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Full text of "The history of Roman law, from the text of "Histoire de la législation romaine et généralisation du droit (edition of 1870)"

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- 
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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). 

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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 
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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 maintain the idea of a 
recompense which no longer existed, either in the manners or 
in the spirit of the times, but it would have been to maintain 
the penalties against coelibes and orbi, which Constantino had 
desired to suppress, for from whom would the patres have taken 
these lapsed portions ? Clearly from the coelibes and orbi, to 
whom the testator had bequeathed them. But, on the contrary, 
we may say that each having an equal capacity to receive that 
which might fall to him (that is the way in which we translate 
quod quisque mereatur}, each is called to make the vindicatio 
in connection with the lapsed or quasi -lapsed portions, only 
observing the order and the rules established by the lex Papia. 
This, in our opinion, is the spirit and meaning of the constitu- 
tion of Constantine. The meaning appears to us to be ex- 
pressed in the terms of the constitution, and at all events 
interpretation and use placed this signification upon it. We 
know that Justinian does not merely represent the lex Papia 
as having been amended in various parts by imperial constitu- 
tions of a later date, but represents it as having been abolished 
by disuse (et per desuetudinem abolita). 



D I) 



402 THE HISTORY OF ROMAN LAW. 

SECTION XCIV. 
AGRICOL^E OR COLONI. 

488. Before proceeding farther with the history of the 
emperors, it is necessary to take notice of a particular class of 
men who differed, as to their legal status, both from free men 
and from slaves, properly so called. These men had been intro- 
duced not only into the remote provinces, but into every portion 
of the empire, even to its centre, and into Italy. Their origin 
and their existence is anterior to Constantine. Our reason for 
only referring to them at this time is, that the laws concerning 
them, at least so far as they are known to us, are not of earlier 
date. These men were called agricolos, or, at other times, 
coloni, because they were chiefly destined to the cultivation of 
the soil. This designation had been in use amongst the 
Romans, in a general sense, long before it came to have a 
technical signification, indicating a servile condition. It is the 
same with the term inqidlini, which imports at the same time 
the notion of residence upon the land and its culture. Slavery, 
such as it was among the ancient Romans, had begun to 
undergo a transformation, and serfdom had come into existence. 
Coexistent with the condition of service of man to man, there 
grew up the condition of service of man to the land. 1 

489. The colonies were divided into two classes, the respec- 
tive appellations of which are frequently confounded ; the one, 
nevertheless, is more frequently termed servi censiti, adscriptitii 
or tributarii, the other, inquilini, coloni liberi, and sometimes 
they are indifferently called coloni. This incident is common 
to all the coloni, that they were attached in perpetuity to the 
land they cultivated ; they could not abandon it in order to take 
up their residence elsewhere ; their masters could not transport 
them from one place to another, and when the land was sold 
they fell of necessity into the hands of the purchaser. This is 
the servitude of the soil, and the oi'igin of our ancient serfdom. 

1 See Cod. Theod. lib. v. tit. 9, De pccullnm rel litem inferat ei civilem. 
fugitiviis colonls, inqvilinis et serris ; Also Cod. Just. lib. xi. tit. 47, De agri- 
tit. 10, De inqnilinis et colonis ; tit. 11, colis et censitis et colonist, ct seq., 49, 
Ne coloiws inscio domino snnmalicnet 50, 51 and 52. 



THE HISTORY OF ROMAN LAW. 403 

The difference between these two classes of coloni consisted 
in that the servi censiti, adscriptitii or tributarily more closely 
resembled slaves proper : their origin was slavery, their con- 
dition having been modified into that of colonists from the 
necessity of cultivating the land ; they had no property of their 
own, and their peculium, like that of ordinary slaves, belonged 
to their masters. 1 The name of censiti, adscriptitii or tributarii 
was given to them from the fact that their names were inscribed 
in the census as servi coloni, and as subject to the payment to 
the fiscus of a capitation or poll tax. 8 As to the proprietor 
of the land, as they were his slaves and as their peculium be- 
longed to him, his chief duty was to provide them with the 
necessaries of life and labour, the matter of their remuneration 
being of little importance. These coloni and their families, in 
fact, lived on the land and its products. 

The coloni liberi or inquilini, sometimes termed simply 
coloni, more closely resembled the class of free men. They had 
their origin in freedom, and it was rather the necessity of living, 
and the desire to obtain concessions of land to cultivate, which 
had induced them, or their ancestors, to accept this concession 
upon the condition of being coloni, which they accepted in lieu 
of their former liberty. They could hold property of their own, 
whether moveable or immoveable ; it belonged to them and not 
to their masters. But they owed to their masters a species of 
annual rent (canon, reditus], which was paid either in kind or in 
money. 3 This rent could not be increased beyond certain 
limits.* Although they were in a certain sense free, in another 
they were in fact in a state of slavery. 5 These coloni liberi 
were always inscribed in the census for the poll tax, or capita- 
tion, and for the purposes of a land tax. 6 

490. To what cause must this new form of human servitude 

1 Alii Mint adscriptitii et eorvm (Cod. ibid.). 

peciilia dominis competunt (Cod. 11, 4 Cod. 11, 47, De agric., 23, 1, 

47, De agricolis et censitis et colunis, const. Justinian. 

19 const. Theod. and Valent.). 5 Ut licet condit'wne videantur in- 

* Ibid, const. 10, Valent. and Valens. genui, servi tamen terra; ipsins ciii 

' Alii coloni fiunt, liberi manentes natl xunt existimentw (Cod. 11, 51, 

cum rebus suis, et ii etlam coguntur De colonis Thracensibus). 

terrain colere et canonem pr&stare 8 Ibid. 4, const. Valent. and Valens. 

D D 2 



404 THE HISTORY OF ROMAN 'LAW. 

be ascribed ? Agriculture had been carried on from the latter 
days of the republic, and particularly under the empire, by 
troops of slaves, transported to and maintained upon, the land. 
The failure of this system, and in many instances the total 
abandonment of extensive estates, was, in proportion as the tax- 
ation was extended to Italy, becoming more and more onerous, 
and the proprietors preferred to leave the land uncultivated 
rather than to pay the tax. The depopulation of entire districts, 
which resulted from this state of things, was the cause which, 
under the empire, gave rise to the various customs or institu- 
tions of these times ; the object of which was, so it would appear, 
the cultivation of the soil, whether by the proprietor himself or 
by third persons, who were interested in it. Amongst these 
was the colonist, who was bound to the land by a bond that 
neither he nor his master could break, destined to an agricul- 
tural life, and burdened with an impost due to the state and a 
rent due to his master. As a return, he enjoyed the life and 
some of the rights of family ; was entitled to the surplus pro- 
ducts of his labour, and to all his acquisitions, as a species of 
peculium, and even to some as property. His position tended 
to solve the difficulty of at the same time satisfying the state, 
the proprietor, and the labourer; for this serfdom was freedom 
from a worse condition. In this way we see how the personal 
servitude of the slave, when employed upon the culture of the 
land, was transformed into a territorial servitude ; we see the 
wretched condition of the agriculturist and the miserable 
terms on which men were then willing to undertake the culti- 
vation of the soil. 

491. We read in a fragment of Scsevola, as also in many 
other writers, that there was a question even at that time about 
mancipia, villici and coloni, attached by the master to the 
culture of his land, but we learn from the point submitted to 
the jurist, and resolved by him, that at that time colonists were 
not persons who were attached to and could not be separated from 
the soil, even by the will of the master, for it was the provisions 
of a will, by which these persons were bound, cum f undo instructo, 
and upon the interpretation of the will the jurist had to rely, 



THE HISTORY OF ROMAN LAW. 405 

in order to determine whether the legatee of the estate ought or 
ought not to have the coloni. 1 We see also in the Sententice of 
Paul, that it was a question whether the master could transfer 
them from one estate to another. 8 We have, however, un- 
doubted traces at this same period, in certain passages of 
Marcian, of Ulpian, and perhaps of Paul himself, of the exist- 
ence of these coloni; 3 whence we must conclude that this mode 
of culture, following the arrangements made by the masters, 
although not general, had nevertheless been introduced. 

Salvian, who wrote in Gaul at the commencement of the fifth 
century, in his book, De gubernatione Dei, refers to the case 
of freemen reduced by misery to the necessity of becoming the 
coloni of the wealthy, giving up their liberty, and submitting 
themselves to the condition of inquiUni.* 

To this we may add the fact that in the distant provinces 
which had been conquered by the imperial arms, this species of 
agricultural servitude would be more useful than the ancient 
form of the slavery of captives, and also the fact that history 
and the constitutions themselves afford instances of the trans- 
portation of tribes of conquered barbarians to lands to which 
they were attached in the condition of coloni. To this effect 
is the constitution of Honorius, discovered in our own time by 
M. Peyron, amongst the fragments of the Theodosian code. 5 

1 Dig. 33, 7, De instrueto vel in- Salv., De gubernatione Dei, ch. 8. 

ttrumento legato, 20, pr. f. Scsevol. s Cod. Theod. 5, 4, De bonis milit.^ 

8 Paul, Sentent., 3, 6, De legatis, const. 3, Honorins : " Scyras barbaram 

48. nationem . . . imperio nostro suhegi- 

3 " Si quis inquilinos sine pracdiis mus. Ideoque damns omnibus copiam 
qnibus adhaerent legaverit : inutile est ex praadicta gente hominum agros pro- 
legatum." Dig. 30, De legatis, 1, 112, priosfrequentandi; ita ut omnes sciant , 
pr. f. Marcian. " Si quis inquilinum, susceptos non alio jure quam colonatns 
vel colonum, non fuerit professns, vin- apud se future*: wullique licere ex 
culiscensualibus tenetur." Dig. 50, 15, hoc genere colonorum ab eo cui semel 
De censibvs, 4, 8, f. Ulp.; "... Nisi adtributi fuerint vel fraude aliqua ab- 
ex his (servis) aliqui perpetuo ad opus ducere, vel fugientem suscipere ; poena 
rusticum transferantur." Paul, Sen- proposita quae recipientes alienis cen- 
tent., 3,6, DP legatis, 70. See also sibus adscriptos vel non proprios colonos 
Dig. 27, 1, De excvsationibus, 17, 7, inseguitur. 

a frag, of Callistratus. " Opera autem eorum terrarum do- 

4 "... Fundos majorum expetunt, mini li!>era titantitr, ac nullus subacta 
et coloni divitum fiunt . . . jugo se perseqnationi vel censui s#jaceat : nul- 
inquilinae abjectionis addicunt, in hanc liqne liceat velut donates eos a jure 
necessitatem reducti, ut extorres non census in servitutem trahcre, urbanisve 
facnltatis tantum, sed etiam conditionis obsequiis addicere." 

su* . . ., et jus libertatis amittant.'' 



406 THE HISTORY OF ROMAN LAW. 

492. The condition of coloni, at first the result of necessity, 
was perpetuated by nature, inasmuch as the children inherited 
the status of their parents. Prescription might also drive a 
citizen from the condition of a free man to that of colonus liber, 
if during a period of thirty years he had been considered as 
occupying that position and had paid an annual rent. 1 The 
servitude thus once incurred extended to his entire posterity. 
Thus were the noble principles of ancient Rome forgotten: 
the principle that liberty is inalienable : the principle that 
liberty is imprescriptible. 

EMPERORS. 

A.D. 337. CONSTANTINE 2nd, CONSTANTIUS and CONSTANS. 

340. CONSTANS and CONSTANTIUS. 



SECTION XCV. 
SUPPRESSION OF THE FORMULA (De Formulis sublatis}. 

493. That rigid adherence to form and observance of sym- 
bolic terms which had characterized the early period of Roman 
law had disappeared at the time at which we have now arrived. 
The law, too, following the progress of society, had lost its 
material character ; the actiones legis had been suppressed under 
the republic, and after the time of Diocletian even the formula 
system had been abandoned, and no such thing was now known 
as the loss or failure of a suit from the simple misapprehension 
or misapplication of a term. Such, for example, as the words 
formerly necessary to be applied in stipulations and promises 
in dower, or in the institution of heirs, or legacies distinguished 
according to the terms employed into four classes : in the formal 
acceptations or cretiones of inheritances, in the cessiones in 
jure, in manumissions, emancipations, adoptions, and in other 
acts peculiar to the Roman civil law. These were all technical 
and sacred forms, the total abolition of which in all acts was 
effected by the Emperor Constantius, A.D. 342, who considered 

1 Cod. Just. 11, 47, De agricolis, 18, const. Anastasius; 23, 1, const. Just. 



THE HISTORY OP ROMAN LAW. 407 

them verbal snares, apt to mislead. " Juris formulas, aucupa- 
tione syllabarurn insidiantes, cunctorum actibus radicitus 
amputentur." 1 These are the terms of the constitution, but the 
actual extent of change produced by it is not known to us, 
because this suppression had been gradually taking place long 
before any enactment was passed concerning it ; and indeed a 
constitution of Constantine the 2nd, A.D. 339, had abolished the 
necessity of all symbolic formulae, in the institution of heirs, 
grants of legacies, and generally in testamentary documents. 2 
The rescript of Constantius extended and generalized this aboli- 
tion to all legal formulae (Juris formula, cunctorum actibus). 
It must not, however, be understood that the use of given 
words in contracts was dispensed with, as, for example, in the 
case of the contract verbis. All that resulted from the enact- 
ments was, that words were deprived of the symbolic meaning and 
force previously attached to them, and the use of any words or 
terms was permitted that were sufficient to convey and express 
the ideas and intentions of the parties. 

494. It was Constantius who ordered the pagan temples to 
be closed, and attached to pagan sacrifices the penalty of death 
and confiscation. 3 Heretics, apostates, Jews and Gentiles were 
subjected to disabilities and often to cruel punishment ; indeed the 
Christian religion had become a religion of persecution. What 
can we expect from an age in which Constantine the Great con- 
demned to the stake the aruspices, the pontiffs who predicted 
the future, the magicians who by their sorceries sought to bring 
calamities and even death upon men ? What can we expect from 
Constantius, who, a few years later, revived all the laws of his 
father against the imaginary criminals, whom he was pleased to 
style the communis salutis hostes ? Amongst these culprits we 
find classed the mathematicians. But in this category were in- 
cluded men who, by the aid of mathematics and the study of 

1 Code 2, 58, De formulis et impe- 3 Cod. 6, 23, De testamentis, 15 

trationibits actionum svblatis, 1. This const. Constantine II. ; 6, 37, De legatis, 

constitution is entitled by Constantine, 21 const. Constantine II. 

but its date, A.D. 342, and the indica- 3 Cod. 1, ll,Depagams,etsacrific., 

tion of the consulate, show that it 1 const. Const. A.D. 342. 
belongs to the time of Coustautius. 



408 THE HISTORY OF ROMAN LAW. 

the stars, pretended to read and to determine the future, and 
not those who simply studied geometry, for both Diocletian and 
Maximian had declared this science to be useful to the state. 1 

EMPERORS. 

A.D. 350. CONSTANTIUS and MAGNENTIUS, A. A. GALLUS, 

Cassar. 

A.D. 353. CONSTANTIUS, alone. AUGUSTUS GALLUS, Caesar. 
A.D. 355. CONSTANTIUS, alone. AUG. JULIAN, Caesar. 

It was about this period, A.D. 360, that Constantius established 
at Constantinople a prcefectus urbi, answering to the same office 
at Rome. 

EMPEROR. 
A.D. 361. JULIAN, A. 

495. Julian is one of those great characters that occasionally 
enliven the page of history and break the monotony of its narra- 
tion. When Cassar he repulsed the barbarians of Germany. 
When Augustus he adorned the throne of the empire by his 
justice and by his simplicity, he respected the consuls and 
honoured the magistrates. He swept out of the imperial 
palace the crowd of salaried valets with which it was beset. 
Equally just was he when, laying aside for a time the sceptre 
and the sword, he took up the pen to indite, for the benefit of 
posterity, clever satires upon the effeminacy and corruption of 
his subjects, or to give expression to his grand conceptions and 
philosophical speculations. At another time, burning with 
desire to avenge the honour of the empire, he boldly led his 
armies into distant and unknown countries; and destroying his 
ships, so that his soldiers might have no resource but victory, he 
pursued Sapor, the dreaded enemy of Rome, into the very heart 
of his kingdom. Again we behold him, magnanimous amid 
misfortunes, deceived by a deserter and Avandering over vast 
deserts, rallying his desponding troops, distributing among them 
his own provisions, supporting without a murmur hunger and 
thirst, and, finally, when borne wounded from the battle-field to 

1 Cod. 9, 18, De maleficiis ct Mathematicis, 2 const. Diocl. aud Max. 



THE HISTORY OF ROMAN LAW. 409 

his death bed, calmly holding discourse with his officers who 
crowd around him, recounting the history of his life, and then 
breathing his last with the dying request upon his lips that they 
would select a successor worthy of the empire. 

We cannot, however, clear his memory from the reproach of 
actions which procured for him the title of the apostate, for 
Julian was the originator of an attempt to restore polytheism. 
To weaken the Christian religion, to revive the worship and 
to restore the altars of the gods of the republic, was the object 
of his desires. His intellect was far too great to lead him to 
adopt this course from conviction. In his view religion was 
nothing more than a political engine. Even from this point of 
view he was mistaken. He attempted to replace the empire 
upon the basis of its ancient institutions, to restore the jus 
publicum, the jus sacrum, the deities of old Rome, and all its 
past associations. It may be the amusement of a philosopher 
to dream about theories of government ; but an emperor should 
avoid such a pastime. It is his duty to study the nation he 
governs, and to establish its institutions upon the basis of the 
moral condition in which he finds his people. The whole 
situation of the empire, the vast number of Christians, the 
public veneration with which their religion was regarded, the 
ridicule and contempt which had been thrown upon polytheism 
and the old deities, all this ought to have shown Julian that 
it was impossible for him to stem the tide of events, and that 
any innovations which he might succeed in establishing by force 
would be annulled, by the action of public opinion, directly he 
was dead, and that nothing but mischief could result from the 
attempt. It must be admitted, however, that the evil results 
which might naturally have been looked for, from such a course 
of policy, were greatly modified by the moderation he evinced : 
for, however desirous he may have been to check the progress 
of Christianity and to arrest its influence on politics, he was 
never guilty of persecution. 

The reign of Julian was not of long duration. After his 
premature death the army nominated Jovian liis successor, 
who immediately restored the Christian religion throughout the 
whole empire. 



410 THE HISTORY OF ROMAN LAW. 

EMPERORS. 
A.D. 363. JOVIANUS. 

364. VALENTINIANUS 1st and VALENS, A. A. 

367. VALENTINIANUS 1st, VALENS and GRATIANUS. 

375. VALENTINIANUS 2nd, VALENS and GRATIANUS. 

379. VALENTINIANUS 2nd, THEODOSIUS 1st and GRA- 
TIANUS. 

383. VALENTINIANUS 2nd, THEODOSIUS 1st (384), ARCA- 
DIUS (son of THEODOSIUS, declared Augustus). 

392. THEODOSIUS 1st, ARCADIUS. 

393. THEODOSIUS 1st, ARCADIUS, HONORIUS (son of 
THEODOSIUS, declared Augustus). 



SECTION XCVI. 
THE DEFENSORES CIVITATUM. 

496. These municipal magistrates were appointed in each 
city, mainly with the view of protecting the inferior orders of 
the inhabitants who were unable to protect themselves. The 
first constitutions, so far as we know, existing upon this subject, 
are those of Valens, Valentinian and Theodosius. It is how- 
ever possible that these offices were in existence before. They 
were elected by an assembly composed of bishops, members of 
the curia, proprietors and distinguished citizens. They held 
office for a period of five years, and they could not resign before 
the end of that period. It was their duty to take steps to 
prevent robbery, to denounce thieves to the judge, and to drag 
them before his tribunal. They had also a jurisdiction of 
their own in all matters of minor importance, that is to say, of 
matters which did not involve more than fifty solidi. But the 
most pleasing and useful part of their functions was to study 
the interests of the poor plebeians, to protect them from all 
oppression and injustice. " Show yourselves the fathers to the 
plebeians," said Theodosius and Valentinian to the defensores 
(parentis vicem plebi exhibeas}, "it is your duty to guard them 
as your children" (liberorum loco tureri debes). This was a 
beneficent duty calculated to elevate the character of those to 



THE HISTORY OF ROMAN LAW. 41 1 

whom it was entrusted, and one which should have insured to 
them respect and honour. But we gather from Justinian that 
the office fell into contempt and degenerated into an inferior 
post held by subordinates of the magistrates, against whom it 
was the duty of the defensores to protect the poor, instead of 
which they were ready to obey the very nod of the magistrates. 1 
It seemed as if the Romans were no longer capable of realizing 
the noble and the generous.* 



SECTION XCVII. 
THE DIVISION OF THE EMPIRE. 

497. For a long time, as we have already seen, several 
emperors, with the title of Augustus, divided the imperial power 
between them. Hitherto, however, the empire had been un- 
divided, and it was merely the provinces which were apportioned. 
Theodosius, before his death, literally divided the state between 
his two sons, and upon his death the Roman world was split up 
into two distinct empires, which, notwithstanding the fact that 
they were upon the whole governed by the same laws, can no 
longer be considered as one. 



EMPERORS. 



The West. 
A.D. 395. HONORIUS. 



408. THEODOSIUS 2nd. 



The East. 

A.D. 395. ARCADIUS. 
423. JOHN (Joannes ty- 
rannies^). 
425. YALENTINIANUS 3rd. 



SECTION XCVIII. 
THE PUBLIC SCHOOLS OF CONSTANTINOPLE AND OF ROME. 

498. A school was already in existence at Rome, when 
Theodosius established one at Constantinople, A.D. 425. His 

1 Jast., Nov., 15, preface. * Cod. 1, 55, DC Jcfcnsoribus civi- 

tatum. 



412 THE HISTORY OF ROMAN LAW. 

constitution, which was published under his own name and 
that of Yalentinian, laid down certain rules concerning the 
instruction which it is well to note. It established professors, 
whose duty it was to give instruction in the public courts, some- 
times teaching Latin rhetoric and grammar, at others Greek 
grammar and rhetoric ; there was one for philosophy and two 
for jurisprudence. This constitution, while it conferred upon 
the professors the right of giving public instruction, prohibited 
them from giving private, and on the other hand prohibited all 
who were not authorized from giving public instruction ; but 
those who were thus prohibited from giving public instruction 
were at liberty to give private. 1 



SECTION XCIX. 

THE RESPONSA PRUDENTUM LEX DE RESPONSIS 
PRUDENTUM. 

499. A.D. 426. We have now reached the last regulation of 
the lower empire concerning the authority of the jurists. The 
first step which bound the judges in this respect was made by 
Adrian, when he ordered them rather to count than to weigh 
the responsa prudentum. This direction was, however, well 
fenced, and the judges were only bound where there was 
unanimity of opinion ; where this did not exist they were free 
to elect. 2 Constantine, when he invalidated the notes of 
Ulpian and Paul upon Papinian, did not change the rule ; he 
only desired by a legislative act to disentangle Papinian from 
the controversy, which had tended to obscure him, and he in 
this way aided the tendency which in fact then existed to give 
to the dicta of Papinian authority in all cases where there was 
a difference of opinion. 3 Such was the condition of things till 
the period at which we have now arrived, that is to say, for 
more than a century after Constantine ; but this rule requiring 
unanimity in so great a number of opinions, collected from 

1 Cod. Thcod. 14, 9, and Cod. Just. See 880. 

11, 18, De studlis liber, urbis lloince 3 bee 450. 
et Const. 



THE HISTORY OF ROMAN LAW. 413 

different and remote periods, and in default of unanimity 
leaving the judge free to act, was altogether behind the then 
state of legal knowledge. The science had decayed step by 
step, and the ancient jurists were becoming farther and farther 
removed. It became necessary to concentrate and reduce. It 
was clearly necessary with regard to the imperial constitutions, 
and it soon became equally evident that it was as necessary with 
regard to the works of the jurists. There was a desire to meet 
this want, and to facilitate the task which fell upon judges, 
suitors and advocates, by limiting the collective body of legal 
opinions to the works of a comparatively small number of 
authors, who were the best known, and who were designated by 
name ; on the other hand it made them mere machines. These 
were the final results of a vicious principle which attributed to 
the opinions of accredited jurists the force of law, instead of 
allowing those opinions to rest upon their legitimate basis the 
power of science and intellect. These were the last fruits 
developed in the course of time and general decay from the 
seeds which the despotism of Augustus had first sown, when he 
constituted a class of official jurists. It ended in their becoming 
conditores legum. This new rule is contained in a constitution 
which it is customary to call the loi des citations, or lex de 
responsis prudentum, and which has been preserved in the 
ancient fragments of the Theodosian code, inserted in the 
Breviarium Alaricianum, which emanated in fact from Theo- 
dosius the 2nd, A.D. 426. It was however first published for the 
western empire in the name of Valentinian, then an infant, and 
was subsequently enforced both in the east and in the west ; the 
following are its provisions. 

500. This constitution mentions by name five of the most 
celebrated modern jurists, Papinian, Paul, Gaius, Ulpian, and 
Modestinus ; it declares that it confirms all their writings, so that 
Gaius has the same authority as either of the others. This 
principle is, as it were, the pivot upon which judges, litigants, 
advocates and the public had to turn. 

As to the other jurists, the constitution confirms them, but 
only in those cases where the five jurists just mentioned had 



414 THE HISTORY OF ROMAN LAW. 

introduced passages from them into their own works, such as 
Scsevola, Sabinus, Julian, Marcellus and others, provided that 
the correctness of the quotation was ascertained by a comparison 
of manuscripts. This proviso was rendered necessary by the 
possibility of errors creeping into the old MSS. The works of 
these jurists and of those whose decisions they quoted, the 
accuracy having been secured by comparison of different MSS., 
were the authorities to which it was permitted to refer, to 
determine and solve all legal difficulties. 

The constitution adds that the notes of Paul and Ulpian 
upon Papinian should continue to be held invalid, as they had 
been declared to be by Constantine, and it was necessary, inas- 
much as the term scripta universa, which is general, had been 
employed, that the restriction also should be specified. As to 
the notes of Marcian, from the simple fact that nothing was said 
of them, they remained under the proscription, with which we 
know they had been branded by an enactment, the