Dig. 1, 3, DC legib. senat., 9, fr.
uuquam recessit de curia nisi consul Ulp.
THE HISTORY OF ROMAN LAW. 287
SECTION LXVI.
CONSTITUTIONS OF THE EMPEROR ( Constitutiones principum).
350. Tliis is the last and was destined ultimately to be the
only source of law. The generic name of " Constitutiones"
embraces all the acts of the emperor ; but they must be divided
into three distinct classes: 1st, the general ordinances spon-
taneously promulgated by the emperor (edicta) ; 2nd, the judg-
ments rendered by him in cases which he decided in his tribunal
(decreta) ; 3rd, the acts addressed by him to various persons,
as, for example, to his lieutenants in the provinces ; to the in-
ferior magistrates of the city ; to the prastor, or proconsul, who
interrogated him on any doubtful point of law ; to private in-
dividuals, who petitioned him in any circumstance whatever
(mandata, epistolce, rescripta). 1 Of these constitutions some
were general and had universal application ; others were par-
ticular, and only had reference to the cases and to the persons
to which they were addressed. But here two questions require
consideration : at what epoch did the imperial constitutions
take their rise, and upon what authority were they based ?
351. Some writers date their rise from the epoch of Adrian,
on the ground that, before that time, the law appears to have
been dependant entirely on plebiscita and senatus-consulta.
The most ancient constitution that we meet with in Justinian's
collection does in effect belong to the time of Adrian ; but
everything goes to show, and it is generally agreed, that the
origin of the constitutions must be ascribed to an earlier period,
even as far back as the time of Augustus. Augustus had
lieutenants to whom he delegated (mandabat] a portion of his
authority in the imperial provinces immediately subordinate to
him and independent of the senate ; and it would clearly be his
duty to give these officers instructions. That he frequently did
1 Gains, Instit. 5 : " Constitutio scriptionem statuit, vel cognosccns de-
principis est quod imperator decreto, crcvit, vel dc piano interlocntus est, vel
vel edicto, vel epistola constituit." edicto prsecepit, legem esse constat.
Dig. 1, 4, De r.onstitutionibus princi- haec sunt qnas vulgo Constitutiones
ptim, 1, 1, fr. Ulp : " Quodcunque appellamus.''
igitur imperator per epistolam et sub-
288 THE HISTORY OF ROMAN LAW.
so is matter of history. This, then, accounts for the exist-
ence of mandata. Again, it frequently happened, that private
individuals appealed to Augustus or solicited his protection
and favour. To such applications and petitions he would neces-
sarily send replies. Hence came rescripta. Long before the
time of Adrian, the emperor had exercised authority in judicial
matters. Sometimes in his tribunal in the forum he would as
magistrate, in virtue of the powers vested in him, appoint a
judex, and organize a suit according to the usual forms, or he
would pronounce a decision himself extra ordinem. At others,
in the exercise of his power as tribune, he would, upon the
appeal made to him (C&sarem appello\ suspend the order of
a magistrate or the sentence of a judge, and terminate the
matter by deciding it himself. Again, under exceptional cir-
cumstances, civil and criminal cases would come before him.
Suetonius tells us, speaking of Augustus and Domitian, that
they diligently performed their judicial duties ; and we may
gather from history, that they exercised herein very superior
and altogether exceptional powers. Augustus sometimes trans-
acted business of this nature at night, regardless altogether of
the sol occasus of the Twelve Tables; at other times, regardless
of the constitutional restrictions which made the forum the
proper place for such transactions, he chose to perform them at
his own residence, or else he would have a couch brought into
court and recline upon it while exercising the judicial office. 1
Dion Cassius (iv. 4) notices the same feature in Claudius,
and Tacitus (Ann., iii. 10) describes how, after the death of
Germanicus, the consuls, the accuser and the accused, all be-
sought the Emperor Tiberius to hear and adjudicate on the
affair. " Petitumque est a principe cognitionem exciperet."
There were thus decreta. Lastly, we find even from the very
time of Julius Caesar, indirect quotations from constitutions
which introduced new provisions into the law, and could only be,
for the most part, edicta. 2 It is admitted, that many innovations
1 Suetonius, Oct. Augustus, 83 : diligcntcr ct Industrie dixit, plerumqne
"Ipse jus dixit assiduc, ct in noctem et in Foro pro tribunal! extra ordinern.
nonnunqnara: si parum corpore valeret, Ambitiosas centumvirorum sentcntias
lectica pro tribunal! collocata, vel ctiam rcscidit."
domi Cubans.'' JJomitian, 8: "Jus 2 Julius Ctesar was tbc first to grant
THE HISTORY OF ROMAN LAW. 289
which took place in the civil law were ratified by pleliscita or
by senatus-consulta.
Augustus and his immediate successors, indeed, always took
care to obtain the sanction of the people, or of the senate, never
allowing it to appear that they issued edicts or decrees except
in virtue of the functions conferred upon them. The expres-
sion " edict," in fact, belonged to the functions conferred upon
the emperor as magistrate ; several grades of magistrates being
in the habit of publishing edicts. While the term constitu-
tiones is, in fact, nothing but a derivation from the expression
jus constituere, employed equally in connection with the enact-
ment of laws, the publication of plebiscita, the opinions of the
jurists, and even with reference to their published works. 1
353. If it be asked by what right the emperors enacted their
constitutions, we can only answer by the right of might. This
is, in fact, the real nature of their authority, stripped of all the
colouring and trappings of the ancient institutions with which
the imperial power had clothed itself. When a man has raised
himself to a position superior to all the magistrates and to the
people, and where his will is supreme over the voice of the
to soldiers the right of making wills rumque gratia personarum motus vel
without the usual formalities. " Mill- quia per ipsius salutem rogatus quis
tibus liberam testamenti f actionem diceretur, aut ob insignem quorumdam
primus quidcm divus Julius Caesar perfidiam, jussit consulibus auctorita-
concessit. Sed ea concessio temporalis tern suam interponere." Inst., 2, 23,
erat." Dig. 21), 1, De testam. milit., 1. These were mandata and re-
1 , princ. frag. Ulp. scripta.
Augustus, Nerva and Trajan granted Augustus, and afterwards Claudius,
to soldiers the right of bequeathing their prohibited by their edicts women from
pecvlhim, castrense. " . . . Quod taking upon themselves the debts of
quidem jus in primis tantum militanti- their husbands. "Et primo quidem,
bus datum est, tarn auctoritate divi temporibus divi Augusti, mox deinde
Augusti, quam Nerva; necnon optimi Claudii, edictis eorum erat interdictum,
imperatoris Trajani : postea vero sub- ne femina; pro viris suis interceclerent."
scriptione divi Hadriani etiam dimissis Dig. 1G, \,Adsenat. cons. Velleianum,
a militia, id est veteranis concessum 2, pr. f . Ulp.
est." Tnst. 2, 12, pr. Tiberius decided a point of law in a
Augustus was the first who conferred case concerning one of his slaves. The
imperial authority upon the jurists, Institutes, after setting out the legal
respondere. " Primus divus Augustus point and the decision, add: " Idquc
. . . constituit ut ex auctoritate ejus Tiberius Caisar in persona Parthenii
responderent." Dig. 1,2, De orig.jur., servi sui constituit." Instlt., 2, 15, 4.
2, 47, fr. Pomp. This constitution became at least a
Augustus was the first to order the decretum.
execution of the Jidei commissa. "Pos- ' Vide supra, 235.
tea primus divus Augustus scmel He-
ll
290 THE HISTORY OF ROMAN LAW.
nation, he has necessarily acquired the power of passing con-
stitutions. But then the question arises, whether this power
could give to the constitution, over legislative measures, the
force of law, and by what steps were the public and the jurists
induced to make the admission, " Quod principi placuit, legis
habet vigorem ? " These reflections lead us to an examination
of a law the existence of which has given rise to much discus-
sion, although all doubts on the matter have now been solved,
the lex regia.
SECTION LXVII.
LEX REGIA.
353. According to the Institutes of Justinian, it is unques-
tionable that the emperor possessed the right of giving to his
decrees the force of law, because the people by the lex regia had
conceded to him all their powers ; this assertion is repeated in
the Digest, in a fragment of Ulpian. No historian, however,
gives any account of this law, and Tribonian was at one time
accused of supporting the theory of its existence by falsifying a
passage of Ulpian, an accusation which by the other side has
been declared unfounded. The discovery of the MS. of Gaius,
however, removed all doubt as to the existence of such a law,
but left the question open as to its nature and its provisions ;
and also as to whether it was an enactment passed at any given
time to regulate for ever the imperial power, or whether it was
passed anew upon the accession of each succeeding emperor.
However, after the discovery of the Republic of Cicero, by
comparing what is told us there about the constitution of the
kingly office and the prerogatives of the king with what was
done for the magistrates of the republic and what must have
been done for the emperor considered as the chief magistrate,
the doubt on this last point may be said to have disappeared. 1
1 The following are the passages and dc ejus impcrw lata est, populus ei et
the arguments. When I produced them in cum omne imperium suum et potes-
in 1827 for the first time, the question tatem concedat (others have concesslt)."
had not been, as it is now, settled. Inst. 1, 1, 6.
" Sed et quod principi placnit, legis " Quod principi placuit, legis habet
habet vigorem ; cum lege Regia, qtifr vigorem, utpote cum lege Regia, qua
THE HISTORY OP ROMAN LAW.
291
It is now universally accepted that this lex Regia referred to
in the Institutes of Justinian is nothing more than the old lex
curiata, enacted during the regal period by the comitia curiata
upon the accession of each king, and by which he was invested
with his powers: " Vetus Regia lex, simul cum urbe nata" as
says Livy. 1 This lex curiata continued to be necessary to in-
vest the magistrates of the republic with the imperium," and it
was ultimately applied at the time of each new imperial ac-
cession to the investiture of the emperor. And even after the
time of Tiberius, when the populus had entirely ceased to be
de imperio ejus lata est, popnlus ei et
in earn omne saum irnpcrium et potes-
i:i t fin conferat." Dig. 1, 4, 1 f. Ulp.
" Constkutio principis est quod ira-
perator decreto, vel edicto, vel epistola
constituit, ncc unquam dubitatum est
quin id legis vicem obtineat, cnm ipse
irnperator per legera imperium acci-
piat." Gaius, Instit., 1, 5.
The passage of Gaius is clear, and
can be literally translated thus :
" Nobody has ever doubted that these
constitutiones had the force of law,
since it is by a law that the emperor
himself receives the empire." Gaius,
Instit., 1, 5.
The sense of the Institutes and of
the fragment of Ulpian is more ob-
scure. The difficulty lies in the exact
weight of the words qua? de imperlo
ejus lata eat. The fragment which
follows from the Republic of Cicero
throws some light upon it. Cicero
speaks of the manner in which the dif-
ferent kings of Rome were raised to
the throne :
" . . . Numam Pompilium . . .
regem . . . patribus anctoribus, sibi
ipse populus adscivit, . . . qui ut hue
venit, quamquam populus cnriatis eum
comitiis regem esse jusserat, tamen ipse
de suo imperio curlatam legem tulit."
Cicero, De republ., 2, 13.
" Mortuo rege Pompilio, Tullium
Hostilium populus regem, interrege ro-
gante, comitiis curiatis creavit : isqiie
de imperio suo, exemplo Poinpilii,
populum consuluit curiatim." Ibid.
2, 17.
" Post eum, Numse Poinpilii nepos
ex filia, rex a populocst Ancus Martius
constitutus : idemque de imperio suo
legem curlatam tulit." Ibid. 18.
" Mortuo Martio, cunctis populi suf-
fragiis rex est creatus L. Tarquinius
. . . isque ut de suo imperio legem
tulit," etc. Ibid. 20.
" Post eum, Servius Sulpicins primus
injussu populi regnavisse traditur . . .
sed Tarquinio sepulto, populum de se
ipse consulnit, jussusque regnare, legem
de imperio suo curiatam tulit." Ibid.
21.
Do not we see here the identical ex-
pressions of the Institutes of Justinian ?
Is not this the lex Regia of which
Ulpian speaks : quce de ejus imperio
lata est? Was not the law the same
for the emperor as for the king, which
Cicero speaks of, de imperio suo legem
tulit? Each king was called to the
throne by the voice of the people ;
after having accepted the office, he
caused himself to be invested with his
power by a lex curiata : legem de im-
perio suoferebat.
Each emperor was nominated by his
predecessor, or by the acclamations of
the army. The senatus-consultum,
transformed no doubt into a lex curiata
by the symbolical formality of thirty
lictors, clothed him with his power :
lex Regia de imperio ejus ferebatur.
We might understand the silence of
the historians upon the subject of a
law which was a mere matter of form,
and always ready for the strongest : but
they are not even silent about it ; they
always describe the senate confirming
the choice of the troops, and Eutropius
says, speaking of Maximin : " Post
fti/nc Maximiniu ex cor pore militari
primus ad imperium accessit, sola
militum voluntate, cum nulla senatus
intercessissit auctoritas." Eutr. lib.
u 2
IX.
1 Lib. xxxiv. 0.
' Vide supra, 27, 45, 68.
292 THE HISTORY OF ROMAN LAW.
convoked, there was nothing to prevent the continuance of this
practice. We know how it was enacted under the republic,
that it was the duty of the senate to prepare the decree, and
that the representatives of the thirty curies the thirty lictors
were present, whose duty it was to enact a lex curiata.
354. The term lex regia does not appear in the text of
Gaius : it is an old tradition. Notwithstanding the aversion to
royalty, many of its substantial characteristics, as well as terms
peculiar to it, were preserved under the republic as old symbolic
forms; and it is possible that this lex de imperio or lex regia
upon the accession of each emperor was re-enacted, it being
presented, according to the ancient custom, by an interrex to
the electors for their suffrages. 1 The emperor Alexander
Severus, somewhere in the Code, calls it the lex imperil? We
have an example in the Lex de imperio Vespasiani, the latter
articles of which have been found inscribed upon a bronze table
which was discovered at Rome in 1342, under the Pontificate
of Clement VI., and which was transferred in 1576 to the
Capitol by the order of Pope Gregory XIII. From these
articles we find that it was frequently the custom to limit to the
emperor the powers which had been already decreed to his pre-
decessor. 3
1 Cicero, De lege agraria, iii. 2 : cere . liceat . ita . uti . licuit . divo . Aug.
" Omnium legum iniquissimam dissi- Ti . Julio . Ctcsari . Aug . Tiberioque.
milliinamque legis esse arbitror earn Clandio . Caisari . Aug . Germauico
quam L. Flaccus, interrex, de Sulla " Utique . ei . senatum . habere . rela-
tulit : UT OMNIA QU^ECUMQUE ILLE tioncm . facere . rcmittere . senatuscon-
FECISSET, ESSENT EATA." sulta . per . rclationem . discessionemque.
2 Code, 6, 23, De testamentis, 3, facere . liceat . ita . uti . licuit . divo.
constit. Alexand. : " Licet enim lex Aug . Ti . Julio . Ciesari . Aug . Ti.
imperil solemnibus juris imperatorem Claudio . Ctesari . Augusto . Gennanico
solvent, nihil tamen tarn proprium im- " Utique . cum . ex . voluntate . aucto-
perii est, quam legibus vivere." We ritateve . jussu . mandatuve . ejus. pra3-
shall find in one of the articles of the senteve . co . Senatus . habebitur . om-
law, De imperio Vespasiani, the pro- nium . rerum . jus . periude . habcatur.
vision which absolves the emperor i'rom scrvetur.ac. si.e.lege.senatus.edictus.
the power of the laws. esset . habereturque
3 Tac., Hist., lib. iv. 3 : " At Rom SB " Utique . quos . magistratum . potes-
Senatus cuncta principibus solita Ves- tatcm . imperium . curationemve .cujus.
pasiano decrevit." rci . pctentes . Scnatui . Populoquc . Ro-
Sce the text of the articles which mano . commendavcrit . qnibnsve . suf-
have reached us: Orclli has inserted f ragationem . suam . dederit . promiserit.
them in his Inscriptwnuni latinarum coruni. comitls.quibusque. extra. ordi-
seleetarum amplissima collectio, tit. 1, nem . ratio . habeatur
p. 507 : " Utique . ei . fines . pomerii . proferrc.
" Fcedusque . cum . quibus . volet . fa- promovcre . cum . ex . republica . cense-
THE HISTORY OF ROMAN LAW. 293
SECTION LXVIII.
THE HESPONSA PRUDENTUM.
365. As all power was lodged in the hands of the emperor,
it is but reasonable to suppose that jurisprudence and the inter-
pretation of the law would not altogether escape his influence.
The subjection of the magistrates was already complete, and in
like manner the ancient independence of the jurists also had
to yield to imperial will. " It is well to remember," says Pom-
ponius, " that before the time of Augustus the right to give
opinions publicly concerning the law had not been conceded by
the chiefs of the republic, but that all those who considered
themselves sufficiently learned were at liberty to give their
opinions to those who thought fit to consult them. These
opinions were not given under the seal of the jurist who delivered
them ; but he in many cases himself wrote to the judge ; in
other cases, the parties who came to consult the jurist brought
with them witnesses, who before the judge testified as to the
opinion given. Augustus, whose object it was to give addi-
tional authority to the law, was the first who gave to the jurists
the right to express their opinions by virtue of imperial autho-
rity, and this authorization being once established it was
supplicated as a favour." '
bit . csse . liecat . ita . uti . licnit . Ti. rogata . acta . gesta . decreta . impcrata.
Clauclio . Cacsari . Aug . Gcrmanico ab . imperatore . Caesare . Vcspasiano.
" Utique . qutecninque . ex . usu . rei- Aug . jussu . mandatuve . ejus . a . quo-
publica; . majestate . divinarum . hunia- quo . sunt . ea . pcrinde . justa . rataqne.
narum . publicarum . pri vataruuique. sint . ac . si . populi . plebisve . j ussu . acta.
rcruin . esse . censebit . ci . agere . f acere. essent
jus . potcstasquc . sit . ita . uti . divo. c AArr"TTn
Aug . Tiberioque . Julio . Crcsari . Aug.
Tibcrioque . Claudio . Ciesari . Aug. " Si . quis . hujusce . Icgis . ergo . ad-
Germanico . fuit versus. leges. rogationes.plebisve.scita.
" Utique . quibus . legibus . plebeive. senatusve . consulta . fecit . fecerit . sive.
scitis . scriptum . fuit . ne . divus . Aug. quod . cum . ex . lege . rogatione . ple-
Tiberiusve . Julius . Caesar . Aug . Ti- bisve . scito . s . ve . c . f acere . oportebit.
berinsque . Claudius . Cajsar . Ang . Ger- non . fecerit . hujus . legis . ergo . id . ei.
manicus . tencrentur . iis . legibus . pie- ne . fraudi . esto . neve . quid . ob . cam.
bisque . scitis . imp . Cjcsar .Vespasianus. rem . populo . dare . debeto . neve . cui.
solutus . sit . Qua:que . ex . quaque . lege. de . ea . re . actio . neve . judicatio . esto.
rogatione . divum . Aug . Tiberiumve. neve . quis . de . ea . re . apud . se . agi.
Julium . Caesarem . Aug . Tiberiumve. sinito
Claudium . Cajsarem . Aug . Germani- ' Dig. 1, 2, De orir/. jur., 2, 47, f.
cum . faccre . oportuit . ca . omnia . imp. Pomp. : " Et, ut obiter sciamus, ante
Ca:sari .Vcspasiano. Aug. f acere. liecat tcmpora Augusti publice respondendi
"Utique . qua; . ante . bane . legem. jus non a principibus dabatur : scd qui
294 THE HISTORY OF ROMAN LAW.
356. Such was the course pursued by Augustus. He wished,
so he said, to give more credit, more authority to jurisprudence
(ut major juris auctoritas haberetur}: he desired that the
responses of the jurists should be a species of emanation and
delegation of his own power (ut ex auctoritate ejus responde-
renf) : he therefore created a class of privileged jurists, who thus
became officials, invested by him, with the right of responding
under imperial sanction, and who gave their opinions under the
sanction of their seals (responsa signata), which attested the
fact of their being authorized.
357. The history of this authorization of the jurists is
extremely obscure as to details. During its gradual develop-
ment we find enactments concerning it, such as a rescript of
Adrian, two constitutiones of Constantine, a constitutio of
Theodosius and of Valentinian ; but the only effect of this is to
add to our previous difficulty that of correctly interpreting
these passages. The dominant idea of Augustus is clear ; the
responses of the jurists were to be given under his sanction.
Caligula, who was a mischievous fool, pushed the matter further ;
it was he who wanted to destroy the poems of Homer, to ex-
clude from all libraries the works of Virgil and of Livy ; it was
he who, according to Suetonius, boasted that he had abolished
the science of jurisprudence, and taken the right of giving legal
opinions from all but himself. 1
But what was this licence, respondere, publice respondere,
populo respondere, what was the real force of these technical
expressions ? So far as the various texts tell us, these expres-
sions in the time of Augustus merely related to opinions given
to those who went to consult the jurist (consulentibus responde-
bant*), and which were exhibited by them to the judges, fre-
quently under the form of a letter Avritten by the jurist himself
fiduciam studiorum suorum habebant, illo tempore peti hoc pro beneficio
consulentibus respondebant. Neque re- ccepit."
sponsa utique signata dabant : sed pie- ' Suet., Caligula, 34: " De juris
rumque j udicibus ipsi scribebant ; aut quoque consultis, quasi scientiae eorum
testabantur qui illos consulebant. Pri- omnem usum aboliturus, saepe jactavit,
mus divus Augustus, ut major juris se, mehercle, effecturum. ne qui respon-
auctoritas haberetur, constituit, ut ex dere possint prater cum."
auctoritate ejus responderent : ct ex
THE HISTORY OF KOMAN LAW. 295
to the judge (plerumque judicibus ipsi scribebant), or under
the attestation procured by those who sought the response ; and
in the time of Augustus, in the form prescribed by the consti-
tution. It is only by enlarging upon the idea, and by conjec-
ture, that we can include in this privilege the authorship of
books, collections or treatises upon jurisprudence. Here there
was a great difference. An opinion might be given in the
exercise of the profession, in an individual case, in order to
inform the parties and the judge, to a certain extent, ad hoc
and ad hominem. It was conceived that the exercise of this
profession should be restricted, and it is so almost everywhere
at the present day. In the lower empire an official character
was given to the advocate and the number limited, and medical
men also were licensed. 1 A book, on the contrary, is for general
use ; its publication is not a professional act ; it is a production
which, according to its merit, may survive its author or not ; it
may or may not be regarded as an authority. This, however, is
certain, the authorization given to the jurists by Augustus was
confined to their opinions.
358. Publice respondere does not signify to give opinions at
the public expense. Augustus in no way attached the jurists,
to whom he conceded this privilege, to his paid officials ; indeed
the ancient honorary character of the Roman jurist was retained
long after this period. Nor did publice respondere mean to
respond in the name of the people. This expression was in use
long before the constitution of Augustus. Pomponius, in his
De origine juris, thus employs it in connection with Tiberius
Coruncanius, "Ante Tibcrium Coruncanium publice profes-
sum neminem traditur," and by the use of the expression populo
respondere he gives to it its true meaning : thus, speaking of
Aquilius Gallus, he says, " Maxime auctoritatis apud populum
fuisse." These jurists gave their opinions publicly, that is to
say, to the people, to all who came to consult them. 2 Publice
scribere is used by Pomponius as synonymous with populo
respondere ; the two expressions being used indifferently by
1 Cod. 1,7, De advocatis diversorum ct medicis.
judiciorum; 10, 52, De professoribus 2 Vide supra, 23G.
296 THE HISTORY OF ROMAN LAW.
him to denote the same act of Masurius Sabinus, who, it must
be remembered, gave his name to the school of the Sabinians,
and who was the first to receive the imperial authority publice
respondere : ] the word scribere was used because official
responses were required to ,be in writing and attested with
the seal of the jurist.
359. It may be asked, were these official responses or
opinions obligatory upon the judge ? Could it at this period
be said " legis vicem obtinet?" Savigny and Puchta favour
the affirmative, Hugo and Zimmern the negative, which accords
with our own view. The imperial authority doubtless gave to
the opinion great weight with the judge ; but, in many cases, a
conflicting opinion, signed by a jurist also authorized, would be
laid before him. How then could each have the force of law ?
He could not act upon both opinions. The credit thus acquired
by the authorized jurist would necessarily and reasonably extend
to their books. We know that the works of the various authors
exhibit great diversity of opinion, and that these conflicting
opinions gave rise to different schools : what then is the basis of
the idea that the imperial authority gave to the legal opinion
any obligatory force? Pomponius speaks of jurists having
greater authority with some than with others ; for instance, he
says of Proculus, the founder of the school of the Proculians,
" sed Proculi major fuit auctoritas ;" whereas, if their opinions
had possessed the force of laAv, one would not have been superior
to another. Add to this, if there was any obligatory force in-
volved in the permission, it would be necessary, in cases where
there was diversity of opinion, to establish some rule as to pri-
ority; but the first with which we are acquainted is that of
Adrian. 2 The time was to come, however, when opinions, ex-
tracted from the writings of the authorized jurists, were to be
dignified with the name leges, and when the jurists themselves
were to be called legislatores. These expressions AVC shall find
in many documents ; but till the reign of Adrian, saving the
1 Dig. 1, 2, De oriff. jur., 2, 47, f. Cesare : hoc tamcn illi conccssum crat.
Pomp. : " Masurius Sabinus . . . Ergo Sabino concessum cst a Tiberio-
publice primus scripsit ; postcaque Closure, vfi, populo responderet"
hoc ccepit beneficium (dari) a Tibcrio 2 Vide infra, 388 et seq.
THE HISTORY OF ROMAN LAW. 297
fact that credit attached to the opinions of those jurists who had
received the imperial sanction publice respondere (ut major
juris auctoritas haberetur}, the responses and the teachings of
the jurists were left to the appreciation of the judges and of the
public.
360. The general inference is, that the privilege of giving
advice or of declaring opinions was not confined to those who
enjoyed the imperial authority. The Roman citizen in the most
practical manner made himself a jurist ; he attended and took
part at the consultations and teachings of his seniors, and in
due time followed in their course. Unless it was a case of ex-
ceptional favour, it was necessary, in order to enable him to
obtain the imperial authority, that he should have acquired a
certain reputation for knowledge of law, the giving of opinions
and advice. We have the example of Nerva the younger, who,
being only about seventeen years of age an age at which it is
unreasonable to suppose that he was authorized had already
upon several occasions been publicly consulted, and had given
his opinion. 1
Without investigating the motive of Adrian, which we shall
consider in its proper place, we may rest satisfied that it was
not a question under Antoninus Pius of the jurists responding in
the name of the prince in those stationes publice respondentium
or courts for public consultations of which Aulus Gellius speaks. 2
Nor was it so when the same Aulus Gellius 3 was sent back to
consult the jurists or their pupils commencing to practise (juris
studio s f). The idea of Caligula, it is true, was radically ex-
clusive, but this was but an idea of Caligtda.
The opinions of the unauthorized jurists could not, doubtless,
be given in the form or with the official character imparted to
those who were authorized by Augustus. It is perhaps rea-
sonable to suppose that the opinions of the unauthorized were
only given to those who went to consult them, the judge being
obliged only to accept those that were official. Perhaps, also,
1 Dig. 3, 1, De postulanilo, 1, 3, f. de jure rcsponsitasse."
Ulp. : " Qua cetate( 17 years), aut paulo a Aul, Gcll. lib. xiii. 13.
inajorc, 1'ertur Nerva tilius ct publice 3 Ibid. xii. 13.
298 THE HISTORY OF ROMAN LAW.
certain honorary advantages, with which we are not acquainted,
attached to their authority ; such, for example, as those we meet
with at a later period, conferred upon the official professors of
law and medicine. These, however, are mere conjectures. As
to the exclusive privilege of writing, the question does not even
arise. 1
360 A. It is a singular fact that, with the exception of
Masurius Sabinus, who, according to Pomponius, was the first
to receive the imperial authority publice respondere, we have no
exact indication amongst the celebrated jurists of those to whom
this concession was made. We have to wait for a Greek writer
of the time of Valentinian, Valens and Gratian, Eunapius, who,
speaking, in his life of the philosopher Chrysanthius, of a cer-
tain Innocentius, a jurist, who is unknown in legal history, says
that this Innocentius had received, with the consent of the
emperor (Diocletian, or perhaps the son of Constantine), the jus
publice respondere in terms analogous to those which we meet
with in Gaius, though considerably stronger, " Condendarum
legum arbitrium et auctoritatem." It may be asked were the
emperors liberal or otherwise in their grants of this privilege,
and were all those eminent jurists whose reputation is certified
in the fragments of their works which have come down to us
favoured with it or not? No one has taken the trouble to
inform us upon this point, and if we adhere to a passage in
Pomponius, the first concession was that made to Masurius
Sabinus, which must have been by Tiberius, in this way making
it appear that Augustus, who was the author of the innovation,
had never himself bestowed the privilege. Did Labeo and
Capito, the illustrious heads of the two schools, ^enjoy it? All
is conjecture: it is even a question, after the constitution of
Theodosius II. and Valentinian III., what value should be
attached to the opinions of the jurists, and whether Gaius him-
self had ever received this privilege, that is to say, before this
constitution gave to his works an imperial sanction.*
361. Another important point to be considered in coimec-
1 Vide 357. 2 Vide 393, 500.
THE HISTORY OF ROMAN LAW. 299
tion with the position of the jurist is the influence that he en-
joyed as a counsel in the administration of public affairs, in the
preparation of legislative measures, and in the solution of legal
difficulties. During the republic, the magistrates, the praetors
and the judges themselves could call to their aid, in the dis-
charge of their functions, the jurists, to whom they were free to
refer any difficulty, and from whom they might seek counsel.
But when the permanent authority of the imperial will was
established above these temporary magistracies, governing,
legislating and adjudicating, this assistance became more
marked, and a constant resort to it more necessary ; and it
would appear that the emperor would require to have constantly
at his side legal authorities to whom he might refer at need.
And in this he was only following the traditional practice of
the ancient magistrates. We see an indication of this practice
in the resort which Augustus and his successors had to the
assistance of the concilia semestria in order to discuss before-
hand matters that were to be laid before the senate. 1 Tiberius
added to his friends and associates, as a species of council for
public matters, twenty of the chief citizens. However, it was
far from being a desirable privilege to be of that council, for,
according to Suetonius, with the exception of some two or
three, they were all under one pretence or another put to death. 2
We read also of a council under Claudius and his successors.
Adrian added to his council the praetors, the distinguished
senators and certain knights. 3 Alexander Severus summoned
to his council, according to the nature of the subject, the most
competent persons, learned and discreet men Avhen it was a
question of law or negotiation, and experienced military men
when it was a matter relating to their peculiar province. The
historian Lampridius gives us some details concerning the
councils of Alexander Severus. The counsellors had a certain
' Suet., Octav.,35: " Sibique insti- ccrat, vcluti consiliarios in negotiis
tuit consilia sortiri semestria, cum pnblicis. Horum omnium vix duos aut
quibus de negotiis ad frequentcm sena- tres incolumes pncstitit : ceteros alium
turn referendis ante tractaret." Also alia de causa, perculit." See also Dion
Dion Cassius, liii. 21, and Ivi. 28. Cassius, Ivii. 7.
a Suet, Tiberius, 55: "Super ve- 3 Dion Cassius, Ix. 4, Claudius;
teres amicos ac familiares, viginti sibi Spartian, Adrian, 8 and 21.
c uunicro principum civitatis depopos-
300 THE HISTORY OF ROMAN LAW.
time given to them to deliberate and to make up their minds
upon the matter submitted to them ; their opinions were taken
individually, each being reduced to writing. 1 A notarius, or
secretary of the council, having made a false report in a certain
cause, Alexander Severus condemned him to transportation,
after having caused the nerves of his fingers to be severed so as
to render it impossible for him ever to write again. 2 This con-
silium, without any fixed organization, and varying according
to the will of the emperor, is the origin of the institution which
appeared at a later date with a permanent character and fixed
constitution, known from the time of Diocletian as the consis-
torium, and which became an institution of the lower empire.
When the matter under consideration was a judgment, the
place where the emperor, assisted by his council, gave audience
was called the auditorium, and, by a figure of speech, this por-
tion itself of the council bore the same name. We find this
word in use from the time of Marcus Aurelius. Thus the
fragments of Ulpian speak of decrees passed in the auditorium
of the emperor in general, and particularly in the auditorium
of Marcus Aurelius, of Severus and of Antoninus. 3 The same
word was also applied to the sittings of other magistrates.
It is a matter of doubt whether the expression in the text, in
auditorio, refers to the auditorium of Longinus or to that of
Papinian, 4 the praetorian prefect.
We find indications in many places of the part taken by the
most eminent jurists in advising the emperor; sometimes by
giving their opinions upon abstruse and important matters under
legislative consideration ; sometimes in assisting to prepare the
senatus-consulta for the emperor to lay before the senate, and in
the preparation of various constitutions ; in others, in advising
on decrees or judgments delivered in suits. Sometimes we read
of their being convoked or specially consulted upon important
1 Lampridius, Alexander Sererus, 3 Dig. 36, 1, ad S. C. Trefoil., 22,
15. See the whole paragraph and the pr. f. Ulp. ; 4, 4, De minor., 18, 1, 2,
last passage: " Ut si de jure aut dc f. Ulp.
ncgotiis tractaret, solos doctos et di- 4 Dig. 40, 9, An per aliiim, 1, f.
sertos adhiberet : si vcro de re militari, Ulp.; 12, 1, De rrb. credit., 40, f. Paul,
milites vcteres ct senes ac bene me- See also 40, 15, Xc do statu defunct.,
ritos." 1, 4, fr. Marcian.
2 Ibid. 27.
THE HISTORY OF ROMAN LAW. 301
matters in council, sometimes separately, or else taking part as
a matter of course in the proceedings of these councils, and
especially in the auditorium. Thus, when Augustus had to
determine a point regarding codicils, he convoked the jurists
and submitted the matter to them. 1 Adrian, when he assumed
the position of a judge, always surrounded himself with jurists
as his assessors, amongst whom were to be found especially
Celsus, Salvius Julianus and Neratius Priscus, of whom Trajan
thought so much that he at one time conceived the idea of
appointing him his successor. 8 The counsellors of Antoninus
Pius in legal matters were jurists, Vindius Varus, Salvius
Valens, Marcellus and Moecianus. 3 The " divine brothers "
(Marcus Aurelius and Lucius Verus), in the text itself of a
rescript issued concerning a difficulty as to the succession of
the enfranchised, took care to state that their decision had been
arrived at after having examined into and discussed the matter
with Moecianus and several other jurists, whom they style their
friends. 4 The emperor Septimius Severus, when delivering
his decision upon some fiscal matters, promulgated a decree,
which is inserted in the Digest, upon the advice of Papinian
and Messius; and another at the suggestion of Tryphonius
( Tryphonino suggerente\ who was one of his assessors. 5
Lampridius gives a list of one-and-tvventy counsellors of
Alexander Severus, amongst whom are sixteen jurists, styled
by the historian " professors of law, pupils of the illustrious
Papinian, friends and assessors of the emperor Alexander
Severus ;" in which we find the well-known names of Ulpian,
1 "Dicitur autem Augustus convo- 3 Capitolin, Antoninus Pius, 12:
casse prudentes, inter qnos Trcbatiura " Multa dc jure sanxit, ususque est
quoque cujus tune auctoritas maxima jurisperitis, Vinidio Varo, Salvio Va-
erat, et quicsiisse an posset hoc recipi, lente, Volusio Mccciano, Ulpio Mar-
nee absonans a juris ratione codicil- cello et Jabolleno." It is doubtful
lorum usus esset." Instit. 2, 25, De whether Javolenus was alive at this
codicillis, pr. period, and it is suspected that there is
a Spartian, Adrian, 17 : " Cum ju- au error here either of the writer or in
dicarct, in consilio habuit non amicos the MS.
suos aut comites solum, sed juriscon- 4 " . . . Volusius Moecianus, amicus
sultos, et praecipue Julium Celsum, Sal- noster." " Sed cum et ipso Mceciano,
vium Julianum, Neratium Priscum, et aliis amicis nostris jurisperitis ad-
quos tamen Senatus omnis probasset." hibitis, plenius tractarcmus : magis
5 : " Frequens sane opinio fuit, Trajano visum est, . . ." &c. Dig. 37, 14,
id animi fuisse, ut Neratium Priscum, JJejur. patron., 17, pr. f. Ulp.
non Adrianum, successorem relin- 5 Dig. 49, 14, De jure Jisci, 50, fr.
qucret." Paul.
302 THE HISTORY OF ROMAN LAW.
Paul, Marcianus, Florentinus and Modestinus, with whom the
list of the great Roman jurists closes. The more ancient names
which appear by mistake in this list prove that this passage has
been altered. 1 Alexander Severus never sanctioned any con-
stitution Trithout having first taken counsel with twenty jurists
and other advisers, so as never to have upon such occasions less
than fifty opinions in his council. 2 He at one time conceived
the idea of adopting a system of uniforms, but he abandoned it,
the project being disapproved of by Ulpian and Paul, who were
of opinion that it might be ridiculed. Ulpian was his praetorian
prsefect and perpetual assessor. He was in the habit of receiving
his friends together and never separately, and only made an ex-
ception in the case of Ulpian, on account of his singular virtue
(causa justifies singularis]. Whenever he had to entertain the
other prsefects, he always summoned Ulpian. He always liked
to have Ulpian or some other learned man present at his family
repast, in order to have literary conversation, which he said
was at the same time recreation and nourishment. 3 Ulpian
was a kind of tutor to him, and Lampridius finishes by saying
that if Alexander Severus was a great emperor, it was because
he governed the republic chiefly by the counsels of Ulpian. 4
Every one knows how many high offices, prsetoriates, praefectu-
rates, consulates and proconsulates, were filled under Augustus
and his successors by jurists.
SECTION LXIX.
LABEO AND CAPITO (M. Antistius Labeo ct C.Ateius Capita}
THE Two SCHOOLS OF THE JURISTS : THE PROCULEIANS
OR PEGASIANS AND THE SABINIANS OR CASSIANS.
362. These rival jurists differed as much in their politics as
in their jurisprudence. Let us borrow the comparison drawn
between them by Tacitus and Pomponius. " Having for his
1 Lampridius, Alexander Severui, 3 Lnmprid., Alex. Sever , 2G, 30,
67: " . . . Hi omncs juris prof essores 33.
discipuli fuere splendidissimi Papiniani, 4 Lamprid., Alex. Sever., 60:
ct Alexandri imperatoris familiares et " Ulpianum pro tutore habuit . . . :
socii." atqne ideo snmraus imperator f nit, qnod
2 Ibid. 15. ejns consiliis pnvdpue rempublicam
rcxit."
THE HISTORY OF ROMAN LAAV. 303
grandfather a centurion of Sylla, and for his father an ancient
praetor, Ateius Capito, by the study of law, placed himself in
the first rank. Augustus hastened to elevate him to a consulate,
in order that he might surpass Antistius Labeo in dignity, as
Antistius Labeo surpassed him in learning. For this age pro-
duced at the same time two of those geniuses who are orna-
ments to their country. Labeo, who was incorruptible and
independent, attained the greater celebrity : Capito, who was a
courtier, acquired the greater promotion. The first, who only
attained the dignity of praetor, received in exchange for imperial
neglect public esteem : the second, who reached the consulate,
amassed a fortune, which was accompanied by envy and animad-
version." 1
Thus speaks Tacitus ; and Pomponius, after having said of
one that he was a consul, and of the other that he did not wish
to be one, and that he refused that dignity which Augustus
offered him, thus characterizes the difference between the genius
of the two men : "Ateius Capito continued to represent things
as they had been represented to him : Labeo, with more inge-
nuity, full of confidence in his opinions, and well grounded in
many sciences, aimed at originality, and introduced several
innovations."
363. It is to these two jurists that Pomponius also refers
the origin of the two schools : to Labeo that of the Proculeians
or Pegasians (Proculeiani, Peyasiani) ; to Capito that of the
Sabinians or Cassians (Sabiniani, Cassiani). Such an event
was not withoiit significance. Under a system where jurists,
invested with a sort of public character, guided by their answers
suitors and even judges, it was not without a sense of its im-
portance that they could be seen forming schools and dividing
themselves into two opposite parties. But what was the cause
of this separation, and wherein consisted the distinction between
the two schools ? It may be conjectured, with some degree of
certainty, that the study of law as a science had already com-
1 Tacit., Annal., 3, 75. Horace at Labeo :
having become a courtier throws a stone Labeone insanior inter sanos dicatur.
(Sat. 3, lib. i.)
304 THE HISTORY OF ROMAN LAW.
menced at this epoch to assume a phase different from that
which had characterized the pursuit of it at the time of Tiberius
Coruncanius and of his successors. Instead of being confounded
with practice, and of being settled day by day as each new point
arose requiring solution, the pursuit of law as a science was un-
fettered. It had become an important branch of study, exhibit-
ing theoretically a collection of principles reduced to a science
altogether independent of the courts and pleaders, without how-
ever losing the practical element which has always charac-
terized Roman jurisprudence. In a word, the study of law as
a science had been created. It may be said to have had pro-
fessors (jpr&ceptores} and schools (scholce). This is certainly
the case as regards later times, for Ulpian speaks of professors
of civil law (juris civilis professores\ whom he ranks with
philosophers; 1 and Modestinus gives his views on the exemption
from guardianship with respect to those who were professors of
law either at Rome or in the provinces (legum doctores docentes}.*
But even if we go back to earlier times, we find that Gaius
frequently calls the Sab inians, whose doctrines he folloAved,j9r-
ceptores nostri, and the Proculeians, diverscR scholce auctores,
expressions which denote distinctive teaching. Javolenus,
speaking of a still earlier period, also makes use of the terms
praceptores tui. 3 We know that Sabinus, the disciple of
Capito, under Tiberius, made his livelihood by the fees he re-
ceived from his auditors. 4 Lastly, Pomponius tells us of Labeo
himself that he had arranged his time in such a manner as to
spend six months in town with his students and six months in
retirement to write his books. 5
364. Thus, already in the time of Labeo and Capito, there
were, in the proper acceptation of the word, schools (scholce\
or bodies of students (studiosi), attached to each of these
jurists.
1 Dig. 50,13, De extraord. cognit., 1, facilitates fucrunt, sed plurimum a snis
5, f. Ulp. auditoribus sustcntatus cst."
2 Dig. 27, 1, De excusat., G, 12, f. 5 ". . . Totum annum ita diviserat,
Modest. ut Romaj sex mensibus cum studiosis
3 Dig. 42, 5, De reb. auct. jiidic., esset, sex mensibus secederet, et con-
28, f. Javolen. scribendis libris opcram daret." Dig.,
4 Dig. 1,2, De orig. jur., 2, 47, f. De or iff., 2, 47.
Pomp. : " Iluic (Sabino) nee amplre
THE HISTORY OF ROMAN LAW. 305
Considering how these two men differed in politics, one
being a courtier of Augustus, the other a staunch republican,
and considering, too, that there was the same difference in the
cast of the two minds, we can easily believe that even during
their lifetime they took widely divergent paths. One was con-
tent to be led, the other was accustomed to assert his independ-
ence both in science and politics. One was devoted, not so
much to the letter of the law, as it has been incorrectly called,
as to generally accepted traditions in jurisprudence ; the other,
while bringing to the pursuit of his favourite study the whole
resources of science and philosophy, was inclined to adopt
more liberal views.
That considerable differences of opinion, amounting to what
may be called a schism, should have existed between the two
schools, is therefore only what might have been expected, even
if the opposition had been confined to the scholars or partisans
of either professor. In general history we read of Labeo and
Capito as two rivals ; in a history of Roman law we must be
prepared to find this rivalry still more strongly defined. But
the jurists separated themselves into two distinct schools only
when the students had become themselves jurists when the
disciples had succeeded to the masters Nerva, Proculus and
Pegasus to Labeo, Sabinus and Cassius to Capito, and when
the two systems had been perpetuated. And therefore the two
schools did not take the names of the two primitive founders,
Labeo and Capito, but were called after the teachers who
succeeded the first founders, the Proculeians or Pegasians
deriving their origin from Labeo, the Sabinians or Cassians
taking theirs from Capito.
365. NOAV if we seek for a distinct line of demarcation
between the two systems, or for a fundamental difference in
the principles inculcated by them, sufficient to account for the
diversity of their respective opinions on different points, the
search will be in vain. Such radical distinction never existed,
nor could exist.
It is not correct to say that the decisions of the one were
based upon strict law, those of the other upon equity ; that
x
306 THE HISTORY OF ROMAN LAW.
the one were innovators, and the other mere followers of tradi-
tion, for equity and innovation will be found sometimes on one
side and sometimes on the other. It is equally incorrect to attri-
bute to the two whole schools the diversities of character or of
genius which distinguished the two jurists, the first founders of
those schools. On the one hand, Roman jurisprudence, both
in theory and application, was at all times eminently practical,
and both schools aimed at this end ; on the other hand, the
representative men of the respective schools had their predi-
lections, and as one succeeded another their predilections
characterized their teaching. There were two schools or sects,
and upon certain controverted points each school maintained
its peculiar opinion ; their pupils, at a later time their fol-
lowers, as professors in their turn transmitting their peculiar
doctrines to their successors ; but there was not an inflexible
line of demarcation between them : on more than one occasion
the followers of one system abandoned the doctrines of their
own school and adopted the opinions of the other. 1 On the
other hand, time and study gave rise to new points involving
fresh conflict of opinion : eas dissensiones auxerunt, says Pom-
ponius. 2 The whole system was therefore a successive trans-
mission of opinions from the leaders of the schools to their dis-
ciples, sufficiently elastic to admit of a certain latitude and to
allow scope for the exercise of the criticism and individual genius
of each jurist.
366. This system continued for nearly two centuries. Pom-
ponius, who wrote under Antoninus Pius, gives us, distinguish-
ing them by their schools and bringing them down nearly to his
own time, lists of the principal jurists, 3 who can be arranged in
the following order :
Sabinian or Cassian.
Capito.
Masurius Sabinus.
Proculeians or Pegasians.
Labeo.
Nerva the elder.
1 Thus Proculus and Celsus, in the furnished by the Digest (28, 5, De
fragments quoted in the Digest (7, 5, liaredit. instit., 11, f. Javol.), approves
De usi/f. ear. rer., 3, f. Ulp ; 28, 5, De an opinion of Proculus.
lucred. inst., 9, 14, f. Ulp.), adopt 2 Dig. 1, 2, DC orig. jur., 2, 47,
some opinions of the Sabinians. And f. Pomp,
inversely Javolenus, in the example 3 Ibid.
THE HISTORY OF ROMAN LAW. 307
Gaius Cassius Longinus.
Cselius Sabinus.
Priscus Javolenus.
Alburnus Valens.
Tuscianus or Tuscius Fusci-
anus.
Salvius Julianus.
Proculus.
Nerva the younger.
Pegasus.
Juventius Celsus the elder.
Celsus the younger.
Neratius Priscus.
367. The distinction was prolonged still further, for Gaius,
who wrote under Marcus Aurelius, indicates his connection
with the Sabinians by the constant use of the expression nostri
prceceptores. 1
But it eventually disappeared : and the great personal repu-
tation of a lawyer like Papinian, who was styled the " Prince
of Jurists," was calculated to efface the distinctions of the
past by centering all attention upon himself. Nevertheless the
divergence in opinion of the Sabinians and Proculeians on a
great number of questions has come down to us through some
extracts from their writings, and the trace of it is still to be
found more than once in the Digest of Justinian, notwithstand-
ing the harmony which it was the object of the compilers to
introduce. It was thought that a third school of eclectics,
named Erciscundi or Miscelliones, was formed during the time
of Adrian ; but this must be considered as a mistake of Cujas,
who first set up the theory.
368. If, after having examined the changes that occurred in
the jus publicum, we look at the jus privatum, we shall find
that in the matter of marriages, fideicommissa, and enfranchise-
ment, there were three essential innovations, all of which were
brought on by circumstances.
1 Especially Gai., Instit., 2, 195 et seq.
308 THE HISTORY OF ROMAN LAW.
SECTION LXX.
LEX JULIA, DE MARITANDIS ORDINIBUS; LEX PAPIA POPP^EA:
called also LEGES JULIA ET PAPIA, sometimes Nov^:
LEGES, or simply LEGES ON MARRIAGE AND ON PATER-
NITY.
369. The last days of the republic were marked by an
astonishing depravity in morals ; the marriage of citizens (justcs
nuptial) had been abandoned, or transformed into libertinism
through annual divorces. It could then be said of the Roman
ladies, " They do not reckon years by the consuls but by their
husbands." Celibacy was in fashion. Civil wars and pro-
scriptions had left great voids in families ; and under an inun-
dation of slaves, of freed men or of foreigners, the race of
citizens was disappearing. More than once the censors had
pointed out the danger. Augustus tried to remedy, by laws
and fiscal measures, the corruption of morals and the exhaustion
of the legitimate population. A former plebiscitum, proposed
with that object, on the marriage of the two orders, lex Julia,
De maritandis ordinibus, after having failed the first time
before the vote of the comitia, B.C. 18, had at last been adopted
more than twenty years subsequently, A.D. 4. There is, how-
ever, a difference of opinion as to these dates, and more
recent writers set the failure of the proposed plebiscitum at
B.C. 28, and the passing of it at B.C. 18. A second law, the
lex Papia Poppcea, some years afterwards, A.D. 9, completed the
enactments on this subject. 1 The title technically adopted by
the Roman jurists for their commentaries on these legislative
measures was that of ad legem Juliam et Papiairi 1 and the ex-
pression lex Julia et Papia, which is frequently to be met with
in their writings, made people think that the first of these laws
was incorporated in the second, so as to form one. Neverthe-
less, jurists frequently quote these laws separately, citing either
1 " Papia Popprea, quam senior Au- book on these laws.
gnstus, post Julias rogationes, inci- 2 Such is the title which is constantly
tandiscoelibumpcenisetaugendoferario, to be met with in the Digest of Jnsti-
sanxcrat." (Tacitus, Annal. iii. 25.) nian, at the head of the fragments of
Ortolan's learned colleague, M. Macha- those commentaries which are inserted
lard, has published a very interesting in it.
THE HISTORY OF ROMAN LAW. 309
the lex Julia or the lex Papia. And the title nova leges, or
simply leges, the laws par excellence, designates them collec-
tively.
370. This was a considerable code : the most extensive after
the laws of the Twelve Tables, and one which produced a great
impression upon society. Not only marriage, but everything
even remotely connected with it betrothal, divorce, dower, gifts
between husband and wife, concubinage, inheritance, and the
period allowed for entrance upon it, legacies and their devolu-
tions, dies cedens, the capacity or the incapacity of beneficiaries
to receive in fine, the rights, privileges or particular dis-
pensations granted under divers special circumstances to fathers
or to mothers who had children, or who had a specified number.
The whole legislation on these subjects formed an important
body of fresh regulations, which come into contact in a greater
or less degree with many parts of the civil law. And therefore
the commentators of whom we were speaking just now, among
whom were some of the most eminent jurists, did not overlook
the lex Papia. And the number of fragments of these various
commentaries entitled ad legem Papiam, which we still find in
the Digest of Justinian, are evidence of the deep impression
that this effort of legislation had left in jurisprudence. The
best attempt at the exposition of this law, up to our time, is
that made by Heineccius. But the discovery of the Institutes
of Gaius has supplied us with some valuable information, and
has enabled us to correct several errors into which our pre-
decessors were led by the absence of documents. 1
371. The lex Julia and the lex Papia Poppcea divided the
whole of Roman society into two distinct classes: 1st, by virtue
of the lex Julia, the unmarried (ccelibes} and the married ; 2nd,
by virtue of the lex Papia, persons without children (orbi), and
those who had some (patres or matres}.
The word coelebs, living in celibacy, was not understood in
the sense which it bears now ; it meant any one who was not
married, whether a widower, a widow or divorced; whence arose
1 Gai., Instit., 2, 20G ct seq., 28G, &c.
310 THE HISTOKY OF ROMAN LAW.
the necessity, in order to escape the penalties of the lex Julia,
after the dissolution of the first marriage immediately to con-
tract a second. Women were the only persons who enjoyed a
vacatio or right to a certain delay : that is to say, one year
from the death of a husband, six months from the time of a
divorce, periods which the lex Papia prolonged to two years,
and to eighteen months respectively. It was necessary, more-
over, that the marriage should not be contracted in contraven-
tion of certain new injunctions or prohibitions which were con-
tained in the lex Julia, and which we find enumerated under
one of the headings of the Regula of Ulpian (tit. 16), unfor-
tunately partly lost. Except within these conditions, marriage
was insufficient to prevent persons from being classed as coelibes,
and to secure them from the consequences of being so classed.
The word orbus meant a person who being married had not
at least one legitimate child living : it was not sufficient to have
had children ; it was necessary to have at least one still living
at the period when the enjoyment of the rights attached to the
status of father accrued. The adopted child, who was first
reckoned as such, was afterwards excluded by a senatus-con-
sultum, which Tacitus mentions (Ann., 15, 19). The mar-
riage of which the child was issue was also obliged to be in
conformity with the regulations of the leges Julia et Papia, in
default of which the child would not have been reckoned
qualified to give the status and the privileges of a father. It
is to be noticed, that as a consequence of Roman ideas con-
cerning the constitution of the family and paternity, this con-
dition of the legitimacy and of the existence of the child is
rigorously applied to the father only. As for the woman, the
lex Papia gives room to other ideas: whether the offspring
was legitimate or not, it was fecundity that was rewarded; if
she could reckon three confinements, being ingenua, or four if an
enfranchised (ter quaterve enixa}, she had the jus liberorum.
The leges Julia et Papia Poppcea were combined in such a
manner as to grant rewards of various kinds to those who were
married and fathers, and to punish with various disabilities those
who had no children (orbi\ and more severely still unmarried
persons (caelibes^. The most vulnerable point, and that on
THE HISTORY OF ROMAN LAW. 311
which the legislature struck with the greatest effect, was the right
of profiting from testamentary dispositions. The leges Julia et
Papia Popptsa did not take away from the ccelibes or from the
orli the capacity of being instituted heirs or of realizing legacies.
Such provisions made to their advantage remained valid in
principle, according to the ordinary rule; they continued to
say of them, conformably to this law and in technical language,
that they had the testamenti factio. What the leges Julia et
Papia withdrew, in different proportion^, from the ccelibes and
from the orbi, was the right to take those testamentary gifts
which might have been bequeathed to them (jus capiendi ex
testamento}, unless they had previously obeyed the provisions of
those laws, and a certain period was even allowed to them that
they might put themselves in a position to be in conformity
with the law on this head. The unmarried person (coelebs)
could not take any part of what had been left him; the orbus
could only take one-half. A period of a hundred days from
the death of the testator, or, to speak more in accordance with
the new order of things, from the opening of the will, was given
to unmarried persons to contract marriage, and probably also to
married citizens, although the positive authority of the texts is
wanting on this last point, to see whether in the meanwhile
some legitimate child might not be born to them.
372. From the date of the enactment of these laws the dis-
tinction between the two rights testamenti factio, or that of being
validly instituted heir or having a claim to other testamentary
gifts, and the jus capiendi ex testamento, or that of being per-
mitted to realize testamentary gifts, became established; and
the separation between the two became, as time went on, more
and more strongly marked, until at a much later period, through
other legislative changes, this distinction again disappeared.
373. Thus, then, testamentary dispositions, the institution
of heirs, or legacies, although valid according to civil law, fell,
as it were, under the operation of the leges Julia et Papia, in
all or in part, out of the hands of the person who had a claim
to them, and were therefore called caduca. This adjective,
312 THE HISTOEY OF ROMAN LAW.
caducus, caduca, caducum., denoting a quality so often charac-
teristic of testamentary dispositions, was transformed into a sub-
stantive, and became a common expression, and the caduca
held an important place in the writings of jurists, and materially
influenced the domestic life of the citizens. The literature of
those times, the works of historians and essayists as well as
poets, are full of allusions to this caduca and to the deep im-
pression made upon society by these laws.
The forfeitures resulting from provisions of the ancient civil
law were affected by these enactments, and bequests thus
affected were assimilated to the caduca and treated in the same
manner ; they were described in jurisprudence as being in
causa caduci, that is to say, in the condition of the caduca.
374. Our great interpreters of Roman law in the sixteenth
and seventeenth centuries could form but an incomplete notion
of the rewards of paternity, the traces of which they found in
histories and literature generally, and in some fragments of
works on Roman jurisprudence. Nor could they understand
what the destination was which was given by the leges Julia et
Papia to the dispositions caduca or in causa caduci they
lacked documentary evidence on the subject. It was generally
believed that the caduca were directly vested in the treasury,
and thus current opinion exaggerated the fiscal character of the
leges Julia et Papia, which were sometimes called, on account
of their principal provisions, caducary laws.
The
Jam pater es ! . . .
of Juvenal,
Legatum omne capis, nee non et dulce caducum,
was not well understood. We, however, can read all the details
of it in the Institutes of Gains. It is now known that the
lex Papia gave those portions which were in causa caduci not
in virtue of the provisions of the will, but of its own provisions,
to the heirs and to the legatees contained in the will who had
children (potfres); taken away from one, applied to another, the
caduca were, at the same time, a punishment for sterility and a
reward for legitimate procreation. It was not a right conferred
THE HISTORY OF ROMAN LAW. .313
by the will to take lapsed devises or bequests, but a right con-
ferred by law ; and therefore the technical name vrasjus caduca
vindicandi, the right to claim the caduca. And this mode of
acquisition was reckoned among the means of acquiring the
Roman dominium in virtue of the law (ex lege*). 1 The lex
Papia determined exactly the order in which the patres in-
scribed in the will should be allowed, as the price of their
paternity, to claim the caduca? and it was only for want of
any heir or legatee having children that the caduca were swept
into the cerarium or treasury of the people ; in order, says
Tacitus, that failing the rights of paternity it might be the
people, as being the common father, who should come forward
and realize the forfeited gifts. 3 I suspect the sentence of
Tacitus is an extract from some statement of objects and rea-
sons, or official panegyric upon the lex when under discussion.
375. The leges Julia et Papia exempted certain persons from
their provisions ; some on account of age, others of some in-
capacity to comply with the requisitions of these laws ; others
again by reason of cognation or alliance. These are the per-
sons who are described in works on jurisprudence under the
title of persona exceptce, and as, in virtue of tlie dispensation or
exemption in which they found themselves, they were allowed
to receive entire the testamentary gifts which were made to
them, the Roman jurists have styled them solidi cap aces ;
which does not much resemble, I think, the Latin of the time
of Augustus.
376. Lastly, the ascendants and descendants of the testator
to the third degree were placed in a much better position.
" The legislator had blushed," says a constitution of Justinian,
" to impose his yoke on such persons " (suum imponere jugum
erubuit), and he preserved to them in consequence the enjoy-
ment of their ancient rights. The Roman jurists have said of
them that they had the jus antiquum in caducis. Thus main-
1 Ulp., Itegiil., 19, 17. vacantia tencrct." Tacit., Ann., 3,
2 Gai., Ingtit., 2, 206, 207. 28. Also Gains, 2, 286 : " Aut, si
3 "Ut si a privileges parentumcessa- uullos liberos habcbunt, ad populum."
retur, velut pareiis omnium populus
314 THE HISTORY OF ROMAN LAW.
tained in the enjoyment of their ancient civil rights, without
considering whether they were married or unmarried, whether
they had children or not, they came not only to receive the
corpus, in succession to their ancestors or to their descendants,
of the testamentary gifts specifically left to them, but also to
take, according to the rules of the ancient right of accretion,
the portions caduca or in causa caduci if there were any.
377. Such were the leges Julia et Papia Popp&a, which,
suppressed in part by a constitution of Caracalla, as to the
privileges of paternity relative to the claim upon the caduca, and
by Constantine to the penalties for celibacy, were only com-
pletely and textually abrogated by Justinian. Their extinction
was therefore gradual. This final destiny of the caducary laws
is not, historically, without its difficulties. Among these are
serious doubts as to the effects which should be attributed to the
constitutions of Caracalla, of Constantine, and of Justinian.
We shall shortly examine this question when we pass in review
the legislative measures of these emperors.
SECTION LXXI.
FlDEICOMMISSA CODICILS ( Codicilll).
378. There were certain testamentary dispositions which
were void according to civil law ; the testator who wished to
make them could only entrust them to the good faith of his
heir {fidei committere], and ask him to be good enough to
execute them. Those dispositions were called jideicommissa.
On the other hand, every wish of the deceased was also void if
it had not been legally expressed in the will, appropriate for-
malities having been observed. Written down without any
solemnity, these codicilli were only a prayer addressed to the
heir, who was left free to accede to it or not as he pleased.
However, in proportion as it was left optional by the law, the
more public opinion was brought to bear on the man who
wished to take advantage of his freedom. Augustus, who was
THE HISTORY OP ROMAN LAW. 315
several times instituted heir, made it a point of duty to execute
the trusts imposed upon him ; he ordered even the consuls to'
exert their authority to protect the wishes of the testator, when-
ever equity and good faith should require it. General custom
and good feeling confirmed these decisions, and the principle
soon came to be so fully recognized that few wills were made
without Jldeicommissa and without codicils. It became neces-
sary, as we shall see, at last to create two fresh praetors, for
the special purpose of dealing with these matters, who decided
each case extraordinarily, without sending it before a judge,
upon its merits. 1
SECTION LXXII.
ENFRANCHISEMENT LEX ^ELIA SENTIA LEX FURIA
CANINIA.
379. The wars of Harms and of Sylla, of Pompey and of
Csesar, arming thousands of slaves, had thrown into Rome
legions of freedmen ; distant victories, accumulating captives in
Italy, multiplied the number of freedmen but diminished their
valour. Citizens enfranchised their slaves to increase the
number of clients, sometimes in order that the slave, having
become a citizen, should receive his share in the gratuitous dis-
tributions ; but more frequently at the moment of death, in order
that a long retinue of freedmen, with a cap of liberty on their
heads, might follow the funereal car. The lex j?Elia Sentia
and the lex Furia Caninia put restrictions on these practices.
We shall have to examine these laws when we come to consider
the Institutes of Justinian, for they were prolonged down to
that epoch.
380. We must not leave the reign of Augustus without an
allusion to an event which, though almost unperceived in the
Roman empire, was destined to change the face of that empire,
and, later, that of the whole imi verse. It was in the year of the
city 753, fourteen years before the death of Augustus, that
Jesus Christ was born in a village of Judaaa.
1 Instit. 2, 23, Defideic. hccreditatibus, 1 and 25, De codicillit.
316 THE HISTORY OP ROMAN LAW.
A.D. 14. TIBERIUS EMPEROR.
381. Tiberius had been adopted by Augustus. At the
death of the latter it was not known how things would turn
out ; it was the first time the Roman empire had to pass from
one emperor to the other. Tiberius, indeed, assumed the
government in fact ; but he appeared to act only as a tribune,
and merely to settle the honours that were due to the memory
of his father. The senators in their hearts knew perfectly well
what were their own rights, but they were in suspense ; their
eyes were fixed upon the emperor, and they were trying to
study their conduct in his. "We read in Tacitus how well that
farce was played out, how the senators entreated the adopted
son of Augustus to accept the empire, and how he put for-
ward all sorts of reasons why he ought to refuse; urged that
the administration should be lodged in the hands of several
persons at once, or that some one should be associated with
him, and how he hastened to accept when he feared he should
be taken at his word. The first years of his reign were little
else but a drama, in which every one played a part. The part
Tiberius assumed was that of moderation, of simplicity, and
of respect for the laws ; he, however, always attained his object,
and his natural character showed itself in his actions or in his
desires.
Under him the elections were transferred from the people to
the senate, the emperor reserving to himself the right of desig-
nating a few candidates. 1 The crime of high treason was
extended to all overt and covert acts inimical to the emperor ;
the charge of treason was added to every accusation, and this
crime was proved when all other charges failed. And then
appeared that hideous class of citizens, the informers. The
history of Tiberius is little else but a long enumeration of
sentences of death pronounced by the senate, to whom the
prosecution of that crime had been referred.
382. The most striking provision in the civil law of that
reign is the division of the freedmen into two classes, the
enfranchised citizens and the enfranchised Latini Juniani. This
1 Tacit., Ann., 1, c. 15.
THE HISTORY OF ROMAN LAW. 317
distinction, which was the work of the lex Junta Norbana,
depended on the mode of enfranchisement, and of some other
circumstances ; the one acquired entire liberty and the qualifi-
cation of citizens, the others a lesser degree of liberty and only
the rights of the Latin colonists.
We are of the opinion of those who place this lex Junia
Norbana in A.D. 19, under Tiberius. It was later by fifteen
years than the caducary laws of Augustus, calculating from the
date of the lex Papia. Following in the wake of these laws it
was a new application to the enfranchised Latini Juniani of
the distinction between the testamenti factio, or the capacity of
making wills, and the jus capiendi ex testamento, or the capa-
city of receiving under a will, and thus gave rise to a new
source of caduca, hence the term novas, leges. 1
383. The jurists of note in this reign are Sabinus (Masurius
Sabinus) and Nerva the father (M. Cocceius Nerva); the former
the successor of Capito, who gave his name to the school of the
Sabinians, the latter the successor of Labeo; 2 Proculus (Sem-
pronius Proculus, frag. 37 ; and Cassius (C. Cassius). The
former succeeded Nerva, giving his name to the school of the
Proculeians, originated by Labeo ; the latter succeeded Sabinus.
384. The period of the emperors was that in which the
study of civil law made the greatest stride : jurists were multi-
plied, and numerous works on law made their appearance. All
the principles of law were developed and connected together;
and jurisprudence became a great science, closely studied in
every branch. Political rights, however, did not undergo much
change; for despotism is not an innovator. Augustus had
laid down all the fundamental bases of absolute power; and
his successors had only to allow them to be consolidated by
time. New institutions are rarely met with, even at long in-
tervals. Political agitations and disturbances had another
object than formerly. In a republic, which is a reign of law,
political agitation is directed to bringing about a change of
1 See Ortolan's lust., vol. ii. pp. 65, can only give their names ; the figures
719, Ms. indicate the number of fragments which
2 We shall indicate under each cm- have been borrowed from them as laws
pcror the principal jurists, even if we in the composition of the Digest.
318 THE HISTORY OF ROMAN LAW.
laws; under a despotism it is aimed at change of masters.
This truism suggests the character of the history of this period :
Tiberius is suffocated by Caligula, who hastens to succeed him;
Caligula is sacrificed to a conspiracy of knights and senators,
and Claudius, carried to the throne by prsetorian guards, is
poisoned by his wife; Nero is compelled to stab himself; Galba,
elected by the legions of Spain, cut to pieces by the praetorians ;
Otho and so many others meeting a like fate. It is unneces-
sary to dwell in detail on such events as these : it is sufficient
to point at them as the inevitable consequences of the system of
government adopted by the Romans and of the conduct of their
emperors, and this reflection is the only profit we can draw from
their study. Our remarks will be confined to giving a list of
the emperors who succeeded each other, with indications of a
few trifling changes which they introduced, the names of the
most illustrious jurists, with the nature and the character of
their works.
EMPERORS.
A.D. 37. Caligula (Caius Csesar, cog. Caligula).
41. Claudius.
Under the latter were created the two prcetoresjidei-
commissarii, of whom we have already spoken.
54. Nero.
68. Galba (Servius Sulpicius).
69. Otho.
Vitellius.
70. Vespasian.
79. Titus.
Under the latter one of the prcetoresjideicommissarii
created under Claudius was suppressed.
81. Domitian.
96. Nerva.
98. Trajan. (Ulpius Trajanus Crinitus, a senatu optimi
co g nomine appellatus.}
The following jurists flourished under this emperor :
Celsus the younger (P. Juventius Celsus, frag. 142).
Neratius Priscus (frags. 64).
Priscus Javolenus (frags. 206).
THE HISTORY OF ROMAN LAW. 319
EMPEROR.
A.D. 117. ADRIAN (JELius HADRIANUS).
385. The reign of Adrian has been remarked as forming a
new epoch in legal history. It is true that under this emperor
the division of Italy into four provinces, entrusted to persons of
consular dignity, took place ; also the creation of two imperial
councils, the germ and the character of which we have already
indicated 1 under the name of consistory and auditory (consisto-
rium, auditorium principis); also the commencement of the
civil jurisdiction of the praetorian prefects, who up to that time
had been regarded only as military authorities ; also the institu-
tion of appeals (appellatio provocatid), which permitted the
parties, condemned by a judicial authority, to resort, within a
given time, to the superior magistrate, and sometimes even to
the emperor, who constituted the last and highest court of
appeal. But the events which have the most interest for us
are the commencement of the imperial constitutions ; the ex-
tinction of the right which the magistrates had always enjoyed of
publishing edicts ; and the permission restored to the juriscon-
sults of giving answers on points of law without being specially
authorized. All these alleged changes, however, may be dis-
puted. We have already shown that the imperial constitutions
existed under Augustus ; let us examine the modifications
which the jus honorarium and the responsa prudentum under-
went.
SECTION LXXIII.
Jus HONORARIUM THE Edictum Perpetuum OF SALVIUS
JULIANUS.
386. A work on the edict appeared, in the time of Adrian,
under the title of edictum perpetuum, a title for a long time
applied to the annual edicts of the magistrates in opposition to
the occasional edicts which some peculiar circumstances might
1 Vide supra, 345.
320
THE HISTORY OF ROMAN LAW.
render expedient. 1 What was that work ? its aim, its effect ?
It was, or it appears to have been, a methodical arrangement
of the praetorian law, of the various edicts published up to that
time, and of the provisions established by common use. Its
author, Salvius Julianus, was an illustrious jurist of that epoch,
who held the office of praetor. Before his time, however, similar
arrangements had been made by praetors who had preceded him.
Pomponius, in his abridged exposition of the History of Roman
Law, cites Aulus Ofilius, one of the intimate friends of Caesar
( CcBsari familiarissimus\ as having been the first to publish
a carefully-made collection of the edicts of the praetors, edictum
prcetoris primus diligenter composuit 2
387. Many have thought that from the moment it was promul-
gated the magistrates were ordered to conform to its provisions,
and that they were restrained from the right of publishing edicts
themselves. 3 It must be admitted that this prohibition would
1 Vide supra, 288.
2 Dig. 1, 2, De orig. jur., 2, 44,
f. Pomp.
3 It may be asked whether the Edic-
tum Perpetuum was the independent
work of a jurist, or whether it was the
result of an order given by the emperor
and clothed with a legislative character.
Was it published with the intention of
its being perpetual ? and was the right
taken from the magistrates of publish-
ing their respective edicts ? These are
two questions worthy of consideration.
It was Salvius Julianus who composed
the Edictum Perpetuum. Eutropius
says, when speaking of him : " Qui
sub divo Adriano perpetuum composuit
edictum " (lib. viii. Emperor Julian)
and Aurelius Victor: "Primus edictum,
quod varie inconditeque a prajtoribus
promebatur, in ordinem composuit"
(Zte Ctcsaribus, 19). But this work
was not simply a commentary upon the
edicts. This is clear in the first in-
stance from its title. Had it been a
commentary, it would have taken the
name of ad edictum, and not that of
edictum perpetuum. In addition to
this we have two texts, which tell us
that the emperor took part in its con-
struction. These are two passages in
Justinian the one in Greek, the other
in Latin ; the following is the former :
" The divine Adrian of happy memory,
when he had collected together all the
praetors, published all their annual
edicts with the assistance of the illus-
trious Julianus, and said publicly that
if there was any case which had not
been provided for, the magistrates should
endeavour to decide it by an induction
from the already existing rules." Code
1, 17, De veter. jur. enucl., const. 3,
18. The second is : " Cum et ipse
Julianus legum et edicti perpctui sub-
tUissimus conditor, in suis libris hoc
retulerit : ut si quid imperfectum in-
veniatur, ab imperiali sanctione hoc
repleatur; ct non ipse solus, sed et
dims Hadrianus in conipositione
edicti, et senatiisconsulto quod earn
secutus est, hoc apertissime definivit
ut si quid in edicto positum non in-
veniatnr, hoc ad ejus regulas ej usque
conjccturas et imitadones possit nova
instruereauctoritas." Ibid, const. 2, 10.
It is therefore evident that it was
Adrian himself who caused these edicts
to be compiled ; and this was followed
by a scnatus-consultnm, probably with
the intention of confirming it. For
these reasons it may be stated that the
THE HISTORY OF ROMAN LAW.
321
accord with the progress of imperial authority the emperor
wielding supreme power, and issuing, as from the fountain source
of authority, his decrees, rescripts and edicts, would be inclined
to prevent the magistrates from sharing these powers with him-
self. Nevertheless there are several reasons for supposing that
they did preserve, even after the time of Adrian, their original
privileges; and all we can say as to the result of the edictum
perpetuum of Salvius Julianus is, that the praetors were obliged
to adopt its provisions and to conform thereunto; and they had
only the right of adding such accessory rules and forms as the
course of events or altered circumstances might render neces-
sary. It is easy to understand that their powers would be
limited in this way; for at this time the pratorian law was
completely developed and had attained that point at which
further development was impossible.
edictum perpetuum was called edictum
D. Hadriani. The second question is
more difficult to answer. The epithet
perpetuum given to this edict must not
be taken as conclusive evidence that it
was promulgated with the view to its
being final as to futurity, the phrase
edictum perpetuum having been for a
long time employed by the prastors;
that is to say, in order to indicate an
edict which should be permanent
throughout the year (vide 274 and
288) ; but that which may not be con-
cluded from the epithet given to it,
may be from the reflection that Adrian
would not have attached so much im-
portance to the work he had in hand ;
nor would he have invested it with his
sanction, and, as it would appear, with
that of the senate also, had his object
been simply to give it effect for one
year.
However, there is a passage in Gaius,
who is of a later date than Adrian, to
the effect that the magistrates continued
to publish their edicts : " Jus autem
edicendi kabcnt magistratus populi ;
sed amplissimum jus est in edictis duo-
rurn prsetorum, urbani et percgrini, quo-
rum in provinciis jurisdictionem pr;c-
sides earum habent ; item in edicto
sedilium curnlium, quorum jurisdictio-
nem in provinciis populi qusestores ha-
beut ; nam in provincias Csesaris om-
nino quasstores non mittuntur, et ob id
hoc edictum in his provinciis non pro-
ponitur." Gai., Instit., 1, 6.
Nor is it possible to suppose, that
had the magistrates lost their right of
making edicts, Gaius, who lived so
near the time of Adrian, so far from
not speaking of such a change, would
say that the magistrates possessed this
right. Nor would he have accurately
distinguished the various edicts. How
could he have added that quaestors
were not sent into Ctesarian provinces,
nor had they in those provinces this
species of edict. What then must be
our conclusion ? On the one hand that
the edictum perpetuum received a
species of legislative authority and be-
came a general and special law a
branch of the jus honorarium. On
the other, that this did not prevent the
magistrates from publishingtheir edicts,
which, however, they conformed to the
edictum perpetuum, adding those ne-
cessary provisions which the course of
time or altered circumstances necessi-
tated.
322 THE HISTORY OF ROMAN LAW.
SECTION LXXIV.
THE ADVICE AND THE OPINIONS OF THE JURISTS (Sen-
tentics et Opiniones}.
THE EXPRESS AUTHORITY CONFERRED BY THE RESCRIPT
OF ADRIAN.
388. The rescript addressed by Adrian to those prsetorian per-
sonages who demanded from him the privilege of giving responsa
has been preserved by Pomponius and is in the following
terms: " Hoc non peti, sed prcestari solere: et ideo si quis
fiduciam sui haberet, delectari si populo ad respondendum se
prcepararet" 1
This passage clearly contains a witticism, the point and
meaning of which is however lost to us. Spartian, in his Life
of Adrian (sect. 19), says that he was fond of jeux des mots
and raillery : "joca ejus plurima exstant, nam fuit dicaculus"
Such being the case, did he by this answer mean to say that
the privilege of giving responsa was not a thing to be asked
from a prince, but was one which was due to those who were
worthy of it ? or that it was not a matter of favour but a mark
of public confidence ? Or again, that it was not a thing to be
petitioned for, but to be conferred without solicitation, on the
same principle that honours and distinctions are supposed to be
granted in these days ? The real point, however, of this phrase
is lost to us. Thus much, however, is certain, that the answer
of Adrian is the opposite of that which took place from the
time of Augustus. " Et ex illo tempore peti hoc pro beneficio
ccepit" says Pomponius. "Hoc non peti, sed prcestari solere"
said the emperor Adrian in his rescript. And so, then, as
now, in the bestowal of honorary distinctions theory and prac-
tice were two different things.
But independently of this witticism the conclusion itself is
not less obscure. Did the emperor Adrian graciously, and in
1 Dig. 1, 2, De origins juris, 2, 47, ceps Hadrianus, cum ab eo viri proetorii
fr. Pomp. : " Primus divus Augustus, peterent ut sibi liceret rcspondere, re-
ut major juris auctoritas baberetur, scripsit eis, hoc non peti, sed prcestari
constituit ut ex auctoritateejus respon- solere : et ideo si quis fiduciam sui ha-
derent : et ex illo tempore peti hoc pro beret, delectari si populo ad responden-
beneficio ccepit, et ideo optimus prin- dum se prajpararet."
THE HISTORY OF ROMAN LAW. 323
generous terms, concede to those praetorians that which they
had requested ? or did he in fact refuse their request till they
had given proof of their ability, thus sending them back to
exercise the faculty common to all of giving responsa, but
without authority ? Or did he in fact wish to lay it down as a
principle, that so far as he was concerned, he intended to
abstain from granting that authority which had been received
from his predecessors ; and to state that he preferred the ancient
custom according to which every man was free to ascertain his
own acquirements and to seek the confidence of the public?
This may be possible. The anecdote is interesting, though
enigmatical, and after all it is but an anecdote ; and it would
be an error to conclude that Adrian had abolished the rule
established by Augustus relatively to the authorization of the
jurists to give responsa. Whatever might have been the senti-
ments of Adrian, as expressed in this anecdote, later jurists,
when referring to the system of authorized responsa, speak of
it as still existing.
389. It is, in fact, from a rescript of this same emperor, so
at least we find from Gaius, that legal force was first given to
the advice and opinions of jurists (quibus permissum est jura
condere). This change was introduced with the greatest
possible reserve as the first step in a new direction. It gave
to those opinions the force of law (qua let/is vicem obtinet)', but
it gave it in the most narrow terms, and only in those cases
where the opinions of all the jurists were unanimous. Where
they were not unanimous the judge was free to exercise his own
discretion. 1
390. In order clearly to understand this matter, it is neces-
sary to determine who were those quibus permissum est jura
condere. Our esteemed and learned colleague, M. Demangeat,
urges that two entirely distinct things should not be confounded,
1 Gains, Instit., comm. 1, 7 : " Re- sentiunt legis vicem obtinet; si vcro
sponsa prudentium sunt sententije et dissentiunt judici licet quara velit sen-
opiniones eornm quibus permissum est tentiam sequi ; idque rescripto divi
jura condere ; quorum omnium si in Hadriani significatur."
unum sentential concurrant, id quod ita
Y2
324 THE HISTORY OF ROMAN LAW.
the jus publice respondendi and the permissio jura condendi.
He says that the first of these exclusively referred to the right
of consultation upon matters specially determined, upon which
the jurist gave his advice ; the second concerned the different
writings compilations, treatises, commentaries or otherwise
published by jurists ; that after the death of a distinguished
jurist it not unfrequently occurred that by an imperial constitu-
tion, force or authority was given to his works ; and that it is
such jurists who are referred to by Gaius in the expression
quibus permissum est jura condere. 1 This idea would furnish
a very neat and intelligible explanation of what was meant by
unanimity of opinion that was necessary to bind the judges ;
but unfortunately this is nothing but a hypothesis, and does
not appear to be supported by the facts within our knowledge.
Indeed, the expression quibus permissum est indicates living
jurists to whom the permission was granted to exercise the
right during their lives. Of this we have at least two clear
examples that of Masurius Sabinus, who might be rejected on
the ground that he belonged to the time of Augustus or of
Tiberius, and that of Innocentius, to which no such objection
can be urged, inasmuch as he belonged to the time of Diocle-
tian, or later ; 2 and it would be exceedingly difficult so to con-
strue this expression as to make it referable to those works
which had received sanction after the death of their authors ;
in addition to which we have no trace whatever of any such
imperial constitution. We must go to the lower empire to the
period when the science of law was no longer a living science
to find anything analogous to those supposed constitutions. We
may remark, in addition, that this phrase jura condere, and
other similar expressions, were employed concerning jurists
anterior to the empire, to bear testimony to their great autho-
rity, without the slightest reference to any authority given to
their works after their decease. We find Pomponius saying of
the jurists Publius Mutius and Brutus and Manillas, and of the
1 Demangeat, Cows elcmentaire fie of my colleagues, M. Bodin, in the
droit romain, vol. i. p. 88 et seq. Upon Jfevue Jnstoriquc, vol. iv. p. 197 et seq.,
this subject, which has been dealt with and M. Glasson, Etude sur Gains et
by a great many writers, I must espe- sur Icjiis respondendi, Paris, 1867.
cially draw attention to essays by two 2 Vide supra, 301.
THE HISTORY OF ROMAN LAW. 325
Pontifex Maximus Quintus Mutius Scaevola, all of the time of
the republic, " qui fundaverunt jus civile -jus civile primum
constituit ? " The expressions jus fundere, constituere, condere,
must be understood to apply to jurisprudence, that is to say, to
interpretation, the work of the jurists. Justinian styles the
jurist Salvius Julianus : " legum et edicti perpetui conditor." 1
The emperor Alexander, in a constitution respecting military
testaments, relies upon the advice of the jurists and the consti-
tutions of his ancestors : " Sententiis prudentium virorum et
constitutionibus parentum meorum placet." 2
The most rational view, and that best borne out by the facts,
appears to be to adhere to what is stated in the Institutes of
Justinian, that by the jurists quibus permissum est jura condere
are to be understood those quibus a Ccesare jus respondendi
datum est. 3 The expression jus respondendi is the first em-
ployed. It is to be found in use from the time of Augustus to
the constitution of Adrian. Pliny the younger uses it in a
letter where, relating an anecdote, he expresses a doubt as to
the sanity of Priscus Javolenus, adding " however, he holds
office, takes part in the councils, and even jus civile publice
respondet." 4 And though Pliny does not say so in actual words,
the sense indicates that he means with the imperial authoriza-
tion. Such being the case, this would be a third example.
The same expression is to be met with in the demand addressed
to Adrian : " ut sibi liceret respondere." Almost immediately
after the constitution, and as a consequence of it, the expression
permissum est jura condere was adopted, which we meet with
for the first time in Gaius, and more emphatically still in the
1 Cod. 1, 17, DC vet. jure eniiclcando, A Roman knight of some position gave
const. 2, 18 : " Cum et ipse Julianus a public reading of some elegies, when
legum et edicti perpetui subtilissimus Priscus Javolenus, his intimate friend,
conditor, in suis libris hoc retulerit." was present. The poet commenced in
2 Cod. 6, 21, De testam. in Hit., 5, these terms: "Priscus! You order!"
const. Alexand. " I," said Priscus Javolenus, surprised
3 Just. Instit., 1, 2, 8 : " Rcsponsa and thereby distressed, "I don't order
prudentium siiut sentential et opiniones anything ! " This produced consider-
eorum quibus permissum crat jura able merriment ; and Pliny the younger
condere. Nam antiquitus institutum makes this the basis of the following
erat, ut cssent qui jura publice inter- opinion : " Est omnino Priscus dubifc
pretarentur, quibus a Ccesare jus re- sa nit at is: interest tamen officiis, ad-
spondendi datum est." hibetiir consiliis, atqueetiam jus civile
4 Pliny the younger, Letters, vi. 15. publice respondet."
326 THE HISTORY OF ROMAN LAW.
authority given to Innocentius. 1 When speaking of ancient
jurists of the time of the republic, the expression used is veteres
juris auctores. When referring to those authorized by the
emperors simply juris auctores. The epithet continues to in-
crease in force, for under the lower empire the decisions of
the jurists finish by being called leges, and the jurists themselves
legislatores.
391. Finally, the gradual progress made by the decisions
of the jurists towards becoming a recognized source of civil law
appears to be the following. Till the time of Augustus there
was entire liberty of consultation, the credit given to the opi-
nions and works of the jurists depending upon their value or
the success which they obtained ; the decisions generally ap-
proved in theory, and received in practice, as the traditional
jurisprudence forming in the civil law the lex non scripta.
From the time of Augustus, certain jurists were authorized
that is, they had the jus respondendi ; their opinions, not-
withstanding the special credit which they derived from the
imperial authorization, did not constitute law binding upon the
judges. Their works, however, became the more valuable from
their reputation, but at the same time acquired no obligatory
force. Other jurists, as well as those authorized by the em-
peror, were free to give their opinions to litigants, or to compile
works upon law which met with greater or less success, but
without the imperial sanction. Adrian is the first who gave
the force of law to the decisions of the authorized jurists ; but
he gives this force in the narrowest possible manner that is,
only where they are unanimous. From this period we can
class in the lex scripta the authorized responsa prudentium, for
not only were they reduced by them to writing, but in virtue of
the rescript of Adrian that is to say, of a presumptive right
given them by the then fountain of legislative power they
became law, leyis vicem obtinent that is, when they were
unanimous ; and still later, under the lower empire, the em-
perors extended to great lengths the principle thus initiated.
1 Sec 361.
THE HISTORY OF ROMAN LAW. 327
JURISTS: VALENS (ALBERNUS VALENS, frag. 20).
JULIAN ( SALVIUS JULIANUS, frag. 457). Julian was praetor,
prcefectus urbi, and twice consul. His reputation with the
lawyers mainly depends upon the prominent part that he took
in the construction of the edictum perpetuum, in which he was
employed by Adrian, in consequence of which he is styled by
Justinian Legum et edicti subtilissimus conditor. All that
we possess of this edict, to which we shall subsequently refer
more particularly, 1 are some scattered fragments in the Digest
from which the critics have endeavoured to arrange and recon-
struct it. 2 Amongst the other works of Julian to which re-
ference has been made in the Digest of Justinian, there is a
digest, in ninety books (Digestorum libri nonaginta), and a
monograph upon ambiguities (De ambiguitatibus lib. sing.)
AFRICANUS (SEXTUS C^ECILIUS, frag. 131) was a pupil of
Salvius Julianus. We find from several passages in the Digest,
that he put questions to him, took notes of his answers, and
that he freely referred to him as an authority. 3 The one hun-
dred and thirty-one laws to which his name is attached in the
Digest are extracts from his nine Books of Questions ( Questio-
num libri novem\ the difficulty of translating which has be-
come a proverb among the interpreters : " Lex Africani, id est
difficilis."
A.D. 138. EMPEROR: ANTONINUS Pius. (T.ANTONINUS
FULVIUS, PlUS COGNOMINATUS.)
392. Antoninus was adopted by Adrian, whom he succeeded,
and proved to be one of the best of the emperors. He encou-
raged learning and philosophy, and, at the national expense,
paid a number of professors to teach publicly both at Rome and
in the provinces. "We find a rescript of his, in the Institutes,
containing the order to punish the cruelty of masters by com-
pelling them to sell the slaves they had maltreated.
1 See sect. 386 et scq. the work of Veyhe, Lilri tres edicti,
8 Hanbold has effected a reconstruc- 1823.
tion, which has been inserted by our 3 Dig. 12, 6, De cond. ind., 38, pr. f.
late colleague, M. Blondeau, in his col- Afric. ; 19, 1, De act. romp., 45, pr. f.
lection of texts. We may also refer to Paul ; 25, 3, DC agn. lib., 3, 4, f . Ulp. ;
30, De Icgat., 1, 39, pr. f. Ulp.
328 THE HISTORY OF ROMAN LAW.
JURISTS : TERENTIUS CLEMENS (frag. 35).
POMPONIUS (SEXTUS POMPONIUS, frag. 588). We are in-
debted to Pomponius for an abridgment of the History of Law,
which is included in the Digest " De oriyine juris et omnium
magistratuum et successione prudentium ;" and it is to these
works which, though extremely brief and incomplete, that we
must refer for the best information upon this subject.
L. VOLUSIUS MCECIANUS (frag. 44) was, according to Capi-
tolinus, the legal instructor of Marcus Aurelius.
A.D. 161. EMPERORS: MARCUS AURELIUS and Lucius
VERUS (M. AURELIUS ANTONINUS and L. VERUS,
DIVI FRATRES).
393. Marcus Aurelius was adopted by Antoninus and associ-
ated with Lucius Verus, his brother by adoption, who succeeded
him in the empire. The virtues of Marcus tended to conceal
the vices of Lucius, and the two are known as the " Divine
Brothers " (Divi Fratres).
A.D. 169. EMPEROR: MARCUS AURELIUS.
JURISTS: PAPIRIUS JUSTUS (frag. 16).
TARRANTENUS PATERNUS. We have only two fragments
taken from the works of this author, upon military matters
(Militarium libri quatuor], which were incorporated in the
Digest. We read in Lampridius (Commodus, 4) that, being
prsetorian prasfect under Commodus, he was put to death upon
the charge of conspiracy against the life of this prince.
SC^VOLA (Q. CERVIDIUS, frag. 307). Marcus Aurelius,
according to Capitolinus, chiefly relied upon his advice ; and
we are told by Spartian (Caracalla, 8) that he was the pro-
fessor of Septimius Severus and Papinian.
Ulpius Marcellus (frag. 159) tells us that he was a member
of the council of Marcus Aurelius (Dig. 28, 4, De his qui, 3),
and, according to Dion Cassius (82 8), he became odious to
Commodus, under whom he served in Britany, on account of
his talents and his virtues.
GAIUS (frag. 535). This illustrious jurist is known to us only
THE HISTORY OF ROMAN LAW. 329
under this name. It may be asked whether his name was
Gaius Bassus, or Titus Gaius ? This is, however, a useless
inquiry : he is known to us as " Gaius," and whether his name
was Gaius or Caius is a secondary consideration. 1 He lived
under Antoninus Pius and Marcus Aurelius, 2 and perhaps,
when still young, in the time of Adrian. 3 We know from the
title of the fragment which we have in the Digest, that he com-
posed numerous works. He took a deep interest in legal
history, and always endeavoured to trace things to their origin.
The subjects upon which he wrote were not merely the Twelve
Tables and the most important writings connected with Roman
Law, the three edicts (urbanum, cedilitium, provinciale), and
the lex JPapia, but also the works of the Pontifex Maximus,
Quintus Mucius Scsevola, qui jus civile primum constituit, as
we learn from him in his Institutes, in his libris quos ex Quinto
Mutio fecimus. He prefaced his work upon the Twelve
Tables with a short introduction, giving a historical precis of the
history of Roman law from the foundation of the city. 4 The
compilers of Justinian's Digest gave the preference to the histo-
rical precis of Pomponius. Besides his Institutions and his
Regulce, his Seven Books Rerum quotidianarum are so tho-
roughly practical that they received the epithet of aurearum.
By the side of the various conjectures made concerning his
person and his life, we have certain unquestionable facts upon
which dependance can be placed. Thus, strange to say, con-
1 Quintilian, Instit. orat., 1, 7 : pression he uses elsewhere when speak-
" Quid ? Quoe scribuntur aliter quam ing of the senatus-consultum orphitia-
enuntiantur ? Nam et Guius C. littera num, referring to Marcus Aurelius.
notatur." 3 Dig. 34, 5, De rebus dubiis, 7,
a In the twelfth commentary of his pr. f. Gai. : " Wostra qiiidem (etate
Institutes, 195, he applies the ex- Serapias, Alexandrina mulier, ad divum
pressioii dims to Antoninus Pius, an Iladrianum perducta est," referring to
epithet applied to those emperors who a woman who had five children at a
had been deified by the senate ; he also birth.
adds the term phis, whereas in earlier 4 Dig. 1, 2, De orig. jur., 1, f. Gai. :
portions of his work he calls him only " Facturus legum vetustarum interpre-
Imperator Antoninus, whence we con- tationem, necessario prius ab Urbis
elude that at this time Antoninus Pius initiis repetendum existimavi ; non quia
must have been dead. " Sed nuper velim verbosos commentaries facere ;
Imperator Antoninus," he says in par. sed quod in omnibus rebus animad-
126, already quoted. " Sacratissimi verto, id perfection esse, quod ex om-
principis nostri oratione" is the ex- nibus suis partibus constaret."
330 THE HISTORY OF ROMAN LAW.
sidering what the merits of Gaius as an author were, he is in
no place mentioned either by the classical jurists or by the
historians of his time. 1 We do not find that he enjoyed any of
those honours and dignities which were conferred upon jurists
in favour at the court of their prince, or with the Roman people,
and in fact he describes himself in his Institutes as being a pro-
vincial. 2 Another singular fact is, that Gaius does not appear
to have received the jus respondendi, or, according to the new
form of expression in his time first mentioned by him, the per-
mission jura condere. This may be deduced from certain ex-
pressions in the Constitution of Valentinian the Third and
Theodosius the Second, Cod. Theod. 1, 4, Lex de responsis
prudentum, 3 A.D. 426. 4 But from the time of this law, and in
virtue of its provisions, Gaius figures as one of the five jurists
who were specially accredited, and his writings became of the
greatest importance in the development of Roman law.
This Lex de responsis prudentum is, in fact, the first docu-
ment in which we meet with his name. It first made its
appearance in the East, and was afterwards published in the
West, so that it would seem that the merit of Gaius was not
recognized till long after his decease, when a division of the
empire and the transfer of the court to Constantinople had
given to the East its great influence. This fact, together with
the peculiar bent of his genius, and his acquaintance with
Greek law, of which he gives ample evidence, is the basis of
the opinion that he was of Greek origin. And it is from
these facts that it has been supposed that he wrote and pro-
fessed the law in some humble town of Asia Minor. Gaius, how-
ever, it must be admitted, wrote as a jurist profoundly intimate
with his subject even to the most minute historic details of the
existing legal documents, usages and the legal literature of the
1 The Gaius mentioned in the Digest, solo placet plerisque solum religiosum
24, 3, Soluto matrim., 59, f. Julian. non fieri, quia in eo solo dominium
(Sabinus dicebat . . .Gaius idem); populi Romani est vel Crcsaris; IVos
45, 3, De stipul. servor., 39, f. Pomp. autem possessionem tantum et usu-
(Gaius noster, because Pomponius was frnctum habere videmur."
a Cassian) ; 46, 3, DC solution., 78, f. 3 This law is always referred to by
Javol. (" in libris Gaii scriptum est' ') ; M. Ortolan as the loi des citations,
refers to Gaius Cassius Longinus, more and will be found in extenso in note 1,
generally called Cassius. 501.
a Gai., Inst., ii. 7: "In provinciali 4 Sec 499.
THE HISTORY OF ROMAN LAW. 331
Romans. This would suggest access to an extensive library
possessing numerous manuscripts, which in his time were
extremely difficult to obtain. He himself professes to have
belonged to the school of the Sabinians. " Nostri prceceptores,
diverscs scholce auctores" is a common expression with him ; so
much so, that it is to him we are mainly indebted for acquaint-
ance with the points of difference which existed between the
two schools. 1
His elementary work, the " Institutiones," a title first adopted
apparently by himself, enjoyed so much reputation that before
the publication of Justinian's work it was regarded as the
elementary text-book of legal study ; but it is impossible to say
at what period this commenced. We observe that no mention
whatever is made of him in the two compilations of the lower
empire, Fragmenta jur. rom. Vaticana, Consultatio veter. cuj.
juriscons. ; but in the third, Collatio leg. Mos. et Rom., we find
a somewhat lengthy passage from his first Institute relative to
successions ab intestato according to the law of the Twelve
Tables. There is also an abridgment of his Institutiones in
the lex Romanorum Visigothorum, or Breviarium Alarici, A.D.
506. 2 And, finally, about the same period, the learned Boethius,
the minister of Theodoric, in the kingdom of the Ostrogoths in
Italy, who met with a violent death, A.D. 524, has inserted two
extracts from his work ; the one upon mancipatio, the other upon
the in jure cessio, in his commentary upon the Topicis of
Cicero (lib. 3). This was the position in which we were as to
the writings of Gaius when a discovery placed in our hands a
most valuable document. In 1816, Niebuhr, while at Verona,
discovered a palimpsest, that is to say, a manuscript of which
the original writing had been obliterated or erased by some one,
who, to save expense, had used the same parchment for other
purposes. In 1817, Savigny first brought the existence of these
palimpsests to light by an article in his journal ; and after some
months of diligent and patient labour on the part of Messrs.
Gaeschen, Bekker and Bethmann-Hollweg, who had been
employed by the Academy of Berlin to decipher these parch-
1 Gai. Inst., i. 106; ii. 15, 37, 79, 87, 98, 103, 133, 140, 141, 167, 178; iv.
123, 1'Jo, 200, 217-223, 231, 244; iii. 78, 79, 114, 163.
a Vide iiifra, 531.
332 THE HISTORY OF ROMAN LAW.
ments, the first edition of the Institutes of Gaius was published
at Berlin in 1820. 1 This elementary work, which consists of
four commentaries, presents a succinct and methodical resume of
the jurisprudence of the time of Antoninus Pius and of Marcus
Aurelius. The law of this period is set forth in its then state of
perfection, divided into three parts a system first adopted by
Gaius, in which he treats of persons, things and actions, and
which came to be generally adopted in treating of Roman law.
His historical precis and legal works embrace a wider field than
that which a writer who kept close to the bare limits of his subject
would mark out for himself, for they treat of the manners, insti-
tutions and social economy generally of the time, and of the in-
ternal and foreign policy of Rome. In comparison with the
" Institutes of Justinian," which have been compiled upon the
same plan and on the same model, the " Institutes of Gaius " are
a work of the utmost interest to those who are fond of studying
the development of law and of noting the changes which the
lapse of time brings with it. This discovery rectified a number
of errors, imparted new ideas, and cleared up many obscure
points ; and at the present day it is to be found in the hands of
every one who seriously turns his attention to the study of
Roman law.
A.D. 176. EMPERORS: MARCUS AURELIUS and COMMODUS.
180. COMMODUS alone (L. Antoninus
Commodus],
193. PERTINAX.
JULIAN (Didius Julianus],
i This manuscript, which consists of but the identity of the work, demon-
126 sheets, is of a date anterior to the strated by the complete accordance
time of Justinian. Three of the middle with what we already possess, is abun-
sheets are wanting. The parchment dantly evident. A second labour of
has been scraped upon one side and revision upon this manuscript, by M.
washed upon the other, and the leaves Blume, enabled M. Grcschen to publish
arranged indiscriminately for the pur- in 1824 a second and more complete
pose of writing upon them the letters edition. The blanks, however, which
of St. Jerome. Sixty-two leaves have, occur, whether as the result of the
in addition, a third writing, a work on three missing leaves or the impossibility
theology. The last page remains intact of reading that which still exists, are
and contains a passage relating to in- numerous. M. Grcschen had com-
terdicts, which had already been noticed mcnced a third edition, which was
in the eighteenth century, though it was completed after his death by M. Charles
impossible to determine its author. The Lachmann (Bonn, 1841), and many
manuscript neither bears the title " In- other editions have subsequently ap-
stitutiones" nor the name of Gaius; peared.
THE HISTORY OF ROMAN LAW. 333
394. The tranquillity which was enjoyed during the reign of
several good princes disappeared with the death of Commodus,
who was assassinated by conspirators, and succeeded by the
aged Pertinax, only to be himself almost immediately after-
wards assassinated. We then see the empire literally put up
to auction by the soldiers. It found two bidders. Didius Julian,
a descendant of the illustrious Julian who flourished in the reign
of Adrian, offered the highest price; the empire was his, and
he was conducted by the praetorian guards, notwithstanding the
insults and maledictions of the people, to the throne, which he
occupied for five-and-sixty days. Overthrown by the legions of
Illyria, who had proclaimed their general Septiinius Severus,
he was slain by a tribune upon the order of the senate, and was
succeeded by Septimius Severus. Such was the desperate con-
dition in which we find matters at this time under a military
despotism.
A.D. 193. EMPEROR: SEPTIMIUS SEVERUS.
395. JURISTS: PAPINIAN, or -ZEMiLius PAPINIANUS (frag-
ments, 596) was the most celebrated of all the Roman jurists.
His decisions carried the greatest weight with them, and his
works were considered most valuable to the legal student. 1
The most remarkable of these are his " Questions, Answers
and Definitions" ( Qu&stio num, Responsorum et Definitionum
Libri\ of which we possess a number of fragments in Jus-
tinian's Digest. Papinian was the companion of Severus, who
raised him to the dignity of praatorian prefect. He survived
this emperor, and witnessed the murder of one of his sons by
the other. Caracalla, who murdered Geta, having addressed
himself to Papiuian to excuse his crime to the senate, Papinian
answered: " It is more easy to commit a parricide than to
justify it." And when an attempt was made to convince him
that Geta had merited his death, he said : " To accuse a person
who has been assassinated unjustly is to be guilty of a second
1 More than two hundred years after, by a fete in honour of this jurist,
when the students arrived at that point From this they took the name Papi-
whcn the books of Papinian were placed nianistes, which indicated that they
in their hands to be explained, they were advanced scholars,
commenced this year of their studies
334 THE HISTORY OF ROMAN LAW.
assassination." The reward which Papinian received for this
reply was that Caracalla ordered his soldiers to slaughter him.
This proof of heroism, if true, 1 is as honourable to Papinian as
are any of his writings.
CLAUDIUS TRYPHONINUS (frag. 79).
A.D. 211. EMPERORS: ANTONINUS CARACALLA and GETA.
A.D. 212. ANTONINUS CARACALLA (Aurelius An-
toninus Bassianus Caracalla).
It is from the Gallic cloak the cucullus or caracalla, in
which he was so fond of wrapping himself, and of which he
used to make presents to the people that he received his sur-
name Caracalla. His name was Bassianus ; but he was officially
called Antoninus, a name dear to the Roman people and the
prastorian soldiers, and which had been conferred upon him by
his father, Septimius Severus.
We would willingly pass over the five years of the reign of
this sanguinary prince, were it not for the fact that he enacted
a remarkable constitution which connects his name with the
history of Roman law, and by which he extended the rights of
citizenship to all the subjects of the empire, and for the fact
that he effected considerable changes in the caducary laws.
Before entering into an investigation of the effects of this in-
stitution, let us glance at the then existing condition of affairs.
SECTION LXXV.
THE Jus Latii AND THE Jus Italicum UNDER THE EMPERORS.
396. The emperors, who were the dispensers of the rights
of citizenship, of Latinity, of Liberty and of Immunity, both
as to towns and to country, who were the founders of colonies
and the creators of municipes, granted their concessions
1 The truth of this fact is questioned died by the order of Caracalla (Dion,
by the historians about this period. Cass. lib. Ixxvii. 4; Spartianus, Cara-
Nevertheless it is certain that Papinian call. 8 ; Aurelius Victor, Cses., 20, 33).
THE HISTORY OF ROMAN LAW. 335
according to their policy, their predilections or their weakness.
Claudius, who was born at Lyons, and Trajan at Italica, near
Seville, were favourably inclined, the one to Gaul and the other
to Spain. Nero, who was crowned in Achaia, at the Olympic
games on the race course, notwithstanding his fall and the
abandonment of his race, conferred liberty upon that entire
province, giving to its judges the rights of Roman citizenship. 1
Pliny, in his geographical tables of the then known world, gives
an accurate description of the empire at the time of which he
wrote. He takes great pains, when referring to the different
towns and provinces, to point out the condition in which each
was placed, specifying whether they were Civium Romanorum ;
Latiijus, or Latinorum ; Latii Veteris, or Latinorum Veterum ;
liber a, immunis, feeder ata, or stipendaria ; and also the Colonia
and Municipia, with the number of each of the classes and of
the rights which they respectively enjoyed. 2 We learn from
him that Vespasian gave to all Spain the jus Latii, without
prejudice, of course, to those colonies, municipia or other towns,
then numerous, which enjoyed still greater privileges. 3 On the
other hand, Septimius Severus deprived the inhabitants of
Neapolis, in Palestine, of the rights of citizenship, in order to
punish them for having taken up arms in favour of his compe-
titor Niger. 4
397. Independently of its original signification, applied
from the very first to the condition of the country itself, the
expression jus Latii, jus Veteris Latii, had a personal as well
as a local application, indicating alike the condition and the
1 Suet., Nero, 24 : " Sed excussus connection with Cornelius Bellus, who
curru, ac rnrsus repositus, quum per- was born at Cadiz, and was the first
durare non posset, destitit ante decnr- foreigner to whom a triumph and the
sum ; neque eo secius coronatus est. rights of citizenship had been conceded.
Decedens deinde, provinciam nniversam " Uni huic omnium externo curru et
libertate donavit ; simulque judices Quiritium jure donate."
civitate Romana et pecunia grandi." * Ibid. lib. iii. 4, in fine : " Uni-
Pliny, Natttr. histor., lib. iv. 10 : versa; Hispaniae Vespasianus imperator
" Universal Achaias libcrtatcm Domi- Augustus, jactatusprocellislleipublicie,
tins Nero dcdit." Latii jus tribuit."
2 Pliny, Nattir. histor., lib. iii. etseq. 4 " Neapolitans etiam Palrcstincnsi-
The expression jus Quiritium, as syno- bus jus civitatis tulit, quod pro Nigro
nymous with the rights of citizenship diu in armis fucrant." Spartian, Life
as applied to persons, is met with in of Septimius Severus, 9.
336 THE HISTORY OF ROMAN LAW.
capacities of individuals as to their participation, whether
greater or less, in the rights of Roman citizenship ; so that, by
the jurists of the period to which we now refer, persons are
classified according to this division: Gives, Latini, or Peregrini.
This personal character is still more marked after the lex Junta
Norbana, and the creation, under the style Latini Juniani, of
a distinct class who were enfranchised by virtue of this law.
The jus Italicum, on the other hand, had a different destiny.
It did not affect the personal status, so as to constitute a class.
The word Italici is not to be met with in any of the jurists.
But after the creation of the provinces on the one hand, and
the termination of the social war on the other, with the ex-
tension of the rights of Roman citizenship to all Italy, when
the distinction was drawn between the ager provincialis and the
ager Italians, the expression jus Italicum came into use, as in-
dicating territorial status : it described the condition of land
assimilated to Italian soil, the possessors of which enjoyed the
dominium ex jure Quiritium, and were not subject, as were the
occupants of the ager provincialis, to the payment of vectigal.
The territory, moreover, was subject to the Roman civil law as
regarded immovables, to mancipatio, injure cessio, usucapio : in
addition to which, residence in such territory conferred certain
privileges, as, for example, those attaching to the number of
children a man had {jus liberorum} ; three children being the
number fixed for residence in Rome, four in Italy, and five in
the provinces. At a later period, when the Byzantine emperors
wanted to give advantages to their new capital, they conferred
upon it not only the jus Italicum but all the privileges of ancient
Rome. 1
398. Savigny has clearly shown, in his dissertation upon
this subject, the territorial character of the jus Italicum which
we have just described ; but what is still doubtful is whether, in
the concessions made to certain colonies or to certain towns, the
jus Italicum was not necessarily attended with certain effects as
1 Cod. 11, 20, De privilegus iirlis tana non solum juris italici, sed ctiam
Constantinopolitance, 1, const. Honor. ipsius Roina; veteris prasrogativa Isete-
et Theodos. : " Urbs Constantinopoli- tur."
THE HISTORY OF ROMAN LAW. 337
to the condition of individuals, and whether the jus Latii, cither
in earlier or later times, granted to certain towns or countries,
was not on its part followed by certain results affecting the con-
dition of the land. The question is a difficult -one, but we can-
not admit any such proposition, at least as regards the period
anterior to Caracalla. Pliny, in his geographical description of
the Roman empire, only indicates towns or localities of small
importance and few in number, two in Spain and seven in
Italy, as having received the jus Italicum ; l all the others,
amongst which are the most considerable and the most highly
privileged, are only designated by him, as we have already seen, 2
by the terms Civium Romanorum, Latii veteris, Latii, or by
other similar expressions. It is indeed difficult to conceive that
these towns received any concessions relative to their territory.
On the other hand, Gaius, when he says that Troas, Berytus,
and Dyrrachium possessed the jus Italicum, refers to the privi-
leges conferred by the Leges Julia et Papia, and these laws
have clearly a personal application. 3 But from the time of the
constitution of Caracalla a great change took place, which will
shortly be explained ; and from that time it is correct to say that
the jus Italicum had exclusively a territorial signification.
399. Italy, though preserving its free towns, its municipia,
and other institutions, finished under the emperors without having
been converted into a province, by being consolidated, for the
purposes of general administration, under the central direction
of and subject to the rules of the imperial government. Adrian
at this period had divided it into four parts, each under the
administration of consular officials, 4 who were, at a later date,
1 Pliny, Hist, natnr., lib. iii. 4: Italicum for the most part after Pliny's
" Ex colonia Accitana, Gemellenses et time. Sec this subject dealt with under
Libisosona cognomine Foroaugustana, the head De ccnsibus in the Digest of
qnibus duabus jus Italia; datum." Justinian.
Ibid. 25 : " Jus Italicum habcnt eo 2 Vide supra, 396.
conventu," etc. (Then follows a de- 3 Dig., ut supra, 7, fr. G.
Bcription of seven populations of Illyria 4 Spartian, Adrian, 21 : " Quatuor
to whom this right had been granted.) consulares per oinncm Italiam judices
And again, we find in the fragments constituit." J. Capitol., Marc. Aiir.
of Celsus, Gaius, Paul and Ulpian, in Anton! n., 11 : "Datis juridicis Italia;
the Digest, lib. 1. tit. 15, De censilms, consulnit, adidexcmplum quoAdrianus
intimations of many colonies, cities and consulates viros rcddcre jura praiccpe-
territories, which had received the jus rat."
338 THE HISTORY OP ROMAN LAW.
replaced by correctores or prcesides, as in the provinces, and
under Maximin it also lost its exemption from taxation.
SECTION LXXVI.
THE COLONIES AND MUNICIPIA UNDER THE EARLY EMPERORS
THE TABLES OF MALAGA.
400. The colonies were considerably increased in numbers
under the early emperors. Not only the principal provinces,
such as Gaul, Spain, Africa, and Greece, but countries situated
at the greatest distance from Rome, had colonies established in
them. The administration of these colonies, as well as that of
the municipia or the federal towns, was framed upon the one
common model, on the principle of local civil organization and
government, with such variations in matters of detail as were
rendered necessary by peculiarities of custom or circumstances.
It must not be overlooked that whereas, under the imperial
rule, political rights in affairs of state were withdrawn almost
entirely from the Romans themselves, the towns of the several
provinces continued in the enjoyment of their municipal privi-
leges, their comitia, their little senates, and their right of electing
their own magistrates.
401. Two curious specimens of municipal law, belonging to
the time of Domitian, were discovered in October, 1851, in the
neighbourhood of Malaga. These two laws are written upon
bronze tables, the one containing nine articles (xxi. to xxix.) of
the municipal law of Salpensa, a small town in Spain, which has
ceased to exist ; the other, nineteen articles (li. to Ixix.) of the
municipal law of Malaga, which is placed by Pliny in the list of
federal towns, 1 but which, in this table, is treated as a municipium.
These two tables have formed the subject of several treatises,
first in Spain, afterwards in Germany ; and at a later period an
interesting discussion took place between M. Laboulaye and
1 Pliny, Nat. hist., lib. iii. 3: " Malaca, cum fluvio, fcetleratorum."
THE HISTORY OF ROMAN LAW. .'J39
M. Giraud as to their authenticity, a fact now no longer in
dispute. 1
The jus privatum as it existed in the municipia, the law
regulating their internal organization and administration, and
the result of the transition of the municipal magistrates from
their original condition to that of Roman citizens, have con-
siderable light thrown upon them by the study of these tables.
From article xxiii. of the table of Salpensa, we see that the
municipia sometimes conferred upon the reigning emperor the
dignity of duumvir, in order that he might send a prsefect to
exercise jurisdiction in his place, and article xxvii. establishes the
right of inter cessio between the municipal magistrates. Articles
lii. to lix. of the table of Malaga treat of the convocation of the
comitia and the manner of voting therein.
SECTION LXXVII.
THE BIGHTS OF CITIZENSHIP CONCEDED TO ALL THE SUB-
JECTS OF THE EMPIRE.
402. Such was the situation of affairs when Caracalla intro-
duced a very considerable change in the personal status of indi-
viduals ; when he in fact conceded to all within the empire the
rights of Roman citizenship. "In orbe Romano qui. sunt, ex
canstitutione imperatoris Antonini cives Romani effecti sunt"
remarks Ulpian, as quoted in the Digest of Justinian. 2
But, it may be asked, what were these rights of citizenship ?
and what was the condition of the Romans ? It is said that
from the passing of this constitution all subjects were Roman
citizens ; but might it not with equal justice be said that all
Roman citizens were subjects ? Without further inquiry into
1 The first work is by Manuel Rodri- (Les tables de bronze de Malaga et do
quez de Berlanga, which contains the Salpenza, trad-nit us et annotecs), 1856,
textanda commentary; it was published and by M. Ch. Giraud (Les tables de
in 1853 at Malaga. Two other editions Salpensa et de Malaga), 1856; Lex
of the text, with notes, were published Malacitana, 1868, by M. Asher of
at Leipsic in 1805 by M. Mommsen and Heidelburg, which contains an interest-
by M. Bussemeker. Another edition, ing discussion on the authenticity of
by M. Henzen, came out in 1855 in the the two monuments.
Bolletino dell' Instittito dicorrespon- * Dig- 1, 5, De statu ftvminum, 17,
denza aroheologica. The last came fr. Ulp.
out in France by M. Ed. Lnnonlaye
z 2
340 THE HISTORY OF ROMAN LAW.
this, however, it is clear that, as to the composition of families,
the enjoyment of the jus civile privatum, imperial administra-
tion, and, in short, the formation of what is still called the
" Roman people," and which was then nothing more than the
agglomeration of all the conquered nations except the barbarians,
this constitution of Caracalla was of importance.
403. We are far, however, from knowing what this consti-
tution actually was. It is a remarkable fact that the historians
of the time make little or no mention of it, whereas the historians
of the republic never failed to mention even small towns to which
the rights of citizenship had been accorded. What can be a
stronger proof of the fact that the title of citizen had fallen in
the public estimation under the emperors ? Some doubts have
also been raised as to the actual authorship of this constitution
on account of the name Antoninus, a name to which all the
emperors were partial, and which has induced some to ascribe
it to Antoninus Pius. 1 But this is clearly an error. And we
rnay rely upon the testimony of Dion Cassius, who explains the
manner in which Caracalla, after exercising his ingenuity in
inventing new forms of taxation, after having increased the duty
upon enfranchisement, legacies and succession from a twentieth
to a tenth, in order to increase the amount produced by these
taxes, which were only levied upon citizens, increased the num-
ber of citizens, so that in fact that which was made to appear
an act of grace and a concession, had no other object than to
augment the revenue. 2 This is the satirical view of the ques-
1 Justin., Nov. 78, 5, by which he aimulorum jus, imiouique petentinm
suppressed all the differences between datum et damni et scrupulositatis prss-
the enfranchised : " Facimus autera bens occasionem, et manuniissorum in-
novum nihil, scd egregios ante nos im- digens auctoritate, omnibus similiter
peratores sequimur. Sicut enim Anto- subjectis ex hac legedumus: restitui-
riinus Pius cognominatus (ex quo etiam mus enim natime ingenuitate dignos,
ad nos appellatio hasc pervenit) jus Ro- non per singulos de crctero, sed omnes
nianaj civitatis prius ab unoquoque sub- dcinceps qui libertatem a dominis me-
jcctorurn petitus et taliter ex iis qui ruerint, ut hanc magnam qnamdam et
vocantur peregrini, ad Romanam ingc- generalem largitatem nostris subjectis
nnitatein deducens, hoc ille omnibus in adjiciamus."
commune subjectis donavit, Theodosius 2 Dion Cassius, lib. Ixxvii. 9 :
junior post Constantinum maximum "Cujus rei causa etiam omnibus qui
sanctissimum hujus civitatis condito- in orbe Romano erant civitatera dedit,
rein, filiorum prius jus petitum in com- specie quidem ipsa eis honorem tribuens,
iminc dcdit subjectis : sic etiam nos scd rcvera ut fiscum suum augcret,
hoc videlicet rcgencrationis et aurcorum quippc cum peregrini plera<jrtc horum
THE HISTORY OF ROMAN LAW. 31 1
tion, a view to which the historian, writing of such a prince
as Caracalla, naturally inclines, and it was a matter deeply in-
tc Testing, no doubt, to those who were affected by it; but the
national influence which it exercised, by adding to the revenue,
is the point of view from which we are interested in regarding it.
404. The extent also to which it affected persons is matter
of controversy. The most natural interpretation which was
originally accepted, that which most completely accords with a
number of circumstances, and which we may safely adopt, is,
that Caracalla gave in perpetuity and to all the subjects of the
empire the title of citizens ; that from this time there was no
difference between the inhabitants of different parts of the empire,
and that all except the "barbarians" enjoyed the rights of
citizenship. We must add, however, and shall subsequently
explain, that this reserve must be extended to certain enfran-
chised and condemned persons. Absolutism is never opposed
to equality of civil rights when the civil rights are nil. Cara-
calla placed all upon a level, but that level was subjection to the
imperial will.
405. This opinion, hoAvever, has not escaped criticism. For
example, certain passages of Ulpian place it beyond doubt, that
after Caracalla's time, and even under him, a distinction was
still drawn between cives and peregrini. 1 In order to explain
this, it has been said that Macrin, the successor of Caracalla,
suppressed the enactment of Caracalla, and re-established the
ancient order of things ; this assertion has been founded on an
expression of Dion Cassius. 8 But this explanation does not
account for the existence of the distinction under Caracalla,
who is said to have abolished it.
The theory now generally adopted, and which was first
started by M. de Haubold, 3 is that the constitution of Cara-
vectigalium non penderent." The pro- 2 The following is the translation of
vincials did not pay these imposts be- this sentence: "He (Macrin) abolished
cause, not being citizens, they could the provisions of Caracalla concerning
neither be heirs nor legatees under the inheritances and enfranchisements."
civil law, and they could not make l)ion Cassius, lib. Ixxviii. 12.
those enfranchisements which conferred 3 Haubold: ''Ex constitutione imp.
upon the enfranchised the rights of Antoiiini quomodo qui in orbe Romano
citizenship. essent, civcs Romani effect i suiit."
1 Ulp., Reyul., 17, 1. Leipsie, 181!).
342 THE HISTORY OF ROMAN LAW.
calla affected the empire as it existed at the time that it was
enacted, and that consequently it gave the rights of citizenship
to all then existing members of the empire, but not to those who
were subsequently annexed.
We cannot adopt this opinion. We do not think it possible
that this constitution extended to the enfranchised nor to those
who had been condemned to any penalty producing a capitis
diminutio. In our opinion these persons were in no way in-
cluded in the constitution of Caracalla. It could not be con-
tended that there were not, after the constitution of Caracalla,
enfranchised dedititii or Latini Juniani. The leges ^Elia Sentia
and Junia Norbana continued in force, and the distinction
between the enfranchised was not suppressed till the time
of Justinian. 1 But that the constitution of Caracalla was
intended to affect those enfranchised who were in existence
at the time of its promulgation is a matter that I consider
extremely doubtful. The laws of enfranchisement appear to
me to be quite beyond the scope of the provisions of this
constitution. Xor would it be contended that persons con-
demned, subsequently to the constitution of Caracalla, to
penalties which involved the loss of the rights of citizenship,
did not continue to incur this loss. And that the constitution
of Caracalla included even the condemned then existing, so
as by an act of grace to grant them a restitutio in integrum, I
cannot for one moment believe. The penal law seems still
farther beyond the scope of the constitution of Caracalla.
406. The chief difficulty we have to determine concerning
newly-acquired territories, which had been annexed under the
empire, is whether the status of citizen was communicated to the
inhabitants by the mere fact of the annexation of their terri-
tory, or whether, in cases where this annexation was subsequent
to the constitution of Caracalla, the inhabitants remained in the
condition of peregrini suljccti. Apart, in fact, from the con-
quest of kingdoms subsequent to the constitution, conquests
which were carried into the most distant parts, that which
' Inst. 1, 5, DC libcrtinis, 3; Cod. 7, ">, De dedltlt. libert., and 6, De latin,
libert.; Nov. 78.
THE HISTORY OF ROMAN LAAV. 343
was with pride named the Roman world was already in exist-
ence in the time of Caracalla, and it is to this vast world (in
orbe Romano qui sunt) that this constitution of the emperor
applies. In fact, in the courts of the East, no distinction was
drawn between subjects and citizens ; every subject of the
empire had the right of citizenship. Whence came this change,
if it did not spring from the constitution of Caracalla ? Can it
be ascribed solely to the transfer of the seat of empire from
Rome to Byzantium, or to mere disuetude, while there was
upon this very subject specific legislation? About eighty
years after the constitution of Caracalla, -^Elius Spartianus, in
writing the life of Septimius Severus, says that he was of
African origin, that he came from the municipium of Leptis,
now Tripoli ; but that his ancestors were Roman knights before
the time when the rights of citizenship were conferred upon all
(ante civitatem omnibus datum), and it is the Emperor Diocletian
that the historian is addressing. 1 Justinian says that, whereas
Caracalla accorded to all the rights of citizenship, Theodosius
granted them those that had been reserved to persons having
children, and that he conferred upon all the enfranchised the
title of citizen. Does not this indicate that the constitution of
Caracalla was definitive and general ? Would he have com-
pared it to that of Theodosius and to his own had it been
intended only for the then existing inhabitants, and not for
those who in later times might be added ?
407. Is there anything to be wondered at in the difference
which was always made between cives and peregrini 9 Without
considering the enfranchised and those who had been convicted
of crimes which deprived them of the rights of citizenship, is
it not correct to say that the distinction never for one moment
ceased to exist, and that it was individuals alone who changed
their position ? The subjects of the empire, people of the
Roman provinces who were hitherto peregrini, had become
citizens, and the class peregrini thenceforward consisted solely
of those who were in fact strangers to Rome, the barbarians,
1 " Severus Africa oriundus impe- civitatem omnibus datum." Spartian,
rium obtinuit : cui civitas Leptis, pater Life of Sept. Severvs, 1.
Geta, majores equites Romani ante
344 THE HISTORY OP ROMAN LAW.
mercenaries in the pay of the emperor, who located on the
farthest frontiers, received land in order to defend it, with
whom there was an incessant struggle still being carried on,
and who were certainly not at that time subjects of the empire.
The idea formerly attached by the Romans to the word pere-
grinus was thus changed a second time. Sidonius Apollina-
rius, in the fifth century, says, in somewhat emphatic language,
" Home, the capital of the entire world, in which no one is
peregrinus but the barbarian and the slave." 1
408. From the time of the constitution of Caracalla, the
title of " Roman," which had long ceased to be a word desig-
nating a race, and Avhich had become a political term, was
extended to all within the limits of the empire. The toga was
worn everywhere ; the gens togata included every variety of the
human race, in fact the greater part of the inhabitants of the
then known world ; and it was all these races, who, before their
union with the empire, were barbarians, that orators would
address as " Quirites !" With this word Alexander Severus in
Syria caused the mutinied legion of Daphne, a legion of Asiatics,
to lay down its arms, as Julius Cajsar had already done in
Rome with one of his own legions. 2
409. Such are the principal legal effects of this constitution.
We need not refer to other contracts or institutions connected
with the civil law which were confined to pecuniary interests,
to the connubium or the right of forming legitimate marriages,
called by the Romansjwste nupticB, which had become common
amongst the whole population of the empire, the general effect of
which may be described in the language of the Spanish poet. 3
" Distantcs regionc plagse divisaque ponto
Littora conveniunt . . .
Nam per genialia fulcra
Extern! ad jus connubii ; nani sanguine mixto
Texitur, alternis ex gentibus, una propago."
The Roman armies were no longer recruited for slavery
1 "(Romam)domidliumlegum,gym- 2 " Quirites, discedite, atque arma
nasium litterarum, curium dignitatum, dcponite." Lampridius, Life of Alex.
verticem mundi, patriam libcrtatis, in See., 53; Suet., Life of J. Crrsar, 70.
qua totius mundi civitate soli Barbari 3 Prndentins (a native of Tarra-
et servi peregrinantur I " bidoiiius conensis), v. 31$.
Apollinarius, epist. 1, 6.
THE HISTORY OF ROMAN LAW. 345
amongst those populations, the members of which were all now
Roman citizens. Obstinate revolts doubtless took place in
exceptional situations, when, as the result of war or sedition in
the provinces, slavery was the fate of the captives ; but from
the time of Caracalla, the franchise became an absolute right.
Roman slaves were for the future only obtainable from amongst
barbarians beyond the frontiers of the Rhine, the Danube, of
Asia Minor, or of Africa. This constitution in one word gave
freedom to the greater part of the then known world.
In fact, from the date of this constitution, provincials through-
out the empire became eligible to the ranks of the army, a
privilege heretofore exceptional, and one which was solely the
result of personal concession, for it had been the standing rule
that the peregrini and the barbarians could not .form a portion
of the legions proper, but acted merely as auxiliaries. After the
constitution of Caracalla, therefore, all the provincials trans-
formed into citizens could become legionaries, and thenceforth
regular recruiting took place in each province. ' This constitution,
therefore, materially augmented the military resources of the
empire. But the condition of the Roman legion, both at this
period and subsequently, was that of the general population of
the empire a melange of nations bound together by the will
of a single individual and glorying in the title of " Romans."
410. It must not be overlooked that the constitution of Cara-
calla, which gave to all the subjects of the empire the rights of
citizenship, did not give to all the territories the rights of ager
Romanus. In elevating all the people, it did not elevate all the
soil to the same civic status ; it w f ould not have answered the
purpose of Caracalla to have released the land from tribute or
vectigal. The solum Italicum, and the lands belonging to those
towns whose territory had been admitted to the enjoyment of
civic rights, still remained distinct from the solum provinciale,
and this distinction was maintained till the time of Justinian. 2
But from the time of the constitution of Caracalla, all subjects
1 " Snpplementa Icgionibus scripta time of Constantius, lib. 24, G.
sunt, indictis j>er provincias tirociniis." * Cod. 7, 25, De nidi. jur. Quir. ; 7,
Amiuian. Marcclfinns, speaking of the 31, De usttcajt. transform.
346 THE HISTORY OF ROMAN LAW.
were citizens ; the differences between the rights of citizenship,
of Latini veteris or Latini, in the colonies, municipia and all
other towns or villages, was entirely effaced, so far as concerned
the status of persons. The Jus Italicum from this time was
exclusively territorial.
SECTION LXXVIII.
THE MODIFICATION OF THE LEGES JULIA AND
THE RIGHTS OF THE Fiscus IN CLAIMS UPON CADUCA.
411. The same observation as that already made equally
applies to another constitution of Caracalla, which is briefly
indicated to us, like the last, by Ulpian, and like the last its
scope and bearing are equally subjects of controversy ; this is
the caducary law, concerning which Ulpian says, " Hodie ex
constitutione imperatoris Antonini omnia caduca fisco vindi-
cantur." 1
41 S. Our older writers upon Roman law having only a
vague notion of what could be meant by prcBmia patrum, men-
tioned in Roman literature and several fragments of the jurists,
and imagining that the provisions concerning the caduca were
intended by the leges Julia and Papia to apply directly to the
public treasury, were much embarrassed by this fragment of
Ulpian. They could do no more than question the accuracy
of the manuscripts, like Cujas, who, when commenting upon
these words, " Hodie ex constitutione imp. Antonini" wrote
"Imo, ex lege Papia," and who endeavoured by a transposition
of the text to apply this constitution to another point. 2 Or
else they limited the operation of this constitution to a mere
change in the financial administration made by the Emperor
Caracalla, in order to make a transfer from the cerarium or
public treasury to the Jiscus or imperial treasury. Such is the
sense in which Pothier, who conforms to the more advanced
1 Vide supra, 377; Ulp., Reg., tit. 2 Cujas, Notes on tit. 17 of Ulpian.
17, De caducis, 2.
THE HI8TOUY OF HOMAN LAW. 347
interpretation of J. Godefroy and of Heineccius, understood it,
as expressed in these terms, " Caduca igitur ex ilia lege cerario
Populi Romani cedebant. Hodieex constitutione imp. Antonini
omnia caducafisco vindicantur" 1
41 3. Since, however, we have become acquainted with the
Institutes of Gaius, and since we have learned how by the lex
Papia those who had children (qui in eo testamento liberos
habent), as a reward for paternity, were permitted to claim the
caduca, the order in which these persons were called, and
how the public treasury was only admitted in default of such
persons, the true sense of the constitution of Caracalla has
become clear. This emperor, who was notorious for cruelty,
and at the same time has left behind him a reputation as a fiscal
administrator, deprived paternity of its privilege, and gave to
ihejiscus the entire claim upon the caduca. He had doubled
the impost upon inheritance, legacies, donationes mortis causa
(vicesima hareditatum}, as also that upon enfranchisements.
He filled his treasury by giving to the fiscus all the caduca.
The ccelebes and the married who had no children were in all
cases punished, but the parent was not recompensed. The
caducary laws became exclusively fiscal. Caracalla, in his
claim upon the caduca, only respected the right conferred upon
the ascendants or descendants of the testator of the jus anti-
quum preserved to them by the leges Julia et Papia." 2 And this
explains the fragment of Ulpian : " Hodie ex constitutione
imperatoris Antonini omnia caduca Jlsco vindicantur, sed
servato jure antiquo liberis et parcntibus."
414. This effect of the constitution of Caracalla explains
the other singular fact that in no part of the fragments of con-
temporaneous jurists, such, for instance, as the Regulce of
Ulpian and the Sent entice of Paul, nor in the fragments of a
later period, is there to be found any mention of the order
in which the caduca were theretofore claimed by parents, nor
1 The caduca therefore by that law constitution of Antoninns, the whole
went to the eerarivm ; but now, bv the caduca passes to the fis>cvs.
2 Vide 376.
348 THE HISTORY OF ROMAN LAW.
any precise indication of what this claim actually was ; so that
our principal interpreters of Roman law either remained in
error or in vague uncertainty. And in fact it was necessary in
order to initiate ourselves into these mysteries to await the
discovery of the Institutes of Gaius, that is to say, the writings
of a jurist who had died before the commencement of the reign
of Caracalla.
415. However there are some slight indications or vestiges
of these obliterated rights still extant in certain texts which we
are justified in assuming as posterior to the constitution of
Caracalla ; such as are to be found even in the work of Ulpian,
where reference is made to this constitution. 1 So doubtful,
however, are these references that they have given rise to the
following objections. How could there still be any question as
to the rights of parents to claim the caduca if it is true that
they had been withdrawn by Caracalla ? Is it not clear, from
this evidence alone, that we must seek some other interpreta-
tion for this constitution? Opinions, in some respects, resemble
the fashions. Authors like to make their appearance in some
novel costume, different from other men. And the reappear-
ance of a garment that has been for some time laid by is
tantamount to a novelty. The interpretation which our ances-
tors were forced to adopt, for want of the information which
1 Rcgulcc, Ulpian, tit. 1, De llbertis, ject, under the title De caducis, he
21: " Quod loco non adeuntis lega- does not make the slightest mention of
tarii patres hteredes fiunt." Cujas, the rights of parents, and only refers
being unable to understand this text, to the claim concerning caduca in
proposed to read it, " Prccfecti asrarli order to say that it belongs entirely to
fUBredesjiunt," Ibid. tit. 25, Defidci- the jiscus, saving the rights of ascend-
commissis : " N~ec caducum vindicare ants and descendants who enjoy the
ex co testamento, si liberos habeat." jus antlqwim.
He proposed to read, " Si ex libcris The other text offers an objection in
cxistat." This double mention of the par. 3 of " Fra<>mcnturn vcteris cujus-
privilege of paternity as to claims for dam jurisconsulti, De jure fisci: ... Sane
caduca is the only reference to it in the si post diem centesimum patres caducum
Hetjulat of Ulpian. The allusions are vindicent omnino fisco locus non est."
in each case merely incidental, the one This text is commonly supposed to be
being introduced in connection with by Paul ; some suppose it to be by
the question of validity in the case of Ulpian or by some other jurist. How-
controverted enfranchisements, in which ever, as it is impossible to say whether
Ulpian sets forth the points in contro- this is anterior or posterior to the con-
vcrsy; the other in reference to a prior stitution of Caracalla, it ought not to
senatus-consultum. But when the be allowed as an objection. In our
jurist is actually treating of the sub- opinion it is anterior.
THE HISTORY OF ROMAN LAW.
349
we now possess, has reappeared under the form of the objection
we have just set forth. And we again find it said, that the
innovation made by Caracalla was limited to granting the
claim upon the caduca to tliejiscus instead of to the csrarium.
416. This is an interpretation which we cannot accept, not-
withstanding the authority of the writers who give credit to it.
Its inaccuracy is apparent.
In the first place, it appears to us clearly demonstrated that,
before the constitution of Caracalla, the distinction between the
cerarium and the Jiscus, though subsisting in theory and as a
matter of personal administration, was in reality nonexistent.
And that, especially as regarded the caduca, that which fell to
the cerarium heretofore is now specifically stated to belong to
ihejiscus. 1 Whereas, on the other hand, even after the con-
stitution of Caracalla, we find the principle of a difference
existing between the rights of the people and those of thejfiscus
1 This is plain from the edict of
Trajan upon the premium to be
awarded to those who should them-
selves declare their incapacity to be-
nefit from the caduca. If we rely
upon Paul's rendering of the terms
" Ut si quis, anteqnam causa ej us sera-
riuin deferntnr professus esset earn rein
quam possideret caperc sibi non liccre
ex ea partem fisco inferret, etc. Et
probasset jam id ad fiscum pcrtincre
. . . ex eo quod redactum esset a
Prrcfectisjerario partem dimidiamferat"
(Dig. 49, 14, Dejurejisci, 13, pr. and
1 ) - in a rescript of Adrian (ibid. 4 ),
and in a senatus-consultum preserved
by Junius Mauritianus, who wrote
under Marcus Aurclius : " Senattis
ccnsuit ut perinde rationes ad ajrarium
dci'erat is a quo tota haireditas fisco
evicta est, vel universa legata" (ibid.
15, 5). All these texts are taken
from treatises upon the leges Julia et
Papla. No one can say that the word
Jisciis has been substituted by Tribo-
nian for enrarium, inasmuch as the two
words are used at the same time, in the
same phrase, and in the same provision.
"We may conclude from these texts that
already, under Trajan, under Adrian,
and uudcr Marcus Aurclius, proceed-
ings took place before the pratfectus
(erarii ; but it was the fiscvs that was
proprietor, which made the claim, and
which received the portion on the score
of the caduca. The Jiscits appears as
exercising the same right in the frag-
ments that we possess of jurists anterior
to Caracalla (Dig. 30, DC, h-gat., 96,
1); GaiusfDig. 49, 14, I)e jure fsoi,
14); Junius Mauritianus (ibid. 15, 5 ;
and in a decree and constitution of Scp-
mentioned by Ulpian (ibid. 25). It is
easy to say that it is Tribonian who
has used the word ji'ciis instead of
arcirivm in every place in his frag-
ments ; but how does it happen that
in the very chapter, JJe jure Jisci,
he so frequently employs the word
cprarium, which is to be met with in
almost every paragraph in a text of
Junius Mauritianus (ibid. 15, 1, 3,
4, 5, C), and in another of Valcns (ibid.
42). And, besides, even in the time
of Justinian this practice of substitution
was prevalent, for we find in the text
of a constitution of that emperor the
two words used as synonymous: "Bone
a Zenone diva; memorise Jisctdibus
alicnationibus prospectum est, ne ho-
mines qui ex nostro ccrarlo donationia
vcl cmpLioiiis . . . uccipiuui '{ "
350 THE HISTORY OF ROMAN LAW.
distinctly enunciated, which proves that the constitution of
Caracalla had not suppressed it. The fact is, that after the
principle was admitted by the emperor that the people by the
law of investiture transferred to the emperor all their powers
and all their rights, it remained the custom to speak of the
" rights of the people," but this was equivalent to saying the
" rights of the prince." For, though preserving the duality of
terms and the notion of personal administration, tlaejiscus was
the sole reality.
In the second place, in order to sustain this strained inter-
pretation we must not only suppose interpolation on the part of
Tribonian in a great number of the texts of the Digest, but
must warp the phrase of Ulpian in order to turn it from its
natural meaning, and by so doing destroy the connection.
In the third place, we should try in vain to rearrange that
sentence. In any attempt to punctuate and twist it according
to our fancy, to make its parts undergo the exercises to which a
clown submits his limbs, there will always be found a word
which will baffle our best endeavours, the word omnia. This
omnia is of itself a rock on which is wrecked the strained in-
terpretation. " Omnia, sed servato jure antiquo liberis et
parentibus," can be well understood, and is perfectly correct if
the constitution of Caracalla suppressed the rights of the patres
in claiming the caduca; but if it maintained them it becomes
radically false ; the treasury does not claim all the caduca, since,
before it, come the claims of a whole series of persons having
children beneficiaries under the same will. Can anyone pretend
to say that the word omnia only concerns arrangements between
the cerarium and ihejiscus ? Then there must formerly have
been a division of the caduca between the two, the treasury
thenceforth taking the whole : this is nothing but hypothesis.
Suppose we accept the hypothesis, in what position is the
jurist, who has the reputation for logical accuracy ? He is
treating of the subject de caducis, and gives in his first
paragraph the detailed definition of the caduca, and then
immediately adds, in his second paragraph, " Ilodlc omnia
caduca Jisco vindicantur" without any indication or warning
that there is 'a whole series of persons enjoying the rights of
THE HISTORY OF ROMAN LAW. 35 1
paternity, whose claims come before that of the treasury, as if
they had no existence ? Let us assume, on the contrary, that
those rights of paternity, at the moment to which that hodie
refers, were suppressed, and the difficulty disappears.
417. It remains, however, for us to say a word about the
objection by which this lame interpretation is supported. We
do not speak of the fragment De jure fisci, as there is nothing
to authorize us in placing it posterior to the constitution of
Caracalla, but of the two pai*agraphs taken from the Regulce of
Ulpian, in which can still be read the mention of the right of
the pat res to the claim for the caduca. As to those two
paragraphs we might confine ourselves to pointing out the
incidental character, already noticed, of the allusion and the
forced manner, so to speak, in which this incidental mention
has been historically brought in. That would, perhaps, be the
best explanation. We must be, however, permitted to make
one conjecture which, among so many others, is perfectly allow-
able. It is very well known that Ulpian, as well as Paul,
assessor of Papinian, who had already earned distinction under
Septimius Severus, and whose life was prolonged to the time of
Alexander, had written before as well as during and after the
reign of Caracalla. Let us suppose his manuscript of the
Regulce to have been composed before the constitution of that
prince ; this constitution is then enacted, the author effaces in
the special title De caducis what he had said of the rights of
the patres, and writes : " Hodie ex constitutione imperatoris
Antoniiti omnia caduca Jisco vindicantur, salvo jure antiquo
liberis et parentibus" Perhaps, also, he makes the same sup-
pression in certain passages of some importance, but in two
isolated paragraphs there remains the incidental mention of
that right, although suppressed, and it is in this condition that
the manuscript reproduced by the copyists is put into circula-
tion. These are accidents which even with us moderns, who
enjoy the art of printing and the power of bringing out new
editions, frequently occur with respect to new laws that sud-
denly change old systems : without mentioning old editions kept
in use subsequently to these changes, on which the corrections
352 THE HISTORY OF ROMAN LAW.
are only made with the help of references or tables ot errata.
Now, the ancients had not even that remedy ; their corrections
had to be made by the hand, as we do ours on our manuscripts
or on the margin of our books. However this conjecture may
be received, everybody will admit that if the right of the patres
to the claim of the caduca was still in existence at the time
when Ulpian brought out his Regulce, the place to treat of it
was not that in which there might be an incidental and purely
nominal mention of it, but in a prominent position under the
title De caducis, after the detailed definition given by Ulpian
of what was understood by caduca and before the claim of the
treasury was alluded to, since that claim only came in for want
of the patres. It is impossible to explain otherwise than
by the suppression of these rights of patres, how it happens
that Ulpian, who wrote twenty books on the leges Julia et
Papia, preserves an absolute silence on the subject at the very
place in his Regula where it was indispensable to speak of
them ; how Paul, who wrote ten books on the same laws, pre-
serves in his Sententice the same silence under the headings
which most strongly suggested their mention, as those on the
institution of heirs, upon legacies and upon fideicommissa.
This suppression, by the constitution of Caracalla, is therefore
demonstrated, as it appears to us.
418. But the question may be asked, whether it was of
permanent duration, or whether it was not revoked subse-
quently to the reign of Caracalla? This is a point in the
history of law on which, for want of sufficient documentary evi-
dence, it is impossible to assert anything. There are a few
words taken from the Novella of Justinian, announcing the
abolition of the last vestiges of the legislation on the caduca,
which might suggest the belief that the right of the patres had
existed until that time ; as for ourselves, we can scarcely
accept such as the fact ; we interpret in a different way
the NovellcB of Justinian, and yet we are inclined to suppose,
without being certain of it, that the fiscal innovation of Cara-
calla did not survive him long. Dion Cassius has said of
Macrin, his successor, that he abolished the provisions of
THE HISTORY OF ROMAN LAW. 353
Caracalla as to inheritances and enfranchisement. 1 Although
the historian here alludes to the tax of the twentieth, which
Caracalla had doubled, and which Macrin brought back to its
primitive rate, we may be allowed to give that sentence a more
general sense and to view it as comprising also the provisions
relating to inhabitants and to caducary legacies. Macrin was
the assassin of Caracalla; it was necessary for him to gain
popularity at his expense. Everybody knew Caracalla had
been poniarded. The reign of Macrin, short as it was, was a
reactionary period as regarded his predecessor. He was some-
what versed in the law ; he had been consul for the treasury, pro-
curator of the ararium, and he used to say that it was shameful
to consider as laws the orders of a Commodus and a Caracalla. 2
It is not therefore without probability that among the provi-
sions of Caracalla on inheritances, which he abolished, were
comprised those relating to institutions and to caducary lega-
cies, in which matters he very likely had, as well as in the tax
of the twentieth, restored the old law. There is another
emperor as to whom, in default of Macrin, a similar supposition
is also admissible, and that is Alexander Severus, who, Lam-
pridius tells us, sanctioned a great number of laws, characterized
by moderation, on the rights of the treasury and of the people. 3
If we consider how onerous and intolerable must have been
that claim of all the caduca by the treasury in testamentary
successions, we shall not be astonished to find that everybody
was impatient to be freed from it. With the entire disqualifi-
cation of every person not actually married, plus the liability to
disqualification of one-half of all persons married but having no
children, plus the other causes of liability to disqualification
or quasi liability, and taking into consideration the fact of the
treasury setting aside, for those portions caduca or quasi caduca,
everyone, even those who had children, with the exception of
the ancestors or the descendants to the third degree, and appro-
priating them all for itself, there was no longer any security for
1 Vide 405 and reference. pridius, Life of Diadumeniamis, 4.
* J. Capitolinns, Life of 3facrinns, 3 Lampridius, Life of Alexander
4 and 13: "Nefas esse dicens leges Secerns, 15: " Leges de jure populi
videri Comraodi et Caracalla; et hoiui- et fisci moderatas et infmitas sanxit."
num imperitorum volunrates." Lam-
A A
354 THE HISTORY OF ROMAN LAW.
any testator. A dissolution of marriage, the death of a child,
of an appointed heir or of a legatee, baffled the precautions
taken by the testator, and swept the inheritances down into the
gulf of the treasury. It was not without danger that they
confined their testamentary gifts to the nearest relatives who
enjoyed the exception, or even to ancestors or descendants who
enjoyed the jus antiguum ; their death before the opening of
the will, or their refusal, would also open that gulf. Indeed,
with that gulf before them the best way was to remain intestate.
And a great restriction in the use of wills, to which the Romans
were so attached, could not fail to be the result of the caducary
laws, aggravated by the power of the treasury. Such is the
body of reasons which even, in the absence of any formal docu-
ment, makes us believe that this fiscal absorption, conceived by
Caracalla, was only temporary, and did not escape the rescind-
ing power of his immediate successors. It is to another period,
that of the Christian legislation inaugurated by Constantino,
that it appears to us more conformable with the general course
of events to attribute at once the suppression of the penalty
imposed on celibacy and on the misfortune of not having
children, a suppression for which we possess an express consti-
tution, and the complete disappearance of the privilege of the
patres in the claim to the caduca. 1
JURISTS: VENULEIUS SATURNINUS (frag. 71).
419. ULPIAN and PAUL (Domitius Ulpianus, frag. 2462);
(Julius Paulus, frag. 2083). The former was a native of Tyre,
the latter of Padua. Rivals in talent and in fame, both lived
in the time of Papinian, whose assessors they both were ; both
ascended through the various dignities of the empire to the post
of praetorian prefect. Both composed several works, which
were laid under contribution by the compilers of the Pandects,
and critical notes on the books of Papinian, which, later, were
rescinded by two imperial constitutions and denuded of all
authority. Each wrote an elementary work, fragments of
which have reached us, and which, taking their place by the side
1 Vide 480.
THE HISTORY OF ROMAN LAW. 355
of the Institutes of Gaius, constitute the sources whence we must
study the jurisprudence of that time. The work of Ulpian
bears the name of Liber singularis regularum Ulpiani, or
simply Fragmenta Ulpiani ; that of Paul is entitled Julii
Pauli sententiarum receptarum libri V, or simply Pauli sen-
tentiarum libri V.
JURISTS : Callistratus (frag. 99).
^Elius Marcianus (frag. 275).
Florentinus (frag. 42).
^Emilius Macer (frag. 62).
Herennius Modestinus (frag. 345).
EMPERORS.
A.D. 217. MACRINUS (OPILIUS MACRINUS).
218. HELIOGABALUS (M. AURELIUS ANTONINUS, coy no-
mine HELIOGABALUS).
222. ALEXANDER SEVERUS (AURELIUS ALEXANDER
SEVERUS).
420. Having attained the empire at the age of sixteen,
Alexander Severus surrounded himself with wise counsellors
and illustrious jurists, among whom was Ulpian. He kept alive
for a few years longer the influence of literature, the sciences
and the law, which after him disappeared for a long time. And
therefore those who confine their study of the law to the law
itself, without tracing its connection with political events, mark
his death as the advent of a new period. And, indeed, it was
under the emperors whose names we have just perused, under
the protection of Adrian, of Antoninus Pius, of Marcus Aure-
lius, of Septimius Severus, that the study of jurisprudence
reached its highest pitch. The jurists were multiplying and so
were their disciples. It was no longer by simply following the
practice of the bar that the latter trained themselves, but oral
lessons had developed in a series of lectures the principles of the
science. 1 Perhaps the professors, whose lessons had at first
been paid for only by the pupils themselves, already received
fees from the public treasury, and Marcus Aurelius, who created
public professorships for eloquence and for philosophy, had per-
1 Vide 3-17.
A A 2
356 THE HISTORY OF ROMAN LAW.
haps done the same for law. New works came out every day ;
they were commentaries on the edicts of the praetors or of the
proconsuls (ad edictum ; ad edictum provinciale] ; treatises on
the functions of the magistrates (De officio prafecti urbi, pro-
consults, &c.); extensive works on the whole body of law
(Diyesta, Pandectce) ; or, lastly, abridgments, elementary lessons
(Institutiones, Regulce, Sentential). The jurists rose to the
highest offices ; they were counsellors of the emperor, consuls,
praetorian praefects, praefects of the city. But all at once, after
Alexander Severus, the series appears to us abruptly inter-
rupted, and for a long time we meet in history with little else
than military seditions of the worst kind, emperors reigning for
a few months, made to-day, unmade to-morrow ; armies fight in
support of their respective candidates ; and thirty pretenders to
the empire in the course of a few years appear and destroy each
other.
EMPERORS.
A.D. 235. MAXIMIN (Julius Maximinus).
237. GORMAN 1st and GORDIAN 2nd (GORDIANUS I.
and II.).
(Less than two months after) MAXIMUS PAPIENUS
and BALBINUS.
238. GORDIAN 3rd.
244. PHILIP (PHILIPPUS ARABS). PHILIPPUS the elder,
Augustus ; PHILIPPUS the younger, Ccesar.
249. DECIUS.
251. GALLIUS HOSTILIUS and VOLUSIUS.
253. JEMILIANUS.
(Three months afterwards) LICINIUS VALERIANUS
and GALLIENUS.
The same and VALERIANUS 2nd, Ccesar.
(It was at this epoch that the pretenders began to appear, who
soon, to the number of thirty, spread civil war on all sides of
the empire and finished by killing each other.)
A.D. 260. GALLIENUS, alone.
268. CLAUDIUS 2nd ( M. CLAUDIUS).
270. AURELIANUS.
275. TACITUS.
THE HISTORY OF ROMAN LAW. 357
A.D. 276. FLORIANUS.
(Three months after) PROBUS.
282. CARUS, CARINUS and NUMERIANUS.
283. CARINUS and NUMERIANUS, alone.
421. In the midst of this rapid succession of princes, the
eye of the historian must be directed to two great events, which
cannot be placed under any reign in particular, because they
were daily developing themselves. They are the propagation
of the Christian religion and the irruptions of the barbarians.
SECTION LXXIX.
THE PROPAGATION OF CHRISTIANITY.
422. In the reign of Tiberius, the apostles, traversing the
provinces of the empire, had spread everywhere around them
the new religion which they preached. This system of pure
morality, with its grand conception of the Deity, struck the minds
and covered with shame and ridicule the religious system and the
gods of paganism. As a faith, polytheism, already abandoned
by philosophy and by the higher classes of Roman society, was
disappearing day by day. It no longer existed except as an
institution, as an external worship, in the habits and practices
of public and of private life. The creed of the apostles, which
was destined to bring about the greatest social revolution, not
through force, but through the mind and through the feelings,
attracted the small as well as the great, the weak as well as the
strong, the poor as well as the rich. The number of persons
who connected themselves with it rapidly increased ; the churches
in which they assembled multiplied ; everything contributed, as
regards private life, to propagate the Christian religion. Was
it the same with the government ?
423. This point has not been sufficiently considered with
respect to political laws. Hitherto we have shown the jus
sacrum of Home as firmly attached to the jus publicum, and
forming an important portion of that system. The pontiffs were
358 THE HISTORY OP ROMAN LAW.
magistrates of the people, named in the elections as the other
magistrates, interfering by virtue of their functions in the
highest affairs of the state ; the first officer of the jus publicum,
the emperor, was also the first of the jus sacrum, the sovereign
pontiff. The unity of the jus sacrum was not less essential to
the government than the unity of the jus publicum, for the two
were intimately connected. This unity had always been secured
by the very plurality of the divinities. When a province newly
added to Rome had new divinities, they were received, they had
altars raised to them, they had priests appointed to them, and
the religious system was not affected for a single moment. The
deities of paganism were accommodating. But when a religion
appeared which, revealing the existence of a One Infinite God,
could not be received without annihilating all the existing in-
stitutions, a religion which made priests independently of the
choice of civil authorities, which separated itself entirely from
public power, and which said: " My empire is not of this world,
but of another," the jus publicum was attacked in one of its
fundamental bases. The chiefs of the government were obliged
either to defend their system or to change it totally ; they
adopted the first of those two expedients. However absurd
polytheism may be, mankind does not so easily break off from
error, especially when the government of a great empire is con-
nected with this error. As rulers and as sovereign pontiffs, the
emperors wished to suppress a religion which threatened the
existence of the state, and, to accomplish their design, they
adopted the most fatal course, that of force and of cruelty,
which after all was suggested to most of them by their own
ferocious disposition. The persecutions of Nero, of Domitian,
of Verus, and of Gallus, only made martyrs ; the Christians
multiplied in the midst of sufferings ; the light of religion shone
more brilliantly and attracted more respect, and before long the
inhabitants of that vast empire were divided into two large
classes, the Christians and the pagans. When a war, a pesti-
lence, or any scourge fell upon the empire, the pagans never
failed to attribute it to the fatal innovations of the Christians,
and the latter to cast the blame of it on the blindness and on
the obstinacy of the pagans.
THE HISTORY OF ROMAN LAW. 359
424. The jurists who were attached to the existing law and
institutions were, in the struggle against rising Christianity, the
auxiliaries of the chiefs of the government, and often their
ministers or depositaries of public powers. Their philosophy,
which had come from Greece, which had been naturalized in
Rome, and had been cultivated by them as the mother of all
sciences, had progressively substituted for the Quiritarian civil
law, which was a materialistic system exclusively adapted to
Roman citizens, a system more rational, more liberal, and which
was open to all men ; but it had done this with the help of
ingenious constructions, which, while ostensibly upholding
civil law, contrived to push it aside and take its place, while
at the time they appeared only to be running parallel with it.
Christianity was in their eyes an enemy to the state and its
institutions that required to be combated ; perhaps a rival of
their philosophy which, by the very strength of its simplicity,
it was destined radically to destroy. It is however quite in-
telligible that the light of the new system was infusing itself
throughout the old, without the adherents of the latter being
at all conscious of any such influence, and that the principles of
the Gospel were indirectly penetrating their systems of philo-
sophy, and that even when persecuted and proscribed, Christi-
anity had a liberalizing and softening influence on the progress
of jurisprudence and of legislation.
SECTION LXXX.
THE IRRUPTION or THE BARBARIANS.
425. The Romans, driving before them the savage tribes of
the forests of Germany and the trans-Danubian provinces, had
forced back these wild and untamed races towards the north.
There, hemmed in by the inclement climate and barren tracts
of territory on the one side and the Roman power on the other,
these tribes had accumulated till, with the growing weakness of
the Roman armies, the strength of the barrier declined. Then
came a reaction, in which the barbarians were impelled upon the
empire. Under Domitian, Adrian, Marcus Aurelius, Gallus,
3GO THE HISTORY OF EOMAN LAW.
under each emperor in turn, the barbarians were seen advancing
on the Roman territory and then retiring laden with booty,
only to reappear in greater strength and again re-enter their
forests; every day becoming bolder, and showing in every fresh
excursion more audacity and greater force. Some emperors
bought them off with money ; and, thus attracted by the allure-
ment of gain and pillage, the Scythians, the Goths, the Sarma-
tians, the Alani, the Catti, the Quadi, the Franks, appeared at
first successively and soon almost all at once. This was the
prelude to those terrible incursions which were destined to an-
nihilate the empire.
Such was the critical condition of affairs when Diocletian
was called to the throne.
EMPERORS.
A.D. 284. DIOCLETIAN.
286. DIOCLETIAN and MAXIMIAN, A.A. (MAXIMIANUS
HERCULIUS).
CONSTANTIUS and GALERIUS, Csesars.
426. Transported from a family of freedmen into the class
of the emperors, Diocletian, by his energy, put down opposition,
brought the legions again under discipline, drove back the
barbarians, and restored some stability to the throne which he
occupied.
He was one of the most active of the emperors in legislative
measures, in rescripts and in constitutions, if we may judge by
the extracts which have reached us ; for we find under his name,
in the Code of Justinian, more than one thousand two hundred.
What most signalizes his reign in the history of the laAv is the
final change which he accomplished in procedure, by definitively
and generally substituting the extraordinarium judicium for
the formula system. In political matters, the division of the
empire and of the government between the two Augusti and
the two Cassars is the principal -feature of his reign.
THE HISTORY OF ROMAN LAW. 361
SECTION LXXXI.
DECAY OF THE FORMULARY SYSTEM OR OF THE Ordo Judi-
ciorum THE EXTRAORDINARY PROCEDURE (Judicia Ex-
traordinaria) INTRODUCED GENERALLY PETTY JUDGES
(Judices Pedanei).
427. Just as the formula system of procedure was gradually
substituted for the actiones legis? so in its turn was the formula
gradually superseded and finally definitely replaced by the ex-
traordinaria judicia, or extraordinary procedure.
The principle of the cognitio extraordinaria consisted in the
fact that the magistrate heard the case and decided it himself;
this principle was already recognized in the system of the actiones
Icgis as well as in that of the formulae. It is the most simple,
the least ingenious, the least scientific of the various methods of
judicial administration. In the first two systems of the Roman
procedure, however, and especially in that of the formula, it only
existed as an exception. The procedure by formula, which in-
volved the separation of the jus and judicium, the guarantee of
the juges jures chosen or accepted by the parties, and the tech-
nical regulation of that judge's commission, was the established
form of procedure. The magistrate himself only heard and de-
cided the case as an extraordinary measure (extra-ordinem): in
cases where hisjurisdictio could end the affair; where he wanted
to make use of his imperium ; where there was no given action
according to civil law nor according to the edict; and where
extraordinaiy recourse was had to the power itself of the magis-
trate {cognitio extraordinaria, persecutio, and not actio}. But
under the imperial government, when the arbitrary power of the
emperor was every day increasing, when his will and his deci-
sions had acquired a superior authority; when the number of
suits called or brought before him multiplied, when his officers,
his praetorian prefects and his lieutenants participated, through
delegation, in the powers of their master, the practice of using
the cognitiones extraordinaria. became very much more frequent.
The emperor did not always himself decide the matters in which
1 Vide 252.
362 THE HISTORY OF KOMAN LAW.
he extra-ordinem intervened. He often delegated the hearing of
them either to the senate, to an officer, or to a citizen ; but as
it was without the use of formulae, without the or do judiciorum,
and as the person or persons, to whom the hearing of the case
was delegated, pronounced judgment in virtue of the power thus
delegated, having both the jus and the judicium, there was
always an extraordinary procedure (cognitio extraordinarid).
We may observe that this usage had come into vogue even
before the provisions of Diocletian on the point. And, on the
other hand, all trace had already disappeared of the annual lists
of juges jures (jurymen), and of the decuries, annually posted
up in the forum and publicly exposed. Everything indicates
that these institutions of the republic, preserved for some time
under the empire, had by this time fallen into desuetude, and
that the choice of the judge was no longer exercised within the
same limits and was no longer made according to the same
rules.
428. It was in this state of things that Diocletian, through
a constitution that we find inserted in the Code of Justinian
(A.D. 294), ordered the presidents of the provinces to themselves
hear and decide all cases, even those which it was formerly the
practice to send before judges. This rule, which seems to apply,
in the terms of the constitution, only to the provinces, was made
general for the whole empire. Diocletian, it is true, reserved
to the presidents the right of giving to the parties subordinate
judges, when their public occupations or the multiplicity of the
suits prevented them from hearing them themselves; 1 but in
such cases the suits were no longer sent before the judges in
accordance with the formulary system : the distinction between
the jus and judicium, the regulation of the judge's commission by
the terms of the formula, was gone ; the whole case was transmitted
bodily. The formulary procedure had completely fallen through,
1 "Placet nobis, Praesides de his mu]titudinem,omniahujusmodinegotia
causis, in quibus, quod non ipsi possent non potuerint cognoscere, jndices dandi
cognoscere, antehac pedaneos judices habeant potestatem." Cod. 3, 3, De
dabant, notionis suae examen adhibere: pcdaneis judicibus, 2 const. Dioclet. et
ita tamen, ut, si vel propter occupa- Maximian.
tiones publicas, vel propter causaruin
THE HISTORY OF ROMAN LAW. 363
and what was formerly the exception had become the rule, all
procedure was extra-ordinem. The jus and the judicinm, the
office of the magistrate and that of the judge, were confounded,
and the name judex, judices majores, is now applied to the
magistrate.
429. From that time, the word actio a second time com-
pletely changed its meaning ; and the exceptiones and the
interdicts, institutions of the formulary system, lost their true
character. The actio was no longer either, as under the legis
actiones, a definite and symbolic form of procedure, nor, under
the formulary system, the right conferred by the magistrate to
sue before a judge, nor the formula conferring and regulating
that right. The actio was no longer anything else than the
right, resulting from legislation itself, directly to apply to
competent judicial authority to sue for what was claimed ; or
indeed, the act itself of suing. The word exceptio, in reality,
had no longer any meaning ; it was no longer a restriction
made by the magistrate on the power of condemnation accorded
to the judge ; it was a means of defence which the defendant of
his own accord presented before the tribunal. The interdictum
also had no longer any real existence. In those cases where the
praetor might have granted it, an action might now be brought
before the competent judicial authority. In its outward
forms, however, the destruction of the old system does not
appear so complete. As the formulary procedure had retained
some vestiges or resemblance of the procedure of the legis
actiones, so the extraordinary procedure preserved, at least
nominally, several vestiges of the system which it replaced. 1
The names remained, but they did not harmonize with the
institutions, which were radically changed.
430. "We find in the constitution of Diocletian the officers
1 Thus, as a memorial and as a though there was no such thing as
means of effecting a gradual transition sending the case before a judge. This
from one system to the other, the prac- usage was abrogated by Theodosius
tice was for some time adopted of de- and Valentinian. Cod. Theod. 2, 3, 1,
manding, at the time of having the and Cod. Just. 2, 58, 2; Const. Theod.
case laid at the registrar's, the formula and Valent.
of action (impetratio actionls), al-
364 THE HISTORY OF ROMAN LAW.
called judices pedanei, as an institution already in existence ;
but from this time they began to take their place in a more
ostensible manner, in the secondary ranks of the judicial autho-
rities under the Lower Empire. Whatever may be the etymo-
logy of the word pedanei, as applied to judges, it most certainly
indicates inferiority. They were personages whom the magis-
trates appointed to the parties as judges before the constitu-
tion of Diocletian ; and it was to them that Diocletian ordered
the case to be sent when multiplicity of business prevented the
magistrates from deciding it. But what were these judices pe-
danei ? Were they simple citizens, appointed as judges in each
case, and for that case only; or, in other words, Avere they the
successors of the ancient judices selecti, who took their place
when the usage of the annual lists and of the decuries was aban-
doned ? or must we regard them with M. Zimmern as inferior
local magistrates, or municipal authorities, to whom the imperial
magistrates could refer the hearing of cases of minor import-
ance ? or, lastly, were they permanent judges of an inferior rank,
instituted within the province of each superior magistracy ? All
these opinions have been entertained, and if we confine ourselves
to the first occasion where the expression judices pedanei occurs,
we must confess that it is open to conjecture what sense is to
be given to that expression.
431. That which appears incontestable is that the insti-
tution of the judices pedanei itself underwent modifications in
the course of the imperial government, and that we must not
imagine that the office always remained the same. In the
system anterior to the constitution of Diocletian, at the epoch
when the formulary procedure was still existing, we may see in
the judices pedanei only the successors of the ancient judices
selecti, that is to say, citizens appointed as judges in each case,
according to some uncertain standard of aptitude ; or, better
still, we may regard them only as municipal magistrates, to
whom the imperial magistrates referred inferior cases; but,
certainly, after the general adoption of the extraordinary pro-
cedure, they appear in a permanent and special character,
distinct from that of the municipal magistrates of the various
THE HISTORY OF ROMAN LAW. 365
localities. They were therefore judges appointed to hear cases
of minor importance, whom the Emperor Julian permitted
the presidents of the provinces to constitute within their districts.
Pedaneos judices, hoc est qui negotia humiliora discejttant, con-
stitvendi damns prcesidibus potestatem. 1
Thus a constitution of Zeno attaches them in a certain
number to each praetoriate. Zenonis constitutio qua unicuiquc
prcetorio certos definivit judices. z
Thus Justinian, in so far at least as Constantinople was con-
cerned, organized them anew, formed them into a permanent
college, limited their jurisdiction to the sum of three hundred
solidi, and appointed them himself, as we see by a constitu-
tion made by him, in which we can read several similar nomi-
nations. 3
Everything therefore goes to show that in the time of the
Lower Empire they were inferior judges, invested with a perma-
nent and special character, on whom the magistrate could devolve
the duty of hearing cases of minor importance, by giving them
individually as judges to the parties. The latter, however, had
always the right to challenge, and to bring their case before
arbitrators chosen by themselves. 4
SECTION LXXXII.
DIVISION OF THE IMPERIAL GOVERNMENT Two AUGUSTI
AND TWO CAESARS.
432. Before Diocletian several princes had sometimes been
seen together in the empire, Augusti and Caesars ; Diocletian,
1 Cod. 3, 3, DC pedaneis judicibits, torian prefect; and another, " peda-
5, Const. Julian. See also Diocl. neiim jndicem prcctorii gloriosissimi
Const. 4 magistri sacrorum qfficiorum."
3 Novelise, 82, DC ji/dicibiis, cap. i. 4 Cod. 3, 1, De judiclts, 16 const.
And also the preface, where it can be Justinian: "Apertissimi juris est, licere
seen that Zeno had named in the con- litigatoribus judices delegates, ante-
stitution itself the very persons of the quam lis inchoetur, recusare : cum
judices pvdanei. ctiain ex gencralibus formis snblimis-
3 Ibid. cap. i., ii., iii., iv., v. It is in siniaj tutu sedis statutum sit, necessitu-
cap. i. that certain advocates personally tern imponi, judice recusato, partilms
named are qualified " pedanei judices ad eligendos arbitros venire, et sub
tui fori:" this is addressed to the nrav audientia eorum sua jura propouerc."
366 THE HISTORY OP ROMAN LAW.
adopting that usage, transformed it into a system, and made the
government to consist of four chiefs: two emperors, equal in
power, with the title of Augustus ; two emperors subordinated
to the former, their lieutenant, so to speak, and their presump-
tive successors, bearing the title of Caesars. The idea was
to secure a vigorous administration by means of a political
machinery consisting of four members, each of whom would, it
was supposed, support the other, and thus suppress military
ambition and mutiny. This scheme was, to a certain extent,
a wise one, and it would have completely answered its pur-
pose if four emperors had been able to unite and make but
one single government ; but, as an inevitable consequence, they
divided, and four different courts were to be seen in the empire.
If, on the one hand, there was less want of discipline, and im-
munity from military ambition, on the other the rivalry of the
Augusti and the ambition of the' Caesars found a field, and in-
testine strife only changed its channels ; it did not the less exist.
Diocletian had chosen for his colleague Maximian, a shepherd
by birth, an officer of his army, and for Caesars, Constantius
Chlorus and Galerius. One year after both the Augusti abdi-
cated their power, and the two Caesars, taking their place, re-
ceived the rights and the title of Augustus.
EMPERORS.
A.D. 305. CONSTANTIUS CHLORUS and GALERIUS MAXIMIANUS,
A.A.
SEVERUS and MAXIMINIUS, Caesars.
433. We have now arrived at the period when the death of
Constantius Chlorus brought forward on the political arena his
son Constantino, who was destined to play so great a part.
Before describing all the changes introduced by that emperor,
let us cast a glance at the past, and mark the point at which
all the institutions had arrived since the disappearance of the
republic.
THE HISTORY OF ROMAN LAW. 3G7
SUMMARY OF THE PRECEDING EPOCH.
THE EXTERNAL SITUATION OF THE EMPIRE.
434. Rome at first comprised only citizens ; abroad it formed
its colonies, its allies, its subjects ; finally, colonists, allies, sub-
jects, all were absorbed; since the constitution of Caracalla
all had become citizens ; it sufficed to secure that title to have
been born free within the limits of the empire. Those limits
were almost synonymous with those of the then known world.
The territories which formerly composed the frontier now
formed the central portion of the empire, and countries which,
in the time of the republic, were outside of and beyond the
boundaries were now within. Towards the north, however, there
was a limit to conquest, a limit beyond which were situated
unexplored countries inhabited by numerous races called gene-
rically barbarians. These barbarians, when the extension of
the boundaries of the empire had made them neighbours, became
dangerous and formidable ; ever growing in strength and num-
bers, warlike and turbulent in character, they paved the way, by
often-repeated incursions into Roman territory, for the ultimate
downfall of the empire.
Jus PUBLICUM.
435. We have reached a period in the history of Rome when
we no longer find the people, the plebeians, and the knights,
elements of power in the state. The shadow of power left them
by Augustus had disappeared, and the body politic now consisted
of the army, the senate, and the emperor.
436. The army maintained its rights by violence, and re-
sisted any attempt to enforce discipline or to deprive it of the
tribute which it had imposed upon the emperors, the distri-
bution of largesses. If the emperor attempted to control the
soldiers he was assassinated "and another elected in his stead, to
be displaced in his turn should he happen, like his predecessor,
to displease the troops. Montesquieu says, " that which was
called the Roman empire at this period was a species of irregular
republic, somewhat resembling the aristocracy of Algeria, where
368 THE HISTORY OF ROMAN LAW.
the militia, in whose hands is lodged the sovereign power, makes
and unmakes a magistrate whom they call the Dey." The re-
forms, however, introduced by Diocletian, the exhaustion of
private wealth, and perhaps also a weariness of constant revolu-
tions, at last put an end to these convulsions, and the army, at
the period at which we have arrived, had been almost restored
to its original limits and duties.
437. The senate was composed of members nominated by
the emperor. Despoiled of its ancient splendour, it was now
merely an instrument, either in the hands of a revolted soldiery
or of a successful leader. It no longer preserved its adminis-
trative or its judicial power, except so far as either might be
conceded to it. If it assumed independence it was but for an
instant, at the end of a reign, in order to place in the ranks of
the gods the departed emperor, or to cover his memory with
maledictions ; in order to erect statues to perpetuate his glory,
or to overthrow those which, during his life, he had erected to
himself. Nor was it free to exercise its judgment, when the
question of the shame or the glory of the deceased prince was
anything but a matter of indifference to him by whom he was
succeeded.
438. It was necessary that the emperor should be nominated
by the senate. Sometimes the tie of parentage, natural or
adopted, or more distant blood relationship, in the absence of
intrigue, determined the choice, merit was but rarely taken into
consideration. But, in every case, the senatus-consultum was
prepared for the victor who marched against Rome at the head
of a successful army. It had happened that two emperors had
reigned together. The system of Diocletian, however, had
produced some important results. The existence of two empe-
rors with the title of Augustus, wielding equal powers, contri-
buted to the actual division of the Empire ; and the nomination
made by them of the two Cassars, their actual delegates and their
future heirs, prepared a succession in every case, regulated
beforehand, provided always that no rivalry interfered with this
arrangement.
THE HISTORY OF -ROMAN LAW. 3G9
439. The ancient magistracies had either disappeared, or
had become nullities. The consuls, the pro-consuls, and the
praetors were still in existence, but had lost the greater part
of their power and all their supremacy. From the debris of
these Republican magistracies, Imperial magistracies had been
formed. The emperor was surrounded by a crowd of digni-
taries, elevated to and retained in office by his sole favour ; the
praetorian pi-refect united within himself military and civil
power : the prcpfectus urbanus was charged with the functions
of the ancient aediles, and had a large portion of the criminal
jurisdiction the prafectus vigilum, the legati, the Caesarian
procuratores in a word, all the officers created by Augustus
were maintained ; for without doubt that emperor had designed
everything with a view to absolutism, and nothing remained
but to develope the germs which he had planted.
The principal magistrates, such as the praetorian praefects,
the urban praefects, the presidents of the provinces, were
assisted by numerous persons whom they selected and who
received public distinction. These functionaries, styled asses-
sores (ad ses sores') took cognizance of various matters. They
prepared the edicts, the decrees, the epistles ; in fact all that of
necessity emanated from the magistrates by whose authority
they acted.
440. All authority was lodged in the hands of the emperors,
who delegated to others the powers which they thought fit to
bestow.
LEGISLATIVE POWER. From the earliest period of the
empire the leges and the plebiscita had ceased, and in the later
times of the empire the senatus-consulta also disappeared, and
there remained but one single source of law, the imperial will. 1
The edicts of the magistrates were rather of an administrative
than legislative character.
EXECUTIVE AND ELECTORAL POWER. If the senate took
any part in appointments it was but a feeble concurrence in the
1 The last senntus-consulta of which Those referred to a later period, even
we know the date with certainty be- down to Alexander Severus, are doubt-
longs totherciguof Scptimius Severus. ful. Vide ;M9.
B B
370 THE HISTOEY OF ROMAN LAW.
nomination or confirmation of the choice already made by the
emperor of certain magistrates, 1 and in matters concerning
which he asked their opinion. Some of the emperors sur-
rounded themselves with a species of privy council, styled the
consistorium, who assisted him in the general administration of
the empire.
JUDICIAL POWERS. The emperor, the senate, the praetors,
the consuls, the urban prsefects, the praetorian prefects and the
local magistrates of each city, and the judices pedanei, were
the judicial functionaries, to which must be added the college
of the centumviri, which had been gradually on the decline
and was now near its end. The annual list of judices had
fallen into disuse. The emperor was surrounded by a council,
styled the auditorium, to whom he submitted the investigation
of important suits or questions upon which he desired to
adjudicate.
441 . CRIMINAL MATTERS. To the plebiscita, enacted under
the republic against certain crimes, must be added other senatus-
consulta, and the constitutiones , which attach penalties to par-
ticular acts styled extraordinary crimes (extraordinaria criminal).
In many cases the forms of criminal procedure under the re-
public had been discarded, though they were, in fact, the ordi-
nary forms. The emperor himself often pronounced a decree ;
the prcefectus urbanus, jointly with the council, determined the
greater part of the extraordinary crimes. The senate was in-
vested with the power of examining certain accusations: for
example, treason.
442. Eighteen praetors presided at Rome over the different
branches of criminal jurisprudence ; in the provinces the prases
or president of each province, or the vicarius or other lieu-
tenant delegated by the prefect, and above those the prrctorian
prefects, acted as judges of appeal representing the emperor,
1 In the early portion of the empire, participate in this election, invented a
when the election of magistrates was system of voting by ballot, the voting
still made by the oomitia, Augustus, tickets being forwarded to each city by
according to Suetonius, in order to en- the dccurions, and subsequently sealed
able the whole of Italy the better to and returned to Rome.
THE HISTORY OF ROMAN LAW. 371
vice sacra, from whose decree a final appeal lay to the em-
peror himself. At the end of the period with which we are now
dealing, the system of formulary procedure, which had been more
and more limited by the extension of the extraordinary proce-
dure, was ultimately abandoned, and all procedure became extra-
ordinem. The distinction between jus emdjudtcium ceased, as
also between the judex and the magistrate, with this exception,
that the superior magistrates, in their capacity asjudices major es,
in the event of being overburdened with work, delegated the trial
of inferior causes to thejudicespedanei. Sometimes the emperor,
by a rescript, indicated to the judge the decision that he was
expected to adopt ; at other times, he would determine the
matter in controversy by a decree.
Causes were now pleaded before the judges by the lawyers,
who had adopted their calling as a profession, and were known
by the name of advocati.
443. The emperor had under him the whole of the provinces.
Some, however, were considered as more especially belonging
to the people ; others as belonging exclusively to the Caesar.
The former were administered by pro-consuls and senators ; the
latter by the emperor's lieutenants : after the time of Diocletian,
however, the division of the imperial power between the Augusti
and the Caesars brought about a partition of these various pro-
vinces.
444. The organization and system of local administration
established in the colonies and the municipia was extended and
generalized throughout the various territories of the empire, and
at the same time, under imperial authority, it had acquired a
greater degree of uniformity and subordination. So that, not-
withstanding the fact that the rights of citizenship were now
general, the condition of the people was one of complete sub-
jection.
The inhabitants destined to furnish members of the curia,
or local senate, formed a special order termed curialcs, or curia
subjectL Wealthy citizens could be eligible to this class, and
their children inherited this privilege (curialis oriyo}. The
B B 2
372 THE HISTORY OF ROMAN LAW.
members of the curia were called decuriones, and sometimes
curiales. Those called to this office were not at liberty to refuse
the summons. If they endeavoured to evade it, either by travel-
ling abroad, or by taking service in the army, or by concealing
themselves in the country, the curies summoned them and
compelled them to return. Hence the term curies subjecti,
which indicates a species of subjection. When, however, the
number of curiales was extensive, care had to be taken when
preparing the lists of decurions (in albo decurionum descri-
lendo), to arrange that the duties should only fall alternately
upon those liable to them. In proportion as the curial title
brought with it obligations and onerous responsibilities, espe-
cially responsibility for the full payment of the impost due from
any locality, the imperial policy endeavoured to invest the office
with dignity and privileges, so that the curial orders came to
be the highest rank in the cities. They were not liable to the
same penalties as plebeians ; and from their class were elected
all the principal magistrates of the city. At the head of these
magistrates there were ordinarily to be found duumviri, who,
during their term of office, which was annual, controlled the
affairs of the city and presided over the curia. 1
But owing to the oppression of the government under the
Lower Empire, the harsh fiscal measures, and the responsibili-
ties with which the decuriones were charged for the acts of each
other and of the whole locality, the burdens they had to bear
became so intolerable that the curial office came to be regarded
as a species of servitude. Every available means of escaping
this onerous duty was resorted to, and places which enjoyed
immunity from the privilege were considered as enfranchised.
THE Jus SACRUM.
445. Paganism was still the system of religion recognized
by the public law ; the emperor Avas still the sovereign pontiff;
to the divinities worshipped by the Romans the senate added
the person of the deified sovereign, AV!IO took the name of
divinus. This class, therefore, became new deities, to Avhose
1 Cod. 20, 31, De dccurlonllus ct fills eorum.
THE HISTORY OF ROMAN LAW. 373
honour temples were erected, and for whose worship priests
were set apart.
Christianity, however, was gradually making its way, and
while the political laws of Rome reckoned the profession of it a
crime, the Roman subjects embraced it with ardour. The time
was approaching when polytheism was destined to be deprived
of legal protection, which was now its main support.
THE Jus PRIVATUM.
446. The epoch of which we are now treating was the
most brilliant age of Roman jurisprudence. The jurists of
this period comprise a long list of illustrious men who succes-
sively adorned the profession, and extracts from whose numer-
ous works in the form of fraymenta have been handed down to
our own time, and are still held by all enlightened nations in
well-merited regard. The revolution which commenced towards
the end of the preceding period was fully developed in this, and
the primitive, laconic, rude and barbarous legal system of early
Rome formed the basis upon which an extensive science of
jurisprudence was erected, imbued with the principles of natural
equity and adapted to the civilized condition of mankind.
447. It is remarkable that the development of civil law by
so many men'of superior genius and intellect should have taken
place under the empire at a time when liberty was suppressed.
Is this to be explained by the fact, that, under a republican
form of government, ptiblic life is the life of each individual
citizen, and the jus publicum therefore claims the first place in
their attention, whereas under an empire, the subjects having
only private life to regard, \hcjus publicum becomes a nullity to
them, and jurists therefore naturally devote their whole attention
to the development of the jus privatum, which acquires value
from the fact of its being the only branch of law left for them
to deal with ? It is also remarkable, that it was under the
empire, Avhen the populations had conformed to absolutism, and
the jus publicum was corrupt, that the jus civile became deve-
loped, ameliorated and approximated to the laws of natural
equity common to all mankind. Was it because a republic,
374 THE HISTOKY OP EOMAN LAW.
with a firm administration, and isolated from other countries,
frames its own laws for its own objects in a terse form, and bear-
ing the impress of republican energy, often in opposition to the
principles of natural equity, because each person, in such a com-
munity, is regarded not as an individual but as a citizen,
whereas in a vast empire like that of Rome, comprising various
nations and possessing no longer any such institution as real
citizenship, men are regarded simply as individuals, and, as
such, have to be governed by those general laws which are
applicable to all mankind, and which are necessarily at the same
time more numerous and more closely allied to the principles of
natural justice ?
Be the case as it may, this change took place. The new
system was not, however, framed upon a new basis, but upon
the old. The laws were not remade, but remodelled. The
fundamental principles of the Twelve Tables and of the civil
law were universally retained, and the amalgamation of the
contradictory elements of the past system with the reality of
the present constitutes the characteristic feature of the Roman
law.
448. PEESONS. The enfranchised were divided into three
classes, enfranchised citizens, enfranchised Latini juniani and
enfranchised dedititii ; the second class being assimilated to the
ancient Latini coloni, whose rights they enjoyed, the third to
those nations who surrendered to Rome at discretion. The
power of the master over the slave had decreased ; he had now
no longer the right of life and death, and the slave who had
been illtreated might complain to the magistrate. The paternal
power, patria potestas, had also decreased, and the father could
no longer, as a general rule, either sell or pledge his child. 1
The son had begun to have responsibility, to be considered
capable of possessing rights ; he was the sole proprietor of his
castrense peculium, that is to say, of property acquired by
military service. Marital power was almost extinct, usiis was
no longer a medium of acquiring it ; cocmptio had become rare,
and confurreatio was confined to the pontiffs. Natural paren-
1 Cod. 4, 43, De pair, quifil., 1 const. Diocl.
THE HISTORY OF ROMAN LAW. 375
tage was that chiefly considered by the prastor; the perpetual
tutelage of women under their agnates had ceased ; gentilitas no
longer existed. From the time of Augustus a great difference
had been recognized between the coelibes and the married;
between those who had children and those who had none : a
difference which had introduced a notable inequality in their
respective rights, especially as to their ability to receive testa-
mentary bequests.
449. THINGS AND PROPERTY. The distinction between res
mancipii and res nee mancipii still existed, as also did that
between immovable property in Italy and elsewhere: mancipatio
therefore was still in vogue. The right of property was divested
of its ancient Quiritarian appellations, and had commenced to
take the more general and philosophical term of proprietas,
signifying that the thing alluded to was appropriated to a given
person. 1 Thus philology, in the three successive names given
to this right, reveals the history of the vicissitudes and trans-
formation of Roman society. Mancipium, in primitive times
(manu capere), was the term used when war and the lance were
the principal methods of acquiring property. Dominium, at a
later date, expressed the notion that the domus, or house, was
the propi'ietor, all the individual members being absorbed in the
person of its chief or head. And, finally, proprietas recognized
the individual character; the sons being persons capable of
having proprietary rights. It was no longer a question of the
domus, for each individual might be an owner.
450. TESTAMENTS. The father of the family had no longer
the exclusive privilege of making a will, for the sons might in
this way dispose of their castrcnse peculium. In order, how-
ever, to be able to accept without restriction testamentary gra-
tuities, the beneficiary must not be of the class ccelebs, but must
have the jus liberorum, that is to say, the rights enjoyed by
those who had children. The civil forms of the testament were
still retained in civil law in the emancipation of the inheritance,
but the praetor had introduced another form, in which manci-
1 Dig. 41, 1, De ailq. rcr. domin., 13, f. Nerat.
376 THE HISTORY OF ROMAN LAW.
patio was suppressed. Soldiers on service were relieved of all
formality. Codicils were valid, and in such as required no
formality legacies might be given and fideicommissarii ap-
pointed, provisions which the heir was bound to observe.
451. SUCCESSIONS. The tendency of legislation was con-
tinually leaning towards the rights of succession to natural
relations; by virtue of two senatus-consulta, children succeeded
to their mother, and, in certain cases, mothers to their children. 1
The prastor, in order to correct and to supplement the civil
law, continued to give the possessio bonorum.
452. CONTRACTS AND ACTIONS. The theory of the four
contracts of the jus gentium being obligatory, by consent alone,
had been gradually developed and was by this time fully ac-
cepted ; the number of pacts, or simple agreements recognized
by the imperial and by prastorian law as obligatory, had been
augmented. Pacts, however, although obligatory, were not
dignified with the title of contracts, Avhich word was still con-
fined to those of the ancient civil law. The old legis actiones
had still further fallen into disuse, and the formulary system, by
which they were replaced, at the end of the period now under
consideration itself gave place to the extraordinariajudicia.
MANNERS AND CUSTOMS.
453. There is a striking contrast between the picture pre-
sented by the manners and customs of the Romans during the
republic, when every citizen breathed the spirit of freedom
within the republic and domineering supremacy without, and
that presented by the same picture under the empire. But we
have been brought up to this period in the history of Rome by
a gradual approach, and the attention having been confined to
details, has been withdraAvn from the striking differences which
characterize distant epochs ; the extent of the changes which
1 The S. C. Tcrtulllannm (Antoni- right of succession of the mother, the
nus Pius) and the S. C. Orjrftitiamim latter the children.
(Marcus Aurelius), the former for the
I UK HISTORY OF ROMAN LAW. 377
li;ul tliken place can only be fully realized by noting sudden tran-
sitions from one period to the other.
Taiight under Augustus to obey a single individual, despoiled
of all public rights, of their ancient magistracies, crushed be-
neath the sceptre of emperors or the sword of the military classes,
and assimilated to all the other nations which helped to con-
stitute the empire, the Romans had almost forgotten the fact
that they were once free men. We now see them seeking for
the approbation of a master, supplicating favours, looking
anxiously for the rescript which brings them promotion. Even
jurists, with their high sense of justice and the liberality of their
opinions when dealing with thejusprivatum, forget their wisdom
and their independence when treating of the jus publicum, and
look upon all power as lodged in the hands of a single indivi-
dual. Meantime religious dissension spreads throughout the
state, spleen, hatred and persecution following in its wake.
II.-FROM CONSTANTINE TO JUSTINIAN.
454. The system introduced by Diocletian soon bore fruit ;
military emeutes disappeared, and the constitutional struggle
between the Augusti and the Ca3sars was rekindled. Dio-
cletian, from the depths of his retreat, could observe the incen-
diary at work, and trace his ravages ; he saw his old colleague
Maximin reappear upon the scene with his son Maxentius,
both clad in the imperial purple. The two Augusti, Severus
and Galerius, hastened to march against the usurpers, and in
the midst of this turmoil the two Cassars, Constantine and
Maximin, were decorated with the title of Augustus, and the
state was torn in pieces by the efforts of six emperors each
struggling against the other, A.D. 307.
EMPERORS.
In the East, GALERIUS, LICINIUS, MAXIMIN.
In the West, MAXENTIUS, MAXIMIAN, CONSTANTINE.
378 THE HISTOKY OF ROMAN LAW.
Death reduced the number to four, A.D. 310, and there then
remained
In the East, MAXIMIN and LICINIUS.
In the West, MAXENTIUS and CONSTANTINE.
Then ensued war between Maxentius and Constantine. The
latter rapidly traversed Italy, and defeated Maxentius, who
perished in the Tiber. Constantine entered Rome in triumph,
and found himself sole master of the West. On the other
hand, war was raging between Licinius and Maximin; the
latter succumbed, and Licinius ruled in the East, A.D. 313.
In the East, LICINIUS. In the West, CONSTANTINE.
The struggle then continued between these two, ending after
a few years in the defeat of Licinius, and Constantine, without
a rival, remained sole master of the entire empire, A.D. 314.
Such is the fate of ambition associated with despotism. Rivalry
ends in the victory of one and the destruction of the rest, and
the victor erects his throne upon the ruins of the whole.
455. In the midst of these wars the jurists still found sub-
jects to which their attention might profitably be directed.
Constantine, after his victory over Maxentius, without himself
embracing the Christian religion, placed it under imperial
protection; 1 and at a later date, A.D. 320, he as a consequence
of this protection abolished the disability under which the
ccelibes had lain, a burden which had chiefly fallen upon
the Christians, many of whom considered it meritorious to
abstain from marriage. Thus passed away for ever the dis-
tinction between the ccelibes and the married, a political dis-
tinction which had occupied so large a share of the attention
of the jurist, the historian and the poet.
It would be easy to refer to various constitutions of Constan-
tine, but we confine ourselves to a few.
1 Licinius also was favourably dis- edict urn jWcdlolanense was passed,
posed towards Christianity. In A.D. which accorded protection to Christi-
314, after the partition of the empire anity.
between Licinius and Constantine, the
THE HISTORY OF ROMAN LAW. 379
SECTION LXXXIII.
CONSTITUTIONS INVALIDATING THE NOTES OF PAUL, ULPIAN
AND MARCIAN UPON PAPINIAN, AND APPROVING THE
OTHER WRITINGS OF PAUL AND PARTICULARLY HIS SEN-
TENTLE.
456. From the publication of the rescript of Adrian, which
had given the force of law to the opinions of the authorized
jurists when unanimous, up to the time when Licinius and
Constantino divided between them the Roman empire, about
two centuries had elapsed. Between the time of Adrian and
Alexander Severus, however, we find a series of celebrated
jurists. Confining ourselves to those whose names are men-
tioned in the Digest of Justinian, we have seventeen who left
behind them numerous and voluminous writings, and who, it
must be supposed, enjoyed for the most part the imperial autho-
rization. Amongst them are Pomponius, Scaevola, Gaius,
Papinian, TJlpian, Paul, Marcian and Modestinus, with the
last of whom the list of the great jurists seems to close. Thence-
forth the magistrate, the judge, the litigant, the advocate and
the student had to depend upon the past era of jurisprudence,
which was far superior to that of their own time. Legal inter-
pretation reduced to a conflict of quotations, under a spirit of
servility to the voluminous dicta of old masters, must have been
a difficult and uninteresting task. We can in a measure realize
this from what takes place amongst ourselves when our own
practitioners confine their research and argument to a parade
of quotations. The rule established by Adrian concerning the
unanimity of opinion necessary to constitute law, though simple
in principle, became more and more ineffectual in practice, on
account of the difficulty of finding that unanimity in such a
multitude of authorities, and proving it Avhen found. When it
was not proved, the judge was at liberty to make his election
between the conflicting opinions, and a door was thus opened to
controversy both upon the law and the value to be attached to
the opinion of one jurist over another. Among the jurists them-
selves, however, the prevailing authority was Papinian. But
380 THE HISTORY OF ROMAN LAW.
there were other jurists who, independently of their learned
works, had become popular on account of the excellent elemen-
tary treatises which they had published. Among these were
Gaius, Ulpian, Paul and Marcian, the last three of whom had
also annotated the works of Papinian ; but their notes, whether
critical or otherwise, had only tended to perpetuate uncertainty.
We already knew, from passages in the Codes of Theodosius
and Justinian, that these notes, on account of the great honour
rendered to Papinian (jpropter honorem splendidissimi Papinian?).,
had been disparaged in the imperial constitutions ; a when in our
own day, amongst the new fragments of the Theodosian Code
discovered by M. Clossius, was found the constitution concern-
ing the notes of Ulpian and of Paul : it is a constitution of
Constantine, bearing date A.D. 321. The emperor assigned as
the reason of his disparagement that the notes had more fre-
quently corrupted than amended the writings of Papinian, but
that he was especially desirous to put an end to the perpetual
contests between the jurists (perpetuas prude.ntium contentiones
eruere cupientes}. z In fact, having regard to the practice in
vogue in his time of accepting the authority of Papinian, and
disentangling it from the criticisms of Ulpian and Paul, he
rendered considerable service, if in no other way, in this, that
he diminished the source of perplexity to the judges. As to
that which concerns the disparagement of the notes of Marcian,
the date of the text of the constitution still remains unknown
to us.
457. The provision of Constantine, declaring the invalidity
of the notes upon Papinian by Ulpian and Paul, and especially
1 Cod. Theod. 9, 43, De sentent. obtraebant propter honorem splcndidis-
passis, const, unic. Constantin. : " Re- simi Papiniani, etc. . . ." (A.D. 530).
motis Ulpiani atque Pauli notis, Papi- a Cod. Theod. 1, 4, De vesponsis
niani placet valerc sententiam" (A.D. prtidentum, 1, Cons tan tinns A. ad
321). Ibid. 1, 4, DC responsispriidcn- Max. Prajf. Prat. : "Perpetuas pru-
tum, 3, const. Theodos. et Valentin. : dcntium contentiones eruere cupientes,
" Notas etiam Pauli atque Ulpiani in ULPIANI ac PAULI in PAPIXIANUM
Papiniani corpus factas, sicut dudum notas, qui dum ingenii laudem sectan-
statutum est, praecipimus iufinnari" tur, non tarn corrigcre cum quain de-
(A.D. 426). Cod. Justinian. 1, 17, JJe pravare maluerunt, aboleri pracipi-
veteri jure enucleando, 1, G : " Quoo inns." DAT. III. KAL. OCT. Cox-
antea 'in notis .^milii Papiniani ex STARTING II et CHISPO II Coss.
Ulpiano, et Paulo, nee uon Marciano (A. 321).
adscripta sunt, qua; antea nullam vim
THE HISTORY OF ROMAN LAW. 38 1
the terms in which this invalidity is declared, was of such a
nature as to cast discredit upon the other works of these two
jurists. It is easy to conjecture that such was the case, or at
least was apprehended, in connection with Paul, who seems to
have been followed especially in the west, whereas Ulpian had
more credit in the east, and that the emperor was entreated to
explain himself upon this matter. In fact, six years after the
publication of the constitution invalidating these notes, another
constitution of the same prince, with the existence of which we
have become acquainted from a passage of the Consultatio veteris
jurisconsulti? declared the independent works of Paul, and par-
ticularly his sententice, worthy of being confirmed and quoted as
an authority before the judges.
The provisions of this constitution, which belonged to A.D. 327,
are also contained in the new texts of the Theodosian Code,
brought to light by M. Clossius, to which we must refer to
appreciate the laudatory tone in which the emperor alludes to
the works, and especially to the sententice., of Paul. 2
458. These are the only texts relating to the authority of
the jurists with which w r e are acquainted, and from them w r e
gather that the general rule as to it, is that established by
Adrian : unanimity, in order that the opinions of the jurists
may be law ; in default of unanimity, the judge is free to adopt
which opinion he thinks best ; as a general rule, however, pre-
ference is given to the authority of Papiriian ; the notes upon
Papinian, by Ulpian, Paul and Marcian, are declared by
the emperor invalid ; but imperial authority recognizes the
other writings of Paul, of course, as precedents. Thus, as to
the special mention of the works of the jurists, we only see two
imperial constitutions relating to them ; the one to invalidate
1 Consultatio reter.jitriscons., 7 : auctoritate firmanda sunt et omni vene-
" Secundum sentcntiam Pauli juridici ratione celebranda. Idcoquc Scntenti-
cujus seiitentias sucratissimorum prin- arum libros, plenissima luce et perfec-
cipum scita semper valituras divalis ti.ssima cloc-utione ct jnstissima juris
constitutio declarat." ratione succinctos, in judieiis prolatos
* Cod. Thcod. 1, 4, DC rexponsig valere miniinc dubitatur." DAT. V
prudentum, Coiistantinus A. ad Max- KAL. OCT. TKEVIRIS, CONSTANTINO
im. Praf. Prset. : " Universa, qua; CJES. V et MAXIMO Coss. (A. 327).
scriptnra PAULI contineutm-, rccupta
382 THE HISTORY OF ROMAN LAW.
the notes upon Papinian, the other to confirm the remaining
writings of Paul, the credit of which had been damaged by the
preceding constitution.
Such appears to have been the state of things for another
century, that is, till the time of Theodosius the 2nd and Valen-
tinian the 3rd, who, in A.D. 426, introduced other changes.
SECTION LXXXIY.
THE GREGORIAN AND THE HERMOGENIAN CODES (Gre-
gorianus Codex, Hermogenianus Codex}.
459. Already, in the time of the classical jurists, some among
them had published works upon the imperial constitutions pro-
mulgated at the period to which they belonged. We know of
one by Papirius Justus, who lived under Marcus Aurelius. In
addition to his Institutes, 1 we find quoted in the Digest of Jus-
tinian fourteen fragments, and two books upon the constitutiones
(De constitutionibus, lib. 1 and 2), which only contain an ex-
tremely dry analysis, a mere summary of a series of rescripts
of the Emperors Antoninus (Marcus Aurelius) and Verus, of
whom he was a contemporary, without any indication of the
dates. The principal of these fragments are referred to in the
note. 2 We also knoAv, from passages in the Digest of Justinian,
that Paul, who belonged to the time of Septimius Severus and
of CaracaUa, published a collection of decrees, three books of
which are quoted (Dccretorum, lib. 1, 2 and 3). 3 This is con-
nected with another publication of six books upon the same
subject, but under another title : Imperialium sententiarum in
cognitionibus prolatarum, sive decretorum, libri sex.* In these
1 Dig. 2, 14, De pactis, 60, Papirius 2, De derurion., 9; all fragments of
Justus, lib. viii. Institittioitum. Paul, lib. i. or ii. or iii., Decretorum.
4 Dig. 49, 1, De appellation., 21; 4 Dig. 28, 5, De ha-red. instit., 92;
50, 1, Ad municip., 38; 50, 8, De ad- 35, 1, DC condit. ct demonxtrat., 113 ;
minist. rerum ad clvit. pe rtin., 9 ; all 3(!, 1, Ad S. P. Trebell., 81; 37, 14,
fragments of Papirios Justus, lib. i. or De jure patron., 24 ; 40, 1, De manu-
lib. ii., De constitutionibus. miss., 10 ; 50, 16, De rerbor. signif.,
a Dig. 26, 5, De tutor, etcurat. datis, 240; all fragments of Paul, Iniperlall-
28; 44, 7, De obllg. ct action., 33; uni sententiarumin cognitionibus pro-
48, 19, De pnrnia, 40; 49, 15, De latarum libri sex.
cajjtiv. et postlim., 47, 48 aud 50; 50,
THE HISTORY OF ROMAN LAW. 383
collections the fact and the emperor's decision are briefly stated :
Severus Augustus dixit ; imperator noster pronunciavit ; or
simply Decrevit, putavit imperator ; placuit, placet, rescriptum
est. We must also rank in the same category the commen-
tary of Paul, upon certain imperial constitutions issued under
the form of letters or propositions addressed to the senate : Ad
Orationem Div. Antonini et Commodi; Ad Orationem Div.
Severi. 1
460. There only remain to be mentioned the two collections
belonging to the period at which we have arrived, and which
are quoted as the Gregorian Code and the Hermogenian
Code. These are two collections of imperial rescripts, ar-
ranged in a certain methodical order, each rescript having the
name of the emperor from whom it emanated and the name of
the person to whom it was addressed, the text of the rescript,
the calends and the consuls, from which we may determine its
date, and brief sketches embracing the reigns of several succes-
sive emperors during a period of about a century, infinitely more
valuable than the analytical summaries of Papirius Justus,
which are extremely curt. It is to these two collections that
the term code was first applied, a word which since, inde-
pendently of its other more general acceptations, bears in the
lower empire the technical signification of a collection of impe-
rial constitutions.
461. These two codes had no legislative authority; they
were private collections made by two jurists whose names they
respectively bore Gregorianus and Hermogenianus. Neither
of these codes has descended to us in a complete form. Our
knowledge of them is derived from the collections that we pos-
sess in various works of extracts that have been made from
them, to which attention will be directed hereafter. 2 It is cer-
1 Dig. 23, 1, De ritn nuptiar., 60, cianitm; others in the Mosa'icarum et
Paul, lib. sing. Ad Orationem Div. Itomanariim legum collatio, called in
Antonini et Cummodi; 27, i), DC rebus the middle ages Lex Dei; in the Con-
eor. qui gub t'lttcl., 2 and 13, Paul, lib. snltatio veteris cujusdam juriscon-
sing., Ad Orationem Div. Severi. sulti; some in the Lex liomana Jitir-
3 Many in the LI-.I- liomana Visifjo- gundiorum, or Itesjxntsa Papiani;
thorn m, called also Drec'iar'nun Aluri- and in the Vatlcanafragmenta,
384 THE HISTORY OF ROMAN LAW.
tain that they are anterior to Theodosius, because in A.D. 429
that prince ordered that they should be taken as models (ad
similitudinem Gregoriani atque Hermogeniani codicis} for the
third code to which he gave his name. It is also particularly
to be remarked, that this third code is, to a certain extent, but
the continuation of the two former, only including those consti-
tutions which date from Constantine, that is, from A.D. 312, the
point at which the Gregorian and Hermogenian codes stop. 1
The code of Justinian, on the contrary, contains a great number
of imperial constitutions prior to Constantine, and there can be
but little doubt that the sources from which they were drawn
were the Gregorian and Hermogenian codes.
462. The Gregorian code is the one of which we possess
most fragments ; and of this we have only seventy constitutions,
whereas it is certain that it must have contained a much greater
number. 2
It was divided into books, the number of which, according
to the indices AVC have, was fourteen, but we do not know how
many more there were ; the books were subdivided into titles,
each having its heading. As it was the model on which the
codes of Theodosius and of Justinian were compiled, we can
tell that the constitutions were arranged under each article by
order of date. The space of time embraced by the constitutions
which are known to us extends from A.D. 196 to A.D. 296
exactly a century. The first is one of the emperor Septimius
Severus, and the last of the emperors Diocletian and Maximian.
It is therefore after this last date, in the latter years of the reign
of Diocletian and before that of Constantine, from A.D. 296 to
A.D. 385, that this code, according to all appearances, was com-
piled. Gregorianus, the author, is not known to us in any
other way, his name not being found again anywhere in the
history of the law.
1 Cod. Thcod. 1, 1, De constitut'ionl- 2 The title De nitptiis alone con-
bus prinel/>ui et edlctls, ~>, const. tained at least thirty-two, from what
Theod. et, Valentin. : " Ad similitudi- we read in the following passage of the
nein Gregorian! et Hermogeniani codi- Collatlo leg u in Mosu'icarum ct Roma-
cis, cunctas colligi constitntiones de- naritni, tit. (i, c. 5 : " Ilanc quoqne con-
cernimus, quas Constantinus inclytus, stitutionem Gregorianus, titulo J)e mij>-
ct post cum divi Frincipcs Nosqne fiix inseruit, qua: cst trigcsima et se-
tulimus." cunda."
THE HISTORY OF ROMAN LAW. 385
463. The information we have about the code of Hermo-
gcnianus is still more incomplete. We scarcely possess thirty-
two constitutions, no index of books, and indeed only a few
articles with their divisions. These constitutions are all of the
reign of Diocletian and Maximian, Diocletian and Constantius,
from A.D. 287 to A.D. 304, that is to say, in all seventeen years.
We have, however, in the Consultatio veteris jurisconsulti,
at chapter ix., seven constitutions of Valens and Valentinian
(A.D. 364 and 365) placed under the heading, Ex corpore Her-
mogeniani.
A theory has been started, and it is one we are inclined to
support, that the expression Ex corpore Hermogeniani is a mis-
take. This theory is grounded on the notion that neither the
code of Hermogenianus nor that of Gregorianus came down to
the epoch of Constantine ; at any rate, that at this epoch these
two compilations terminated and that of Theodosius com-
menced.
Cujas proposed to substitute for it Ex corpore Theodosiano,
and he suggested placing the seven constitutions in question
at lib. ii., art. 9, De pactis, of the code of Theodosius, but
recent discoveries have shown that they are not to be found in
it. Various hypotheses have been hazarded to explain this
presence in the code of Hermogenianus of the constitutions of
Valens and Valentinian, such, for instance, as that they might
have been inserted in it in some editions, or through subsequent
additions. The whole subject is one of conjecture.
464. The almost simultaneous existence of two codes of the
same kind also appears to require some explanation. The
question occurs whether one code was intended to supplement
the other ; which, however, could hardly be the case, as a certain
number of constitutions are indicated as being found equally in
both. Again, whether the Gregorian code was intended more
particularly for the West, and the other for the East, or Avhether,
lastly, we need look for any other explanation than the fact of
two jurists entering into an agreement to bring out a work of
the kind, the necessity of which would be suggested by the
surrounding circumstances of their time, and by the phase
C C
386 THE HISTORY OF ROMAN LAW.
which the imperial law had assumed, each treating the subject
of his work from his own point of view.
465. The name of Hermogenianus is not, like that of Gre-
gorianus, exclusively confined to the code. We find in the
Digest of Justinian a considerable number of fragments, more
than ninety, taken from an abridged treatise on law, in six books
(juris epitomes), by a jurist also named Hermogenianus. It
would be satisfactory if we could believe that this was the com-
piler of the imperial constitutions, or the editor of the code
of that name. For the accuracy, the neatness and the com-
prehensiveness of the abridgment show that the author must
have been one of the last representatives of juridical science, and
very superior to the average writers of his time. He himself
declares that he followed in his epitome the arrangement of the
edictum perpetuum. 1
466. Among the treatises written upon the reconstruction
of the Gregorian and Hermogenian codes, and the editions
which have been published of those codes, we shall confine
ourselves to that of Cujas in the sixteenth century, and that
of Haenel, in Germany, in 1837. 2
EMPEROR.
A.D. 325. CONSTANTINE, A.
The reign of Constantine was remarkable for the triumph of
Christianity, the foundation of a new capital, and changes in
the administration of the empire. 3
1 Dig. 1, 5, De statu hominum, 2, f. this epoch I can with much satisfaction
Hermogen. : " Ordinem edict! perpetui refer the reader to the work of our col-
secuti." league of Dijon, entitled " Public and
3 Tituli ex corpore Codicis Grego- Administrative Roman Law from the
riani et Hermogeniani, ct multo j>lu- fourth to the fifth century (from
res quam prioribus cditionibus habe- Constantine to Justinian}" by M.
rentur ; placed by Cujas at the end of De Serrigny, Professor of Administra-
his edition of the code of Theodosius, tive Law of the Faculty of Dijon (Paris,
Lyons, 15G6, in fol. Codicis Grcgori- 1802, 2 vols. 8vo).
ani et Codicis Hermogeniani frag- The laws on the subject of religion
ntenta, placed by Gnstavns Haenel at form the last book of the Cod. Theod.
the head of his edition of the Code and the beginning of the first book of
Theodosius, Berlin, 1837, in quarto. the Cod. Just. Several constitutions of
3 For the study of the public law of Constantine are to be found in it from
THE HISTORY OP ROMAN LAW. 387
SECTION LXXXV.
CHRISTIANITY THE EELIGION OF THE EMPIRE.
467. We have seen how rapidly Christianity spread, first
from one individual to another, then from province to province.
The efforts of the emperors to restrain it only increased its
vigour. Constantine, either from the influence of broader views,
or from policy or conviction, changed the system. As Caesar, in
Gaul, he had defended the Christians against their persecutors.
After his conquest of Maxentius and the West, he still further
favoured them : and when he became master of the empire
he proclaimed their religion to be the religion of the state.
Thus the extent of his protection and support of Christianity
increased in proportion as he rose in power. He professed
himself to belong to the new religion, though he had not been
baptized, and most of his nobles and of his subjects followed his
example. Then it was that the whole system of tlaejus sacrum
of ancient Rome fell to pieces, together with all of the jus pub-
licum that was connected with it. The pontiffs, the flamens,
the vestals disappeared from the court, and were replaced by
priests and bishops. The old division of the people into Chris-
tians and pagans was not indeed effaced ; but their conditions
were changed, the Christians finding themselves under the pro-
tection of the laws and of the government, the pagans subjected
to various penalties and disabilities. To the ranks of pagans
were now added heretics ; for already, in the cradle of the
Christian church, there arose obstinate discussions on religious
dogmas a perpetual source of trouble and disorder. 1
A.D. 313 to 336 : Cod. Thcod. 16, 2, De lum traclidisse Romanis religio usque
episcopis, ecclesiis, &c., seven consti- ad mine ab ipso insinuata declarat "
tutions, from 313 to 330; 5, De hcere- (A.D. 380).
ticit, two constitutions, 326 ; 8, De ' It was to put an end to these dis-
Juda>is t five constitutions, from 315 to putes that the first general assembly,
335 ; 9, Ne Christianum mancipium known under the name of council, took
Jud(eiis hdbcaty one constitution, of place at Nicosa, A.D. 325, where there
336; 10, De paganis, one constitution, were assembled 318 bishops and a great
of 321; and the famous constitutions number of priests ; the emperor himself
of Gratian, Valentinian and Theodosius attended it. The opinions of Arius
(1, De fide cathol., 2) : " Cunctos popu- were condemned as heretical, but they
los, qnos clcmentite nostrsw regit tern- were not put down, and were destined
peramentum, in tali volumus religione for a long time to divide the empire.
versari, quain divinum I'etrum aposto-
c c 2
388 THE HISTORY OF ROMAN LAW.
468. From this moment the influence of Christianity on the
law, which had been heretofore but an indirect influence oper-
ating through the propagation of ideas unrecognized even by
those who were subjected to it, became more marked. It acted
with authority. Although it introduced no revolution in public
institutions, and certainly not in private legislation, although it
accepted these things as it found them, yet in many respects,
and especially in everything connected with religion, it sensibly
modified the former, and in the domain of private law it intro-
duced a totally new spirit and tendencies.
SECTION LXXXVI.
THE FOUNDATION OF A NEW CAPITAL.
469. Rome, which had been losing day by day the imposing
character and the grandeur which its people and its institutions
gave it, had ceased to be the first city in the empire. The
emperors had abandoned it, and, fixing their residence far from
its walls, they had successively increased the distance which
separated them from that fallen capital. Diocletian had car-
ried his court to Milan, whilst his colleague had a brilliant one
at Nicomedia. Constantino showed still greater dislike for
Rome, and only made a few fleeting visits to it. At last, when
left without a rival, he desired to* make his capital the centre of
his vast dominions. Italy was but one of the extremities of it ;
the Eastern portion presented more attractions, and offered, as a
capital, Byzantium, situated on the Bosphorus, connected with
two seas, and opening out communications with all the provinces.
He therefore selected that city, had it rapidly enlarged, or, to
speak more properly, built ; gave it the name of Constantinople,
and located in it the seat of empire. Abandoning disinherited
Italy, the nobles, the dignitaries, the courtiers followed the
emperor to the new metropolis. There the luxury, the effemi-
nacy, the servility of the East soon appeared, and crowds of
royal attendants, amongst whom were eunuchs, filled the
THE HISTORY OF ROMAN LAW. 389
palace. Greek became the general language ; the great idea?,
the souvenirs of a past age of glory, did not follow the court to
the Bosphorus ; they remained on the shores of the Tiber in
the midst of Italy, where, in striking contrast with those relics of
past splendour, Rome possessed little beyond a powerless senate,
exiled in almost deserted walls. And yet, such is the force of
habit, and so great the influence of a long period of power,
that the names of Rome and of Italy were preserved in the
laws as a peculiar favour ; and the inhabitants retained the
special rights which they had formerly enjoyed. Real estates,
or immovable property situated in those places, were still for a
long time kept distinct from the immovable property of the
other provinces and classed with res mancipii. So that the
emperors in fact, to raise up Constantinople, merely granted it
the privileges of Rome.
470. It was impossible, however, that the change of religion
and of capital should not introduce modifications in the admi-
nistration of the state and in the various magistracies. A few
new offices were created in addition to those which already
existed, and of the latter some were invested with superior dig-
nity, while others were debased. We have a few words to say
about the episcopi, the patricii, the comites consistoriani, the
qu&stores sacri palatii, and the magistrates of the provinces.
SECTION LXXXVII.
THE BISHOPS {Episcopi}.
471. Among the first dignitaries of the empire were the
bishops ; their principal functions consisted in the duties which
the humanity and the charity of their religion imposed upon
them, and which is their finest attribute the care of the poor,
of captives, of exposed children, of children forcibly prostituted
by their fathers. Occupying the first rank in the cities in
which they resided, and enjoying the respect and veneration with
which all religions invest their ministers, they were members of
390 THE HISTORY OF ROMAN LAW.
the councils which nominated the guardians and the curators ;
they enjoyed, like the consuls, the proconsuls, and the praetors,
the power of enfranchising the slaves in the churches ; they
even acted for those magistrates during their absence. And, in
fact, pressing near the throne, they often directed the emperor
in the affairs of the state.
472. The genius of Christianity, which breathes the spirit of
charity and of conciliation, was opposed to law suits and to the
animosity which they generate. St. Paul advised the Christians
to keep away from the civil tribunals, and to have their differences
settled like brethren, through the ministry of the principal mem-
bers of the church. The judicial organization of the Romans,
which allowed every facility to the suitor for challenging the
judge, and for resorting to arbitration, accommodated itself
easily to this usage, which had spread widely among Christians.
Constantine made it a legislative institution, and invested the
bishops with a certain jurisdiction, to which certain classes and
matters relating to religion and the churches were amenable,
while, in other cases, it was only exerciseable at the option of
the parties, and thus constituted a system of voluntary arbitra-
tion to which they might have recourse when it suited them to do
so. Thus the episcopalis audientia or the episcopal jurisdiction
was sustained by the confidence of the faithful. 1
SECTION LXXXVIII.
THE PATRICII.
473. Constantine gave this title to a few eminent personages
who had filled high magistracies in the empire, and who were
to be his intimate councillors in times of need. Some imperial
constitutions represent the patricii as chosen in some way by
the emperor to be to him as fathers (loco patris honorantw
quern sili pair cm irnperator eleyit). This dignity, which was
honorary and lasted for life, but without any jurisdiction or im-
1 Cod. 1, 4, De episcopali audientia.
THE HISTORY OF ROMAN LAW. 391
perium, was perpetuated under the other emperors ; it was a
kind of honorary distinction, conferring high rank and prece-
dence in the hierarchy of the Lower Empire (gui coeteris om-
nibus anteponitur). The emperor Zeno designated it an hono-
rary consulship. 1
SECTION LXXXIX.
COMITES CONSISTORIANI.
474. Previous emperors had instituted a kind of council of
state called a consistorium, which took cognizance generally
of state affairs. Constantine strengthened the council and
added to its members, who were called comites consistoriani.
He also established at Constantinople a senate similar to that
at Rome. This senate appears to have been the council of the
empire, while the consistorium was the council of the emperor. 2
SECTION XC.
QILESTOR SACRI PALATII.
475. This functionary was a kind of high chancellor,
charged with the duty of preserving the law, drawing out
projected enactments, keeping, a list of the favours and distinc-
tions granted by the emperor, preparing rescripts and forward-
ing them. It is probable that the origin of this office was the
qucBstor candidatus of the emperor, an office created by
Augustus, and which developed itself under his successor, and
changed its name under Constantine.
1 Cod. 12, 3, DC eonsulibus . . . et sacrarum largltionum, comes rerum
patriciis. prirata/nim, comes sacri palatii, co-
* Cod. 12, 10, De comitilius consisto- mites mititarcs. It was also at this
rianis. The title of comes, which sig- epoch that the name of dux, duke,
nifies, properly speaking, companion, began to form the title of certain func-
and from which we have derived that tionaries. See Cod. 1, 46, De offiria
of count, was not applied merely to the milltarium judicum, 3, coust. Theod.
members of the consistory ; there were et Val.
several other officers who bore it : comes
392 THE HISTORY OF ROMAN LAW.
SECTION XCI.
MAGISTRATES OF THE PROVINCES.
476. The empire was divided by Constantine into four great
praetorian prasfectorates, the East, Illyria, Italy and Gaul.
Each prsefectorate was divided into several dioceses, and each
diocese into several provinces. 1
At the head of each prrefectorate was placed a praetorian
prasfect; to the dioceses the emperor sent, to represent the
prefects, magistrates named vicars (vicarii) ; lastly, each pro-
vince was confided to a president, who bore the title either of
proconsul or of rector (rector provincice).
SECTION XCII.
OTHER FUNCTIONARIES OF THE EMPIRE. A NEW
HIERARCHICAL NOBILITY.
477. To complete the list of the functionaries we must add
to it the consuls, the preetors, the prcefectus vigilum, the pr&-
fectus annonarum, the prc&fectus urli, which had not been as
yet established in Constantinople ; the magister equitum, and
the magister militum, or commander of the infantry, who had
inherited all the military power of the praetorian prefects : for
Constantine had suppressed the praetorian soldiers, and had
left to the prasfects nothing but a civil jurisdiction. There
were besides a crowd of noble servitors, with whom the emperor
surrounded himself, known under the various names of cubicu-
larii, castrensiani, minister iani s silentiarii, &c., all comprised
under the general expression palatini, or officers of the palace
who were attached to the emperor and not to the state, and
whom we shall pass over in silence.
478. From all those offices there had issued a sort of new
1 Prafectorate of the East, com- Pricfectorate of Italy, comprising
prising Asia, Egypt, Libya and Thracia: Italy, a part of Illyria and Africa:
five dioceses, forty-eight provinces. three dioceses, twenty-nine provinces.
Pra'fevtorate of Illyria, comprising Protectorate of Gaul, comprising
Mcesia, Macedonia, Greece and Crete : Gaul, Spain and Brittany : three dio-
frwo dioceses, eleven provinces. ceses, twenty-nine provinces.
THE HISTORY OF ROMAN LAW. 393
nobility, arranged hierarchically, each class of which enjoyed
its insignia, its honours, its privileges, its exemptions. The
princes of the imperial family were nobilissimi. Certain offices
which ranked in the highest class, and among which were to be
found those of the praetorian prsefects and praefects of the city,
the quaestors of the sacred palace, and several classes of comites,
gave to those who were invested with them the title and the
rank of illustres. Others, in the second degree, especially
certain proconsuls or vicars, certain classes of comites or dukes
(duces), &c., enjoyed the title and rank of specialties. Others,
such as the consularies, the correctores, the presidents, &c.,had
the title and rank of clarissimi. In the fourth rank were the
perfectissimi, among whom were reckoned the duumvirs and
the decurions of the cities. Lastly, in the lowest rank, came
the egregii. Thus the different classes and degrees among
the nobility were clearly defined. There is a table extant, a
sort of almanac of the Roman empire, dating about the middle
of the fifth century, which gives a list of all these functionaries
of the East and West and their rank. 1
SECTION XCIII.
INNOVATIONS OF CONSTANTINE IN THE Jus PRIVATUM
ABROGATION OF THE PENALTIES AGAINST CCELIBES AND
ORBI NEW AMENDMENTS OF THE LEGES Julia AND
Papia.
479. Constantino did not confine himself to innovations on
the jus publicum, but extended them also to the jus privatum.
He moderated, in several respects, the patria potestas. Thus he
no longer permitted the father to sell his child except at the
moment of his birth, and when he was forced to it by extreme
poverty. He granted to the officers of the palace (palatini},
although they were the sons of a family, the exclusive owner-
ship of the property they had obtained at the court, as if they
had acquired it in the army : this is the origin of the peculium
1 Notitia dignitatum Orientis ct Occldentis.
394 THE HISTORY OF ROMAN LAW.
quasi castrans. He withdrew from the father the ownership,
and only left him the usufruct, of the goods which the son of
the family held from his mother. This, also, is the origin of
the peculium, which was called afterwards peculium adventitium.
On these points, and on a few others which cannot find their
place in so brief a summary as this is, it is impossible not to
observe the influence of Christianity, which had now become
direct and powerful.
480. But where this influence is especially observable is in
the abrogation which Constantine made of the incapacities to
receive legacies, a burden laid by the leges Julia and Papia
Poppcea, upon the coelibes and orbi. The Christian religion,
which did not approve of second nuptials, and honoured, as a
meritorious sacrifice, celibacy, to which it called its most zealous
neophytes, and a very numerous class of persons, could no longer
tolerate those relics of the past. We possess the constitution
by which the Emperor Constantine abrogated these penalties in
an article of the Theodosian Code, with this heading : De in-
Jirmandis pcenis ccelibatus et orbitatis. The emperor desired
that those who were styled ccelibes should be liberated from the
penalties imposed on them by those laws, imminentibus legum
terroribus lib erentur, that the status known as orbus should dis-
appear, as well as the penalty inflicted on that condition, and
that everyone should enjoy an equal capacity to receive testa-
mentary gifts, sitque omnibus (equa conditio capessendi. He
extended the same provisions to women. But, on account of
the risk of undue influence between man and wife, he expressly
reserved from the husband, as to their capacity to inherit from
one another, the operation of the caducary laws. 1 Among the
1 " Qui jure veteri ccelibes habeban- huj us beneficii maritisct uxoribus inter
tur, imminentibns legum terroribus li- se usurpatio non patebit, quorum fal-
berentur, atquc ita vivaiit ac si numero lares plerumque blanditise vix etiam
maritorum matrimonii fowlere fulciren- opposite juris rigore cohibentur, sed
tur, sitque omnibus osqna conditio ca- niancat inter istas personas legum prisca
pcssendi quod quisquc mereatur. Nee auctoritas." Cod. Theod. lib. viii. tit.
vero quisquam orbus habeatur : propo- 16, l)c infirmandis paints caelibatus
sita liuic nomini danma noii noceant. ct orbitatis, const. Constantine, A.D.
1. Quam rem et circa femiuas sesti- 320. The same constitution, with the
mamus, earumque cervicibus imposita exception of clause 2, which was sup-
juris imperia, velut quuidam juga solvi- pressed in consequence of the change of
mus promiscue omnibus. 2. Verum legislation on that point, is found in the
THE HISTORY OF ROMAN LAW. 395
conditions, the fulfilment of which would ensure to the consorts
full capacity, was the existence of a common child. 1
481. It is still a debated question whether this constitution
effected the suppression of the privilege of paternity in the claim
to the caduca or quasi caduca, and whether jurisprudence drew
this conclusion from it, or whether some subsequent constitution
had specifically decreed it. Many of our modern jurists are of
opinion that this privilege of paternity survived the legislation
of Constantine and of subsequent emperors, and continued up to
the time of Justinian. This opinion is very generally accepted ;
it is, however, impossible for us to share it.
482. Without doubt a distinction can be made between
punishments and rewards. It is true the constitution of Con-
stantine speaks of one and not of the other ; but great changes
in manners, and especially in creeds and religious practices, are
always attended with proportionate results. In a state of things
like that which existed when this constitution became law ; when
society had been leavened by Christian principles, when testa-
mentary bequests were commonly made to churches, religious
corporations, bishops, and other ecclesiastics ; when the practice
of devoting oneself to a life of chastity by religious vows was
held in honour and respect, in such a state of society what could
be the meaning of a privilege conferred on heirs or legatees
having children, to the detriment of those who had not any ? or
what had become of the abolition of the distinction between the
codibes and the orbi, every vestige of which it was Constantino's
desire to efface. The laws of Augustus, already more than
once amended, had had their day.
code of Justinian, lib. viii. tit. 58, De solidi capacitate inter virnm et vx-
injirmandis pcenig catlibatus, orbi- orem. We have in this article of the
tatis, et de decimariis sublatis, under Megulrc of Ulpian, and in that which
the name of the children of Constau- precedes it (tit. 15, De decintis), de-
tine, A.D. 339 ; but it is asserted by tailed indications on the limits of the
the historians that Constantine was the capacity which husband and wife had
first author of it, and that the code to receive legacies from each other, and
Theodosian is right. on the various conditions the fulfilling
1 " Aut si filium filiamve communem of which would confer that capacity in
habeant." Kegulae Ulp. tit. 16, De its entirety.
396 THE HISTORY OF ROMAN LAW.
483. It is to be remarked that neither in the code of Theo-
dosius, nor in that of Justinian, is there a single constitution,
nor indeed any mention at all, however slight, of the right of
the patres to claim the caduca. This silence is very significant,
especially in the code of Theodosius ; for if it were true that,
under this emperor, this right was still in vogue, this absence of
every trace of it could no longer be attributed, as it may be in
regard to the epoch of Justinian, to interpolations or to sup-
pressions designedly made. We may remark also that, even in
the constitution of Justinian, in which that emperor removes
the last vestiges of legislation concerning the caduca, he does
not mention the privilege of the patres ; and yet, in that long
constitution De caducis tollendis, he formally declares, and that
in many places, that he is about to make a complete exposition
of the laws then existing, so that it may be well known what
was abrogated or reformed (ut quod tollitur,velreformatur non
sit incognitum}. 1 This exposition, which is long and enters
into detail, was one of the sources whence we derived our in-
formation about the caduca before the discovery of the Insti-
tutes of Gaius. But the word patres does not occur in it. So
that, in fact, there is no allusion to what would certainly have
been the greatest change that the constitution could have pro-
duced in society as to testamentary bequests. So far as regards
the epoch of Justinian the proof is complete, and I do not see
that these arguments can be met.
484. It must be admitted that the jus liberorum continued
to be solicited from the emperors after Constantine, and granted
by them as an individual favour ; and it must also be admitted
that the constitution of Honorius and of Theodosius runs in
these terms: " Nemo post hcec a nobisjus liberorum petat, quod
simul hac lege detulimus." 2 This is not so general as it might
1 Code, lib. vi. tit. 51, De caducis spectionem hujus articuli latius et com
tollendis, const. Justinian, A.D. 534 : subtiliori tractatu dirirnere, ut sit om-
" 2. . . Consentaneum est et tern- nibus et hoc apcrtissime constitutum."
pora eorum, et noniina manifeste expo- * Code Theod. lib. viii. tit. 17, De
nere : ut quod vel tollitur, vel reforina- jure liberorum, constitution 3 of Hono-
tur non sit incognitum . . ." " 10. rius and of Theodosius, A.D. 410.
Necessarium esse duximus omnem in-
THE HISTORY OF ROMAN LAW. 397
be supposed to be, if it is separated from what precedes and from
what follows it; but we must know to what this jus liberorum
applied. I shall point out three instances of this application
which had survived the legislation of Constantine, whose history
it is interesting to trace.
1. It applied to the capacity of husband and wife to receive
legacies from one another. The existence of a common child
gave this capacity. Constantine, acting from the motives
which have been already explained, by an express reserve
retained on this point the provisions of the lex Papia. The
husband and wife whose union was without issue continued to
solicit for this purpose from the emperors the jus liberorum.
Arcadius and Honorius, A.D. 396, first ameliorated their
condition by deciding that neither age nor time should be any
longer an impediment to their prayer being granted, but that
it should be sufficient for them, to entitle them to solicit the
concession, that they had the misfortune of despairing of issue. 1
Fourteen years afterwards, Honorius, with Theodosius, com-
pleted that reform : whether they had or had not any children
(quamvis non interveniant liberi), full capacity was restored to
the husband and wife to make to each other testamentary
bequests as their feelings dictated. 2
2. It was applied to the right of mothers to succeed to
their own children. The question is not here about testamen-
1 Code Theod. lib. viii. tit. 17, con- that the prohibition occurs, made by
stitution 1, Arcadius and Honorius, these same emperors, forbidding any
A.D. 396 : " Sancimus, ut sit in petendo application to them for the future for
jure liberorum sine definitione temporis the jus liberorum, since they had
licentia supplicandi, nee implorantum granted the concession generally,
preces aetas vel tempus impediat, sed Cujas and Godefroy were perfectly
sola miseris ad poscendum auxilium right in saying that the only thing
sufficiat desperatio liberorum." referred to in this constitution was the
* Code Theod. lib. viii. tit. 17, con- jus liberorum between husband and
stitution 2, Honorius and Theodosius, wife ; the provision is quite clear. But
A.D. 410 : " In pcrpetuum hac lege de- we must go further ; all this article of
cernimus, inter virum et nxorem ratio- the code Theodosian, De jure libcro-
nem cessare ex lege Papia decimarum, rum, relates to that same question ; the
et quamvis non interveniant liberi, ex four laws which compose it, from the
suis quoque eos solidum capere testa- first to the second, have no other sense,
mentis, nisi forte lex alia imminuerit meaning or application ; it is sufficient
derelicta. Tantum igitur post hrcc ma- to note the terms used in connection
ritus vel uxor sibi invicem derelinquant, with the whole context from the first to
quantum superstes amor exegerit." It the fourth to be convinced of this,
is in the latter part of this constitution
398 THE HISTORY OF ROMAN LAW.
tary bequests, but about succession ab intestato ; not about the
lex Papia, which had remained extraneous to it, but about the
senatus-consultum Tertullianum, nearly one hundred and fifty
years later, under Antoninus Pius. According to civil law
no right of civil and reciprocal succession existed between
the mother and her children, since between them, unless the
mother had not passed in manu viri, there was no agnation.
The object of the senatus-consultum Tertullianum was not,
therefore, to restrict the right of the mother ; it was to create
for her one which she had not before. This new right was
only given to those who might have had a certain definitely
expressed number of children ; a single child was not sufficient,
as in the preceding case : three was the number necessary for
the ingenucB, four for the enfranchised. But it was not neces-
sary, as in the preceding case, that the children should still be
living; it was sufficient that the mother should have borne
them. They reckoned by the confinements (ter, quaterve
enixa). Thus in this case the jus liberorum was a very
different provision from the preceding one. It was also occa-
sionally solicited and obtained from the emperor as a favour, in
individual cases, although the conditions that gave a title to
it were not fulfilled. The constitution of Constantine, on the
abrogation of the penalties upon ccelibes and orbi, had no con-
nection with those special rules regulating the succession ab
intestato. One year afterwards, however, Constantine mode-
rated the operation of it by giving to the mother who had
borne no other child than that whose succession was under
question, the right of succeeding ab intestato to a third portion. 1
To obtain a larger share, this kind of jus liberorum continued
therefore to be solicited. It was only Justinian who suppressed
all these conditions of multiplied confinements, and rendered
those solicitations for the future unnecessary. 2
3. It applied to dispensations from guardianship and trustee-
ship as well as from the other offices which might be avoided
by the man who had, in Rome, three children living, in Italy
1 Code Theod. lib. v. tit. 1, De legiti- 2 Code Just. lib. viii. tit, 59, Do jure
mis Junredibus, 1, constitution of Con- liberorum, 2, constit. Just. A.D. 528.
stantine, A.D. 321.
THE HISTORY OF ROMAN LAW. 399
four, and in the provinces five. This is another kind of jus
liberorum, derived from the lex Papia, and one which was re-
tained under Justinian.
485. It is clear then that there is no argument to be drawn
against our conclusion, from the fact that the jus liberorum
continued to be solicited as an individual favour after Constan-
tino's time and even until the reign of Justinian ; the important
point is to distinguish what kind of jus is meant, and not to
misapprehend it. There was no reference whatever, either in
the conditions, in the aim, or in the intention of this consti-
tution, to the jus liberorum which gave to the beneficiaries or
legatees, married and having at least one legitimate child at
the time of the opening of the will, a claim to the caduca or
quasi caduca; of the existence of the latter, subsequently to
Constantine and even before, no trace is to be found.
486. We now proceed to consider the main basis upon which
the opinion, that we feel it our duty to contravene, rests. This
is a passage in the constitution of Justinian, de caducis tollendis,
in which the emperor exhibits his sense of justice and modera-
tion, in that, while he knows that his Jiscus stands as the last
claimant to caducal portions (ultimum ad caducorum vindica-
tionem vocari}, he does not hesitate to sacrifice and renounce
his right. 1 Whence the conclusion, so it is said, that, inas-
much as ikiejiscus, even at this period, came in as last claimant,
Caracalla had not called it in to the exclusion of all ; and that
Constantine had not abrogated the privilege of the patres ; but
that this privilege was maintained and exercised till the time
of Justinian. In our opinion the explanation is as follows.
Caracalla, in his fiscal legislation, made thejftscus claimant of
all the caduca. The reaction which took place in subsequent
reigns resulted in the abrogation of the constitution of Cara-
1 Tantum etcnim nobis superest clc- prodcst, hoc (rci) pri vatic nostnc ntili-
mentite, quod scientcs ctiam fiscum nos - tad prieferendum csse censcmus, nos-
trum ultimum ad caducorum vindica- trum csse proprinm subjcctorum com-
tionem vocari, tanien ncc illi pepcrei- mnduin imperialitcr existimnntcs."
mus, ncc Angustum privilcgium cxer- Cod. Just. G, 51, De caducis tollendh,
ccmua : scd quod cominuuiter omnibus constit. Just. 14.
400 THE HISTORY OF ROMAN LAW.
calla and restored matters to the status quo ante, and the
privilege of the patres was re-established. Constantine sup-
pressed the penalties on the ccelibes and orbi, the very mention
of which distinctions he desired to blot out of the statute book,
and gave to all an equal right of taking under wills. (Sit
omnibus cequa conditio capessendi quod quisque mereatur.}
Then, without any further distinction being made, irrespective
of the fact whether men were unmarried or not, whether they
had children or not, all were permitted to take what was be-
queathed to them ; but if there were any conditions unfulfilled,
then the caduca or quasi caduca were to be claimed according
to the provisions of the lex Papia. It was the claim to the
caduca which belonged to all, without privilege for any one ;
the treasury came last. The ancestors or descendants of the
testator, to the third degree, retained the jus antiquum or the
ancient right of accretion. Justinian put an end to all the com-
plications and obscurities between the claim of the caduca or
quasi caduca on the one hand, and the jus accrescendi on the
other. And, while he borrowed from it, he suppressed what he
calls the caducorum observatio, but restored the jus antiquum
to all. 1
487. The reader may observe to what the exceptional causes
of lapse in testamentary dispositions, introduced by the leges
Julia and Papia, were reduced after the constitution of Constan-
tine. In reality, by the removal of the disqualification of ccelibes
1 " Et quemadmodum in multis capi- details. Independently of what con-
tulis lex Papia ab anterioribus Princi- cerns the suppression of the provisions
pibus emendata fuit, et per desuetudi- by which the time of the opening of
nem abolita : ita et a nobis circa caduco- the will had been substituted for that
rum observationem invidiosum suum of death, by the lex Papia, sole cause
amittat vigorem . . . Et cum lex of exceptional lapse which still existed
Papia, jus antiquum, quod ante earn in and which Justinian removed, we see
omnibus simpliciter versabatur, suis that the tendency of this constitution
machinationibus ct angnstiis circum- was to regulate anew the jus accre-
cludens, solis parcntibus et liberis testa- scendi and the results arising from va-
toris usque ad tertium gradum, si script! rious joinders of beneficiaries, by sub-
f uerant hseredcs, suum imponcre jugum stituting for all, thisjws accrescendi to
erubuit, jus antiquum intactum eis con- the caducorum chuJicatio, without a
servans : nos omnibus nostris subjectis single word indicating that this rindl-
sine differentia pcrsonarum (hoc) con- catio was not itself already general,
cedimus." No explanation will ac- but, on the contrary, distinctly declar-
count, as this does, for all this constitu- ing that without distinction it had
tion DP, caducis tollendis, considered reference to all.
either in its entirety or iii each of its
THE HISTORY OF ROMAN LAW. 401
and of orbiy they had almost all disappeared; that arising
1'mm the restriction of the capacity to receive the legacies
from a husband or wife disappeared under Honorius and Theo-
dosius ; so that, except the greater liability to forfeiture result-
ing from the period for the lodging of claims having been
extended by the lex Papia, from the death of the testator to
the opening of the will, the causes of those forfeitures had again
become the same as those which were sanctioned by the civil
law : the death of the heir or legatee, his refusal to accept, the
loss of his rights of citizenship, the non-accomplishment of the
condition imposed these are, in fact, the only causes of lapse
cited by Justinian in his Constitutio de caducis tollendis.
Indeed, in these circumstances to suffer the beneficiary or
legatee who alone had children to lay claim to these shares
in case of default would not only be to maintai 
Open Library
