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Plon, éditeur .. wx Ody, 5 Des moyens d’acquérir le domaine international, ou Propriété d’Etat entre les nations, d’aprés le droit des gens public; et De Léquilibre politique, par Evcine Orroxan, docteur en droit, Rédacteur au ministére des affaires étrangéres ; gr. in-8 3 fr. ,, SOUS PRESSE: Médecine légale, par le Dr. Legranp pu Savtuz, lauréat de l'Institut et de Académie de médecine, médecin de Bicétre, expert prés. les tribunaux, etc., et M. Orrotay, professeur a la Faculté de droit de Paris; suivi d’un Précis de chimie légale, par le Dr. A. Naquuz, professeur agrégé de la Faculté de médecine de Paris, THE HISTORY 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 AND SUPPLEMENTED BY A CHRONOMETRICAL CHART OF ROMAN HISTORY BY ILTUDUS T. PRICHARD, Esa., F.S.S. BARRISTER-AT-LAW AUTHOR OF THE ADMINISTRATION OF INDIA FROM 1859 To 1868, ETC. ETC. AND DAVID NASMITH, Ese., LL.B. | BARRISTER-AT-LAW AUTHOR OF THE CHRONOMETRICAL CHART OF THE HISTORY OF ENGLAND, ETC, ETC, LONDON : BUTTERWORTHS, 7, FLEET STREET, Law Publishers to the Queen's most excellent Majesty. EDINBURGH: T. & T. CLARK; BELL & BRADFUTE; DUBLIN : HODGES, FOSTER & CO.; E. PONSONBY. CALCUTTA: THACKER, SPINK &CO. BOMBAY: THACKER, VINING & CO, MELBOURNE: GEORGE ROBERTSON. 1871. [All rights reserved. | SG-L0 LONDON : PRINTED BY C. ROWORTH AND SONS, NEWTON STREET, HIGH HOLBORN, TRANSLATORS’ INTRODUCTION, THE superior value, as a study, of the history of the institutions and of the law of Rome to the jurist, the lawyer and the poli- tician would appear to consist in the fact that the Roman nation presents to the modern student the most perfect and complete specimen we have of national growth, development and decay. The great influence which the Roman language, literature and institutions have had upon modern nations is, unquestionably, in itself sufficient to justify the time and research which have been spent in their study. But, apart from this, there is no period of ancient history which contains in so complete and compact 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 be compared to that of an individual man standing on the spot of open ground between two dark tunnels. Above and around him there shines the light of heaven, and within the limits of this contracted sphere he moves with a sense of freedom and security, but what there is before and behind him he cannot see. His destiny, how- ever, compels him to move forward, but he shrinks from the hidden danger that may be concealed in the gloom with which his path- way is enveloped, and hesitates to take a step onward which may prove fatal. While he so hesitates a strong ray of light is cast into the tunnel behind him. As he looks steadily the light brightens, and, as it brightens, it enables him to distin- guish the general features of the locality; he sees the dangers by which the path is surrounded; he also marks the safest method of avoiding those dangers. Being compelled to advance, and 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. TRANSLATORS’ INTRODUCTION. vil 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 his 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 the lapse of ages, as to leave the sharp outline and characteristic features of the landscape unobscured. We are content to let these petty 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 English student and the general reader has well shown, even where this reproduction has been attempted by Vico and others, imagination has so entered into the composi- tion of the work as to detract from its utility to the student of history and jurisprudence. Piles of volumes have been written, and volumes more will probably be written, upon the character of Henry VIII. and the Reformation; but the character of Constantine the Great must remain for all time an enigma, and to attempt to determine it would be mere waste of labour. The political principles which were the active causes of events in any period of modern history are too much akin to, nay, they are in most cases so exactly the same as those which agitate 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- perience of the past, the writer must pass before his reader’s Vili 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 TRANSLATORS’ INTRODUCTION. ix itself has not formed, to the extent it ought to have done, a text-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 and more fully recognized. This is owing partly, perhaps mainly, to its being in a foreign language; but it is also owing to 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 history. That true province of history has only begun to be recognized in comparatively recent years. The impulse which sets in motion the forces whose effects we witness in the battle-field, in the noisy struggle of the forum, in the tumult in the senate or the market-place, in the assassination of a despot, in the » destruction of a popular leader, or in the simultaneous rising of a whole people, is the progress of thought. And hence the 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 thgsurface. 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 changes of circum- stances and conditions that modified and finally extinguished them. In the history of individuals as of nations the progress of thought is the key to their career. And 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 sure to possess this great advantage, that it will be distinguished by the logical precision, clearness of arrange- ment and exactitude which the study of law is, above all others, calculated to impart. It is, however, of the utmost importance that the student, x TRANSLATORS’ INTRODUCTION. 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 vid 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 say, but that the force exists is beyond controversy, and this fact 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 peculiar to the community, and a particular bent is given to the direction of their develop- 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 almost 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 pace at which he travels. It is true he may start from a given point and may take a given direction, but being diverted from his road he may never reach the supposed destination. In the same manner our calculation would: be at fault as to human or national de- velopment if we disregard or overlook any change in the con- ditions. The principle, however, remains unaffected, for know- ing the point of divergence, the other data remaining, we have but to intercalculate the change in order to ascertain the actual destiny. Unquestionable as is the truth of this principle, and easy as is its application to the physical or moral course of an individual, its application to the case of a nation is far from simple; it involves accurate discrimination between cause and effect. Difficulty of application is, however, the worst reason for the abandonment of a sound principle. For instance, an act has just been passed in England inaugurating a system of compulsory education. At the present moment the pauperism of England costs £10,000,000 per annum. Supposing the act to be administered for one generation by those who understand what sound education really is, the result must be to reduce the cost of pauperism to at the most one half. Now suppose that one year before it is ascertained that the cost of pauperism has x11 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. xii 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 with 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 accurate 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, whereas 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 with 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 duclling. 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 Cornwall, 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. XVil 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 Roman 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 xviii 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 TRANSLATORS’ 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. INTRODUCTION .. se oe oe TABLE OF CONTENTS. ee oe ee FIRST EPOCH.—THE KINGS. Sect. 1. Origin of Rome aa a8 oe is ire ae 2. Patricians and Plebeians (Patres, Patricii; Plebs, Plebii)—Patrons and Clients (Patroni, Clientes)—Patrician “Gentes” (Populus Romanus) oe ais we aie! es oe 3. Tribes and Curies (Zribus et Curie) .. ee je oe 4. Assembly by Curies ¢ Comitia curiata) oe a ae 5. The Senate (Senatus) ae ee oi “ ie 6. The King (Rew) .. ee we oo ee o- 7. The original Elements of private civil Law oo Pe ai 8. Religious Institutions (Sacra publica, Sacra privata) .. oo 9. The Calendar: Days—Fusti or Nefasti at se as 10. The Election of Kings, from Cicero’s De Republica—“ Lex regia” 11. International Law—College of the Feciales oe oe o. 12. The Census oe oe oe aa ore oe 13. The Classes (Classes) and the Centuries ( Centurie) i a 14. The Assembly by Centuries ( Comitia centuriata) a8 oe 15. The Knights (Zgwites) oa ais ae 8 Ba 16. The new Local Tribes (ex locis) oe oa oe a 17. The Royal Laws (Leges Regie)—their Collection by Papirius (Jus civile Papirianum or Lex Papiria) os oe . Review of the preceding Period. Foreign Policy .. a a sie i ais Public Law aa os ste oe ae aie Sacred Law is ae a ae oe is Private Law as at aie a a a6 Manners and Customs... ay a8 oy oe _ SECOND EPOCH.—THE REPUBLIC. I. To THE PASSING OF THE LAWS OF THE TWELVE TABLES. -- Sect. 18, The Valerian Laws (Leges Valeri@)—Questors of Homicide ( Ques- tores Parricidii) ee oe oe oe a 19. Questors of the Public Revenue ae ac fos 20. Dictator, or Master of the People (Dictator, Magister Populi—) Master of the Cavalry (Magister Equitum) +. oe oe PAGE 19 31 35 38 41 41 43 46 49 50 57 57 64 66 68 70 73 75 7 79 79 86 88 89 90 XXil TABLE OF CONTENTS. PAGE Sect. 21. The Struggle between the Plebeians and the Patricians .. 91 22. Plebeian Tribunes (Zribuni sls Sacred Laws (Leges Sacre) .. eae a oe oe 3 23. The Comitia by Tribes ( Comitia iui —Plabiecita (Plebis-scita) 94 24, Plebeian Ediles (Adilés Plebeti) .. o -+ 96 25. Origin of the Twelve Tables (Lex or anges XII Tabularum, Lea decemviralis)— Decemvirs . a oe ee) 26. The Fragments of the Twelve Tables as préserved to us -» 99 FRAGMENTS OF THE TWELVE TABLES. Tab. 1. The Summons before the Magistrate (De in jus vocando).. 102 2. Judicial Proceedings (De judiciis) .. oe «» 104 3. Execution following Confession or Judgment (De ere con- fesso rebusque jure judicatis) . eo» 105 4, The Rights of the Father (De jure patrio) .- -- 106 5. Inheritance and Tutelage (De hereditatibus et tutelis) .. 107 6. Dominion and Possession (De dominio et possessione) .. 110 7, The Law concerning Real Property oe re adium et agrorum) .. o . +» 112 8. On Torts (De delictis) we os eis -. 114 9, Public Law (De jure publico) a oe -» 119 10. Sacred Law (De jure sacro) .. oh se +» 120 11. Supplement to the first Five Tables .. et «+ 122 12. Supplement to the last Five Tables ia oe vc 123 27, Character of the Twelve Tables oe ws oe o» 124 28. Actions of the Law (Legis Actiones).. eis a o- 140 I. From THE TIME or THE TWELVE TABLES TO THE SUBMISSION OF ALL ITALY. Sect. 29. Lex Valeria Horatia, De Plebiscitis .. sie a -» 147 30. The Canuleian Law (De connubio patrum et plebis) .. «» 147 81, Military Tribunes (Zribuni Militum) ae oe -» 148 32. The Censors ( Censores) oe ee os a's o+ 149 33. Pretor (Pretor) .. . a oe ee «- 153 34. Curule Atdiles (Hdiles Curules) ee 8 ne - 154 35. Judge (Judex), Arbitrator (Arbiter), Recuperators (Réaiparatepas) 155 36. Centumvirs (Centumviri) .. . as sig ae «+ 158 37. The Lex Petillia Papiria (De newis) oe eee o. 164 38. On the Disclosure of the Dies Fasti aad the Beplene Taek (Jus Flavianum) =e +. «- 165 39. Leges Publiliz—Lex Hentensts (De plediscitis) oe «+ 166 Revision of the preceding Period. The Foreign Policy of Rome oe . 169 Public Law (from the Time of the Tyelie. Tables te: the Sub- mission of all Ttaly) .. oe ais 6 +» 182 Sacred Law... ote + ee We we (51 Civil Law oe o se oe ‘a -. 192 Manners and Customs .. ois a a e- 195 Sect. Sect. TABLE OF CONTENTS. XX PACE Ill. FRom THE TOTAL SUBJUGATION OF ITALY TO THE EMPIRE. 40. Preetor Peregrinus.. aie a oie -» 198 41. The Establishment of the ee oe Se ie -. 201 42. The Increase in the Number of Preetors a ays «+ 202 43. Proconsuls a oe i oe ah - 203 44, Propraetors . . as ee ++ 204 45. The Public Consultations of the J flats (Responsa Prudentwm) .. 205 46. A New Work on the Actiones Legis (Jus Zilianum 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 (Lea butia) aa Ss 48. The Ordinary or Formulary Procedure (Ordinaria Judicia, vel per For ae ne Procedure (Latraordinaria Judicia) s ae o- 217 49. The Introduction of Philosophy ain especialy of Stoicism—Its Influence upon Jurisprudence o «+ 225 50. The Seditions of the Gracchi ( inciinnds Saeaietai La (Leges agraria@) oe . oe es oe «. 226 51. Questiones perpetue—Cognitiones extraordinarize ae «+ 234 52. The Judiciary Laws (Leges judiciaria) a oe +» 239 53. On the Authority of the Senatiis-consulta 3s ee «» 241 54, Jus honorarium—Edictum—Edictum perpetuum—Edictum repenti- num — Interdictum —Edictum tralatitium — Lex Cornelia, de Edictis .. se os sis . ee oe 244 55. The Social War .. ae os o ay «+ 250 56. The Civil Wars... ee a ee 4 ne we BSI, 57. The Servile Wars .. oe ai i a eo 252 Review of the preceding Period. Roman Foreign Policy .. .. oo . «+ 257 Public Law (Jus publicum) . oe oi ++ 261 Jus Sacrum ses or she o -° +» 269 Jus Privatum .. o ave ee e «+ 269 Manners and Customs .. vs oe oe +. 275 —~— THE THIRD EPOCH.—THE EMPERORS. I. From THE EsTABLISHMENT OF THE EMPIRE TO CONSTANTINE. 58, Lieutenants of the Emperor (Legati Cesaris) .. oe «+ 280 59. Procurators of the Emperor (Procuratores Cesaris) «+ . 280 60. The Prefect of the City (Prafectus urbi) «. oi «+ 281 61. Pretorian Prefects (Prefecti Pretorio) ais SF «+ 282 62. Questores candidati Principis .° o« os «+ 282 63. The Prefectus Annonarum .. o. ac «+ 282 64. Prefect of the Night Guards (Pratectia vigilum) o. «+ 283 65. The Senatas-Consulta: their Effects upon the Jus Privatum .. 284 66. Constitutions of the Emperor (Constitutiones principum) «+ 287 xxiv Sect. 67. 68. 69. 70. 71. 72. 73. 74, 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. TABLE OF CONTENTS. PAGE Lex Regia oe se oe . ei ++ 290 The Responsa Prudentum .- a we oe ++ 293 Labeo and Capito (M. Antistius Labeo et C. Ateius Capito)—The Two Schools of the Jurists: The Proculeians or Pegasians and the Sabinians or Cassians -. ate .. oe -» 302 Lex Julia, De maritandis ordinibus; Lex Papia Poppea: called also Leges Julia et Papia, sometimes Nove Leges, 07 simply Leges on Marriage and on Paternity . oe .. -- 808 Fideicommissa—Codicils (Codicilli) .. Se ae +. 314 Enfranchisement—Lex Alia Sentia—Lex Furia Caninia -- 315 Jus Honorarium—The Bdictum Perpetuum of Salvius Julianus.. 319 The Advice and the Opinions of the Jurists (Sententie et Opini- ones)—-The express Authority conferred by the Rescript of Adrian .. oi = wa a 7 Se +. 322 The Jus Latii and the Jus Italicum under the Emperors ». 334 The Colonies and Municipia under the early Emperors—The Tables of Malaga aie os a oe . ore The Rights of Citizenship conceded to all the Subjects of the Empire 339 The Modification of the Leges Julia and Papia Poppewa—The Rights of the Fiscus in Claims upon Caduca es oe oe The Propagation of Christianity we o « 857 The Irruption of the Barbarians ie aie oe -. 859 Decay of the Formulary System or of the Ordo Judiciorum—Th Extraordinary Procedure (Judicia Extraordinaria) introduced generally—Petty Judges (Judices Pedanei) .. o -- 361 Division of the Imperial Government—Two Augusti and Two Ceesars .. oe . oe =e o- -- 365 Summary of the preceding Epoch. The External Situation of the Empire ie oe -- 367 Jus Publicum .. ons o es ay -. 367 Legislative Power . . oe oe . 369 Executive and Electoral Power .- o os +. 369 Judicial Powers .e oa aie o -+ 870 Criminal Matters on oe . ois -- 370 The Jus Sacrum a a es is -. 872 The Jus Privatum oe oe oe ea -. 373 Persons o- sti a arg a -. 374 Things and Property .. ae sie a «+ 875 Testaments oe a ws oF oe ee 375 Successions oe ve . .- as -» 376 Contracts and Actions .. oe is ae -» 376 Manners and Customs .. at sis oc -+ 376 Il. From CoNSTANTINE TO JUSTINIAN. Constitutions invalidating the Notes of Paul, Ulpian and Marcian upon Papinian, and approving the other Writings of Paul and particularly his Sententiz .. ne - ie se BY9 The Gregorian and the Hermogenian Codes (Gregorianus Codex, Hermogenianus Codex) .. a ei fe -. 882 Christianity the Religion of the Empire nis oie «+ 387 Sect. 86. 87. 88. 89. 90. 91. 92, 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109. 110. 1il. 112. 113. 114. TABLE OF CONTENTS. XXV The Foundation of a New Capital .. e “ . "388 The Bishops (Zpiscopi) ve te oe oe -- 389 The Patricii e as a oe a -- 390 Comites Consistoriani oe at ee ee «» 891 Questor Sacri Palatii aie aie fe oo -- 391 Magistrates of the Provinces os a ws -» 392 Other Functionaries of the Empire—A New Hierarchical Nobility.. 392 Innovations of Constantine in the Jus Privatum—Abrogation of the Penalties against Colibes and Orbi—New Amendments of the Leges Julia and Papia ae aie ele ~» 393 Agricole or Coloni oe aa be ae -. 402 Suppression of the Formula (De Fornwlis sublatis) .. -» 406 The Defensores Civitatum .. ee oe o. -. 410 The Division of the Empire.. oe 2 4 e» 411 The Public Schools of Constantinople and of Rome’ .-- ee 411 The Responsa Prudentum—Lex de Responsis Prudentum «. 412 The Theodosian Code e ee ais a“ -. 416 Theodosius projects an extended Code oe oe «+ 421 Fragmenta Vaticana—Mosaicarum et Romanarum Legum Collatio —Consultatio veteris cujusdam Jurisconsulti oe 422 The End of the Western Empire . oe o e+ 428 Roman Laws published by German Kings os oe «+ 432 Ill. Justinian EMPEROR, A.D. 527. Codex Justinianeus—Codex vetus a oe e+ 443 Quinquaginta Decisiones .- e . aie «» 444 The Digest or Pandects (Digesta, Pandect@) .. on «» 447 Institutes (Institutiones, Instituta, Elementa) oe e- 458 New Edition of the Code (Codex repetite Prelectionis) . 459 Novella Constitutiones—afterwards Authentic, Corpus Authenti- corum .. oe ee oe oe ists «+ 461 Corpus Juris Civilis oe oe oe oe .» 471 Tribonian or Tribunian . ae Sie oe «+ 476 Theophilus and some other Professors of Law .- oe o 477 The teaching of Law before and after J ustinian ae «+ 478 . General Survey of the preceding Period. The External Situation of Constantinople .. ae -. 489 The Jus Publicum aie ao ae ae -» 490 Criminal Matters oe 7 oe oa -- 490 Civil Matters .. -— «+ - en oe .» 491 The Jus Sacrum a oe oe ed ». 491 The Jus Privatam a aie oe ay -» 492 Persons aye es oe a a -- 493 Things and Property .«- oe as se ». 493 Wills .. we oe °° 7 oe «» 493 Succession oe ee ws ae o. -- 494 Contracts o- ais a ois o o. 494 Actiones 7 ea as “6 .. -» 494 ; o» 494 Manners and Caxton oe A ae 7 XXv1 TABLE OF CONTENTS. PAGE . THE DESTINY OF THE ROMAN LAW IN THE EAST AND WEST AFTER JUSTINIAN. § L. In THE Fast. Sect. 115. The Greek Jurists of the Sixth. Century . . -» 496 116. The. Manuals or Codes of the Byzantine ears : Eeloga, Prochiron, Epanagoge, Basilice .. -. 501 117, The Greek Jurists posterior to the Basilica —The Fall of the Eastern Empire a oe - oe -- 506 118. Byzantine Law subsequent to the Sixteenth Century .. .- 511 § 0. Tus 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 as oe -. 514 121. The Influence of the clay upon the Maintenance of Justinian’s LawinItaly .. we .- +» 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 +e o+ 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 oe oe oe oe e+ 527 125. Brachylogus et Petri ieee Legum Romanorum .. o» 534 126. Manuscripts and Texts of the Corpus juris Justiniani—The Pandecte Florentine and the Vulgate—The ancient Digest, the Infortiatum and the new Digest ee o o- 536 127. The Schools of the Jurists from the Glossators to the Sixteenth Century ve . ai « ae o» 541 128. Roman Law considered as an Element of French Law .. oe 548 we EPOCHS OF ROMAN LAW AS GENERALLY RECEIVED. Tur First PERIOD, OR THE INFANCY OF LAW ais a o- 552 SECOND PERIOD, ITS YOUTH ae o18 ee . oe 552 THIRD PERIOD, ITS MANHOOD pe oe oe oe e+ 553 FourTH PERIOD, ITS OLD AGE oe oe o» 553 List of the Works of the Jurists from whose Writings the Pandects of Jus- tinian were compiled .. oe mew ee Ke e+ 555 — GENERALIZATION OF ROMAN LAW. Tur IDEA OF THIS GENERALIZATION, AND, FIRST—ITS USES .. -. BBS Tur IDEA OF THIS GENERALIZATION, AND, SECONDLY—ITS SPIRIT -. 559 THE ORDER OF GENERAL EXPOSITION ate ae ac «» 559 Part l.—OF RIGHT AND THE ELEMENTS OF ITS GENERATION. TABLE OF CONTENTS. XXVil PAGE PRELIMINARY ARTICLE. Sect.1. The Idea of Law .. as is a oe -- 561 2. Immediate Consequences of Law . 3 a «+ 565 3. Component Elements of the Generation of tae oe »» 565 I. OF PERsons. CHAPTER I.—ComMPonENT NoTIONs. 4, Idea of Person. .. <4 ear Ss ane «». 567 5. Second Acceptation of the word ee a oe «+ 568 CHAPTER II.—SrarTvs.. 6. Idea and component Elements of Status oe oe -- 568 § I. Liberty (Libertas), 7. Liberty—Slavery (Servitus)—Colonization (Colonatus) . - 569 8. Enfranchisement (Manumissio)—Free Men (Ingenni)—ana Enfran- chised Slaves (Liberti, Libertini) .. a «. 571 9. Successive Modifications in the Condition of the Enfranchised «» 571 § IL Citizenship (Civitas), 10. Civis, Peregrinus, Hostis, Barbarus .. = «+ oe »» 572 11. Successive Communication of the Jus Civitatis to Persons without the Precincts of Rome... ne ve oe e+ 574 12. Gradual Alteration of the Civil Law .. ae . «- 576 § IL. Familia. 18. General Idea of a Roman Family .. ne ao -. 576 14, The Basis of the Roman Family oe oe e+ 578 15. Power—The Chief of the Family (Paterfamilias) Persons sel Juris or Alient Juris. ee 578 16. Divers kinds of Power (Potestas, Montes ‘Manaipiun’ a +. 580 17. Marriage (Juste Nuptie) and the various Unions between the Sexes (Concubinatus, Stuprum, Contubernium) os «+ 584 18. Cognatio, Agnatio—Gens, Adfinitas .. oe as -. 586 19. Different Acceptations of the Word Familia .. a -- 589 20. Successive Modifications of the Law relating to the Family »» 590 ' gIV. On the Loss or Change of Status (Capitis Deminutio). 21. Maxima, Media, Minima (Capitis Deminutio) ‘4 -» 591 CHAPTER III.—OTHER CONDITIONS AFFECTING PERSONS BESIDES Status (Status). 22. Generally.. oe ee oe 8 *e o- 592 23. Existimatio sis . - ae es -- 593 24. Rank—Dignity .. . ee ve -« 595 25. The Profession .. o o ae si -» 595 26. Religion .. a °- oe oe - 595 27, The Domicile (Domicitium : where one is Fipola\s the oe city (where onc is Civis, Municeps) -- o. . 596 28. The Sex .. - ee oe o oe «. 599 XXViil TABLE OF CONTENTS. PAGE Sect. 29. Age oe lee as ae .- .- «+» 600 30. Physical or Mental Defects .. se ee a6 -- 603 CHAPTER IV.—OF THE CAPACITY OF PERSONS. 31. Generally ee ae oe oe ais «+ 604 82. Tutela—Cura - as ae ae oe «+ 604 CHAPTER V.—LEGAL PERSONNE. 33. Populus— Curie — Magistratui — Hereditas— Peculium — Univer- sitas .. an ais ae a as «+ 60: CHAPTER VI.—THE EXTINCTION OF PERSONA. B4, oe sie we ae we we aie -- 607 ARTICLE SEconD.—II. Or THINGS. CHAPTER I.—OFr FUNDAMENTAL PRINCIPLES. Sect. 35. General Idea of Things at o we a5 e+ 608 CHAPTER IT.—CLASSIFICATION OF THINGS. 36. Relations under which may be ranged the Principal Divisions of Things .. ae se as are ae «+ 609 § I. In Relation to their Creation. 37. Things Corporeal and Incorporeal .. *e o «+ 610 ; § IL. In Relation to Religion. 38. Res Divini Juris and Res Humani Juris oe = -- 610 § III. Zn Relation to the State. 39. Rights of Citizenship—The Idea of the Commercium applicable to 40. Things as well as to Persons | den ‘ zn ae 612 Roman Soil (Ager Romanus) ; Italian Soil, or that which enjoyed Roman Privileges (éalicum Solwm); and Provincial or Foreign Soil (Solum Provinciale) .. aie oe oe e- 612 41. Res Mancipi and Res nec Mancipi_.. ae o o- 614 § IV. In Relation to the Proprietor. 42. Res omnium, Publice, Universitatis, Singulorum, Nullius «+ 620 43. Things in our Patrimony (Bona), or out of our Patrimony os 621 44, Public Land, Property of the State (Ager Publicus); Private Land, 46. 47. 48. Property of Individuals (Ager Privatus) .. oe e- 621 § V. Things considered physically and legally. . Movable Things (es mobiles, seu moventes) or Immovable (Res Soli, Immobiles ) o. ie Ovid, Fasti, lib. ii. line 477 et seq., where the three grounds are given upon either of which Romulus may have been called Quirinus :— Sive quod hasta curis priscis est dicta Sabinis, Bellicus a telo venit in astra Deus; Sive suum regi nomen posuere Quirites ; Seu quia Romanis junxerat ille Cures. Festus, on the word Quirinus: “Qui- rinus ex hac causa Romulus est appel- latus, quod curi, id est hasta, uteretur, a qua Romani eo nomine Romulum ap- pellaverunt.” ® Ovid, Fasti, lib. ii. line 511:— Templa Deo fiunt, collis quoque dictus ab illo. It was the latter of these two which gave to the mountain its name Quirinal, on account of the temple there erected to Quirinus. THE HISTORY OF ROMAN LAW. 13 important part in their symbolic ceremonies, their formule 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 Celius was so named from one Caelius or Vibenna Ceeles, 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 fromthe 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 Celius 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 /Mgonus." "Varro, De lingua latina, lib. v. erat; mox Celium appellitatum a Cale § 46: “ Czlius mons, a Celio Vibenno, Tusco duce nobili, qui cum sua manu dicitur Romulo venisse auxilio contra Tatium regem: hine post Czlii mor- tem, quod nimis munita loca tenerent neque sine suspicione essent, deducti dicuntur in planum. Ab eis dictus vicus Tuscus, et ideo ibi Vortumnum stare, quod is Deus Etruriz princeps.” Festus, on the word Celius: “ Czlius mons dictus est a Cale quodam ex Etruria qui Romulo auxilium adversus Sabinos prebuit, eo quod in eo domi- cilium habuit.”” Dion. Halic., lib. ii. § 38. Tacitus, Annales, lib. iv. § 45: PE . Montem eum antiquitus Querquetulanum cognomento fuisse, quod talis silva frequens fecundusque Vibenna, qui dux gentis Etrusez, quum auxilium appellatum ductavisset, sedem eam acceperat a Tarquinio Prisco, seu quis alius regum dedit: nam scriptores in eo dissentiunt; cxtera non ambigua sunt, magnas eas copias per plana etiam ac foro propinqua habitasse, unde Tus- cum vicum e vocabulo advenarum dic- tum.” The version current among the Etruscan writers was somewhat diffe- rent. According to them it was Servius Tullius, the faithful companion of Czles Vibenna, who, after his reverse, quitted Etruria with the wreck of his army and occupied the mount, which he called Ceelius in honour of his chief. He also changed his own Etruscan name from Mastarna to Servius Tullius. We de- 14 TILE HISTORY OF ROMAN LAW. The existence of the Etruscan element also appears, thoug somewhat obscurely, in the account given us of the Luceres, tl third section of the Roman people (pars tertia populi Romani which was constituted a tribe (distributa) by Tatius, or, accort ing to Festus, by Romulus.!' The origin of the name Lucer was explained by the Romans in different ways: Livy tells t that it was uncertain ;? Festus derives it, in the passage Ju cited, from a certain Lucerus, King of Ardea, a town on tl coast of Latium, who also came to the succour of Romulu But from Varro we learn that the term Luceres was Etruscai and Festus himself, in another passage, derives it from Lucumon, the chief of this band. Cicero tells us of the deat of this Lucumon while fighting with the Romans against tk Sabines.s This Lucumon, then, is evidently no other than tk Etruscan leader Vibenna Czles. All doubt as to the correc ness of this conclusion is dispelled when we recollect wit Niebuhr that “lucumo” is merely a term descriptive of dignit among the Etruscans, and the error has clearly arisen from tk habit of regarding it as a proper name.* A further trace of the existence of the Etruscan element is 1 rive this Etruscan version from what are termed the Claudian Tables, which are bronze tables discovered in 1528 at Lyons, where they are preserved, and on which is engraved a speech of the Emperor Claudius on the concession of the jus senatorium to the Gauls, or their right to be called senators. Pre- viously the Annals of Tacitus, lib. ii. § 24, presented an analysis of this ora- tion, the text of which has been thus preserved. A fac-simile of the text has been printed by M. Monfalcon, librarian to the municipality of Lyons, with its consent (1851, fol.) It is also to be found in the greater number of the editions of Tacitus. That the Em- peror Claudius wrote an Etruscan ver- sion may be believed, inasmuch as we find from Suetonius that he wrote a Greek history of the Etruscans in twenty volumes, which are lost. As to the primitive name of the Quirinal mount, vide Festus, on the words Quirinalis collis et Afgonium. 1 Festus, on the word Lucerenses: “Lucerenses, et Luceres, que pars tertia Populi Romani est distributa Tatio et Romulo, appellati sunt Lucero Ardezx rege, qui auxilio fu Romulo adversus Tatium bellanti.” 2 Livy, lib. i. § 18: Lucerum nomin et originis causa incerta est. 3 Varro, De lingua latina, lib. § 55: “ Tatienses a Tatio, Ramnens a Romulo, Luceres, ut Junius, a Luc mone. Sed omnia hee vocabula Tusc ut Volnius, qui trageedias Tuscas scri sit, dicebat.” Festus, on the wo. Lucomedi: “Tucomedi a duce si Lucumone dicti, qui postea Lucerens appellati sunt.” Cicero, De republic lib. ii. § 8: “ Et suo et Ta nomine et Lucumonis, qui Rom socius in-Sabino prelio occiderat.” 4 Servius, ad neid., lib. ii, li 268: “ Duodecim enim Iucumones, q reges sunt lingua Tuscorum, habebani Et lib. viii. line 475: “Tuscia duoé cim lucumones habuit, id est regi quibus unus preerat.” Also, lib. line 202, et lib. xi. line 10. Censorin De die natali, c. 4: “ Lucumones, tu Etruria potentes.” THE HISTORY OF ROMAN LAW. 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 Rome, 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 Florus, 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.! 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 ayacv or unknown, because it is wrapt in the obscurity of ignorance; the second puéixdv, be- cause it abounds in fables; and the third, icropixdv, derives its materials from the record of events contained in annals that may be relied upon.? Vico in a similar manner, but with more depth of view, divides the historic epoch into the divine, the heroic and the human.? 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 Florus, lib. iii, § 19: “Quum membris, et ex omnibus unus est.” Populus Romanus Etruscos, ‘Latinos, 2 Censorinns, De die natali, § 24. Sabinosque miscuerit, et unum ex om- 3 Vico, Principj di scienza nuova, nibus sanguinem ducat, corpus fecit ex lib. iv. Del corso che fanno le naziont, 16 THE HISTORY OF ROMAN LAW. recitals which he substitutes with the assurance of certainty f the fables of the two earlier periods. Legend may be su stituted for legend, and conjecture for conjecture, but ide that live in the traditions and literature of an entire natio form themselves part of its history if only as representing tl national faith. This is the principle we wish to follow. 1 his first edition, Niebuhr presents us with a Rome, a mei Etruscan colony, a little fortified town built on the Mons Pal: tinus and tracing its origin back to the era of the Pelasgi, an embodying in the course of time the villages on the neig] bouring hills by which it was surrounded. Next he presen us with a Sabine town on Mons Quirinalis, and then a Etruscan town on Mons Celius, thus reproducing under tk shape of conjectures transformed into assertions the theory « the three national elements attested by-antiquity, the Latin, th Sabine and Etruscan. Of the towns or villages of Remuriz Vaticum, Quirium and Lucerum, the ancients have made n mention. : 13. Bearing in mind this idea of the component element « the Roman people, at a period when their history commences we are in a position to approach the study of their institution; And as we shall here, even more than in the study of histori events, come in contact with the brilliant works of Vico an Niebuhr, which may not be ignored, although we are not abl to accept their fundamental data, it appears necessary, befor we proceed. further, to place on record our view of the writing 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 necessaril interwoven with the history of the human race. The histor and the law of Rome are only introduced as examples, of grea importance, it is true, on account of the attention they hay received in modern times, but nevertheless as mere example which the writer, not without using some constraint to moul them to suit his views, has adduced to illustrate certain philo sophic dogmas of his own. The author’s fertility of idea, hi depth of view, the glimmering light of certain fundamenta THE HISTORY OF ROMAN LAW. 17 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 ig bestowed upon the institutions. It is a work of much learned research, and the author, who delights in the minutest details of archeological 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 archeologists 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. g 18 THE HISTORY OF ROMAN LAW. classes of the population at this epoch, in the absence of doc mentary evidence he has trusted too much to imagination. ] is, therefore, only with the utmost caution that many of h ideas in this particular branch of the subject can be introduce into a history of the law. He appears to us to start from a erroneous basis, and we consider it hazardous to admit theorie: constructed with no attention to- critical accuracy, into a elementary work in which nothing should find a place excey established truths. Preoccupied with examples derived fro1 the history of society in the middle ages, and especially of tk petty states of Germany, Niebuhr, even in the terminolog adopted by him on a principle completely at variance with th language of the Romans, has occasionally produced the sam effect—if I may be permitted to use such an illustration in subject of this nature—as would be produced by a painter wh should represent Abraham as about to accomplish the sacrific of his son with firearms. 14, Whatever licence may be allowed a writer treating « ordinary history, in that of jurisprudence there should be r room for the play of the imagination, for it is a subject that r: quires to be handled with the most severe and scrupulous exac ness. We have accordingly, so far as is possible, derived o1 materials solely from written sources left us by the Roma themselves. We are about to follow the history of this peop throughout their career of development, and in doing so, v shall have our attention directed to the public, the sacred, tl private law, and the customs of the people successively. TI first—public law—comprises the constitution, the machinery legislation, the administration of justice, the appointments - office, the right of contracting peace or making war. ‘TT! sacred law, which among the Romans was intimately connect with and formed a branch of political law, regulated the cer monies of religion, and their observance in public and priva life, and the election and authority of the pontiffs. Private la is that which concerned the interest of individuals in their mutu relations with each other, and regulated their marriages, the contracts, their property and their inheritance. And, lastly, v 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 wanting 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 IT. PaTRICIANS AND PLEBEIANS (Patres, Patricii; Plebs, Plebeit). PATRONS AND CLIENTS (Patroni, Clientes). Patrician “GeENTES” (Populus Romanus). 15. 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 ! See Cicero, De republica, lib. ii. § 8. c2 20 THE HISTORY OF ROMAN LAW. either slaves or aristocrats. We must not, therefore, be sur prised to find the people in the earliest times divided into classe differing widely in their condition, a superior and dominan caste having the right of intermarriage, equal privileges, monopoly of sacerdotal, political and judicial functions—th patricians (patres, patricii); and an inferior and subject class prohibited from alliance with the former, neither admitted t its rights or its laws, distributed among the different familie of the patricians, from whom they received protection as ai incident of clientage, and excluded from public functions—thes were the plebeians, or plebs (plebs, plebeii); and, finally, : third class, which in no degree formed part of the State, with out civil rights, and living the life of animals, being regarder by the head of the family in no other light than as mer 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 distinc elements of which it was composed, in the fact of there bein; an asylum among them ever open to the stranger or the fugitiv: slave, in the then existing customs of war, and the fate whicl awaited the inhabitants of towns and districts either in thi character of captives or conquered people. This is a field o study long since explored. And it must be borne in mind tha: these social characteristics were those of all the Italian nation; of the period, among which Rome subsequently attained pre: eminence. Each of the Italian towns and petty states had it; superior and governing, and its inferior and. governed class Clientage, slavery and enfranchisement were in vogue, anc 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 th governed classes.”1_ Censorinus, speaking of the miraculou: 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 ' Dion, lib. vi. § 54. .THE HISTORY OF ROMAN LAW. 21 the plough turned up from the furrows an infant, Tages, 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,’ 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. 16. Another of the ancient Italian institutions is the bond of chentage: 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.? Again, at the siege of Veii, we find nobles from all parts of Etruria flocking, with their ‘clients, to the succour of the city.2 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 (patront) and of clients (clientes). The classic authority * Censorinus, § 4, in fine: “Nec non 28, and Ammian. Marcellin. lib. xxi. in agro Tarquiniensi puer dicitur exa- ‘ j : ratus, nomine Tages, qui disciplinam 2 Livy, lib. ii. § 16; Dion. lib. v. cecinerit extispicii: quam lucumones, § 39. tum [truriz potentes, exscripserunt.” 3 Dion. lib, ix. § 5. See also Cicero, De divinatione, lib. ii. 22 THE HISTORY OF ROMAN LAW. on this subject is Dionysius,’ who shows that reciprocal right and duties, though differing in kind, existed between the patro: and the client. On the part of the patron towards the client there was the duty of protection, assistance and instruction 1 the law, a general regard for their interests and oversight c their affairs during their presence or absence, and the obligatioi 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 matter and litigation, which, from the earliest times, were regarded a affairs of the utmost importance among the Romans. Th picture is correct so far as it is confined to the period whe1 Dionysius of Halicarnassus wrote; but in other respects 1 requires to be supplemented. The pecuniary burdens to bi borne by the clients for the benefit of their patrons wer: marriage portions for the daughters of the latter, the ranson of the patron or his sons from captivity, cesses for roads, cost 0 unsuccessful litigation, the payment of fines, expenses connecter with the magisterial offices and all other public charges. On the part of both, such was the reciprocity of obligation, it wa 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 lav against traitors and to be sacrificed to the gods (sacer esto) And it is a proof of the great antiquity of this institution amon; the Italian nations, that it belonged to a period when humai sacrifices were in vogue, and when the guilty were immolated a religious festivals upon the altar of the deity to whom they hac been dedicated. Dionysius of Halicarnassus, speaking of thi time of which he wrote, tells us that it was lawful for every on to kill them with impunity; and this is confirmed by Festus, 01 the meaning of the word “ sacer.” It is impossible not to recognize a great, similarity, thoug] under very different aspects, between the relations that existec between the patron and his client and those established in ou feudal period between the lord and his vassal. In the case 0 * Dion. lib. ii. § 9 et seq. THE HISTORY 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 fraus innexa clienti.”! 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. Cesar, 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.”* 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 ! Virgil, Zn., lib. vi. line 609. 2 Aul. Gell. lib. v. ch. 13. The speech of Cato, quoted by him: “ Ad- yersus cognatos pro cliente testatur ; testimonium adversus clientem nemo dicit : patrem primum, postea patronum proximum nomen habere.” Of Mas- surius Sabinus: “In officiis apud ma- jores ita, observatum. est, primum tutele, deinde hospiti, deinde clienti, tum cog- nato, postea affini.”’ Of C. Cesar: “Nam neque hominum morte memoria deleri debet, quin a proximis retineatur; neque clientes sine summa, infamia de- seri possunt ; quibus etiam a propinquis nostris opem ferre instituimus.” So Aul. Gell. lib. xx. ch. 1, in his com- mentary on the law of the Twelve Tables: “Sic (Populus Romanus) cli- entem in fidem acceptum cariorem ha- beri quam propinquos, tuendumque esse contra cognatos censuit.” 24 THE HISTORY OF ROMAN LAW. against the patricians were not revolted clients, but that th were an oppressed section of the population rising against the oppressors. Clientage, whatever may have been its advantage was a species of service—the subjection of an inferior to superior caste. Clients or no clients, they were governed | the patricians, the privileged race monopolizing the spiritu and secular government of the state. There is no necessity seek for any other explanation or apology for the strugg] The entire testimony of antiquity convinces us that the chen formed part of an inferior class. It is almost capable of demo stration that, in the first ages of Rome, all the plebeians we distributed among and attached to the several patrician hous by the bond of clientage, if not already enfranchised. This supported by the popular tradition of Romulus. Cicero mak this remark in his treatise on the Republic,! and M. Manlius, his oration to the plebeians against the patricians, bids the calculate their own numbers and that of their adversaries. ‘“‘{ many clients as you were formerly, when subservient to o patron, so many will you now be against one enemy.”? This much is certain, that as a result of the continuous i crease of the plebeians in proportion to the growth of power Rome and the increase of population, a time arrived when t number of plebeians attached as clients to the patrician hous was exceedingly small in comparison with the great body plebeians not so attached. And the bond by which they we united to their patrons, the duties imposed by virtue of th« position as clients, their enrolment in the first organization the comitia in the families of their patrons (although we ha no certain knowledge how that enrolment was effected), t prohibition against lending aid to the enemies of their patro under pain of being adjudged traitors, all contributed to pla them in the situation of apparent supporters of the patricians the struggle with the plebeians, and caused them to be regard as forming a part of the patrician force, and sometimes as nu diators and intercessors between the contending parties, 1 Cicero, De republica, lib. ii. § 9: * Livy, lib. vi. § 18: “Quot a “Et habuit (Romulus) plebem in cli- clientes circa singulos fuistis patro1 entelas principam descriptam; quod tot nunc adversus pnw e E quantz fuerit utilitati, post videro.” m hostem erit 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.! 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 ' See Ortolan’s Institutes, vol. iii. end of title 2 26 THE HISTORY OF ROMAN LAW. Pontiff Sceevola and quoted verbatim by Cicero.1_ For in ea times, as we shall shortly see, not only were the patricians al in such a position, but the very idea could not enter into - mind of a plebeian of ever attaining to such a position. fact, by combining the results of these two ancient institutir of the Italian nations—on the one hand, slavery and enfr: chisement; on the other, clientage—if we go back to the per. when every plebeian who was not either an enfranchised man the descendant of one, was a client, we see clearly that no « of plebeian origin either in his own person or that of his : cestor was free from the taint of slavery or some form of v salage. The patricians alone could claim such an origin- pure blood: they alone were able to form by the reunion different branches, sprung from a common stock, and unit by the ties of agnation, a gens; they alone could possess 1 qualification of gentiles, that qualification which, stripped oi portion of its ancient signification, has been handed down to by tradition, and which is expressed in the languages of mod Europe by the terms “gentilhomme,” “gentilhuomo,” “gen hombre ” and “gentleman.” The most prominently marked feature of the period to wh: we refer—a feature which the more readily escapes the memc because, as time passes, or society becomes renewed, or la changed, the reality of the past disappears—was that at 1 foundation of Rome all of the population who were not pai cians were distributed among that order. In fact, to each patrician “gens” there were attached t accessory subordinate classes, the clients of the patrician of - gens with their descendants, and the descendants of th enfranchised. The clients, as well as the enfranchised, adopted, with peculiar termination, the name of the gens to which they w attached in a kind of civil relationship; and the title of «patro diminutive of “pater,” indicated both this species of relations and the powers which resulted from it. They were attached consequently, with their descendants, * “Quorum majoram nemo servitutem servivit.” (Cic. Top. § 6.) THE HISLUKY Ur KUMAN 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.? 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 ' “Semper ista audita sunt eadem, penes vos auspicia esse, vos solos gen- tem habere, vos solos justum imperium et auspicia domi militieque. ... En unquam fando audistis, patricios primo esse factos, non de ccelo dimissos, sed qui patrem ciere possent, id est, nihil ultra quam ingenuos.” (Oration of Publius Decius Mus, Livy, lib. x. § 8. We shall give shortly the exact mean- ing of the words “ patrem ciere pos- sent.”) “ Patricios, Cincius ait in libro de Comitiis, eos appellari solitos, qui nunc ingenui vocantur.” (Aul. Gell. on the word Patricios.) 2 Vide supra, § 15, 28 THE HISTORY OF ROMAN LAW. speak, of all that is written concerning the tutelage or su sion of the gentiles. . Notwithstanding the complication produced by the inter ture of different groups of families, the degrees of gentility measured and could be legally computed for each indiv: from their respective degrees of agnation. 18. The client and all belonging to him, dependents ot gens of his patrician patron, was a familiar (familiaris) o patron, that is to say, was comprised within his family word familia being taken in its widest signification, exten to and including property, slaves enfranchised, clients an other persons in whatever capacity, if under the power oi chief. Some of these clients resided in the house of patron; others received from him plots of land to culti This distribution of land by the patricians amongst the plebe their clients, is mentioned by several writers. Lydus, i treatise on the Magistracies of the Roman Republic,* says the patricians have given to their familiares the name of cli from clientes, a contraction of colientes, on account of the re: and the devotion due from the familiar to them. Was it rather on account of their cultivating their lands, and wouk the word clientes correspond in origin to coloni? 19. Roman etymologists have differed as to the orig the words patres, patricti, applied to senators and to men of the superior and dominant class. The patres were senators, the patricii their descendants. The name patre: most probably given to the senators, either on account of age, of their paternal solicitude, or because it was the du the senate to divide the lands amongst the plebeians, as fa to their children.* The name of patricii was given to - "We may see here some trace of ter caritatem Patres.” And clientage among foreigners where there “Quibus ipse rex tantum tribuis can be no question about the succession _eos patres vellet nominari, patric of the Gentiles. eorum liberos.”” Sallust, Catilin 2 Lib. i. § 20. “ Hi vel state, vel cure similit 3 Cicero, De republica, lib. ii. § 8: Patres appellabantur.” Festus, “In regium consilium (Romulus) dele- word Patres: “ Patres appellant gerat principes, qui appellatisunt prop- _ quibus senatus constat, quos initic 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 pater familias, 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 /jilie, 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, wasemployed. 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.”? 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 conditz Romulus C. delegit, et sic ap- pellavit, quorum consilio atque pruden- tia respublica administraretur atque gubernaretur; quique agrorum partes adtribuerent tenuioribus perinde ac li- beris, ac pecunias dividerent.” ! Vide supra, § 17, note. ? Florus, lib. i. § 1: “ Consilium rei- publicz penes senes esset, qui ex aucto- ritate Patres, ob statem Senatus voca- bantur.” Festus, on the word Patro- nus: “ Patronus ab antiquis cur dictus sit, manifestum; quia ut patres filiorum, sic hi numerari inter dominos clientum consueverunt.”” 30 THE HISTORY OF ROMAN 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 patriciz non insunt,” that portion of the people in which the patrician gentes are not included.? 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 over 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,? in which the two 1 We do not adopt the common trans- populo omnis pars civitatis omnesque 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. ciz non insunt.”. ? Aul. Gell. lib. x. § 20: “Plebem ° Vide vol. ii. p. 163 et seq. of the autem Capito in eadem definitione se- French translation. orsum a populo divisit: quoniam 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 Epistole Familiares, there occurs this expression :— ‘* Lepidus Imperator iterum, Pontifex Maximus, salutem dicit Senatui, populo, plebique Romane.” 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 suffragium.—Patrum commune cum populo suffra- gium, quibus suffragantibus fit populiscitum.”! ——— Section ITI. TRIBES AND CurtEs ( Tribus et Curie). 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, Varro 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.? 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. ° Vide supra, pars, 9 and 10. 32 THE HISTORY OF 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.? 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,’ though some Roman writers refuse to accept it, and assign a different origin to the names of the curies. Dionysius of Halicarnassus refers * to a second subdivision of each curia into ten decurie. 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 republica, lib. ii. § 8: “Populumque et suo et Tatii nomine, et Lucumonis qui Romuli socius in Sabino preelio occiderat, in tribus tres, curiasque triginta descripserat (Romu- lus).”” Varro, De lingua latina, lib. v. § 55: “Ager Romanus primum divisus in partes tres, a quo tribus appellata Tatiensium, Ramnium, Lucerum: no- minate, ut ait Ennius, Yuticnses a Tatio, Ramnenses a Romulo, Luceres, ut Junius, a Lucumone. Sed omnia hee vocabula Tusca, ut Volnius, qui trageedias Tuscas scripsit, dicebat.” Festus, on the word Zitiensis: “ Titi- ensis tribus a prenomine Tatii regis appellata videtur. Titia quoque curia ab eodem rege est dicta.””’ On the word Lnucomedi, cited supra, § 10, note 3. 2 Cicero, De republica, lib. ii. § 20: “Nec potuit (L. Tarquinius) Titiensi- um et Ramnensium et Lucerum mutare quum cuperet nomina, quod auctor ei summa augur gloria Attius Navius non erat.” 3 Cicero, De republica, lib. ii. § 8: “Populum . . in tribus tres, curias- que triginta descripserat (Romulus), quas curias earum nominibus nuncupa- vit, que ex Sabinis virgines rapta, postea fuerant oratrices pacis et fode- ris.” Livy, lib.i. § 18: “ Ex bello tam tristi, lta repente pax cariores Sabinas viris ac parentibus, et ante omnes Romulo ipsi, fecit. Itaque, quum popu- lum in curias triginta divideret, nomina earum curiis imposuit.” 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 sacerdotes), its fétes, 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.” * 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 zs dicebatur, quod dabatur curioni ° Festus: “Curiales ejusdem curie, ob sacerdotium curionatus.” Varro, uttribules, et municipes.— Curiales fla- lib, v. § 83: “ Curiones dicti a curiis, mines, curiarum sacerdotes.—Curionia qui fiunt ut in his sacra faciant. sacra, que in curiis fiebant.— Curioni- VOL. I. D 34 THE HISTORY OF ROMAN LAW. the money that was to be distributed by the chief of his curia (nostre magister curi@), lest his treason should be suspected, was not a patrician." 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 ).? 26. The word ¢ribus 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:— Nam noster nostre qui est magister curie, Dividere argenti dixit numos in viros, gerebatur. Curie etiam nominantur, in quibus uniuscujusque partis populi Romani quid geritur; quales sunt ex, This dividere argenti nwmos recalls to our memory the tenwioribus pecunias dividerent, in the definition of the patricians, by Festus. (See above, § 19, note 3.) 2 Varro, De lingua latina, lib. v. § 155: “ Curie duorum generum; nam et ubi curarent sacerdotes res divinas, ut Curiz Veteres, et ubi senatus huma- nas, ut Curia Hostilia, quod primum eedificavit Hostilins rex.” Festus, on the word Curia: “ Curia, locus est ubi publicas curas gerebant. Calabra curia dicebatur, ubi tantum ratio sacroram in quas Romulus populum distribuit numero triginta (quibus postea addita sunt quinque) ut in sua quisque curia sacra publica faceret, feriasque observa- ret. Hisque curiis singulis nomina Cu- riarum virginum imposita esse dicuntur, quas virgines quondam Romani de Sabi- nis rapuerunt.”” The parenthesis (qui- bus postea addite sunt quingue) con- tains a confusion between the curies and the thirty-five tribes which subse- quently came into existence—a confu- sion which is repeated in Festus on the word Centumviralia, THE HISTORY OF ROMAN LAW. 35 occupy @ 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.! 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 (sacra privata) 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: “ Comitiwm, 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, mnitiales dies appellabant, quum in id est convocari.” D2 36 THE HISTORY OF 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 < convocation. The will of the assembly must be expressed by the simple affirmative or negative ; and should the vote take au 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 alio 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,! and even when the decision was given, in order to render it effective the confirmation of the senate was requisite (auctor fieri).2 This necessary action of both bodies is concisely expressed by Cicero in the sentence, “ Potestas in populo, auctoritas in senatu sit.” 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.”* As soon as sixteen curies 1 Cicero, De divinatione, lib. ii. § 35: “Fulmen sinistrum, anspicium opti- mum habemus ad omnes res, preeter- quam ad comitia: quod quidem insti- tutum reipublice causa est, ut comitio- Tum, vel in judiciis populi, vel in jure legum, vel in creandis magistratibus, principes civitatis essent interpretes.” ? Livy, lib. i. § 17: “ Decreverunt enim (patres) ut, quum populus regem jussisset, id sic ratum esset, si patres auctores fierent. Tum interrex, con- cione advocata: ‘Quod bonum, faustum, felixqne sit, inquit, Quirites, regem create ; ita Patribus visum est. Patres deinde, si dignum, qui secundus ab Romulo numeretur, crearitis, auctores fient.’ ” ® Cic. De legibus, lib. iii. § 12. “ 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 (viritim), and that of the majority adopted. This view rests upon a passage in Livy.’ 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.* 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 suffragium feratur, curiata comitia esse.” Whether Swit principium,”’ or rather Faucie curia fuit principium, according to the formula which we find in the text of a plebiscitum given by Fronto (De aqueductis, § 129). The lot had fallen to this Faucian curia to be first in two calamitous years, that of the capture of Rome and of the Claudine forts (wtro- que anno eadem curia fuerat princi- piwn). And so it was considered a bad omen, and when, in the circum- stance of which Livy speaks, the name of the curia twice came first the assem- bly was dissolved and adjourned to another day. 1 Lib. i. § 43. 2 Aul. Gell. lib. xv. ch. 27: “Item in eodem libro (Lelii Felicis) hoc scrip- tum est: ‘Cum ex generibus hominum suffragium feratur, curiata comitia esse; cum ex censu et tate, centuri- ata; cum ex regionibus et locis, tri- buta””? We do not render ea generi- bus as if it were cx gentibus ; we trans- late it in its literal sense ; when the votes were taken according to race or origin. 38 THE HISTORY OF ROMAN LAW. the electors were grouped in gens, or whether they voted sepa- rately (viritim), 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 cmperium by the lex curiata, when thirty lictors, symbolizing the thirty curies by a legal fiction, confirmed their authority. SECTION VY. Tue SENATE (Senatus). 82. 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 (yépovres).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 setatem Senatus vocabantur.? 1 Cicero, Agrar. ii. §§ 11 and 12: Lycurgus yépevrac Lacedemone appel- “ Curiata (comitia) tantum auspiciorum avit. . .quos penes summam con- causa remanserunt.” “ Tllis(comitiis), _silii voluit esse, qaum imperii 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 senatwm.”? , ? Cicero, De republica, lib. ii. § 28: 4 Vide supra, § 19. THE HISTORY OF ROMAN LAW. 39 83. 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 majorum 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 ! Cicero, De republica, lib. ii. § 20: “t Principio duplicavit (L. Tarquinius) illum pristinum patrum numerum; et antiquos patres majorum gentium ap- pellavit, quos priores sententiam roga- bat; a se adscitos, minorum.” Livy, lib. iv. § 35, says the same in fixing on one hundred, the number of the new senators made by L. Tarquin: “ Cen- tum in patres legit; qui deinde mino- rum gentium sunt appellati.” 2 Festus, on the word Adlecti: “ Ad- lecti dicebantur apud Romanos, qui propter inopiam (patriciorum ) ex eques- tri ordine in senatorum sunt numero adsumpti: nam Patres dicuntur qui sunt patricii generis; Conseripti, qui in senatu sunt scriptis adnotati.” And on the word Conseripti: ‘‘ Conscripti dice- bantur qui ex equestri ordine patribus adscribebantur, ut numerus senatorum expleretur.” And on the words Qut Patres,: “Qui Patres, qui Conscripti yocati sunt in curiam, quo tempore re- gibus urbe expulsis, P. Valerius consul (Publicola, in concert with his colleague Brutus), propter inopiam patriciorum ex plebe adlegit in numerum senatorum centum et sexaginta et quatuor, ut ex- 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 cura furnished a senatorial decuria. However, these numerical coincidences are not to be relied upon. 84. 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.' 35. The senate is styled by Cicero the Royal Council (regium consilium).? 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.”> rum, et duo genera appellata sunt.” Livy, lib. ii. § 1: “ Czedibus regis de- minutum patrum numerum, primoribus equestris gradus lectis, ad trecentorum summam explevit (Brutus); traditum- que inde fertur, ut in Senatum vocaren- tur, qui Patres, quique Consecripti es- sent. Conscriptos videlicet in novum senatum appellabant lectos.” 1 Festus, on the word Preteriti: “ Preteriti senatores quondam in op- probrio non erant, quod, ut reges sibi legebant sublegebantque quos in consi- lio publico haberent, ita, post exactos eos, consules quoque, et tribuni militum consulari potestate, conjunctissimos sibi quosque patriciorum et deinde plebeio- rum legebant; donec Ovinia tribunitia intervenit, qua sanctum est, ut censores ex omni ordine optimum quemque curi- atim senatu legerent. Quo factum est, ut qui preeteriti essent, et loco moti, haberentur ignominiosi.” * Cicero, De republica, lib. ii. § 8. ® Cicero, De republica, lib. ii. § 8: “ Multo etiam magis Romulus Patrum auctoritate consilioque regnavit.” THE HISTORY OF ROMAN LAW. 41 Srction VI. Tue Kine (Rez). 86. 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 auctoritas 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. 87. 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 This lex Re- 1 Dion. lib. ii. §§ 26 and 27. Digest, 1, 2, De origine juris, 2, § 2, fragment of Pomponius: “ Ipsum Romulum tra- ditur populum in triginta partes di- visisse, quas partes Curias appellavit: propterea quod tunc reipublice curam per sententiam partium earum expedie- bat; et ita Leges quasdam et ipse cwri- atas ad populum tulit.” gia, of which Papinian speaks in the following terms, is cited as a law of Romulus: “ Quum patri lex Regia de- derit in filium vita necisque potesta- tem.” (Collatio legum Mosaicarum et Romanarwm, tit. 4, § 8.) 42 THE HISTORY OF ROMAN 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 when 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 potestatis morib it 23 i De his qui sui, ete., 8, £. Ulp.) : sa aa THE 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. Reuieious Institutions (Sacra publica, Sacra privata). 89. 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 Weare 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 ¢ara 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) fétes, ordered in their stead an offering of garlic or poppy heads, because the oracle had said, * Intercede for heads with heads.? Nevertheless certain human * Vide supra, § 16. pro capitibus, capitibus supplicaretur.” ? Macrobius, Saturnalia, ch.7: “Ut This jew de 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.’ 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.?_ 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 Saturn in place of human sacrifices came the custom of sending wax tapers at the Saturnalia. We see that our custom of presenting tapers, before the Revolution, among certain classes, had an ancient origin. 1 Livy, lib. xxii. § 57. ° Festus, on the word Rituales: “ Rituales nominantur Etruscorum li- bri, in quibus prescriptum est, quo ritu condantur urbes, are, des sacrentur, qua sanctitate muri, quo jure porte, quomodo tribus, curiz, centurie distri- buantur, exercitus constituantur, ordi- nentur, czteraque ejus modi ad bellum ac pacem pertinentia.”’ 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. 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.? 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 familie patrumque servanto; sacra privata perpetuo monento.”* We not unfrequently find in the Roman writers mention made of certain vestiges of sacra privata peculiar to the gentes 1 Cicero, De divinatione, lib. i. § 41. 2 Festus, on the word Publica: “ Publica sacra, que publico sumptu, pro populo fiunt, quzque pro montibus, pagis, curiis, sacellis; at privata, qua pro singulis hominibus, familiis, genti- bus fiunt.”” And on the word Popu- laria: “ Popularia sacra sunt, ut ait Labeo, que omnes cives faciunt, nec certis familiis adtributa sunt: Forna- calia, Parilia, Laralia, Porca preci- dania.” 3 Cicero, De legid. lib. ii. § 9. See how, in his treatise on the Republic, he speaks of the religious laws of Numa, adding that they still preserved them in existing monuments, and giving them the credit of originating sacrifices of an inexpensive character: “Idemque Pom- pilius et auspiciis majoribus inventis, ad pristinum numerum duo augures addidit; et sacris e principum numero pontifices quinque preefecit; et animos, propositis legibus his quas in monu- mentis habemus, ardentes consuetudine et cupiditate bellandi, religionum czre- moniis mitigavit; adjunxitque preterea flamines, salios, virginesque vestales ; omnesque partes religionis statuit sanc- tissime. Sacroruni autem ipsorum dili- gentiam difficilem, apparatum perfaci- lem esse voluit. Nam que perdiscenda, queeque observanda essent multa con- stituit, sed ea sine impensa. Sic reli- gionibus colendis operam addidit, sump- tum removit.” (De republica, lib. it. § 14.) 46 THE HISTORY OF ROMAN LAW. of an illustrious house, for example, that of Claudia, Horatia, Fabia, Nautia, and others.”! —~— Section IX. THE CaLenpar: 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 Varro, at first adopted the year in use with the Albans.’ 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 Propudianus, Porcus and Saturno, Livy, lib. i. § 26, and lib. v. § 46. 2 Censorinus, De die natali, § 20: “Nam, ut alium Ferentini, alium La- vinii, itemque Albani vel Romani ha- buerunt annum: ita et alie gentes. Omnibus tamen fuit propositum suos civiles annos, varie intercalandis men- sibus, ad unum verum illum naturalem- que corrigere.” ® Censorinus, De die natali, § 20: “Sed magis Junio Gracchano, et Ful- vio, et Varroni, et Suetonio, aliisque credendum, qui decem mensium puta- verunt fuisse: ut tunc Albanis erat, unde orti Romani.” THE HISTORY OF ROMAN LAW. 47 révolution, 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, J anuary 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.® 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- monies in honour of the domestic deities, fixed and moveable holy days, the dies comitiales, upon which the comitia could be held,? and those upon which it could not, and especially that 1 Censorinus, De die natali, § 20: “ Quod delictum (the inequality between the solar and the civil year) ut corrigere- tur, pontificibus datum est negotium, eorumque arbitrio intercalandi ratio permissa.”’? See also Macrobius, Sat., lib. i. ch. 18, who explains why they had recourse to this method. 2 Censorinus, De die natali, § 20: “Sed horum plerique, ob odium vel gratiam, quo quis magistratu citius abiret, diutiusve fungeretur, aut publici redemptor ex anni magnitudine in lucro damnove esset, plus minusve ex libidine intercalando, rem sibi ad corrigendum mandatam, ultro depravarunt.” 3 Macrob., Saturnal., lib. i. ch. 16: “ Comitiales sunt, auibus cum populo agi licet.” 48 THE HISTORY OF ROMAN LAW. which was all important to the jurist, the days upon which th magistrate could exercise his functions, when he was permitte to pronounce the sacred words “DO, DICO, ADDICO ;” in whic! are summed up the various acts of his jurisdiction, and fron which came the expression dies fastus (de fart licet) and die nefastus (de fari non licet). All these depended upon th termination of the year, and were regulated by the calendar The result of this was, to place all these functions within th direction and under the control of the pontiff, whence they anc 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 matte: of the utmost importance to the Romans in relation to thei private affairs. The solemn procedure, consisting of what were styled th: legis actiones, was confined to the “dies fasti,” not merely a: 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 o servitudes, enfranchisement, emancipation and adoption, whicl were accomplished by means of feigned actions. Certain day: were “nefasti” in the morning and evening, while during th« day time, that is, between the immolation of the victim and th« sacrifice, they were “fasti;” such days were termed “ intercisi.” Books giving a list of the days in the year, showing which wer “ fasti,” were termed “ Fastorum libri.” Ovid has devoted : poem to the subject, in which he says, addressing Germanicus « You will find the public feast days and those dedicated t your domestic worship,” viz., the day upon which it was no 1 Varro, De lingua latina, lib. vi. § 29: “Dies fasti, per quos pretoribus omnia verba sine piaculo licet fari.” § 80: “Dies nefasti, per quos dies nefas fari prestorem: DO, DICO, ADDICO; itaque non potest agi; necesse enim aliquo eorum uti verbo, cum lege quid peragitur.” And further, § 53: “ Hine fasti dies quibus verba certa legitima sine piaculo pretoribus licet fari. Ab hoc nefasti quibus diebus ea fari jus non est, et si fati sunt, piaculum faci- unt,” 2 Varro, De lingua latina, lib. vi § 31: “Intercisi dies sunt per quo mane et vesperi est nefas medio tempor inter hostiam casam et exta porrect. fas.” Reference must be made t Macrobius, Saturnalia, lib. i. ch. 1€ for a definition of the different days an. of several other matters, and also for a account of the relation which these day bore to the dies festi and profesti. . 3 Festus, on the word PFastorum “astorum libri appellantur, in quibu totius anni 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.’ 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.” 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. —~—- SEecTIon X. Tue Exection or Kines, From Crcero’s DE REPUBLICA— “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 priscis ; Est quoque, quo populum jus est includere Et quo sit merito queque notata dies. septis. i i CEG = Invenies illic et festa domestica vobis. 2 Festus, on the word Clavus: “ Cla i — vus annalis appellabatur, qui figebatur pik ieiieasaae ; in parietibus sacrarum xdium per annos tts Deere eT eee eee singulos, ut per eos numerus collige- tur: . - ee Fastus erit, per quem lege licebit agi. retur annorum.”” See Livy, lib. vil. § 3, and lib. vii. § 18. E 50 THE HISTORY OF ROMAN LAW. about Numa, “quamquam populus curiatis eum comitiis regen esse jusserat, tamen ipse de suo imperio curiatam legem tulit.” The sentence recurs in each new reign with such regularity an identity of expression that it may be reasonably concluded. tha 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, u order to give the magistrates, after their election, the investitur of the “imperium.” This practice commenced with the age c the kings. When the curies had elected the king, when th senate had given its “ auctoritas” to their election, the “le 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 terr applied to the investiture of the emperor—a name which sux vived republican hatred to royalty and which was preserve during the empire. —~+— Section XI. INTERNATIONAL LAw—CoLLEGE OF THE FECIALES. 46. During the three reigns to which we have just referre the spirit of conquest recovered its original energy, and th territory and inhabitants of Rome were augmented from th territories and inhabitants of neighbouring states. The Roma historians ascribe some to Numa, others to Tullus Hostilius « Ancus Martius, an institution connected with international lav the college of the Feciales. The fact is that this was an inst tution common to the different Italian nations, and that tk Romans only followed the prevailing custom. Various write: inform us that it existed with the Albans, the Samnites, tl Ardeans, the Falisci of Etruria and the Equicoli.3 Van and Festus assign very equivocal etymologies to the wo1 Feciales.4 Cicero, in his treatise “De legibus,” summaris ’ Cicero, De republ., lib. ii. §§18,17, § 39. Dion. lib. ii. § 73. Servius, 2 18, 20 and 21. Aineid., Vib. x. 1. 14. 2 Vide supra, § 27. ‘ Varro, De lingua latina, lib. * Livy, lib. i. §§ 24, 82; lib, viii, § 86: “Feciales quod fidei ‘publi Z 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.”! 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 formule 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,? “ et cesa jungebant foedera porca,” and Livy gives us the formula of imprecation pronounced by the Feciales against the Roman people should they violate a treaty: “Jn illo die, Jupiter, Populum Romanum sic ferito, ut ego hune porcum hic hodie feriam.”* The figure of a pig was also one of the military insignia. 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. Ifthe 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 hag 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 preerant; nam per hos fiebat ut justum conciperetur bellum, et inde desitum ut feedere fides pacis constitueretur.” Festus, on the word Fetiales: “¥Fetiales a feriendo dicti, apud hos enim belli pacisque faciende jus est.” 1 Cic., De legibus, lib. ii. § 9. 2 Aneid,, lib, viii. 641. 3 Livy, lib. i. 24. 4 Festus, on the word Porci: “Porci effigies inter militaria signa quintum locum obtinebat, quia confecto bello, inter quos pax fiebat, ex cxsa porca foedere firmari solet.’’ 5 Livy, lib. i, § 32. Aul. Gell. lib. xvi. ch. 4, gives us the same formula with some variations. E2 52 THE HISTORY OF ROMAN LAW. In the course of time, it is true, although the outward foi remained the substance had disappeared. A small field ne the temple of Bellona, within sight of the extremity of t Circus, was consecrated as the campus hostis. It is here tk the fecialis, to avoid the loss of valuable time made by unde taking a long journey, went to announce his declaration of w: and at the foot of a little column, of which Ovid speaks in | Fasti, he hurled his javelin to the ground.* 47. It is to the time of Ancus Martius that Niebuhr ascrik the origin of the plebeians; and upon the faith of a correcti in a manuscript verse of Catullus, which has evidently be altered,? he concludes that the plebeians were the followers Ancus, while the patricians, with their clients, were those Romulus. It is true that the history recognized by the Roma describes Ancus Martius as greatly swelling the population Rome, by transporting thither after their defeat several thousai Latins to whom the right of citizenship was awarded. B Ancus, in so doing, only followed the example of others sides the Romans, whose invariable policy during their eax history, as we see in Dionysius of Halicarnassus,? was, that the strangers, upon whom the rights of citizenship were conferre were distributed among the various curies. It is, however, tr that these new citizens, by whom the Roman population w from time to time augmented, not being all, as were the prin tive inhabitants, attached to patrician gentes by the ties clientage, occupied a somewhat different position, as has alrea been explained.* The observations of Niebuhr must be co fined to this point. 48. According to tradition, Ancus enlarged the city, whi he fortified by an entrenchment on the Janiculum, and by t 1 Ovid, Fusti, lib. 6, 1. 205 et seq.:— Prospicit a templo sammum brevis area circum Est ibi non parve parva columna note. Antiquam, ut solita es, bona Sospites ope gentem. Hine solet hasta manu, belli prenuntia, mitti, In regem et gentes quum placet arma capi. 2 Catullus, Ode 34 to Diana, The generally received reading is— Sis quocunque placet tibi Sancta nomina Romulique The MS. has Antigue. Niebuhr ado the reading indicated by Scaliger, j mulique Ancique, the race of Romu and Ancus. Admitting this, we far from the deduction derived from 3 Lib. iii. § 50. ‘ Vide supra, § 16, THE HISTORY OF ROMAN LAW. 53 fossa Quiritium, a Quiritian ditch between Mons Ceelius 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 /émilianus,” 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? 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.’ 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. 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 ' Festus, on the word Subdlicium: Mamertinus. Vide Festus on these “ Sublicium pontem quidam putant ap- pellatum esse a sublicibus, peculiari vocabulo Volscorum, que sunt tigna in ‘latitudinem extensa.” ? Mamers, in the Osque language according to Festus, in the Sabine lan- guage according to Varro, both of whom may be right, was the name of the god Mars.- Whence the names Mamercus or Martius, and the epithet words, 5 For each of these points, see Livy, lib. i. §§ 32 and 33; Cicero, De repub- lica, lib. ii. §§ 18 and 19. 4 Cicero, De republica, lib. ii. § 19: “Jnfluxit enim non tenuis quidam e Grecia rivulus in hanc urbem, sed abundantissimus amnis illarum disci- plinarum et artium.” 54 THE HISTORY OF ROMAN LAW. assumed at Rome the name of Tarquinius Priscus,’ appears t have commenced an attack upon the primitive institutions base upon the distinctions of the original nationalities, Ramnense Tatienses, Luceres, and against the narrow oligarchy of tk ancient patrician families; an attack which his successor Servit Tullius pushed still further, and which, at a later period, we taken up and driven to very different results by the plebeian The moment had come when the primitive frame in which tl citizens were divided into- tribes and curies according to the origin, Ramnenses, Tatienses, or Luceres, no longer sufficed ft the wants of the new citizens who belonged to neither of thes but by whom Rome had been successively recruited, and wk now formed a rapidly increasing population. Many of these new comers had, in their own cities, bee ‘members of the dominant class; but when they arrived in Ron they had been—with the exception of a very few who, with tk rights of citizenship, received those of the patriciate—placed i the ranks of plebeians. Here, owing to their hereditary frai chise, they were in a position to form the stock of the plebeia « gentes,” in opposition to the original principle on which tl patricians alone could form a “gens.” ‘Tarquin himself belonge to the number of the new citizens, and many of his friends ar partisans who had accompanied him, and who had been a mitted with him to the rights of citizenship, and had been di tributed amongst the tribes and the curies,*® found themselves : the position we have just described. 51. Lucius Tarquinius was unable to accomplish all that ] desired by way of reformation. When he attempted to aboli: the names of the tribes, Ramnenses, Tatienses and Luceres, : being inconsistent with the new elements of the population, ] encountered a formidable opposition, under the colour of religio in the person of Attius Navius the augur, and he was compell: 1 The true meaning of the word epithet: “Priscus Tarquinius est dict Prisens applied to Tarquin has long quia prius fuit quam superbus T: been questioned. Livy makes ita sur- quinius” (on the word Priscus). Dior name: “ Urbem ingressi sunt domici- sius of Halicarnassus is of the sai lioque ibi comparato, L. Tarquinium opinion, lib. iv. § 48. Priscum edidere nomen.” Livy, i. § 34. 2 Dion, lib. iii. § 71. Paul, following Festus, considers it an THE HISTORY OF ROMAN LAW. 55 to renounce his design. 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 majores,” whose stock and nobility were coeval with the foundation of Rome.* 52. 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. 2 Vide supra, § 33. 56 THE HISTORY OF ROMAN LAW. auspices and certain old forms of primitive law. The asser blies he created were for the discharge of real business, an were framed upon a different system, every citizen bein eligible. According to the first census taken by Servius Tullius, th population of Rome at that time consisted of upwards of 80,00( and this shows the extent to which the representatives of th three original tribes, the Ramnenses, Tatienses and Lucere: must have found themselves outnumbered. Servius himsel whether we accept the fables about his extraction, or adopt th Etruscan annals which represent him as the chief of an Etrusca’ band, belonged, together with all his followers, to the nev comers. The friend and counsellor of Tarquin, his predecessor, h carried out his labours to completion. The radical reforr which he introduced in the political constitution of Rome wa to place side by side with an aristocracy of race the superio caste of the ancient patrician order, an aristocracy of wealtl whose ranks were open to all. Thus it was that many of th new citizens attained a position of influence, in spite of th rank they or their ancestors had enjoyed in their native country and who, whatever might have been their wealth, had hithert at Rome been denied admission into the patrician order, an: had been ranked with the plebeians. 54. Heretofore the revenue had been raised by means of poll tax (viritim), arbitrarily imposed without any fixed prin ciple or any adequate proportion between the rich and pool The division of the people into tribes and curies had been, a we have seen, based upon their origin, and the assembly s 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. 1 was for Servius to substitute for this division and consequer vote, depending upon caste, a distribution of the people and system of voting regulated by wealth; in short, he proportione the taxation and the suffrage of each citizen to the amount c 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. 55. 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... As soon as this was finished the entire populus passed in review through the Campus Martius and underwent the ceremony of purification (populum lustrare). This ceremony was repeated every fifth year; hence the term Justrum 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 pretexta 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 CuassEs (Classes) AND THE CENTURIES ( Centurie). 56. 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 LAW. 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." 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.? 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 fétes 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 stood by the Romans, and stated by 3rd ,, 50,000 ae Cicero and Livy. Dionysius makessix, 4th » |. 25,000 ” because he reckons as a class all those 5th class 11,000 7 who were exempt from taxation. 2 According to Livy, lib. i. § 43, the property qualification was as follows: — Ist class consisted of citizens who possessed .. 100,000 asses. Or, according to Dionysius, 12,500, ‘the half of the amount required for the class No. 4. Those whose income did not reach this amount were not classified and were free from taxation. THE HISTORY 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? 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. Livy mentions them as being distributed amongst the fifth class, prcbably 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. 59. 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 Macrobius, Satur., lib. i. ch. 18: « Veritos ergo qui diebus przerant, ne quid nundinis collecta universitas ob regis desiderium novaret, cavisse, ut none a nundinis segregarentur. See above, § 47, and note. 2 Lib. i. § 42. 3 Festus, on the word Adscripticii: “ Adscripticii velati quidam scripti di- cebantur qui supplendis legionibus ad- scribebantur. Hos et adcensos dicebant, quod ad legionum censum essent ad- scripti; quidam velatos, quod vestiti inermes sequerentur exercitum.” And on the word Velati: “ Velati appella- bantur vestiti et inermes, qui exercitum sequebantur, quique in mortuorum mili- tum loco substituebantur.” Varro, De lingua latina, lib. vii. § 56: “ Adscrip- tivi dicti, quod olim adscribebantur inermes, armutis militibus qui succede- 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 amoun’ necessary to place them in the fifth class, yet possessed mor« 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.”! Ir cases of extreme urgency, the proletarii might be armed an¢ equipped at the public expense; but it was not till the time o: 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.? 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,' 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. ! Cicero, De repudlica, ii. § 22: censorum eris fuit trecenti septuaginta “ Quum locupletes assiduos appellasset quinque.” Festus, on the word Adsi- duus: “. ab wre dando; eos qui aut non plus mille quingentum zris aut omnino nihil in suum censum preter caput attulis-, sent, proletarios nominavit; ut ex iis quasi proles, id est quasi progenies civitatis exspectari videretur.” Aul. Gell. lib. xvi. c. 10, who enters mi- nutely into the distinction to be drawn between proletarii, capite censi and assidui: “Qui in plebe, inquit, Romana, tenuissimi pauperrimique erant, neque amplius quam mille quingentum eris in censum deferebant, proletarii appel- lati sunt; qui vero nullo aut perquam parvo zre censebantur, capite censi vo- cabantur; extremus autem census capite A - Alii eum (adsiduum) qui sumptu proprio militabat, ab asse dando vocatum existimarunt.” And on the word Proletarium: “Proleta- rium capite censum dictum quod ex his civitas constet, quasi proles progenie. Idem et proletanei.” ? Festus, on the word Centuria: “Centuria in agris significat centa Jugera; in re militari centwm homines.” Varro, De lingua latina, lib. v. § 35; § 88: “ Manipulos, exercitus minimas manus que unum secuntur signum. Centuria, qui sub uno centurione sunt, quorum centenarius justus numerus,” 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 ;! 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 LLuceres, 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 L. 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- turi@), or that of the six suffrages (sex suffragia), 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 mazimo according to Cicero); thus making in all eighteen centuries of cavalry.? 62. The second observation is, that, in addition to the cavalry, there were several services in the army that neces- ' Cicero, De republica, lib. ii. § 20. quibus inaugurate erant nominibus, - Compare with Livy, lib. i. § 36. fecit.” Cicero, De republica, lib. ii. ? Livy, lib. i. § 43: “Ita pedestri § 2: “Equitum magno numero ex exercitu ornato distributoque, equitam omni populi summa separato, reliquum ex primoribus civitatis duodecim scrip- populum distribuit in quinque classes.” sit centurias, sex item alias centurias, . Equitum centuria cum sex tribus ab Romulo institutis, sub iisdem suffragiis.” 62 THE HISTORY OF ROMAN 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. Ina 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. 68. 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 (seniarum) 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.® 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. § 48: “Seniores, ad urbis custodiam ut presto essent; ju- yenes, ut foris bella gererent.” 2 Aul. Gell. lib.x. ch. 28: “C. Tubero in Historiarum primo scripsit, Servium Tullium, regem populi Romani, cum illas quinque classes juniorum, census faciendi gratia, institueret, pueros esse existimasse, qui minores essent annis septemdecim: atque inde ab anno sep- timo decimo, quo idoneos jam esse rei- publice arbitraretur, milites scripsisse : eosque ad annum quadragesimum sex- tum juniores, supraque eum annum seniores appellasse.” The age of six- teen completed or seventeen commenced is the admitted age for qualification for several other public departments, Livy, lib. xxii. § 57: “Juniores ab annis septemdecim ;” and lib. xliii. § 14: “Minor annis sex et quadraginta.’* Consult Censorinus, De die natali, ch. * 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.! 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 proletarit and capite censt, 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 Centuries, Two centuries of buglers and trumpeters, one of Seniores, one of Ju- 1 The following is the table of the centuries according to Livy :— Cavalry. Centuries, The six original centuries of the 5th class, ; - niores.. ee oe 2 a Ma ae 1g All the proletarii and the capite ney: 7 ie rae - censi in one century... ae Infantry. : (According to others the proletarit 1st class. 40 centuries of es 80 formed one and the capite censi 4 » | Juniores another.) Together with two cen- Total .. w. 194 turies of artificers or Dion. lib. iv, § 20 et seq., differs some- military carpenters, what from Livy, in that he makes the cng: Bemibres, ore sin total 193 by omitting the accensi velati, mone ae +s 2 ond places the two centuries of artifi- and » 10 centuries Seniores and cers after the second class and that of 10 Juniores .. a* 20 ithe buglers and trumpeters after the ard ,, Do. do. .. +» 20 fourth. Cicero, De repub., lib. ii. § 22, 4th ,, Do. P do. oe +» 20 makes a calculation, which, as it gives St. 15 centuries Seniores and to the first century seventy instead of 15 Juniores .. 30 With one century of su- pernumeraries,accensi velati.. os a6 eighty, has led to the supposition that the text has been altered by the copyists. 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. Tue AssemBLy By CenTUuRIES (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 prerogativa (from pre 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. 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 per lictorem curiatum calari, id est con- vocari: centuriata per cornicinem.” “ Centuriata autem comitia intra po- meerium fieri nefas esse; quia exerci- tum extra urbem imperari oporteat; intra urbem imperari jus non sit: prop- terea centuriata:‘in campo Martio haberi, exercitumque imperari presidii causa solitum : quoniam populus esset in suf- fragiis ferendis occupatus.” ? Livy, lib. xxvi. § 22: “Preroga- tiva Veturia junioram.” 3 Livy, lib. i. § 43: “ Equites enim vocabantur prima: octoginta inde pri- mez classis centurig; ibi se variaret, quod raro incidebat, ut secunde classis vocarentur; nec fere unquam infra ita descenderet, ut ad infimos pervenirent.” 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 state, 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 hisage. 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.? 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! 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.”* 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 centuriatas Section XV. THe Knigurs (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 ! 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 tiam nobilium vel maximum, vehemen- _ qu 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,! 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 “ zs equestre,” that for their provender and attendance “ #s hordi- arium.”? However, on special occasions it was not uncommon for the wealthy to purchase and equip their horses at their own expense.? 1 Livy, lib. i. § 36: “Tarquinius, emendus erat, que pecunia dicebatur equitem maxime suis deesse viribus s«sequestre; item. . . ex qua horde- ratus, ad Ramnenses, Tatienses, Lu- um equis erat comparandum, que pecu- ceres, quas centurias Romulus scripse- nia dicebatur zs hordiarium.” rat, addere alias constituit.” 3 Livy gives an example, lib. v. § 7. 2 Gaius, iv. § 27: “Ex qua equus —— F2 68 THE HISTORY OF ROMAN LAW. Section XVI. Tue new Loca 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 tribes.!. 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.? But Livy, whose statement is much more in harmony with the general course of Roman history, and so 1 Vide supra, § 21. 7 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.! 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. As the members of the same curia called each other curiales, so the members of a tribe styled their fellows tribules, “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.° 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 comitia were created in their mary of the 19th book (lost): “ Lus- 1 Livy, lib. vi. §5: “ Tribus quatuor ex novis civibus addite, Stellatina, Tromentina, Sabatina, Arniensis: ex- que viginti quinque tribuum numerum explevere (an. 367).” Lib. vii. § 15: “ Kodem anno due tribus, Pomptina et Pubdlilia, addite (an. 395). Lib, viii. § 17: “Kodem anno census actus, novique cives censi, tribus propter eos addite Mecia et Scaptia: censores addiderunt Q. Publilius Philo, Sp. Pos- tumius (an, 421).” Lib. ix. $20: “ Mt duz Rome addite tribus, Ufentina ac Falerina (an. 435).” Lib. x. §9: “ Et lustram eo anno conditum a P. Sem- pronio Sopho et P. Sulpicio Saverrione censoribus: tribusque additx duz, Ant- ensis ac Terentina (an, 454).’ Sum- trum a censoribus conditum est: censa sunt civium capita ducenta quinqua- ginta unum millia, ducenta viginti duo é . Due tribus adjecte sunt, Velina et Quirina (an. 512)? The two last complete the number thirty-five. 2 Dion. lib. iv. § 18. % The acts of the senate given by Cicero, Ad familiares, lib. viii. ep. 8, furnish numerous examples: L. Villius L. F. Pomptina annalis; C. Septi- mius T. F, Quirina, ete. In the decree in the 9th Philippic, § 7: Serv. Sulpi- cius Q. F. Lemonia, Rufus. And in the epitaph recently discovered at Nimes: “©. Melius C. F. Volt (Voltinia) 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 votesinall.1 N othing of this, however, existed at the time of Servius, and the urban tribes consisted simply of the city population. —~—— Section XVII. Tue Royat Laws (Leges Regie)—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 curiate 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.? 1 Livy, lib. ix. §46: ‘ Fabius, simul concordiz causa, simul ne humillimo- rum in manu comitia essent, omnem forensem turbam excretam in quatuor tribus conjecit, urbanasque eas appel- lavit.” 2 Dig. 1, 2, De origine juris, 2, § 2, f. Pompon.: “Et ita leges quasdam et ipse curiatas ad populum tulit (Romu- Tus). Tulerunt et sequentes reges : quae omnes conscripte exstant in libro Sexti Papirii, qui fuit illis temporibus quibus superbus Demarati Corinthii filius, ex principalibus viris. Is liber, ut dixi- mus, appellatur Jus civile Papirianum,; non quia Papirius de suo quicquam ibi adjecit, sed quod leges sine ordine la- tas in unum composuit.” Ibid. § 36: “Fuit autem in primis peritus Publius Papirius, qui Leges regias in unum contulit.” See also Dion. lib. iii. § 50. THE HISTORY OF ROMAN LAW. 71 The jurist Paul cites a commentary made by Granius Flaccus, a contemporary of Cicero, upon the lex Papiria;! 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.? 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.° 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; 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,® 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 ! Dig. 50, 16, De verborum signifi- catione, 144, f, Paul: “ Granius Flac- cus in libro de Jure Papiriane scribit, - .” ete. : 2 Macrobius, Saturnalia, lib. iii. ch. 11: “In Papiriano enim Jure evidenter relatum est, arse vicem prestare posse “mensam dicatam: ‘Ut in templo,’ in- quit, . .” etc, (Then follows the quotation.) ‘ 3 Livy, lib. vi. § 1: “In primis, foe- dera ac leges, erant autem ex duodecim tabule et queedam regi leges, conquiri, que compararent, jusserunt.” 4 Cicero, De republica, lib. ii. § 14: “ Pompilius. . et animos, propositis legibus his quas in monumentis habe- mus, ardentes consuetudine et cupidi- tate bellandi, religionum czrimoniis mitigayit.” Ibid. lib. v. § 2: “Qui (Numa) legum etiam scriptor fuisset, quas scitis exstare.’’ Tacitus mentions a religious law of King Tullus in his Annals, lib. xii. § 8, and gives in a few words a general view of the enactments of the different kings, lib. iii. § 25. 6 Festus, on the word Parici: “Id autem fuisse indicat lex Numz Pom- pilii regis his composita verbis : SI QUIS HOMINEM LIBERUM DOLO SCIENS MORTI DUIT PARICIDA ESTO.” See also the word Zermino. 6 Dig. 11, 8, De mortuo inferendo, 2, £. Marcell.: “Negat lex regia, muli- erem que pregnans mortua sit, humari autequam partus ei excidatur.” Col- latio leg. Mos. et Roman,, tit. 4, § 8, f. Papinian.: “ Quum patri lex regia dederit in filium vite necisque potesta- tem.” 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 regia 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 regie were abolished, after the expulsion of the kings, by the lex Tribunicia.' 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, De orig. jur., 2, § 8,f. in fossas cloacasque exhauriendas de- Pomp. mersex. Romanos homines, victores _ ? Livy, lib. i§59: “ Additasuperbia omnium circa populorum, opifices ac ipsius regis miserieque et laboresplebis, _lapicidas pro bellatoribus factos.” THE HISTORY OF ROMAN LAW. 13 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 Pouicy. 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 conquerors, 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 ROMAN 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.” * ‘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. ' Vide supra, § 48. . Est.—Deditisne vos, populum Collati- * Livy, lib. i. § 38: “Rex interroga- num, urbem, agros, aquam, terminos, vit: ‘Kstisne vos legati oratoresque delubra, utensilia, divina humanaque missi a populoCollatino ? Sumus.—Est- omnia, in meam populique Romani diti- ne populus Collatinusin sua potestate? | onem? Dedimus.—At ego recipio,’ ” THE HISTORY OF ROMAN LAW. 19 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 Latium). 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. Pusuic 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 ( patres 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:— LecisLative 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 et @tate, 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. Tar Execurive 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 Evecrorat 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. Sacrep 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. Ist. The college of the pontiffs. This college was at: firs composed of four members: one of these, the president, was called the high pontiff (pontifer maximus). It was the heac of the sacerdotal hierarchy, having a religious jurisdiction ove1 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 pontifer 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.t 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. 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 fectales. The duty of these officers was confined to international law, in relation to treaties ol 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- batquein album, et proponebattabulam —_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). 8'7. 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 tl two castes. On the one hand, the patrician could boast an origin coev with the foundation of Rome; he could point to one of the o. nobles as his father (qui patrem ciere possunt, id est, nihil ult guam ingenut); in tracing his lineage step by step back to tl progenitor of his race, he could say that none of his ancesta had been tainted by vassalage (quorum majorum nemo servitute: servivit); and his race, having no genealogy but its own, co1 stituted it a gens (vos solos gentem habere), which included bot the plebeians subject to it by the ties of clientage and the e1 franchised, to whom it had given liberty—a double class « dependants to whom the gens communicated its name and rit: (sacra gentilitia)—to whom the head of the gens was a patro. a civil father and a chief (pater). On the other hand the plebeian of doubtful or servile origi was frequently unable to say whence he came; he could. in r instance trace his lineage back without coming to a client wl had been enfranchised, or to one whose origin was lost; he thi had no gens of his own, and generally traced his stock from dependant of some patrician gens. Such is the radical difference between the two castes, tk basis upon which rests the distinction between public and pr vate legal rights; and such were the plebeians who, in cour: of time, increased in number and strength, till at length they four themselves in a position to contest step by step the right 1 equality with their patrician superiors. 88. All private law among the Romans was based upon o1 idea. The hand (manus) was the symbol of power. Chattel slaves, children, wife and freedmen, all were subject to the chi —in manu—an expression which, at a later period, acquired more special signification. But the means by which the warri acquired power and was enabled to get his property within b grasp (manu capere), was by the lance, the wielders or possesso - of which were the Quirites—a symbol that long remained in u after the actual prototype had disappeared. Even in the soler nities of marriage, long after these primitive times, it was t] THE HISTORY OF ROMAN LAW. 8] 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 captum). 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 @s et libram, called nexum, mancipium, and at a latex 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 es 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 es 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. ' Festus, on the word Celibari: ma armorum et imperil est.” Festus “Celibari hasta caput nubentis come- gives also several other explanations of batur. . .quodnuptiali jureimperio this usage, but this is the correct one. viri subjicitur nubens: quia hasta sum- 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 es et libram, or might be acquired asa 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 wosthy 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 curza, the plebeian testament consisted of a sale during his life per es 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, pater familias, 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 Ist. 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 es et libram by their chief, or as debtors who, in, default of payment, were adjudicated by the magistrate to their creditors (addict7), or as those who voluntarily sold them- selves per es et libram for a given time to creditors in satisfac- tion of their debt, nezi. 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.’ 6th. Clientage was a condition at the same time political and ‘private, by which the plebeians were subject to the superior ! 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.s The Quiritarian land ceased to increase in extent from the last survey made by Servius Tullius. 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- * Dion., Antiguit., lib. iii.§1. Cicero, ? Dion, lib. iv. § 18. De republica, 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.! 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 lingud latind,lib.v.§33. publici disserunt agrorum sunt genera He tells us how they distinguished by quinque, Romanus, Gabinus, Peregri- the aid of the science of angury different nus, Hosticus, Incertus,” &c., and gives kinds of ager: ‘Ut nostri augures the explanation. 86 THE HISTORY OF ROMAN LAW. SECOND PERIOD. THE REPUBLIC. IL TO THE PASSING OF THE LAWS OF THE TWELVE TABLES. 93. Ir 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.! 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.? 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 tam mite ac tam moderatum imperium, ta- men, quia unius esset, deponere eum in animo habuisse quidam auctores sunt; ni scelus intestinum liberande patriz consilia agitanti intervenisset.” § 60: “‘Duo consules inde comitiis centuria- tis u prefecto Urbis ex commentariis Servii Tulli creati sunt, L. Junius Brutus et L. Tarquinius Collatinus.” 2 Cicero, De republica, lib. ii. § 82: “Tenuit igitar hoc in statu senatus rempublicam temporibus illis, ut in populo libero pauca per populum, ple- raque scnatus auctoritate et instituto ac nore gererentur, atque uti consules po- testatem haberent tempore duntaxat annuam, genere ipso ac jure regiam. Quodgue erat ad obtinendam potentiam nobilium vel maximum, vehementer id retinebatur, populi comitia ne essent rata, nisi ea patrum approbavisset auctoritas.” 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. Tue VALERIAN Lawg (Leges Valerie). Quessrors or HomicipE ( Questores Parricidi?). 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 Valerize—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 populum). But did not this right, which Livy dig- nifies as the unicum presidium libertatis, exist under the kings? Several historians are of opinion that it did, and Cicero, in his Republic, says: “ Provocationem autem etiam a regibus fuisse declarant pontificales 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 ! Cicero, De republica, lib. ii. § 81. tione creasset: qui creasset, eum jus Dig. 1, 2, De origine juris, 2,§16,f. fasque esset occidi: neve ea cades Pompon. Livy, lib. iii. § 55: “Ne capitalis noxe 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 questores parricidii, whose duty it was to preside at the investigation of these charges (qui capitalibus rebus preessent), direct the proceedings, and deliver judgment in the name of the people. Parricidium signifies at this period paris-cidium—the murder of one’s equal—homicide; and not, as in later times, patris-cidium—the murder of a father—patricide. In Festus we find this law ascribed to Numa, “ St guis 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,’ 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 zmperium 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. QU4STORS OF THE PuBLIC REVENUE. 9'7. 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 questors were appointed by the people expressly for these duties. They were called questors because it was their duty to seek and collect the public taxes (qui pecunie ' Dig. 1, 2, De origine juris, 2,§ 28, provocationem esse longius ab urbe £. Pompon. mille passuum.” 2 Livy, lib. iii, § 20: “ Neque enim 90 THE HISTORY OF ROMAN LAW. preessent), as those whose duty it was to seek out evidence in cases of capital crimes had been called questores parricidti.' 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 or THE Cavaury (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 Rome; 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.? 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 ! Dig. 1, 2, De origine juris, 2,§ 22, sent, alterius auxilium, neque provoca- f. Pompon. tio erat; neque ullum usquam, nisi in 2 Livy, lib. 2, § 18: “Neque enim cura parendi, auxilium.” ut in consulibus, qui pari potestate es- THE HISTORY OF ROMAN LAW. 91 title “‘ master of the people” (magister populi), 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. 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. 100. 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? 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. —~—— Srction X XI. Tur 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 ' Cicero, De republica, lib.i..§ 40: Dig. 1, 2, De origine juris, 2, § 19, f. “Nam Dictator quidem ab eo appel- Pompon. aie, mtd latur, quia dicitur; sed in nostris libris 2 Dig. 1, 2, De origine juris, 2,§ 19, vides eum magistrum populi appellari.” £.Pompon. Lydus, lib. i. § 14. 92 THE HISTORY OF ROMAN 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, questor, 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 es et libram entered into a condition of servitude to his creditor, known as nerus ; 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 ! 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). Tue Sacrep Laws (Leges Sacre). 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 (z.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 (éribuni 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 (ix auzxilium plebis; contra vim auxilium). This protection was secured by what was termed their intercession (intercedere, 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. 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 ' Cicero, De republica, lib. ii. § 34. 2, De origine juris, 2, § 20,£. Pompon. De legibus, lib. iii. § 7. TheClaudian Festus, on the word Sacer 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 sacr@); 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. Section XXIII. Tue Comitia By TriBEs ( Comitia tributa). Puxsiscira (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 2 Livy, lib. iii. § 55. THE HISTORY OF ROMAN LAW. 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: lst. 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. PLeBeIaNn Epives (Aédiles Plebeit). 108. 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 questors, they added to the tribunes two magistrates elected from among the plebeians, whom they named plebeian ediles (ediles plebeii); officials who had charge of the details of police administration and the protection of the edifices where the plebiscita were deposited.* SECTION X XV. ORIGIN OF THE TWELVE TaBLes (Lex on Leges XII Tabularum, Lex decemviralis). 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: “Cumex __ et locis, tributa.” generibus hominum suffragium feratur, 2 Dig. 1, 2, De origine juris, 2, § 21, curiata comitia esse; cum ex censuet f. Pompon. etate, 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 (equanda libertas:—summis infimisque jura equare).! 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 the 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,’ 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 the Greek laws were not unknown to the compilers of the Twelve Tables; and though they imitated the Greek laws in certain trivial details,° yet the basis of the Roman civil law is not borrowed, but original, ' Livy, lib. iii. § 31. Dion. lib. x. Dig. 10, 1, Fin. regund., 18, f. Gai.; §§ 1 and 63. and 47, 22, De coll. et corp., 4, £. Gai. 2 Livy, lib. iii. § 3letseq. Dion.lib. Lydus, De magistratibus, lib. i. § 34. x. §64. Dig. 1, 2, De orig. jur., 2, § 4, 3 See below, Table VII, and Dig. f. Pompon. Plin., Hist. natur., 34,5. 10, 1, Fin. regund., 18, 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. 110. (s.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 questors, the ediles, and even the tribunes, laid down their authority. 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 intercessio collegie; and they drew up Ten Tables of the laws, which, after having been exposed to public view (promulgate), 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. These, 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 power of the decemvirs was overthrown. Two of them perished in prison; the remaining eight were sent into exile, and the estates of the whole 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). Asa 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.1. 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. 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 X XVI. Tue FRAGMENTS OF 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- cal terminations in the greater part of the laws of the Twelve Tables, they cannot be regarded as verse. The ex- pression “carmen,” among the Romans, had a much more general signification. 2 “Say what they will, I shall say what I think, By heaven, in my eyes, the little book of the laws of the Twelve Tables, with regard to the source and principles of law, is preferable to the libraries of all the philosophers that ever lived, both as to the weight of au- thority and extent of utility.”—Cic., De Or., 1—44. H2 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. The question 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 Preetors, the code of Theodosius, and even the code and digest of Justinian. 113. We are indebted to Jacques Godefroy? 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,? 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 Twelve Tables. We find in the Digest twenty fragments of this work, with references to the books from which they are extracted. It has been supposed that each of these six books corre- sponded to two of the Tables, and this supposition has served asaguide. The arrangement of the Preetorian edicts of the Theodosian code, and finally of the code and digests of Justinian, appears to have been derived from this source. * Jacq. Godefroy, Fragmenta XIT Tabularum, suis nune primum tabulis restituta, probationibus, notis et in- dice munita, Heidelberg, 1616, in 4to. Reprinted in his collection, Fontes IV juris civilis, Geneva, 1638, in 4to, and 1653, in 4to. 5 Haubold, Znstit. juris Rom. privat. hist. dogm. epitome. Leips. 1821, p.129, 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.” ! 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.? 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. 'H. E. Dirksen, Vebersicht der criticize and reconstruct the texts of bisherigen Versuche zur Critik und Fragments of the Twelve Tables.) Herstellung des Textes der Zwolf- Veipzig, 1824. Tafel-Fragmente. (Review of the at- 2 See below, Table V. § 8, and Table tempts made up to the present time to VI. § 11. 102 THE HISTORY OF ROMAN LAW. FRAGMENTS OF THE TWELVE TABLES.’ TABLE I. Te SUMMONS BEFORE THE MacIsTRATE (De in jus vocando). I. / Si in jus vocat, ni it, antestator; igitur em capito.? II. Si calvitur, pedemve struit: manum endojacito.? Ii. Si morbus evitasve vitium escit, qui in jus yocabit jumentum dato; si nolet, arceram ne sternito.* IV. Assiduo vindex assiduus esto; prole- tario quoi quis volet vindex esto.> 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. 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. ! Prompted by the desire to be strictly faithful to the text of the fragments actually existing of the Twelve Tables, Thesitate to import the passages derived from other authors in order to assist in their reconstruction. I confine myself to the analysis of the provisions 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. 2 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., Woct. attic, 20, 1. Auctor Rhetor. ad Herenn., 2, 18. > Festus, on the words Struere and Pedem struit. Dig. 50, 16, De verbor. signif., 233, £. Gai. lib. i. of his com- mentary on the Twelve Tables. Luci- lius, in the passage already cited. 4 Aul. Gell. Woct. attic., 20, 1. Varro, in Non. Marcell. De propr. serm., cap. 1, § 270. Varro, De ling. latin., 4, 31. 5 Aul. Gell., Woct. attic. 16, 19. Varro, in Non. Marcell., De propr. serm., cap. 1, § antepenult. THE HISTORY OF ROMAN LAW. Vv. Rem ubi pagunt, orato.! VI. Ni pagunt, in comitio aut in foro ante meridiem causam conjicito, quom perorant ambo presentes.2 vil. Post meridiem, presenti stlitem addi- cito. VIII. Sol occasus suprema tempestas esto.‘ IX. Vades . -Subyades. . 5 103 If 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- moniwm.) ! Auctor Rhetor.ad Herenn., 2,13. Priscianus, Avs grammat., 10, 5, 32. 2 Aul. Gell, oct. attic., 17, 2. Quintilianns, 1,6. Plinius, Hist. nat., 7, 60. 3 It may be fairly doubted whether these two fragments, VI. and VIL, have reference to the office of the magistrate or the judge, and conse- quently whether they belong to the first or second Table. The cause 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, Hxplica- tion hist. 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. Gell., ibid. Festus, on the word Supremus. Varro, De ting. latin., 5, 2, and 6,8. Macrobius, Saturn., 1, 8. Censorin., De die nat., cap. fin. 5 Aul. Gell., Woct. attic., 16, cap. 10. Consult Gaius, Znstit., 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. Dirksen and Zell 104 THE HISTORY OF ROMAN LAW. TABLE II. JupiciaL Proceepines (De judiciis). IL Morbus sonticus status dies cum hoste . . quid horum fuit unum, judici, arbitrove, reove, dies diffisus esto.” Til. Cui testimonium defuerit, is tertiis die- bus ob portum obvagulatum ito.$ IV. The provisions of the Twelve Tables upon the amount to be deposited, called sacramentum, by the litigants respectively.) . . Aserious illmess . . . 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.‘ 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 cautum est: ut idem juris esset Sanatibus, quod fortibus id est bonis et qui nunquam defecerant apopulo Romano.” Paulus and Festus, on the word Sanates. 1 “ Poona autem sacramenti aut quin- genaria erat, aut quinquagenaria, (nam) de rebus mille eris plurisve quingentis assibus, de minoris (vero) quinquaginta assibus sacramento contendeb(atur) : nam (ita) lege XIT Tabularum cau- tum erat. (Sed si de libertate) hominis (contro)versia erat, etsi pretiosissimus homo esset, tamen ut L assibus sacra- mento contenderetur ea(dem) lege cau- twm est favoris (causa), ne (sa)tisda- tione onerarentur adsertores.” Gai., Instit., comm. 4, § 14. 2? Aul, Gell., oct. attic., 20, 1. Cicero, De offic., 1,12. Festus, on the word Reus. Dig. 2,11, Si guis caut. in jud., 2, § 3, £ Ulp. Festus, on the words Portus and Vagutatio. ‘ “Et in ceteris igitur omnibus ad edictum pretoris pertinentibus, que non ad publicam lesionem, sed ad rem familiarem respiciant, pacisci licet; nam et de furto pacisci lex permittit.? Dig. 2, 14, De pactis, 7, § 14, £. Ulp. THE HISTORY OF ROMAN LAW. 105 TABLE ITI. EXECUTION FOLLOWING CONFESSION OR JUDGMENT (De ere confesso rebusque jure judicatis).1 I. 4Gris confessi rebusque jure judicatis triginta dies justi sunto.? Il. Post deinde manus injectio esto, in jus ducito.3 Iu. Ni judicatum facit, aut quips endo em jure vindicit, secum ducito; vincito, aut nervo, aut compedibus, quindecim pondo ne majore, aut si volet minore vincito.* IV. Si volet suo vivito; ni suo vivit, qui em victum habebit, libras farris endo dies dato ; si volet, plus dato.® 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 (vindex) 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— le, 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. 2 Aul. Gell., oct. attic., 20,1, and 15, 13. Gai, Znstit., comm. 3, § 78. Dig. 42, 1, De re judicata, 7, f. Gai. 3 Aul. Gell. oct. attic., 20, 1. Gai., Instit., comm. 4, § 21, on the Manus injectio. 4 Ibid. 5 Aul. Gell., Woct. attic.,10,1. See also Dig. 50, 16, De verbor. sign., 234, § 2, f. of Gai. lib. ii, Commentary on the Twelve Tables. 106 Tertiis nundinis partis secanto; si plus minusve secuerint, ne fraude esto.? , THE HISTORY OF ROMAN LAW. comitium on three successive market days, and the public declaration of the amount in which he was condemned.' 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. Tue Ricuts oF THE FaTHER (De jure patrio). Provision as to the immediate destruc- tion of monstrous or deformed off- spring.? 1 « Erat autem jus interea paciscendi; ac nisi pacti forent, habebantur in vin- culis dies sexaginta; inter eos dies trinis nundinis continuis, ad praetorem in comitium producebantur, quanteque pecuniz judicati essent preedicabatur.” Aul. Gell., Woct. attic., 20, 1. 2 « Tertiis autem nundinis capite pe- nas dabant, aut trans Tiberim peregre venum ibant. Sed eam capitis penam sanciende, sicut dixi, fidei gratia, hor- rificam atrocitatis ostentu, novisque ter- roribus metuendam reddiderunt. Nam si plures forent, quibus reus esset judi- catus, secare, si vellent, 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 poene denuntiata est, ne ad eam unquam perveniretur. Addici namque nunc et vinciri multos vide- mus; quia vinculorum poenam deterrimi homines contemnunt. Dissectum esse antiquitus neminem equidem neque legi, neque audivi: quoniam sevitia ista peenz contemni non quita est.” Aul. Gell. 20, 1. “Sunt enim quedam 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, Avpol., cap. 4. r 3 “ Nam mihi quidem pestifera vide- tur (Cicero, by his brother Quintus, speaking of the power of the tribunes THE HISTORY OF ROMAN LAW. II. III. Si pater filium ter venum duit, filius a patre liber esto.? IV. 107 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.! Three consecutive sales of the son by the father releases the former from the patria potestas. 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.? TABLE V. INHERITANCE AND TUTELAGE (De hereditatibus et tutelis). I. Provision relating to the perpetual tu- telage of women. Vestals are free both from their tutelage and from the patria potestas.4 of the plebeians), quippe que in sedi- tione et ad seditionem nata sit: cujus primum ortum si recordari volumus, inter arma civium, et occupatis et ob- sessis urbis locis, procreatum videmus, Deinde quum esset cito aslegatus (others read letatus or necatus) tanguam ex XIT Tabulis insignis ad diformita- tem puer, brevi tempore recreatus, multoque tcetrior et foedior natus est.” Cicero, De leg., 3, 8. 1 “ At Romanorum legislator (Romu- lus) omnem, ut ita dicam, potestatem in filium patri concessit, idque toto vite: tempore: sive eum in carcerem con- jicere, sive flagris czdere, 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 rempublicam laudaretur z Sed sublato regno, decemviri (eam legem ) inter cxteras retulerunt, exstatque in XII Tabularum, ut vo- cant, quarta, quas tuncin foro posuere.” Transl. Dion., Archeol., 2, 26 and 27. “Quum patri lex regia dederit in filium vite necisque potestatem,” etc. Papinianus, lib. sing. De adulteriis, extracted from Collatio leg. Mosaic. ct Fom., tit. 4, § 8. 2 Ulpian., Regul., tit. 10,§ 1. Gai., Instit., comm. 1, § 132, and 4, § 79. Dion. as above. 3 Aul. Gell., Woct. attic., 3, 16. Dig. 38, 16, De suis et legitim., 3, $9, f. Ulp. 4 « Veteres enim voluerunt, feminas, etiamsi perfectze wtatis sint, propter animi levitatem in tutela esse. Itaque si quis filio filiaeque testamento tutorem dederit, et ambo ad pubertatem perve- . 108 Il. III. Uti legassit super pecunia tutelave suze rei; ita jus esto.? IV. Si intestato moritur, cui suus heres nec sit, adgnatus proximus familiam habeto.$ Va Si adgnatus nec escit, gentilis familiam nancitor.‘ VI. * * * * * THE HISTORY OF ROMAN LAW. Provision prohibiting the usucapion of ves 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.! 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 withont swus heres, 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.$ nerint, filius quidem desinit habere tuto- rem, filia vero nihilominus in tutela permanet. Tantum enim ex lege Julia et Papia Poppza jure liberorum a tutela liberantur femine. Loquimur autem exceptis virginibus vestalibus, quas eti- am veteres in honorem sacerdotii libe- ras esse voluerunt; itaque etiam lege XIT Tabularum cautum est.” Gai., Instit., comm. 1, §§ 144, 145, 155 and 157, 1 «(Item olim) mulieris que in agna- torum tutela erat, res mancipi usucapi non poterant, preterquam si ab ipsa, tutore (auctore) tradite 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 Faleidia, pr. Dig. 50, 16, De verb. signif., 120, f. Pomp. Cicero, De invent. rhetor., 2, 50. Auctor Rhetor. ad Herenn., 1, 13. Justinian., Wovell., 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. Mos. et Rom., 16, § 3. Paul., ibid., § 22: “The law of the Twelve Tables calls the agnates to succession without distinetion of sex.” Gai., Jnstit.,comm. 1, §§ 155, 157, and 3,§ 9. Just., Jnstit., 3, 1, De hered. que 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 heres suus was distributed per stirpes. However Gaius, Znstit.,comm. 3, § 15, derives this principle solely from interpretation. But this rule does not apply to the agnates. “ Cicero, De invent., 2,50. Ulpian., according to Collat. leg. Mos. et Rom., 16,§ 4. Gai., Instit., comm. 8, § 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. VII. Si furiosus est, agnatorum gentiliumque in eo pecuniaque ejus potestas esto.! Ast ei custos nec escit.? © VIIt. Ex ea familia . . . in eam fami- liam.? IX. * * * * * xX. * * * * * XI. # ® * * * 109 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 heres swus was transferred to his patron). The inheritance is divided as of right among the heirs.‘ Provision from which is derived the actio familie erciscunda, that is, the action which must be taken to enforce the division of an inheri- tance.> 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.® 1 Cicero, De invent., 2,50; Tuscul. quest., 3,5; Derepubl., 3,23. Auctor Rhetor. ad Herenn., 1,18. Ulp. Re- gul., 12, § 2, etc. 2 Festus, on the word WVec. 3 « Civis Romani liberti hereditatem lex XIT Tabularum patrono defert, si intestato sine suo herede libertus de- cesserit.” Ulpian., Regul., 29, § 1. “ Sicut in XII Tabulis patroni appella- tione etiam liberi patroni continentur.” (Vatic. J. R. Fragm., § 308.) “« Ad personas autem refertur familiz significatio, ita, cewm de patrono et li- berto loquitur lex: EX EA FAMILIA, inquit, IN EAM FAMILIAM.” Dig. 50, 16, De verbor. signif , 195, § 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. 4 «Fa que in nominibus sunt, non recipiuut divisionem: cum ipso jure in portiones hereditarias ex lege XII Tabularum divisa sint.’ Cod. 8, 36; Famil. ercise., 6 const. Gordian. Con- sult Dig. 10, 2, Famil. ercise., 25, § 9, f. Paul., etc. 5 « Hee actio (action familie ercis- cunde) proficiscitur a lege XII Tabu- larum.” Dig. 10, 2, Famil. ercisc., 1 pr. f. Gai. Ibid., 2 pr., f. Ulp. Festus, on the word Zrctum, ete. 6 « Sub hac conditione liber esse jus- sus, si decem millia heredi dederit, etsi ab herede abalienatus sit, emptori dan. do pecuniam, ad libertatem pervenict ; idque lee XII Tabularum jubet.” Ulpian., Regul., 2, § 4. Dig. 40, 7, De stat. liber., 29, § 1, £. Pomp.; and 25, f. Modest. Festus, on the word Statuliber. 110 THE HISTORY OF ROMAN LAW. TABLE VI. Dominion AND Possession (De dominio et possesstone). I. Quum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto.! II. III. Usus auctoritas fundi biennium ceterarum omnium . . . (annuus).3 IV. The words pronounced in the cere- monies of the nexwm and the man- cipiwm shall be law. Provision enforcing double payment as penalty for denying the declarations of the nexwum 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.* 1 Festus, on the word NVuncupata. Cicero, De offic., 3, 16; De orat., 1, 57; Pro Cecin., cap. 23, Varro, De ling. lat., 5, 9. 2 «De jure quidem praediorum san- citum est apud nos jure civili, ut in his vendendis vitia dicerentur, que nota essent venditori. Nam cum ex XII Tabulis satis esset ea prestari que essent lingua nuncupata, que qui in- Jiciatus esset, dupli penam subiret: a jurisconsultis etiam reticentize poena est constituta.” Cicero, De offic., 3, 16. 3 We cannot he 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 que par est: ut quoniam usus auctoritas fundi biennium est, sit etiam edium, At in lege edes non appellantur, et sunt ceterarum omnium quarum annuus est usus.” Cic. Topic. c. 4. Consult Cic. pro Cecin., 19; Gai. Instit., comin. 2, § 42; Just. 1, 6, Instit., 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 awcto- vitas. Avuctoritatem prestare means, even in the time of Justinian, to gua- rantee against eviction. Usus aucto- ritas is then the prescriptive guarantce 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. * «Usu in manum conveniebat, quae anno continuo nupta perseverabat: nam yelut annua possessione usucapiebatur, in familiam viri transibat, filieque lo- cum obtinebat. Itaque lege XII Tabu- larum cautum erat, si qua nollet eo modo in manum mariti convenire, ut quotannis trinoctio abesset, atque ita THE HISTORY OF ROMAN LAW. Vv. Adversus hostem eterna auctoritas.! Vi. Si qui in jure manum conserunt . . .? VI. Tignum junctum xdibus vinesque et concapet ne solvito.‘ Vill. * * * od * lll No possession by an alien, however long, can vest in him the property of a citizen. In the case of the manwum consertio. (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 dicere) 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. 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.> usum cujusque anni interrumperet.” Gai., Instit., comm. 1, § 111. See Aul. Gell., Woct. attic., 3, 2; Macrob., Saturnal., 1, 3. ! 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. 2 Aul. Gell, Woct. attic., 20, 10. Festus, on the word Superstites. 3 “Tnitium fuisse secessionis dicitur Virginius quidam, qui quum animad- vertisset Appium Claudium contra jus, quod ipse ex vetere jure in XIT Tabu- las transtulerat, vindicias filize suze a se abdixisse, et secundum eum, qui in servitutem ab eo suppositus petierat, dixisse, captumque amore virginis omne fas ac nefas miscuisse,” etc. Dig. 1, 2, De origine juris, 2, § 24, £. Pomp. Consult Dion. 1], 30; Livy, 3, 44; Cicero, De republ., 3, 32. 4 Festus, onthe word 7ignum. Dig. 50, 16, De verbor. signif., 62, £. Gai. Dig. 47, 3, De tigno juncto, 1 pr., and § 1, f. Ulp., ete. 5 «Tex XII Tabularum neque sol- vere permittit tignum furtivam xdibus vel vineis junctum, neque vindicare: quod providenter lex effecit: ne vel edificia sub hoc pretextu diruantur, vel vinearum cultura turbetur; sed in eum qui convictus est Junwisse, in du- 112 THE HISTORY OF ROMAN LAW. Tx. Quandoque sarpta, donee dempta If the material becomes detached, and erunt.! ; so long as it remains so . . . (the owner can recover it by vindicatio). xX. * * * * * The property in a thing sold and de- livered does not pass to the purchaser till payment.” XI. ” . = * 2 Provision confirming the cessio before the magistrate (in jure cessie), as likewise the mancipatio# TABLE VII. Tue LAw CONCERNING ReaL PROPERTY (De jure edium et i agrorum). IL. “ " * * * Two feet and a half at least must be left between adjoining edifices for the purposes of proper ventilation (am- bitus).4 IL. Ly * * * * Provisions concerning plantations and constructions or excavations upon ad- joining plots of ground.> plum dat actionem.” Dig. 47, 8, De tign. junct., 1 pr., £. Ulp. ' Festus, on the word Sarpuntur (vinee). 2 « Vendite vero res et tradite 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, Znstit., 2, De rer. divis., § 41. Festus, on the words Sub vos placo. 3°). . “Et mancipationem et in jure cessionem lex XII Tabularum confirmat.” Vat. J. R. Fragm., § 60. 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 Tabularum 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. an Si quis sepem ad alienum pra- dium fixerit infoderitque, terminum ne excedito; si maceriam, pedem relinquito; si vero domum, pedes duos; si sepul- THE HISTORY OF ROMAN LAW. TIL. Hortus . . . heredium . . . tu- gurium . . i! IV. * * * * * Vv. Sijurgant . . 3 VIL * * * * * VIL. Si aqua pluvia nocet . . § 113 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 uswcapio.? 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. 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 habuerint, tantum spatii relinquito; si puteum, passus latitudi- nem; at vero oleam aut ficum ab alieno ad novem pedes plantato, cxteras ar- bores ad pedes quinque.”’ Dig. 10, 1, Fin. regund., 18, f. Gai. lib. iv. of his commentary on the Twelve Tables. 1 Plin., Hist. nat., lib. xix. cap. 4, § 1. Festus, on the words Hortus, Heredium and Tugurium. Varro, De re rustic., lib. i. cap. 10. Dig. 56, 16, De verhor. signif., 180, £. Pompon. 2 “Ex hac autem, non rerum, sed verborum discordia, controversia nata est de finibus: in gua quoniam usuca- pionem XII Tabule intra quinque pedes noluerunt, depasci veterem pos- sessionem Academie ab hoc acuto homine non sinemus; nec Mamilia lege singuli, sed ew his (XII Tabulis) tres arbitrii fines regemus.” 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“ Viz latitudo ex lege XII Tabu- larum in porrectum octo pedes habet ; in anfractum, id est ubi flexum est, se- decim.” Dig. 8, 3, De servit. pred. rustic., 8, f. Gai. 5 «Si via sit immunita, jubet lea, gua velit agere jumentum.”’ Cic., Pro Cacina,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 prestare debet.” (Dig. 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 Godefroy. 6 Dig. 40, 7, De statuliber, 21, f. Pomp.; Cic. Top. 9. I THE HISTORY OF ROMAN LAW. ficial works for the collection of rain- water, or from an aqueduct, has a right to demand a guarantee against this injury.! The branches of a tree overhanging adjoining property must be pruned all round up to fifteen feet from the ground.? A proprietor may go on to adjoining land to pick up the fruit that has fallen from his tree.* TABLE VIII. Ow Torts (De delictis). 114 VIIt. * * # * * IX, * * * *% we I. ® % ® * * I. Si membrum rupit, ni cum eo pacit, talio esto.> TIL. Capital punishment is decreed against libellers and public defamers.* Retaliation against him who breaks the limb of another and does not offer compensation, For the fracture of the bone (of the tooth) of « freeman the penalty is 800 asses ; in the case of a slave, 150.° 1 «Si per publicum locum rivus aqueductus privato nocebit, erit actio privato ex lege XII Tabularum, ut noxa domino caveatur.” Dig. 43, 8, Ne quid in loc. pub., 5, f. Paul. A suit of this nature was decided by an arbitrator (arbiter aque pluvie ar- cend@). Dig. 39, 3, De ag. et aq. pluv, arc., 23, § 2, £. Paul.; and 24, £. Alfen. 2 « Quod ait preetor, et lew XII Ta- bularum efficere voluit, ut quindecim pedes altius rami arboris circumcidan- tur; et hoc idcirco effectum est, ne umbra arboris vicino predio noceret.” Dig. 43, 27, De arbor. cedend., 1, § 8, f. Ulp.; and 2, f. Pomp. Paul., Sen- tent., 5, 6, § 13. 3 “Cautum est preterea lege XII Tabularum, ut glandem in alienum fundum procidentem liceret colligere.”’ Plin., Hist. nat., 16, 5. Dig. 43, 28, De glande legenda, 1, § 1, £. Ulp.; 50, 16, De verb. signif., 236, § 1, £. Gai. lib, iv. Com. Twelve Tables. 4“ Nostre contra XII Tabule quum perpaucas res capite sanxissent, in his banc quoque sanciendam putaverunt: « Si quis occentavisset, sive carmen con- didisset quod infamiam faceret flagi- tiumve alteri.”” Cicero, De republ., 4, 10. Paul., Sentent., 5, 14, § 6. Festus, on the word Occentassint, etc. 5 Festus, on the word Zalio. Aul. Gell., Noct. attic., 20, 1. Gai., Instit., comm. 3, § 228, ete. ° “Pena autem injuriarum ex lege XII Tabularum, propter membrum THE HISTORY OF ROMAN LAW. Iv. Si injuriam fexit alteri, viginti quinque zeris poens sunto.! Vi Roupities sarcito.? VI. * * * * * VIL. * * * * * VU. Qui fruges excantasset? . . . Neve alienam segetem pellexeris . . 6 IX. * * * * a 115 For any injury whatsoever committed upon another the penalty shall be 25 asses, For damage unjustly caused (but if by accident) repara- tion, For damage caused by a quadruped, reparation or the forfeiture of the animal.’ An action shall lie against him who depastures his flock upon a neigh- bour’s land.4 He who by enchantment shall blight 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.” 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 ceeteras vero injurias XXV assium pena erat constituta.” Gai. Znstit., comm. 3, § 223. Aul. Gell., Noct. attic., 20, 1. Paul., Sentent.,5,14,§ 6. Collat. leg. Mos. et Rom., 2, § 5. ! Aul. Gell., Moet. attic., 20, 1, and 16,10. Collat. leg. Mos. et Rom., 2, § 5. Gai., Instit., comm. 8, § 223, Festus, on the words Viginti quinque. ? Festus, on the word Rupitias. Die: 9, 2, Ad leg. Aquiliam, 1 pr., f. * “Si quadrupes pauperiem fecisse dicetur, actio ex lege XII Tabularum descendit: que lex voluit, aut dari id quod nocuit, id est id animal quod noxiam commisit, ant zstimationem noxiz offerre.” Dig. 9,1, Si guadrup. pauper. fecisse dicet., 6 pr., £. Ulp. Justinian., Znstit., lib. iv. tit. 9, pr. 4 “Si glans ex arbore tua in meum fundum cadat, eamque immisso pecore depascam, Aristo scribit non sibi 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 injuriz 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., Ecl. 8, line 99, Consult Senec., Watwr. quest., 4, 7; Plin., Hist. natur., 30,1; Augustin., De civ. Dei, 8, 19, ete. 7 « Frugem quidem aratro quesitam furtim noctu pavisse ac secuisse, pu- beri XII Tabulis capitale erat, suspen- sumque Cereri necari jubebant: gravius quam in homicidio convictum ; impu- 12 116 x. * * * * * XI. * * * * * XII. Si nox furtum factum sit, si im occisit, jure cesus esto.? XI. * * * * * XIV. THE HISTORY OF ROMAN LAW. 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. Ifby negligence, he shall repair the damage, or, if too poor, shall be chastised moderately.’ 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.* A thief taken in the act, if a free man, shall be scourged and made over by addictio to the person robbed; if a slave, shall be scourged and throwa from the Tarpeian rock; but those under the age of puberty shall, at the discretion of the magistrate, be scourged and condemned to repair the damage.® bem pretoris arbitratu verberari, noxi- amque duplione decerni.” Plin., Hist. natur., 18, 3. 1“ Qui «des, acervumve frumenti juxta domum combusserit, vinctus ver- beratus igni necari jubetur: si modo sciens prudensque id commiserit; si vero casu, id est negligentia, aut noxium sarcire jubetur, ant, si minus idoneus sit, levius castigatur.” Dig. 47, 9, De incendio, ruin., naufr., 9, tr. Gai., lib. iv. Com. Twelve Tables. 2 Plin., Hist. natur.,17,1. Dig. 47, 7, Arborum furtim cesarwm, 1 pr. and ll, fr. Paul. Gai., Znstit., comm. 4, 11 a Macrob., Saturn.,1,4. Aul Gell, Noct. attic., 8,1, and11,18. Ulpian., according to Collat. leg. Mos. et Rom., 7,3. Cicero, Pro Milon., 8. Senec., Controv., 10, in fine. Dig. 9; 2, ad leg. Aquil., 4, § 1, f. Gai. ‘ « Furem interdiu deprehensum, non aliter occidere lex XII Tabularum permisit, quam si telo se defendat.” Dig. 47, 2, De furtis, 54, § 2, £. Gai. ; 50, 16, De verbor. signif., 238, § 2, f. Gai.; and passages in preceding note. 5 “Ex ceteris autem manifestis furi- bus, liberos verberari addicique jusse- runt (the decemvirs) ei cui furtum fac- tum esset, si modo id luci fecissent, neque se telo defendissent ; servus item furti manifesti prensos, verberibus affici et e saxo precipitari; sed pueros im- puberes pretoris arbitratu verberari voluerunt, noxiamque ab his factam sarciri.” Aul. Gell., Woct. attic., 11, THE HISTORY OF ROMAN LAW. XV. AVI. Si adorat furto, quod nec manifestum escit “A 117 The theft lance liciugue conceptum, 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 (Janz), either that he might put on it the object found, or that his hands being oceupied in holding this plate, it could not be supposed he was con- cealing anything with them), was as- similated to furtum manifestum. Furtum conceptum was theft by him upon whom the stolen property was found, without recourse being had to the solemn search ; and furtum ob- latum 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.! 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., Znstit., comm. 3, § 189. Servius, ad Virg., Aneid. 8, line 205, etc. ' “Concepti et oblati (furti) poena ex XII Tabularum tripli est.” Gai., Instit., comm. 3, § 191. “Lex autem eo nomine (prohibiti furti) nullam pe- nam constituit: hoe solum preecipit, ut qui querere velit, nudus quzerat, linteo cinctus, lancem habens; qui si quid invenerit, jubet id Lex furtum mani- festum 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 justifiesit. Aul. Gell., Woct. attic., 11, 18, and 16, 10. Festus, on the word Lance. 2 Festus, on the word Nec. Consult Aul. Gell., Woct. attic., 11, 18; Cato, De re rustica, in proem. “ Nec mani- festi furti poena per legem ( XII) Tabu- larwm dupli irrogatur.” Gai, Instit., comm. 3, § 190. XVII. * * » * * @ XVIII * * * % * XIX, . * * * * xX. * % * * * XXI. Patronus si. clienti fraudem fecerit, sacer esto.> XXII. Qui se sierit testarier libripensve fuerit, ni testimonium fariatur, improbus intestabilisque esto.® THE HISTORY OF ROMAN LAW. Provision prohibiting the acquisition by usucapio, that is to say, by possession of stolen property.’ Interest upon money lent must not ex- ceed an ounce. That is to say, one twelfth part of the principal per annum (unciarium foenus), 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.? For fraud in bailment a double pe- nalty$ Provision giving all citizens the right of action to remove suspected tutors, and imposing a double penalty for the abstracted property of the pupil.‘ The patror 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 lew XII Tabula- rum usucapi prohibet.” Gai., Znstit., comm. 2, §§ 45 and 49. Justinian, Instit., 2, 6, § 2. Aul. Gell., Noct. attic., 17, T, ete. 2¢Nam primo XIT Tabulis sanc- tum, ne quis unciario feenore amplius* exerceret.” Tacit., Annal., 6, 16. “ Majores nostri sic habuerunt: itaque in legibus posuerunt, furem dupli damnari, fceneratorem quadrupli.” Cato, De re rust., in procem. . The signification to. be given to these words, unciarium fenus, is nevertheless the subject of a spirited controversy, as may be seen in the author’s Lxeplication historique des Instituts, t. iit. lib. iii. tit. 17. 3 «Ex causa depositi lege XIT Tabu- Zarwm in duplum actio datur.” Paul., Sentent., 2, 12, § 11. 4 “Sciendum est, suspecti crimen e lege XII Tabularwm descendere.” Dig. 10, De suspect. tutor., 1, § 2, £. Ulp. “Sed si ipsi tutores rem pupilli furati sunt, videamus an ea actione, que proponitur ex lege XII Tabula- rum adversus tutorem in duplum, sin- guli in solidum teneantur. Dig, 26, 7, De admin. et peric, tut. 55, § 1, £ Tryphon. See Cic., De offic, 3, 15; De orator., 1, 87, ete. . _* Servius, ad Virgil., Aineid., 6, line 609. See Dion. 2, 10; Plutar., Romul., 13. ° Aul. Gell., Woet. attic., 15, 13, and THE HISTORY OF ROMAN LAW. XXIII. * * * * * XXIV. * * * * * XXY. Qui malum carmen incantasset? . . Malum venenum .. .! 119 Provision ordering false witnesses to be thrown from the Tarpeian rock.! Capital punishment for homicide.? (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.® Sodales, 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. TABLE IX. Pusuic Law (De jure publico). XXXVI. * ® * * * XXVII. * * * * * I. * € * * * Provision prohibiting the passing of any law concerning a private indi- vidual.” 6, 7. Dig. 28, 1, Qui testam. fac. poss., 26, f. Gai. 1“ Anputas. . .sinon illa 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 fuisse pro testimonio tam multos quam videmus?” Aul. Gell., Woct. attic., 20,1; Cicero, De offic., 3, 31. 2 Plin., Hist.nat.,18, 3. Festus, on the words Parricidii questores. 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 ccetus nocturnos agitaret.” Porcius Latro, Declamat. in Catalin., c. 19. 6 « Sodales sunt, qui ejusdem 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, £. Gai., lib. iv. Com. Twelve Tables. 7 “Vetant XII Tabula, leges priva- tis hominibus irrogari.” Cicero, Pro domo, 17; De legib., 3, 19. 120 THE HISTORY OF ROMAN LAW. 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.' The penalty of death is awarded to the judge or arbitrator appointed by the magistrate who accepts a bribe. Provision relating to the questors in the case of homicide (questores homi- cidii); and the right of appeal to the people in the case of any penal sentence.? 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.‘ TABLE X. IL. * * rs * III. # * * * * IV. * * * * * Vv. * ¥ * * * L Hominem mortuum in urbe ne sepelito, neve urito.® Sacrep Law (De jure sacro). The dead must not be buried nor burned within the city. 1 « Tum leges preclarissime de XII Tabulis translate duc, quarum altera privilegia tollit; altera de capite civis rogari, nisi maximo comitiatu, vetat . In privatos homines leges ferri noluerunt, id est enim privilegiwm, quo quid est injustius?” Cicero, De legib., 8,19; Pro Seatio, 30, ete. 2 “Dure autem scriptum esse in istis legibus (XII Tabularum) quid existi- mari potest? Nisi duram esse legem putas, que judicem arbitrumve jure datum, qui ob rem dicendam pecuniam accepisse couvictus est, capite punitur.”’ Aul. Gell., oct. attic., 20,1; Cicero, In Verr., 2, 82, and 1, 13. + « Questores constituebantur a po- pulo, qui capitalibus rebus preessent: hi appellabantur guestores parricidii: quorum etiam meminit lex XII Tabula- rum.” Dig. 1, 2, De orig. juris., 2, § 23, £. Pomp. “ Ab omni judicio pe- naque provocari licere, indicant, XII Tabule.” Cicero, De republ., 2, 31. See Festus, on the words Parricidii questores and Questores. 4 “Vex XII Tabularum jubet, eum qui hostem concitaverit, quive civem hosti tradideret, capite puniri.”’ Dig. 48, 4, ad leg. Jul. maj., 8, £. Marcian. 5 Cicero, De legib., 2, 23. THE HISTORY OF ROMAN LAW. II. Hoe plus ne facito. Rogum ascia ne polito . . .! Tt. * * * * * Iv. Mulieres genas ne radunto; neve les- sum funeris ergo habento.? Vv. Homini mortuo ne ossa legito, quo post funus faciat.4 VI. VIL. Qui coronam parit ipse, pecuniave ejus, virtutis ergo duitor ei.* 1 Cicero, De legib., 2, 23. 2 « Extenuato igitur ’sumptu, tribus riciniis et vinculis purpure, et decem tibicinibus, tollit (the law of the Twelve _ Tables) etiam lamentationem: MU- LIERES GENAS,” etc. Cicero, ibid. 3 Cicero, ibid. See Festus, on the words Ricinium and Radere genas. Plin., Hist. natur., 11, 37. Servius, ad Virgil., Aneid. 12, line 606. Cicero, Tuscul., 2, 22. 4 « Ceetera item funebria, quibus luc- tus augetur, XII sustulerunt : HOMINI, inquit . . . etc. Excipit bellicam peregrinamque mortem.” Cicero, De legib., 2, 24. 121 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? 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 jin 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.5 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.) 5 “ Fee preeterea sunt in Legibus de unctura, quibus servilis unctura tollitur omnisque circumpotatio: que et recte tolluntur, neque tollerentur nisi fuis- sent. Ne sumptuosa respersio, ne longs corone, nec acerre pretereantur.” Cicero, De legibus, 2,24. See Festus, on the words Murrata potione. Plin., Hist. natur., 14, 2. 6 “Tnde illa 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 intus positus esset, forisve ferretur, sine aa a Neve aurum addito. Quoi auro dentes vincti escunt, ast im cum illo sepelire urereve se fraude esto.” THE HISTORY OF ROMAN LAW. Prohibition against more than one fune- ral, or more than one funeral cere- mony, for the same deceased.' 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.? Neither a sepulchre nor its vestibule can be acquired by usucapio.* TABLE XI. SUPPLEMENT TO THE FIRST FIVE TABLEs. X. * * * * * XI. * * * * * I. » * * * s Prohibiting marriage between patri- cians and plebeians.> fraude esset imposita.” Plin., Hist. natur., 21, 3. See Cicero, De legib., 2, 24, 1 «— Section XXXII. Tue Crnsors ( Censores). 152. 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. 154. 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;! 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.* 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! ! Varro, De lingua latina, lib. v. § 81: “Censor ad quojus censionem, id est arbitrium, censeretur populus.” 2 Nevertheless, at the date at which we have arrived, A.U.C. 311, B.c. 443, the number of tribes had not been in- creased beyond thirty-five, according to Livy. Vide supra, par. 73, and note. 3 Aul. Gell. lib. iv. § 12: “Si quis agrum suum passus fuerat sordescere, eumque indiligenter curabat, ac neque araverat, neque purgaverat; sive quis arborem suam vineamque habuerat de- relictui: non id sine pena fuit; sed erat opus censorium; censoresque @ra- rium faciebant. Item si quis eques Romanus equum habere gracilentum aut parum nitidum visus erat, impo-~ litie notabatur. Id yerbum significat quasi si tu dicas incuria.” ; THE HISTORY OF ROMAN LAW. 151 156. 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 tabule or tabule Cerites),in allusion to the municipality of Ceres, 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 @rarii, subjected in this capacity to an arbitrary capi- tation as their modicum of taxation.! 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. Fidenz 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 Asconius, Divinatio in Cecilium, ch. 3: “ Hi prorsus cives sic notabant, ut qui senator esset, ejiceretur senatu ; qui equus Romanus, equum publicum perderet ; qui plebeius, in tabulas Ceri- tum referretur et erarius fieret, ac per hoc non in albo esset centurie sux, sed ad hoc esset civis tantum, ut pro capite suo tributi nomine era penderet.” Aul. Gell. lib. xvi. § 13: “ Primos autem municipes sine suffragii jure Cerites esse factos accepimus . : Hinc tabule@ Cerites appellate, versa vice, in quas censores referri jubebant quos note causa suffragiis privabant.” 152 THE HISTORY OF ROMAN LAW, means; @ 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.? 158. 3.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 Camillus, cruelly expiated their momentary triumph. Rome rose from its ashes and soon recovered its ascendancy throughout Latium. . 159. 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 tribuno- —_ eo munere esset,” THE HISTORY OF ROMAN LAW, 153 Jfasces—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.! 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 pretors and the curule eediles.? —~—- Secrion XX XITI. PRETOR (Pretor). 160. B.c. 367. The word pretor is derived from pre 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. 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 patrician magistrate, under the title, from that time peculiar to him, of pretor, 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 redderet.” 1 Florus, lib. i. § 26. nobilitati de prestore uno, qui jus in 2 Livy, lib. vi. § 42: “Quum tamen urbe diceret, ex Patribus creando.” per dictatorem conditionibus sedate 3 Vide supra, Table III. f, 5, and discordiz 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 pretor, 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 pretor 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 pretorian functions and trace the process by which a species of legislative power became attached to this office.’ —— Section XXXIV. CuruLe pies (Adiles Curules). 161. There already existed two plebeian magistrates called ediles, 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 ediles majores, ediles curules, while the others took the name of plebeti ediles.2 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 ediles. '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. ! Dig. 1, 2, De orig., 8, § 27, £. Pomp. . * Ibid. § 25, £. Pomp. 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 fétes, 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 ediles, 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 XX XV. JupcE (Juder), ARBITRATOR (Arbiter), RECUPERATORS (Recuperatores). 162. From the earliest period of Roman history, under the kings, under the consuls, and after the creation of preetors, 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 pretors. 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 (ordo 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.! 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 juder, 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, ' 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. 157 was appointed to each suit. It was usually the same with the arbitrators, although we see from the Twelve Tables! 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 praetor 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 the judex 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.? 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. ' Table VII. f. 5, and XII. f. 3. sic nos in his comitiis, quasi repente ° Livy, lib. xxvi. § 48; lib. ]xiii.§ 2. apprehensi sincere judices fuimus.” Cicero, Jn Verr., 8,§§13and60. Gai, fPlin., Hpist., 3,20. — Section XXXVI. Centumvirs (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 Reciperatio. We see an /Elius, cum inter populum et reges nationesque et civitates peregrinas lex convenit quomodo per reciperatores red- dantur res, reciperenturque, resque pri- vatas inter se perscquantur.” Festus, instance of a similar provision in the plebiscite, De Thermensibus. ? See especially Gai., Instit., 4, §§ 46, 141, 183, 185, 187. THE 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 domaiis 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 pretor 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;! and at a still later period Pliny speaks 1“ Centumviralia judicia a centum- candum, qui centumviri appellati sunt; viris sunt dicta. Nam, cum essent et licet quinque amplins quam centum Rome triginta et quinque tribus, terni fuerint, tamen quo facilius nominaren- ex singulis tribubus sunt electi ad judi- tur, centumviri sunt dicti. Centumvi- 160 TIE HISTORY OF ROMAN LAW. of 180 as sitting in a single cause.!' Varro also intimates that the number of centumvirs must only be taken approximately and not literally.? 168. The centumviral 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, due haste*), sometimes before the four sitting together but each voting separately (quadruplex judicium*), 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.® 169. 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 questors upon going out of office were empowered to convoke it (hastam cogere), and to preside over it (haste preesse). It is, however, under the presidency of the pretor that contemporaneous writers represent the four sections as united.? Under Octavius it was presided over by ralia judicia, que centumviri judica- bant.” Festus, on the word Centumvi- ralia. Shae) ! Plin., Hpist., 6, 33. a 2 « Si, inquam, numerus non est ad amussim, ut cum dicimus mille naves _ad Trojam isse, centumyiraie judicium Rome.” Varro, De re rustic., 2, 1. 3“ Ant quum de eadem causa pro- nunciatum est, ut in reis deportatis, et assertione secunda, et partibus centum- viralium, que in duas hastas divise sunt.” Quintil., Znstit. orat., 5, 2,§ 1. “ Etiam si apud alios judices agatur, ut in secunda assertione, aut in centumvi- ralibus judiciis duplicibus.” Quintil., Instit. ovat., 11, 1, § 78. 4 « Proxime quum apud centumviros in quadruplici judicio dixissem, subiit recordatio egisse me juvenem seque in quadruplici.” Plin., Zpist., 4, § 24. “Femina . quadruplici judicio bona paterna repetebat. Sedebant ju- dices centum et octoginta: tot enim quatuor consiliis conscribuntur . sequutus est varius eventus: nam duo- bus consiliis vicimus, totidem victi su- mus.” Plin., Zpist., 6, 33. See also Epist., 1, 18; and Quintil., Instit. orat., 12, 5, § 6. ° Dig. 5, 2, De inoffic. test., 10, pr. f. Marcell.; 31, De legat., 2, 76, pr. f. Pomp. 6 “Unde in centumviralibus judiciis ae preponitur.” Gai., Instit., 4, § _ 7 Plin,, Hpist.. 5, 21; “ Descenderam in basilicam Juliam . - Sedebant TIIE HISTORY OF ROMAN LAW. 161 special magistrates, called judiciary decemvirs (decemviri in litibus judicandis), whose creation was of earlier date, but whose complete functions are unknown to us.! 170. 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 what 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 sacramentum.? 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*’—that is to say, the whole fundamental basis of Quiritarian society, except possession and the rights thereunto attached,—and obligations. judices, decemviri venerant, observa- bantur advocati; silentium longum, tan- dem a prastore nuntius . - (This mes- senger announces an adjournment of the sitting) praetor, quicentwmviralibus presidet. . .inopinatum nobis otium dedit.” 1 « Auctor . . fuit (Octavius) 2 . ut centumviralem hastam, quam questura functi consueverant cogere, decemviri cogerent.” (Sueton., Octav., e. 86.) Dig. 1, 2, De orig. jur., 2, § 29, f. Pompon.: ‘ Deinde cum esset necessarius magistratus qui haste pre- esset, decemviri in litibus judicandis sunt constituti.”’ Pomponius, however, when speaking of the decemvirs never mentions the centumvirs, probably be- cause, as he was treating of magistrates, he did not consider them as such. 2. “Cum ad centumviros itur, ante lege agitur sacramento apud pretorem urbanum vel peregrinum.” Gai., Instit., 4, § 31. 3 Nam volitare in foro, herere in jure ac pretorum tribunalibus, judicia privata magnarum rerum obire, in qui- bus seepe non de facto, sed de sequitate ac jure certatur, jactare se in causis centumviralibus, in quibus usucapio- num, tutelarum, gentilitatum, agnatio- num, alluvionum, cireumluvionum, nex- orum, mancipiorum, parietum, luminum, stillicidiorum, testamentorum ruptorum et ratorum, czeterarumque rerum innu- merabilium jura versentur, cum omnino quid suum, quid alienum, quare deni. que civis an peregrinus, servus an liber quisquam sit, ignorct, insignis est im- pudentie.” Cicero, De orator., 1, 38. See also Pro Milon., 27; Epist. ad fam, 7, 32. M 162 -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,! which also bear testimony to the importance and authority of this tribunal. * Magnitudo etenim et auctoritas centumviralis judicii non patiebatur per alios tramites viam hereditatis petitionis in- fringi.”? 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,’ also that the court had in addition to its civil a criminal jurisdiction.* 172. 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 p.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. 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., 18, f. 10, 34. Scevol., et 17, pr. f. Paul. Cod. 3, 31, * According to this writer there were— De pet. hered., 12, pr. Const. Just. 26 tribes .. «+ B.C, 887 2 Cod., ibid. 27 —«y ee -» 4, 3859 % «Post hoc, ille cum ceteris sub- 29 =, oy ee gg 888 scripsit centumvirale judicium, mecum 81s, aie ee 5, 319 non subscripsit.”’ Plin., Hpist., 5, 1. 33, se a , 800 Gai., Inst., 4, § 31. 35 242 * Quintil., Inst. orat., 4,1, § 573 7, See Livy, 6, § bs 7, §15;'8,§ 17; 9, 4,§ 20. Senec., Controv., 3,15. Ovid, § 20; 10, § 19. Livy, Zpist., 19. Trist., 2,91 et seq. Phedr., Fadl, 8, 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 preetorship. 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. 178. 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 obligationes 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. 1'74, 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 practo- riate; their next step was the law Petillia Papiria, De nexis, and the publication of the dies Fasti by Flavius. —~— Section XX XVII. Tue Lex Perini Pariria (De nezis). 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 ubicungue patricius habitet, ibi carcerem privatum esse?! The lex Petillia Papiria prohibited debtors from assigning themselves per es et libram in slavery to their creditors as security for their debts, and in this way terminated the servitude of the next. 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 legis actio, manus injectio. It was the nerum alone that was modified by this law, and from this it became illegal to pledge the person, but not the goods, per es et libram to the creditor.? ' Livy, lib. vi. § 36. nem, simul crudelitatem insignem. . . 2 “Ko anno (428) plebi Romane, Jussique consules ferre ad populum, ne velut aliud initium libertatis factum est, quis, nisi qui noxam meruisset. donec quod necti desierunt. Mutatum autem pcenam lueret, in compedibus "ant in jus ob unius fceneratoris simul libidi- neryo teneretur: pecunix creditz, bona THE HISTORY OF ROMAN LAW. 165 SEcTION XX XVIII. On THE DISCLOSURE OF THE Digs FastTI AND THE ACTIONES Lees (Jus Flavianum.) 176. B.c. 304. Rome was indebted to the grandson of the en- franchised Cnzeus Flavius for the promulgation of the dies Fasti and for the publication of a work setting out in detail the steps and the formul 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 Czcus, 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 edile.1 But was he already a curule edile, and did he profit by the opportunities afforded him by his office to discover and popularise the actiones legis (civile jus, repositum in penetralibus Pontificium, evulgaret), 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.? “He thus put out the crows’ eyes” (qui cornicum oculos confixerit), 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.’ Pomponius relates that Appius Claudius Czecus 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).* debitoris, non corpus obnoxium esset. also Macrobius, Saturnalia, 1,15. Tta nexi soluti: cautumque in posterum, 2 Livy, 9, 46. ne necterentur.” Livy, lib. viii. § 28. 3 Cicero, Pro Murena, 11. 1 Pliny., Hist. nat., 33,6. Dig. 1, 2, * Dig., 1, 2, De orig. jur., 2, § 36, £. De orig. jur., 2, § 7, £.Pompon, See Pompon. 166 i 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 pratorship, the censorship, the greater zdileship, 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 fastt and the legis actiones initiated them into the sacerdotal and patrician formule, 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 XX XIX. Leces Pusnitia—Lex Horrensta (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, p.c. 339. Under the name of this dictator, with whom the office of dictator became popular, Livy! mentions three laws (leges Publilie) which were favourable to the plebeians and unfavourable to the nobility (secundissimas plebet, 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 eenturies. 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.? ' 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 lea Publilia. ‘Ut legum que comitis centurtatis ferrentur, ante initum suffragium, patres auctores fierent.” | The third Publilian law to which we here especially direct attention related to the plebiscita. We remark that Livy alludes to it in terms almost identical with those of the ler Valeria Horatia, passed upon the same subject 110 years previously,’ “ Ut plebiscita omnes Qutrites tenerent.” 179. 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.* 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 ' See above, § 69. Livy, 1, 17: “ Quirites, regem cre- ate; ita Patribus visum est,” behold the initiative of the senate. ‘“ Patres deinde, si dignum, qui secundns ab Romulo numeretur, crearitis, auctores fient,” see the later law thus expressed by Livy: “ Decreverunt enim, ut quum populus regem jussisset, id sic ratum esset. si Patres auctores fierent;” then he adds: ‘ Hodieque in legibus magis- tratibusque rogandis usurpatur idem jus, vi adempta. Priusquam populus suffragium ineat, in incertum comitio- rum eyentum Patres auctores fiunt.” 2 Livy, 8, 12. 3 See above, § 149. ‘ Pliny, Wat. hist., lib. xvi. § 15: “Q. Hortensius dictator, quum plebs secessisset in Janiculum, legem in Escu- leto tulit, ut quod ea jussisset, omnes Quirites teneret.” Aul. Gell. lib. xv. c. 27: “Plebiscita appellantur, que tribunis plebis ferentibus accepta sunt: quibus rogationibus ante patricii non tenebantur, donec Q. Hortensius dicta- tor eam legem tulit, ut eo jure quod plebes statuisset, omnes Quirites tene- - rentur.” 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! 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 was 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,? 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. 21, 2,55. 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. Tue Foreign Poricy or Rome. 181. To 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. 188. 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. Ist. As to the cities: what was their organization, adminis- tration, and legislation? Were they independent, or were they dependencies of Rome? 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 Ager 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 plebiscitum, and the law and procedure (lez, 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 Glcins (jus Quiritium, jus ctvitatis, 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, the juste nuptie 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- Sragii, or the right of voting in the comitia. These were the principal features of the jus ctvitatis, 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. 186. 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 (colonie Romane, colonia togate), which were offshoots from Rome, constituted on the Roman model, with their petty senate (curia), their two consuls (duwm- virt), 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 (ctvitas 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.’ They served as a bulwark for its defence and a point @appui for its attacks. As Rome’s power increased these colonie multiplied, and when 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 quinquevirt 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- arum alia necessitudo est; non enim veniunt extrinsecus in civitatem, nec suis radicibus nituntur; sed ex civitate quasi propagate: sunt, et jura instituta- que omnia populi Romani,nonsuiarbitrii habent. Que tamen conditio, cum sif magis obnoxia et minus libera, potior tamen et prestabilior existimatur, prop- ter amplitudinem majestatemque populi Romani, cujus iste colonize quasi effigies parve simulacraque esse quedam vi- dentur.” 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. 187. (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 libere, civitates federate). ‘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 war, or which had not been transformed into colonia, 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 the factio testament, possibly with certain restrictions... They had not the connubium, but they 1 The situation of the Latini Juniani factio est.” (Ulp. tit. 20, § 8.) But at a later period is described by the Roman jurists in precise terms, which enable usto judge by comparison of the condition of the Latini veteres. The Latini Juniani could take part in a testamentary act made per @s et libram in the capacity of scale bearers, wit- nesses or purchasers of the patrimony, that is to say, they could be heredes instituti: “ Latinus Junianus et fami- liz emptor et testis et libripens fieri potest, quoniam cum eo testamenti they had not the right to receive, or, in the technical terms of the law, the right to take the inheritance which had been conferred upon them (jus capiendi ex testamento), unless at the death of the testator, or during the period allowed for the purpose, which was called cretio, he had become a Roman citizen. ‘ Si quidem mortis testatoris tempore vel intra diem cretionis civis Romanus sit, heeres esse potest ; quod si Latinus man- serit, lege Junia capere hxreditatem 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 Latinitatis which we meet with in Gaius and Ulpian, as the personal condition and status of a certain class of enfranchised.! 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 (ating, or Latini nominis colonie,) were colonial communities, assimilated not to Rome, prohibetur.” (Ulp. tit. 22, § 3.) As to his taking part as testator in such a ceremony he could not, because he was expressly excluded from this right by the Junian law. “ Latinus Junianus, item is qui deditiorum numero est, tes- tamentum facere non potest: Latinus quidem quoniam nominatim lege Junia prohibitus est.” (Ulp. tit. 20, § 14.) We are authorized to conclude from this express exception made by the Junian law with regard to the Latini Juniani that this law met the case with the Latini veteres. A passage in Gaius, 1, § 23, confirms the restriction imposed by the Junian law on the Latini veteres in the following terms: “Non tamen illis permittit lex Junia, nec ipsis testa- mentum facere, nec ex testamento alieno capere, nec tutores testamento dari.” ' Gai. 1, §§ 22 ct seq., 66 et seq. Ulp. tit. 3; tit. 5, § 9; tit. 2, §16; and the passages quoted in the preceding 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 colonie 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 tveaties, free cities in alliance with Rome (civitates libere, federate). Being located at a greater distance, having joimed 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 Latium or of Italy, and at a later period beyond Italy, had adopted the Roman law, were called civitates fun- dane or populi fundi. This does not imply that they enjoyed with respect to Rome the rights of Roman citizens, or that their inhabitants were such citi- zens, but it was without doubt a means of obtaining with greater ease a more liberal share in the rights of Roman 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. 190. 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 (municipia) 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 munictpium 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 Rome 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.} 193. 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 law (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 colonia, 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 zediles, censors and questors 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 Festus (by Paul) on the word Mu- nicipium: “ Municipium id genus ho- minum dicitur, qui, cum Romam venis- sent, neque cives Romani essent, parti- cipes tamen fuerunt omnium rerum ad munus fungendum una cum Romanis civibus, preterquam de suffragio feren- do, aut magistratu capiendo; sicut fue- runt Fundani, Formiani, Cumani, Acer- rani, Lanuvini, Tusculani, qui post aliquos annos cives Romani effecti sunt. Alio modo, cum id genus hominum definitur, quorum civitas universa in civitatem Romanam venit; ut Aricini, Cerites, Anagnini. Tertium cum id genus hominum definitur, qui ad civi- tatem Romanam ita venerunt, uti muni- cipia (perhaps municipes) essent sua (perhaps su@ ) cujusque civitatis et colo- nie; ut Tiburtes, Prenestini, Pisani, Arpinates, Nolani, Bononienses, Pla- centini, Nepesini, Sutrini, Lucentes.” (The text of this last phrase is altered in such a manner as to make it difficult to render the exact sense in construing. ) We find under another word in Festus, Municeps, another definition derived from the first acceptation: “Ttem municipes erant, qui ex aliis civitatibus Romam venissent, quibus non licebat magistratum capere, sed tantum muneris partem. At Ser. filius aicbat initio fuisse, qui ea conditione cives Romani fuissent, ut semper rem- publicam separatim a populo Romano haberent, Cumanos videlicet, Acerra- nos, Atellanos, qui que cives Romani erant, et in legione merebant, sed dig- nitates non capiebant.” 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 Latit 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 the factio testamenti. In other instances again even the public rights of citizenship were accorded, perhaps partially, perhaps wholly, together with the capacity to hold magistracies (jus honorum) 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 (optimo 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. Cares 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- cipes ergo sunt cives Romani ex muni- cipiis, legibus suis et suo jure utentes, muneris tantum cum populo Romano honorarii participes: a quo munere ca- pessendo appellati videntur, nullis aliis necessitatibus, neque ulla populi Romani lege astricti, nisi, inquam, populus eo- rum fundus factus est. Primos autem municipes sine suffragii jure Cerites esse factos accepimus: concessumque illis, ut civitatis Romane honorem qui- dem caperent, sed negotiis tamen atque oneribus vacarent, pro sacris bello Gal- lico receptis custoditisque.” THE HISTORY OF ROMAN LAW. 179 religious worship, but the right of suffrage was not accorded to it. Some recent discoveries of archzologists 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- ture), 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. This outline will show the different nature of the relations that existed between Rome and her colonies. Velleius Pater- culus? 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 all 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) primum preefecti Capuz creari Prafectura: “neque magistratus suos ceepti, legibus ab L. Furio pretore datis: habebant,” apply to the duumviri jurt quum utrumque ipsi pro remedio xgris dicundo. 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 (vectigal) 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 (hostes, or, in more modern language, peregrini), and, finally, barbarians (barbari). Cives.—The title of citizen, which 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. Socit Latint.—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 commerctum—thus we see them emancipating their sons to Roman citizens in order that by being enfranchised they may become citizens;' and 2nd, the factio testamenti, with the rights attached to the testamentary act per es et libram, but 1 Livy, 41, 8: “ Liberos suos quibus- manumitterentur, mancipio dabant, quibus Romanis in eam conditionem ut _libertinique cives essent.” THE HISTORY 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,' 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.? 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,’ 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 Latini qui stirpem ex sese domi relin- querent debet ut cives Romani fierent.” 2 Thid. 25, § 3: “Tribuni populum summoverunt : sitellaque allata est, ut sortirentur ubi Latini suffragium fer- rent.” 3 Varro, De lingua latina, lib. v. § 179: “Alterum munus, quod mu- niendi causa imperatum; a quo etiam municipes, qui una munus fungi debent, dicti.” Aul. Gell., in the definition quoted above, § 193, note: “A quo munere capessendo appellati videntur.”’ Dig. 50, 1, Ad municipalem, 1, § 1, f. Ulp.: ‘Et proprie quidem municipes appellantur muneris participes, recepti in civitate ut munera nobiscum face- rent,” 182 THE HISTORY OF ROMAN LAW. were undertaken were styled perduelles. These are ancient expressions.!. The darbarus 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 OF THE TWELVE TABLES TO THE SUBMISSION OF ALL Ivar). 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 with- 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 antiquos peregrinnus dice- § 3: “Et multa verba aliud nunc os- _batur, et qui nunc hostis perduellis.”’ tendunt, aliud ante significabant, ut Dig. 50, 16, De verborum significa- hostis, nam tum eo verbo dicebant pere- —_tione, 234, f. Gaius: “ Quos nos hostes grinum, qui suis legibus uteretur, nune appellamus, eos Veteres perduelles ap- dicunt eum quem tum dicebant perduel- _pellabant, per eam adjectionem indi- lem.” Festus, on the word Hostis: cantes cum quibus bellum esset.” THE HISTORY OF ROMAN LAW. 183 have now their assemblies and their own laws; they take a part 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 praetor and the edile major; the plebeians are headed by their tribunes, and, in addition to these, there are the inferior magistrates, the queestors and the plebeian zediles. 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 pedarit. 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. 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.? ' C. Flavius, who published the “ Dies Fasti,” being an zdile, went to visit his colleague who was ill. There happened to be a number of young patricians present. Seeing the edile coming, they agreed that no one should rise on his entrance. The little plot was carried out; but Flavius, who noticed what they were about, ordered his attendants to bring in the curule chair, and mounted on that elevated seat of honour he confounded, by the éclat of the magistracy, those who had attempted to humiliate him. (Livy.) I relate this anecdote because it ex- hibits both the light in which the patri- cians regarded the admission of the plebeians to the high magistracies, and the respect which was paid to the ex- ternal symbols of office. 2 These images were not simple por- traits, nor were they merely full length figures. There are grounds for believ- ing that, at least in the funeral pro- cession, some person assumed the cha- racter, the robes of office and insignia of the deceased, and played his part so that it might appear that the de- ceased was present in the procession. But be this as it may, the represen- tation of the ancestors of the deceased following the funeral car in their curule chair, must have looked as if they were conducting to the tomb with pomp the deceased whom death had asso- ciated with them. We cannot wonder 184 THE HISTORY OF ROMAN LAW. 200. Tue Lecistative 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 senatis 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- guishing between the old and the new families, since at each funeral proces- sion the dead and the living were thus reunited. When two or three only of these deceased consular dignitaries ap- peared in the procession, the paucity of the number attested publicly the recent origin of the family; but where a long line of ancestors appeared in the funeral cortége, they represented the dignity of a race which was able to trace its origin to the earliest periods of Rome. THE HISTORY OF ROMAN LAW. 185 Thirdly, the authority of the senatés consulta, so 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." 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 (interpretatio), opinions of the bar resulting from discussion, litigation and decisions (disputatio fori), 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 senatéis 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 disputatio et hoc jus, quod sine scripto 1 Whenever a plebeian tribune inter- fered by his veto with the decision of the senate, it was then called a senatés auctoritas and not senatés consultum. 2 «His legibus latis coepit, ut natura- liter evenire solet, ut interpretatio de- sideraret prudentium auctoritate neces- sariam esse disputationem fori. Hae venit, compositum a prudentibus, pro- pria parte aliqua non appellatur, ut ceterze partes juris suis nominibus de- signantur, datis propriis nominibus cx- teris partibus: sed communi nomine appellatur Jus civile.”’ Dig. 1,2, De orig. juris, 2, § 5, £. Pomp. 186 THE HISTORY OF ROMAN LAW. and the pretors, 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: lst, 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 pretors, 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 ediles majores, who superintended the higher departments of the police administration; and 5th and finally, The questors and plebeian ediles, 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,! 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: “Tum primum _(consules), penes se (tribunos) auxilium tantum sit.” (an. 283) tributis comiciis creati tribuni sunt; numero etiam additos tres, perinde ac duo antea fuerint, Piso auctor est.” Lib. ili. § 30: “ Tricesimo sexto anno a primis tribunis plebis (an. 297), decem creati sunt, bini ex singulis classibus: itaque cautum est ut postea crearentur.”’ 2 Livy, lib. vi. § 387: “Non posse zequo jure agi, ubi imperium penes illos Lib. ii. § 33: “Quibus (tribunis) auxilii latio adversus con- sules esset.” Cicero, De legibus, lib, iii: § 3: “Plebes quos pro se contra yim, auxilii ergo, decem creassit.”’ Claude, from the Zables of Lyons: “In auxilium plebis creatos tribunos.” Festus, on the words Sacer mons: “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.!. 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.? 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’ which occupies so important a place paulo ultra tertium miliarium; quod eum plebes, cum secessisset a patribus, creatis tribunis plebis, qui sibi essent auxilio, discedentes Jovi consecrave- runt.” : . ! The patricians frequently interfered by means of intercessio with the acts of plebeian tribunes of which they dis- approved. See in Livy, lib. vi. § 38, the case of the tribunes C. Licinius and L. Sextius, who refused to yield to the intercessio of their colleagues, and the efforts of M. F. Camillus, irregularly elected dictator by the patricians, to support this intercessio. 2 Val. Max. lib. ii. ch. 3, § 7: “Tllud quoque memoria repetendum est, quod tribuni plebis intrare curiam non lice- bat; ante valvas autem positis subsel- liis, decreta Patrum attentissima cura examinabant, ut, si qua ex eis impro- bassent, rata esse non sinerent: itaque veteribus Senatus consultis T littera subscribi solebat, eaque nota significa- batur, illa tribunos quoque eensuisse.” * Livy, lib. iv. § 26: “‘Vos, inquit, tribuni plebis, quoniam ad extrema ventum est, Senatus appellat, ut in tanto discrimine reipublica dictatorem dicere consules pro potestate vestra cogatis,? Qua voce audita, occasionem oblatam rati tribuni augendz potestatis accedunt, proque collegio pronuntiant : ‘Placere consules Senatui dicto audi- entes esse: si adversus consensum am- plissimi 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 Powsrr. The people and the plebeians exercised the privilege of electing different magistrates. The people, assembled by centuries, created consuls, praetors and the ediles majores. The plebeians nominated the questors, the plebeian zdiles, 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. Jupicira Powrr. This power was in the hands of the people, the plebeians and the preetors; 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 questors, 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 pretors, as commissioned by the senate. The comitia centuriata could alone pronounce sentence of death; the comitia tributa that of exile or fine, chiefly asa political punishment. If it happened to be a matter of some public offence to which the attention of the citizens se duci eos jussuros.’” Lib. v. § 9: auctoritate Senatus essent, se in vincula ‘“‘Inter hectribuniplebis. . ..feroces eos duci 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 questor parricidii, and the senate also in such cases generally commissioned a quzstor 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 pretor, in whose presence all the religious formule of the legis actiones were performed and the suit organized. It was he who had the jurisdictio (jus dicit, addicit, edicit), and the public au- thority (tmperium). The formalities having been gone through before him (in jure), 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 des 190 THE HISTORY OF ROMAN LAW. Romains concernant la responsabilité des magistrats, 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 which 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 OF 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 magistratum 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 male salutaris civis esto.” SACRED LAW. 5 210. 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 ! Livy, lib. ii. §27. In early Roman history, under the consulate of P. Ser- yvilius and Appius Claudius, in a case where the latter acted harshly towards a debtor, the debtor happening to be a soldier, appealed to his colleague. “ Quod ubi cui militi inciderat collega appellabat.” And at a later period (lib. iii. § 86), when speaking of the second decemvirate, which had sup- pressed not merely the provocatio ad populum but also the intercessio, which had not been interfered with by the first decemvirate, he says: “ Nam, preeterquam quod in populo nihil erat regal power, the functions of presidii, sublata provocatione, inter- cessionem quoque consensu_ sustule- rant: quum priores decemviri appel- latione college corrigi reddita ab se jura tulissent; et quedam, que sui judicii videri possent, ad populum re- jecissent.”” Further on (lib. iv. § 26): “ Vos tribuni plebis Senatus appellat.” See § 181, note 2. See also Dig. 49, 1, De appellationibus, 1, § 3, f. Ulp.: “Cum alium appellare deberet alium appellaverit—Prefectum urbis appel- lasset.”” 2 Cicero, De leg, lib. iii. § 4. See 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 was the custodian of the annals of historical events, which 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.' 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 legis, 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, sud juris, or, alieni juris, that is, subject to another; the authority over slaves; paternal power, potestas; marital rights, manus. All 1 Cicero, De republica, lib. i. § 26: sollertia, ut ex hoc die quem apud “Qui (Ennius) ut scribit, anno CCC. Ennium et in Maximis Annalibus con- quinquagesimo fere post Romam con- ditam, - . +» Nonis Junis soli luna obstitit et nox. Atque hac in re tanta inest ratio atque signatum videmus, superiores solis de- fectiones reputate sint usque ad illam que nonis quintilibus fuit regnante Romulo,” THE HISTORY OF ROMAN LAW. 193 these at the period at which we have arrived were still intact and 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 ingenut, 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. Turnes. Under the head of things and property we have res mancipt, and res nec mancipi, the two classes of things according as they were or were not susceptible of mancipation— the marcipium 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 nec mancip?); so that he who had delivered to another or had abandoned a thing could nevertheless, within a certain time, if it was a res mancipt, recover it unless it had been alienated in the form required for the transfer of that class of property. 214. Testaments (Wits). 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 will 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 es et libram, per mancipationem). oO. 194 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 (agnatio, 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. Conrracts. The ceremony per as et libram, or the mancipatio, generically the nerum, 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 was 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 es 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 nerum 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 Acriones. Under this head are classed the representative symbols, the sacerdotal acts and consecrated formulas in the four legis actiones—the sacramentum and the judicis postulatio, in the institution and conduct of suits—the manus injectio chiefly, and the pignoris 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. 195 ‘We have arrived at the middle of the republican period, when Rome 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 pretorian 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 were, 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 pretexta? 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: “Deorum ope opus est. Agedum, Pontifex publicus populi Romani, przi verba, quibus me pro legionibus devoveam.” And under the direction of the Pontifex Maximus he pronounces a sacred formula in the terms recorded by Livy. 2 We must not confound the pretexta of the magistrate with that of the youth between the age of twelve and the time when as a citizen he assumed the toga 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. Ill. 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 Carthage, 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 198 THE HISTORY OF ROMAN LAW. 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. PRZTOR 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 which 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 pretor peregrinus, or pretor of the stranger. A passage in Lydus! 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 Roman 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 Roman 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 pretor ranked infinitely higher than that of pretor peregrinus: for example, the urban -pretor had the distinction of the lictors which the pretor peregrinus had not.2 Notwithstanding this, however, these officers, when ne- cessary, could act for each other. 223. From B.c. 264 to B.c. 146. After the whole of Italy 1 Lydus, De magistr., 1, § 45. the triumviri capitales, subsequent to * Pomponius places the creation of the creation of the pretor peregrinus. certain magistrates, such as the tribunt Dig. 1, 2, De orig. Jjur., 2, §§ 30, 31 erarii, the triumvirt monetales, and f, Pomp. ast THE HISTORY OF ROMAN LAW. 199 had 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 The first Punic war lasted from B.C. 264 to B.c. 241. It was then that Regulus conducted the legions to the neighbourhood of Corinth, where they were destroyed by the Macedonian gene- ral Xantippus. The high-souled devo- tion of the illustrious prisoner who was deputed to Rome will remain an ex- ample to all ages of public spirit and chivalrous honour. The war terminated after a twenty-four years’ struggle by a naval engagement, in which the Car- ’ thaginians, after losing more than a hundred vessels, submitted to the con- ditions imposed upon them by the Romans, Between the first and second Punic wars there was an interval of twenty-three years, during which a great portion of Illyria was subdued, and the Gauls, who again made their appearance within a few days’ march of Rome, were, as before, cut to pieces. The second Punic war commenced in the year B.C. 218 and terminated in the year B.c. 196. The passage of Hanni- bal across Spain and Gaul in order to make a sudden descent upon Italy, the disasters and checks experienced by the Romans till the battle of Cannz, the lustre of such generals as Scipio Afri- canus the elder, the diversion to which he had 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 history a charm and an interest which it will never lose. The war was termi- nated by the battle of Zama, when Hannibal was compelled to yield to Scipio, and Carthage to accept from Rome a treaty the terms of which were much less favourable than those from which she had sought deliverance by arms. Fifty-one years passed between the second and the third Punic war, during which period the first and second Mace- donian wars took place, in which Philip in the first instance, and his son Perseus in the second, were successively yan- quished. The third Punic war broke out in the year B.C. 150, and terminated in the year B.C. 146 by the ruin and destruc- tion of Carthage under Scipio, grand- son of Scipio Africanus, who was sur- named the second Africanus. The same year also the third Macedonian war was concluded, Corinth was destroyed in Greece, Numantia in Spain, and Asia Minor was to a considerable extent subdued, : THE HISTORY OF ROMAN LAW. 201 deserve notice: such as the establishment of the provinces, the increase of the number of preetors, the creation of the proconsuls and propreetors and of certain other magistrates, the introduc- tion of the practice of the responsa prudentum, and, finally, the abolition of the actiones legis. SECTION X LI. 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. 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 plebiscitum or the senatis-consultum which had regulated its condition (formula provincie). It was 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, vectigal. 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 : Festus, on the word Provincie: rendering not less equivocal, and derives “ Provincie appellantur, quod populus the word from proventus, on account Romanus eas provicit, id est ante vicit.”” of the tribute or revenue exacted from Niebubr 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 prefecture were established in which justice was administered by a prefect 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. Tue INCREASE IN THE NUMBER OF PRETORS. 227. The provinces were in the first instance administered by magistrates, nominated by the comitia specially for this service. These magistrates were styled preetors, 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 preetors, 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 ! Vide supra, § 186 et seq. THE HISTORY OF ROMAN LAW. 203 pretors who had just retired from office, and who, when their functions at home had expired, went to continue them abroad in the provinces under the title of proconsuls or propretors. As to the four preetors created originally for the provinces, they remained one year at Rome, where, having no special jurisdic- tion, they aided their colleagues in the administration of home justice. Secrion XLITI. 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 insurrection, 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; he had no colleague, no censors, no tribunes, no pretors. 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 204 THE HISTORY OF ROMAN LAW. with the proconsul constituted a body of recuperatores, 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 legate proconsulis (aterm 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. 280. Independently of and in addition to the governor a quzestor 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. PROPRETORS. 281. Some provinces were consular, others pratorian. 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 pretors. This classi- fication of provinces into consular and pretorian 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 pretorian provinces had attached to them, like the consular, a quzestor, lieutenants and publicans. THE HISTORY OF ROMAN LAW. 205 232. The proconsuls and the proprextors, 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, questors, and publicans, in order to oppress the provinces by extortion, or to crush them by tyranny. —~— SECTION XLY. THE Pusiic ConsULTATIONS OF THE JURISTS (Responsa Prudentum). 2338. 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.! 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 oratore,1,§45: “Non, dula adducti, Iinistros se preebent in ut apud Grecos infimi homines, merce- _judiciis 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 by 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.? 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 seripta. 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 Nasica, 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.? 235. Cicero, speaking in reference to his own time, after ' Dig: 1, 2, De orig. jur., 2, § 35, £. toribus (vacare) potius quam discere Pomp.: “ Vel in latenti jus civile re- _ volentibus se praestabant.” tinere cogitabant, solumque consulta- ? Dig. 1, 2, De orig. 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. 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 proteciion of his interests. Agere, that is, to interfere actively for, his client in the Forum before the magistrate or before the judge, to appear with him there to support his advice with his presence, and to give such counsel as the exigency of the occasion should require. Seribere, 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 regie (Jus Papirianum) about the year B.C. 531 (see above, par. No. 76); to Appius Claudius Czcus or Centummanus, a censor in 307 B.c., who published a work entitled De usurpationibus, now lost; to Sextus Aélius, consul in B.c. 199, whose book, which we shall notice hereafter, was entitled Zripertita. He does not however mention the work prior to that of Flavius upon the dies fasti and the actiones legis (Jus civile Flavianum), alluded to above (par. 176), probably because Flavius 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 “ Hic nobiscum hanc urbanam militiam respondendi, scribendt, cavendi. . . secutus est.”’ 1 By uniting the two following pas- sages, De vratore, 1, § 48, where Cicero defines the true jurist, “ Qui legum, consuetudinis ejus, qua privati in civi- tate uterentur, et ad respondendum, et ad agendum, et ad cavendum, peritus esset;” and in Pro Murena, § 9, where he is speaking against Servius Sulpicinus, . 2 Cicero, De orator., iii. § 33: “ Non solum ut de jure civili ad eos, verum etiam de filia collocanda, de fundo emendo, de agro colendo, de omni deni- que aut officio aut 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 orat., 1, 37) ascribes these two qualifications in a high degree—“ cujus et libri exstant,” says Pomponius,—and his eldest son, who has left a still greater number: “ sed plurimi filii ejus” (Dig. 1, 2, De orig. jur., 2, § 38). It is to this latter that the phrase in Aulus Gellius refers (xiii. 19): “egregios de juris disciplina libros reliquit.” We must also include the illustrious plebeian ‘family of Mucius Scevola, 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 —Sceevola, and next, of still greater fame, his son Quintus | Mucius Sceevola, consul at Rome 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.? Amyot, in his French transla- tion of Plutarch’s Lives ( Vie de Cicér., § 5), says that he also frequented the consultations of Mucius Scevola. Cicero did not however himself become an eminent jurist till after the death of the Augur Quintus Mucius Scevola, to whom from the time of his taking the toga virilis he had been confided by his father (De amicitid, i.), and of whom he has made mention in his works De oratore, De amicitié and De republicé. This is not the Mucius Sczvola 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 seribere. 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 orig. jur., 2, § 41: “Jus civile primum constituit, gene- ratim in libros decem et octo redi- gendo.” 2 Cicero, Brutus, § 89: “Ego autem, juris civilis studio, multum opera da- bam Q. Sczevolx, Publii filio, qui, quan- quam nemini se ad docendum dabat, tamen, consulentibus respondendo, stu- diosos audiendi docebat.” THE HISTORY OF ROMAN LAW. 209 but you don’t know how to make a consul,” said a disappointed candidate to his clients, who presented themselves in his atrium in great numbers on the day after the election.’ It was also reckoned as an accomplishment, and added some- what to the dignity and respect accorded to an honourable old age.? 236. Such were, in the time of the republic, these juris- consulti, or simply consulti, jurisperiti or periti, jurispru- dentes or prudentes, 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 Scevola. 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 interpretatio, 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- % Cicero, De oratore,1, § 45: “ Senec- nes consulere scitis, consulem facere tuti vero celebrandw et ornandx quod nescitis!” Ascribed to C. Figulus, a honestius potest esse perfugium, quam jurist of reputation about the year juris interpretatio.” 133 B.c. P 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 Scevola himself, whose opinion could be rejected by the judge, as we learn in Cicero, Pro Cecina, § 24, if the opposite party was in a position to show that it was not good law. (Sed ut hoc doceret, illud quod Scevola 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,! 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 De jure civil in artem redigendo,’ and amongst the projects conceived by ’ Dig. 1, 2, De orig. jur., 2, § 5, £. Pomp.: “Hee disputatio, et hoc jus, quod sine scripto venit, compositum a : * Aul. Gell. 1, 22: “M. autem Cicero in libro qui inscriptus est De jure civilé in artem redigendo verba hxc posuit. prudentibus, propria parte aliqua non appellatur, ut caeterse partes juris suis nominibus designantur, datis propriis nominibus ceteris partibus: sed com- muni nomine, appellatur jus civile.’”’ ‘Nec vero scientia juris majoribus suis Q. #lius Tubero defuit ; doctrina etiam superfuit.’”? Quintilian, xii. 3: “M. Tullius, non modo inter agendum nun- quam est destitutus scientia juris, sed THE HISTORY OF ROMAN LAW. 211 Julius Cesar 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. 288. We must take care not to confound the expressions publice respondere and publice profiteri 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 pudlice, 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.? etiam componere aliqua de eo cceperat : ut appareat, posse oratorem non di- cendo tantum juri vacare, sed etiam docendo.” 1 Suet., J. Cesar, § 44: “ Jus civile ad certum modum redigere: atque ex immensa diffusaque legum copia, opti- ma queque et necessaria in paucissi- mos conferre libros,” 2 « Ante tempore Augusti publice re- spondendi jus non a principibus dabatur; sed qui fiduciam studioram suorum habebant, consulentibus respondebant,” Dig. 1,2, De orig. jur., 2,§ 47,£. Pomp. Pomponius, in the historical summary which he has left us, after setting forth the origin and the progress of the laws, and other sources of Roman law (juris originem atque processum, § 1 et seq.),y then the various magistracies (quod ad magistratus attinet, § 14 et seq.), passes to the biography of the principal jurists (§ 35 et seq.). P2 212 THE HISTORY OF ROMAN LAW. Section XLVI. A New Work on THe Actiones Lecis (Jus 4lianum vel Tripertita). 239. Amongst the jurists of these times we must distinguish Sextus Alius (curule zedile 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 Aélium etiam Ennius laudavit, in the following flatter- ing terms :— Egregie cordatus homo Catus Alius Sextus. Catus Alius Sextus, a man of noble heart. Sextus lius 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 legis. According to one account, which is however without confir- mation, the pontiffs and patrician jurists, after the formule 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 siglas expresse).* If this were so, the book of Sextus A‘lius 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- mulz 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 Coruncanius, himself a plebeian, and was steadily ' Dig. 1, 2, De orig. jur., 2, § 38, f. Pompon, 2 This rests upon the passage in Cicero, which, in speaking of the patri- cians after the publication of the dies fasti and the actions by Flavius, says: « Ttaque orati illi, quod sunt veriti, ne dierum, ratione pervulgata et cognita, sine sua opera lege posset agi, notas quasdam composuerunt, ut omnibus in rebus ipsi interessent.” Cicero, Pro Muren.,§ 11. See also Festus, on the word Nota, THE HISTORY OF ROMAN LAW. 213 continued—it is most improbable that the formulz of the actiones legis, even supposing that they had been renewed, would be made, or could remain, a mystery. This work of Sextus lius also received the title of jus ilianum. SEcTIon XLVII. THE GRADUAL DEcLINE or THE AcTIONES Lecis—THE CREATION OF A FIFTH ACTION (THE Condictio, Lex Stlia, AND Lex Calpurnia)—THE PARTIAL SUPPRES- SION OF THESE Actions (Lex ibutia). 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 minutize 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 formule, Coruncanius 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. 1“ Quia deerant quadam genera dedit qui appellatur jus Atlianum.” agendi. . . Sextus Mlius alias Dig. 1, 2, De orig. jur., 2, § 7, £. Pomp. actiones composuit, et librum 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 (certe pecunie), 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, condicebat) to his adver- sary that he would have to appear before the magistrate, in order that a judex might be appointed.? 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.3 248. 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, ! Gai., Instit., 4, § 19. we refer the explanation of the creation 2 “Et hac quidem actio proprie con- of the condictio, the motive for which dictio vocabatur: nam actor adversario was discussed, as Gaius tells us, even in denuntiabat, ut ad judicem capiendum his time. The ler Silia and the lex die XXX. adesset.” Ibid. Calpurnia were the precursors of the 3 It is to these facts and dates that lex Abutia. THE 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 iste 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 sublate sunt istz legis actiones, effectumque est ut per concepta verba, id est per formulas, litigaremus.”! 244. The extent of the provisions of the lex Aibutia as to the suppression of the actiones legis is not accurately known, because it is to this law, concurrently with the two leges Julie, that Gaius attributes the suppression, without tellmg 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 A£butia, and that the two leges Julie, enacted at a subsequent period, fixed and regulated several important points concerning the new procedure and confirmed and completed the lex Azbutia. 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* 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 Acbutia is as uncertain as is the The second 1 Gai., Instit., 4, § 30. Aul. Gell., Noct. attic., 16, § 10: “Sed enim quum proletarii, et assidui, et sanates, et vades, et subvades, et viginti quinque asses, et taliones, furtorumque questio cum lance et licio evanuerint, omnisque illa XII Tabularum antiquitas, nisi in legis actionibus centumviralium causa- rum, lege Abutia lata, consopita sit.” 2 Gai., Instit., 4, § 31. was the case of injunction in the event of threatened damage from an adjoin- ing building (propter damnum infec- tum); but the aectio legis in this in- stance was only facultative and soon fell into disuse, the edict of the praetor having furnished a far more convenient 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 butius, 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 Elianum of Sextus AElius, 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. 1831—looking at these facts we shall be justified in rejecting the year B.C. 234 as that in which the lex 4butia was promulgated, and giving the preference to the year B.c. 177 or 171.2 246. The same uncertainty exists with regard to the two leges Julie, one of which is usually recognized as the law of Augustus, concerning procedure in private matters, lex Julia judiciaria privatorum, and is ascribed approximately to B.c. 25; 1 Gai, Instit., 4, § 23. It is true that it might be objected to this last observation, first, that it is not astonish- ing that the lew Furia testamentaria, in the case of disputed legacies, caused a new application of the actio manus injectio at a period when the actiones Zegis had been suppressed, because they were already preserved in those causes which necessarily came before the cen- tumviri, amongst which were all testa- mentary disputes; secondly, that, al- though a conjecture, it is supported by various passages from Cicero, that the actiones legis, which were only forms of execution, that is to say, the manus injectio in the greater number of in- stances, and the pignoris capio in all, had not been abrogated by the lex Abutia. But if we pay attention to this passage in Gaius, it will not be difficult to see that he speaks of the lea Atbutia as being posterior to the lex Furia. 2 There is doubtless great uncertainty concerning all these dates, but it appears to me singular that the chronological tables which place the creation of the centumviri in the year B.c. 242, the lex Silia in the year B.c. 244, the lex Cal- purnia in the year B.c. 234, and the jus Aslianum in the year B.C. 202, are precisely those which adopt the year B.C. 234 as the date of the lex Abutia, so that the creation of the centumviri would only have preceded the suppres- sion of the actiones legis by a period of eight years; the fifth action of the law, the condictio, would only have been created ten years before its suppression, and extended to omni certa re precisely at the moment of its suppression; and, finally, the publication of the actiones legis by Sextus ZElius would have taken place, according to this, after these actions had been abolished. THE HISTORY OF ROMAN LAW. 217 the other may be either the law of Augustus concerning pro- cedure in criminal matters, lex Julia judiciaria publicorum, or a judiciary law of Julius Cesar, lex Julia ( Cesaris) judiciaria, probably of B.c. 46. These laws are therefore dated a century later than the lex butia, and do not belong to the period to which our attention is at present directed. Section XLVIII. THE ORDINARY OR FoRMULARY PROCEDURE ( Ordinaria Judicia, vel per Formulas). THe EXTRAORDINARY PROCEDURE (Extraordinaria Ju- dicia). 24'7. 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 preetorian 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 Rome undergoing the process of transformation—the growth of the plebeian and Quiriarian elements into the plebeian and humanitarian. Under it the plebeian was enfranchised and the foreigner entitled to participate in Roman 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 with those in use in the actiones legis. 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. in jure, 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). Ist. The demonstratio, or statement of the fact or facts alleged by the plaintiff as the ground of his case: “Quod Aulus Agerius Numerio 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 wake such division or distribution of the property in THE HISTORY OF ROMAN LAW. 219 question as the circumstances of the case required, “ guantum adjudicare oportet, judex Titio adjudicato.”1 This section of the formula was confined to three classes of action: viz., familie erciscunde, or suits brought for the partition of an hereditas ; communi dividundo, for the division of a thing held jointly ; and jfintum regundorum, for the fixing and settling the boundaries of contiguous landowners. 250. 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, judicitum, 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 ! Gai., Instit., 4, §$ 39 et seq. 220 THE HISTORY OF ROMAN LAW. and exposed to the public! 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 praetor (postulatio, impetratio, formule, vel actionis, vel judicii).2 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 (sententia), 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 Abutia 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 ler 1 Gai., Instit., § 47. Cicero, Pro Ceecin., 3; De invent., 19; In Verr., Rosc., 8. 4, 66. 2 Cicero, Part. orat., § 28; Pro THE HISTORY OF ROMAN LAW. 221 Ebutia sanctioned it, was not a novelty. In our opinion it had constituted the mode of administering justice between peregrini, or between citizens and peregrini; and tracing it to this source we ascribe to the pretor peregrinus the credit of having developed and elaborated it into a system. 254. In fact from the moment that it was admitted that the peregrint 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 pretor 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 peregrint 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 preetor 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 pretor peregrinus might act for the pretor urbanus, and vice versa. 256. The formula first designed for the sole benefit of the peregrinit 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 preetors 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 legis. The 1 See Laxplication historique des Instituts, vol. iii. title “ Des actions.” THE HISTORY OF ROMAN LAW. 223 administratio, which indicated the object of the suit, replaced the 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.t. “ Si paret hominem ex jure quiritium Auli Agerii esse,” were the words used by the pretor 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 preetor in the formula. 258. If we wish to ascertain the effect produced by the lex Afbutia, 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 praetor for a formula. It was, to a certain extent, therefore, merely the legalization of this practice that was introduced by the lex LEbutia. 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, § 16. * 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 legis, 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 pratorian 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 recuperatores, 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 preetor 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 im 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 of extraordinaria judicia, 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 OF Strorcisu—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.t 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 were disapproved of both by the senate and the censors. Suetonius furnishes us with two measures which may per- haps be of interest: “ Under the con- sulate of the case of the philoso- phers and the rhetoricians having been discussed, the senate decreed that M. Pomponius should take steps to protect the interests of the republic and not suffer these men to remain in the city.” The second is a declaration made by the censors: “ E. Domitius Anobarbus and Licinius Crassus, censors, have declared as follows: ‘We have been informed that certain men, under the name of Latin rhetoricians, have established new schools; that the youth are crowding after them, and passing entire days in their company. Our ancestors have decreed that which our children should learn and the schools they should attend. We disapprove of these innovations upon our ancient customs, considering them mischievous; and we thus make known our decision both to those who keep and to those who frequent these schools. They displease us.’” Snet., De clar. rhetor., § 1. 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 SEpITIONS OF THE GRACCHI (Gracchane). Agrarian Laws (Leges agraria). 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 HISTORY 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 pretentions 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 proletarti 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 (ne quis amplius quam quingenta agri jugera possideret).! 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. Niebuhr has, on the contrary, upon his own authority, held that the ler Licinia was an agrarian law, and this opinion for a time 1 'Valer, Max. viii. 6, § 3. THE HISTORY OF ROMAN 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 ler Licinia, De ere 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 Jjugera, 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 ler 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 jugera. Upon the accusation of M. Popilius Lenas he was condemned to 1 Livy, vi. § 85: “Creatique tribuni superesset, triennio quis portionibus C. Licinius et L. Sextius promulgavere _persolveretur: alteram, De modo agro- leges omnes adversus opes patriciorum rum, ne quis plus quingenta jugera et pro commodis plebis; unam De ere agri possideret: tertiam, ne tribunorum alieno, ut, deducto eo de capite, quod militum comitia fierent, consulumque usuris 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.t 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,’ 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. Licinius Stolo a M. Popilio Lenate sua lege decem millibus zris est damnatus: quod mille jugerum agri cum filio pos- sideret,emancipandoque filium fraudem legi fecerit.” Valer. Max. viii. 6, § 3: “C. Licinius Stolo, cujus beneficio plebi petendi consulatum potestas facta est, quum lege sanxisset, ne quis am- plius quam quingenta agri jugera pos- sideret, ipse mille comparavit: dissimu- landique criminis gratia dimidiam par- tem filio emancipavit: quam ob causam a M. Popilio Lenate accusatus, primus sua lege cecidit.” 2 If we only consider the expression “possidere” as used in its legal sense to designate possession of ager publicus, we see its force more distinctly in the oration of Licinius to the plebeians: “ Liberos agros ab injustis possessoribus extemplo, si velit, habere posse.” Livy, vi. 39. An extract from another speech still further corroborates this view, in- asmuch as the subject under discussion was the actual distribution of these lands: “Auderentne postulare, ut quum bina jugera agri plebi dividerentur, ipsis plus quingenta jugera habere liceret ?” Livy, vi. 36. But on the other hand the expression “ dominos,” in the speech of the patrician App. Cl. Crassus: “ Altera lege solitudines vastas in agris fieri, pollendo finibus dominos,” Livy, vi. 41, and especially that of “ dimidiam partem filio emancipavit,” in the pas- sage of Valerius Maximus previously quoted, that is to say, the use of man- cipatio (emancipavit), in order to trans- fer the half of one’s possessions to a son, indicates not merely simple pos- session, but the right of property ea jure Quiritium. 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- biseittum 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." 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 posterior to the period of the Gracchi abounds with allusions to them. But it is to two Greek writers—Plutarch (The Gracchi, §§ 6 et seq.) and Appian (On the Civil Wars, 1, §§ 8 et seq. )—that we are especially indebted for details, and particularly with reference to the agrarianlaw. ‘The fifty-eighth book of Livy, which is especially devoted to this subject, is among those now lost. The epitome or summary of this book is limited, as regards this subject, to these words: “Ne quis plus quam quingenta jugera agri publici possideat.” Cicero, De leg. agr., ii. § 5, bears the following testimony to the Gracchi, in which he distinctly marks the characteristic fea- tures of the agrarian law: “ Nam vere dicam, Quirites, genus ipsum legis agra- riz vituperare non possum. Venit enim mihi in mentem duos clarissimos, in- geniosissimos, amantissimos plebis ro- manz viros, Tib. et Ca. Gracchos, ple- bem in agris publicis constituisse, qui agri a privatis antea possidebantur. Non sum ego is consul, qui, ut plerique, nefas esse arbitror Gracchos laudare: quorum consiliis, sapientia, legibus, multas esse video reipublice partes constitutas.”’ 232 THE HISTORY OF 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 Cesar (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 haberent), a statement which Cicero considered treasonable. 2. The lex Apuleia(e.c.100). 3. The lex Titia (B.c.99). 4. The lex Livia(B.c.91). Ofthe 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- ' Cicero, Brutus—De clar. orator., § 36: “Sp. Thorius satis valuit in populari genere dicendi, is qui agrum publicum, vitiosa et inutili lege, leva- vit.’ (Appian., Civil Wars, 1, 27.) The fragments of the lex Thoria have been published in several selections. Sigonius undertook its reconstruction (De ant. jur. Ital., ii. 2), and later Haubold (Antig. Rom. monumenta, &c., Berlin, 1830), Klenze, and lastly Rudorff. THE HISTORY OF ROMAN LAW. 233. carried, And, finally, 7. Lex Julia agraria (B.c. 59) of Julius Cesar, the consul, which ordered that the public lands of Cam- pania should be distributed amongst the poor citizens who had three or more children; a distribution which, itis 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 frumentarie, regulating the distri- bution, sometimes at a reduced price and at others even gra- tuitously, of wheat. These commenced with the lex Sempronia Srumentaria (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 Cesar, no fewer than 320,000, and that this number was reduced by Cesar to 150,000.1 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 guestiones perpetue, which followed one another in succes- sion; secondly, the leges judiciaria, 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 senatis-consultum in matters of civil law, and lastly, the jus honorarium. 1 Lex Marcia: CicER0, De offic.,ii. Three Speeches, De leg. agr.; Puu- 21. Lex Apuleia: APPIAN, Bell. cw. i. 29 and 80; C1cERO, Pro Balb., 21; Aur. Vic., De vir. illust.y 73; PLUTARCH, Marius, 29. Lex Titia: Cicero, Pro Rabir.,9; De leg.,ii. 6; De orat., ii. 11; Vau. Max., viii. 1, §2. Lex Livia: APPIAN, Bell. civ., 1. 35 and 36; VELL. PATERo. ii. 18 et seq. Lex Servilia Rulli: CIcERo, TARCH, Cicero, 16 and 17. Lew Fla- via: CICERO, Epist. Attic., i. 18 and 19, ii. 1. Lew Julia agraria: Ap- PIAN, Bell. civ., ii. 10—14; Dion. Cass, xxxviii. 1 et seq.; SUETON., J. Cesar, 20; PLUTARCH, J. Cesar, 14; VELL, PATERC. ii,14; C1cERO, Hpist. Attic., ii. 16. —~— 234 THE HISTORY OF ROMAN LAW. Section LI. QUZSTIONES PERPETUEZ. CoGNITIONES EXTRAORDINARIE. 2'72. 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 leges Valerie and the Twelve Tables, it became a fixed principle that the comitia by centuries could alone pass capital sentence in the case of citizens. 2'78. 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 senatis- consultum declared that this should not be a precedent. Asa 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 pretors 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 HISTORY 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. 2'75. The superior authorities then in criminal matters were Ist, 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 (questio) to a comitia (guestores), 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 (questio) to the patricians; the comitia delegated it, at one time, to the senate, at another, to guestores. The senate de- legated it to consuls, to pretors, and to the various governors of provinces. These delegations of criminal jurisdiction, or, adopting the technical language, these guestiones, were generally 236 THE HISTORY OF ROMAN LAW. speaking, made with reference to the particular case ; and when it was determined, the commission or guestio expired. In cer- tain circumstances, however, these guestiones had a more general character: the commission (questio) 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;! for the crime of poisoning, questio de veneficiis, B.c. 184;% for the crime of homicide, guestio 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 pretors, to the governors of provinces, or to the guestores 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 questiones perpetue. ‘The origin of these guestiones per- petue may be ascribed to the lex Calpurnia repetundarum, B.C. 149.3 277. The system of the questiones perpetue 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 guestio, its penalty and the method in which it should be dealt with. In fact, in place of guestiones 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. que antea nulle fuerunt. L. enim 2 Livy, 39, 38. Piso tribunus plebis, legem primus de 3 Cicero, Brutus, De clar. orat., pecuniisrepetundis, Censorino et Manilio § 27: “Questiones perpetuz hoc ado- _consulibus, tulit.” lescente (C. Carbon) constitute 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 questio 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 (questio), was called perpetual, and although, by a figure of speech, the name questio 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 pretor; 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 jurés (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 guestio perpetua. 2'79. Any citizen could be the prosecutor before a questio 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 liquet). They had no power to modify the punishment prescribed.! 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 guestio: the number of judges or * Cicero, Pro Cluentio, 10, 20, 33, 58 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 ler 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 guestiones. 281. The crimes thus provided for by a special law became the object of their respective guestio 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 preetors or to special guestores. This is what is termed the cognitiones extraordinaria, extra ordinem cognoscere, in criminal matters. 282. The following is a table of the early guestiones per- petue :—B.C. 149, lex Calpurnia, De repetundis, questio pe- cunie@ repetunde, against extortions or exactions in the pro- vinces. B.C. 119, lex Maria, De ambitu, questio ambitus, against bribery in the purchase or illegal attempt to obtain a magis- tracy. In the same year the guestio peculatus, against pecu- lation, that is to say, theft, or misappropriation of public funds, whether sacred or secular. 3B.c. 102, the lex Apuleia, Majes- tatis, questio de majestate, or treason, including all overt acts prejudicial to the sovereignty of the people. In the same year the lex Luctatia, De vi, questio devi. In B.c. 95, ler Licinia Mucia, De civitate, questio de civitate. In B.c. 89, lex Fabia, De plagio, questio de plagio. And finally, under Sylla, we find the establishment of questiones perpetue for crimes committed against private persons, such as fraud and murder. —~— THE HISTORY OF ROMAN LAW. 239 Srcrion LII. Tue Jupiciary Laws (Leges judiciarie.) 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 guestiones perpetue regulated in each case the mode of trial for the crimes submitted to each individual guestio. 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 along time the patricians had the monopoly of this right, which moncpoly 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 Livia 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 Julie judiciaria, either under Cesar, 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.! 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 pretor 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. The list, when complete, was attached to the “ album,” and these judges were known as the judices selecti or judices in albo relati, and acted for the period of one year. By the lex Aurelia the list consisted of three decuries (decurie 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 ' “Ad tres judicum decurias quartam —benefic., 8, 7. addixit ex inferiori censu: que duce- ? “Preetores urbani, qui, jurati, de- nariorum vocaretur, judicaretque de bent optimum quemque in selecto ju- levibus summis.” Suet., Oct.,32; Aul. dicesreferre.” Cicero, Pro Cluent., 43. Gell., Woct. attic., 14, 2; Seneca, De THE HISTORY OF ROMAN LAW. 241. there were five decurie, each distinguished by a particular name.' ‘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 oceupy- 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.? 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 plebisctta on the one hand and to the senatis- 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 senatis-consultum it prohibited the tribune, L. Saturninus, from laying before the comitia the proposition for the lex fru- 1“Decurie quoque ipse pluribus to Velleius Paterculus, 2, 76, and Plu- discretze nominibus fuere, tribunorum eris,et sclectorum, et judicum.” Plin., Hist. natur., 33, 7. To which we moust add the fourth, the ducenarit. Vide note, § 285. 2 Three hundred and sixty according tarch, Pomp., 55. Eight hundred and fifty according to Cicero, Ad Attic., 8, 16. About four thousand, one thousand in each decuria, under Augustus. Vide Pliny, Hist. nat., 33, 7. R 242 THE HISTORY OF ROMAN LAW. mentaria in B.C. 654. “ Senatus decrevit, si eam legem ad populum ferat, adversus rempublicam vidert eum facere.” ‘When the tribune, notwithstanding the senatis-consultum, and notwithstanding the intercession of his colleagues, persisted in his course, the questor 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 régime, 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 senatis- 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 Gaius and of Justinian. And Pomponius, without referring it to the lex Hortensia, of which he has spoken in the previous paragraph, mentions the senatis- consulta as a source of law, and represents it as having become so at a later period (deinde), to a certain extent as a result of necessity and custom (necéssitas ipsa curam reipublice ad senatum deduzxit), and from the interposition of the senate. “Ita capit senatus se interponere; et quidquid constituisset obser- vabatur, idque jus appellabatur senatis-consultum.”? The ‘ . Pie) Rhetorica ad Herennium, tuum, more, equitate consistit.” See Gai., Inst., 1, § 2 d ini i 3 Cicero, Topic., § 5: “Ut si quis § 3. , ey ne ae jus civile dicat id esse, quod in legibus, 3 Di senatiis-consultis, rebus judicatis, juris- Pomp. peritorum auctoritate, edictis magistra- g. 1, 2, De orig. jur, 2, § 9, f. 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 senatis-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 senatis-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 senatis-consultum. From a fragment of Paul it ap- pears that it was in existence at the time of Quintus Mucius.! The senatis-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,? 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. The date is uncertain. At a much earlier period, namely, B.C. 177, we find the senatis-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 mutande causa manu non mittere). We find from a passage in Livy the effect of this senatis-consultum 1 Dig. 40, 13, Quibus ad libert. pro- ° Dig. 7, 5, De usufr. ear, rer. que clam. non licet, 3, £. Pomp.; 40, 12, usw consum., 1, f. Ulp, De liberal, caus., 23, pr. £, Paul, 3 Cicero, Zop., § 5. 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,! 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 senatiis-consultum was carried as a proposed enactment before the comitia and voted for.? It was a principle in fact that the senatés-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 pretors, or to the other magistrates, of giving advice, or interposing its authority, of giving or refusing certain actiones. The two senatis-consulta, Velletianum and Macedonianum, which belong to the imperial period of which we have the text in the Digest, furnish us with two remarkable examples.’ Section LIV. JUS HONORARIUM—EpIcTUM—EDpICTUM PERPETUUM— EpicTuM REPENTINUM — INTERDICTUM— EDICTUM TRALATITIUM—LEx CORNELIA, DE EDICTIS. 290. Our attention is now turned to a new branch of law, and the question how 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 pretors, the curule sediles, the censors, and even the plebeian tribunes, had the right of publishing orders and notices connected with their respective | Livy, xli. 9. doniano, 1 pr. £. Ulp.; 16, 1, De sen. 2 Livy, xxxix. 19. cons, Velleiano, 2, § 1, f. Ulp. 3 Dig. 14, 6, De sen, cons. Mace- meee B THE HISTORY OF ROMAN LAW. 245 functions; this right was styled the right e-dicere, which is the symbolic term 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 pretor urbanus, the pretor peregrinus and to the two ediles, 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”—“1 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”—“T will punish or I will provide for.” “ Ratum non habebo”—“TI 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 pretor. These rules thus published (e-dicta) occupied a 246 THE HISTORY OF 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.* 298. The pretor 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 pretor 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 eediles 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.? ' Dig. 1, 1, De justitia et jure, 8,f. rium est, quod preetores introduxerunt Marcian.: “Nam et ipsum jus hono- adjuvandi, vel supplendi, vel corrigends rarium viva vox est juris civilis.” juris civilis gratia, propter utilitatem ? Dig. 1, 1, De justitia et jure, 7, publicam: quod et honorarium dicitur, § 1, f Papinian: “. . . Jus preto- ad honorem pretorum 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.”! 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.? This deprived the pretors 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 ed®ets 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. 1 «Est enim tibi (jam quum magis- tratum inieris et in concionem adscen- deris) edicendum, que sis observaturus in jure dicendo.” 2 Asconius, In argum. Cornel. : (Le- gem Cornelius tulit) ut pretores ex edictis suis perpetuis jus dicerent, que res tum gratiam ambitiosis preetoribus, qui varie jus dicere assueverant, sus- tulit.” It is to this lex Cornelia that certain authors refer the right conferred upon the magistrates of publishing their edicts. The fact is, that it com- manded the pretors to publish an edict at the commencement of their term of office and to conform themselves to it throughout the year. It regulated the publication of the edicts, but we must not suppose that it introduced them. Cicero, in his oration against Verres, complained of the provisions introduced by that magistrate in his edict, and at the injustice of some of his decisions, which conformed to his interest and not to the terms of his edict. The pro- ceeding against Verres, it must be More noticed, is anterior to the lea Cornelia. We also find in a law discovered in the last century, the lex de Gallia Cisal- pina, mention of the edict of the Preetor Peregrinus, but we cannot infer any- thing certain from it, inasmuch as we do not know whether this was anterior to the lew Cornelia; and it can be placed either during the Punic wars, when Cisalpine Gaul was reduced to the condition of a province (Beaufort, il. p. 318), or, in our opinion, to a later period, namely, B.c. 49, when this part of Gaul received the right of citizen- ship (see § 312). I adopt the opinion that the edicts owe their origin to cus- tom, and that the laws were published to regulate them in the early part of the seventh century from the foundation of Rome. 3 Cicero, In Verrem, 1, §§ 42, 46. 4 Cicero, In Verrem, 1, 42: “ Qui plurimum tribuunt edicto, pretoris edictum legem annuam dicunt esse.”— “¥Finem edicto pratoris afferunt ka- lende 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.! At a later date the pretorian edict became a portion of the lex seripta. 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, pre- toris edictum; second, of the ediles, edictum edilium or edili- tium edictum; third, of the proconsuls or propreetors, 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. (jurisdictionis perpetue causa; non prout res incidit). The magistrate, and the edict published by him, both went at the same time, 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- suetudinis autem jus esse putatur id quod voluntate omnium sine lege ve- tustas comprobavit. In ea autem jura sunt quedam ipsa jam certa propter vetustatem, quo in genere et alia sunt multa, et eorum multo maxima pars, qu preetores edicere consueverunt.” 2 Cicero, In Verrem, iii. § 14: “ Exo- ritur peculiare edictum repentinum, ne quis frumentum de area tolleret ante- quam cum decumano pactus esset.” “Tilud edictum repente uberrimum et questuosissimum nascitur,’ &c. He here refers to two edicts of Verres, made during his pretorate in Sicily, the object of which was, under the form of a general order, to sanction the con- duct of a certain collector. THE HISTORY OF ROMAN LAW. ; 249 should govern the litigation in the individual case between two parties. This was termed interdictum, 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 madeé 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, pretorian law (jus pretorium) and edile law (jus edilium), of which the former is far the more important. This is the origin of that preetorian 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; 1t 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 preetor. 29'7. 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 OF 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. Tue SocraL, War. 298. z.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. Tae Crviz 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 de falsis, also called testa- mentaria, and the lex Cornelia de sicariis, which established two new questiones, 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. 801. 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 world, 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 THE HISTORY OF 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 hberty 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 streneth 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. 8302. B.c. 70. The civil wars had not died out with Marius and Sylla. Catiline, Pompey, and Cesar, 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 Cesar, under the name of the triumvirate, B.c. 64. They united themselves in order that they might command the 254 THE HISTORY OF ROMAN LAW. senate, dictate the choice of candidates, and divide between themselves the provinces. Pompey had Spain, Crassus Syria, and Cesar 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 Cxsar. Ambition united them, and ambition brought about their separation. Czsar had passed the Rubicon with, as Cicero tells us,! 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 hishands. 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 Cesar’s death all Cisalpine Gaul had received the rights of citizenship (B.C. 49 to B.C. 47), two new zediles had been created (ediles cereales qui frumento preessent), and the pro- pretors had been increased to ten, and subsequently to sixteen. 305. We pass over the wars which followed the death of Cesar, 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 HISTORY OF ROMAN LAW. 255 8306. We pass over the second triumvirate of Antony, Le- pidus and Octavius, or, to express it more correctly, of Octavius Cesar,! 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,’ 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. 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 Cesar. 2 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 Roman ladies. The forum, de- serted by honourable men, was usurped by 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 you feared that the His character, money you received from Clodius would be stolen from you.” Epist. 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 lea 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 curiata for the investiture of office which had not been passed. It is true that this was a fictitious lea 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 Cesar, 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.”? 807. 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. § 60. THE HISTORY OF ROMAN LAW. 257 his army, who followed Cwsar. 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 Foreian Poricy. 808. 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 vectigal. 810. Colonie, Municipes, Prefecture, Urbes.—In regarding the condition of cities, even when situated in Italy, it is important 8 258 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. 811. 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, 7. ¢. the latter enjoyed the jus Latinitatis. |‘ '' Under the name of colonie militarig, 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 Cesar, 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 Cesar ! 312. Notwithstanding minor differences, the different muni- cipia were essentially governed in the same manner. Rome was the summa respublica; each municipium a respublica municipalis.4 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 2. The Tabula Heracleensis, so called from the fact of the 1 The consul Scaurus addressing the § 16. grandfather of Cicero: ‘ Utinam isto 2?“ Qegibus sueis ita utunto itaque animo atque virtute insumma republicé eis omnibus sueis legibus Thermensis nobiscum versari, quam in municipali majoribus Pisideis utei liceto quod ad- maluisses!” Cicero, De leg., lib. iii, | vorsus hanc legem non 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 1735.4 3. Some fragments of a plebiscitum, upon a bronze table, in two columns, discovered in 1760 amongst the ruins of Velleia.® The portion we possess treats of the organization and applica- tion of judiciary procedure in Cisalpine Gaul, whence it is called Ler Gallie Cisalpine. The date of this plebiscitum is doubtless posterior to the enactment which conferred the jus civitatis on Gallia Cispadana, n.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. place. These we shall consider in their proper 818. We have sufficient evidence of the existence of a lex Julia municipalis, by which 1 Notwithstanding that these are but fragments, they contain matter of such diversity that it is doubtful whether they refer to one law or a code of laws. These fragments appear to deal with three distinct subjects: 1. Declarations to be made at Rome to the consul, or in default to the pretor urbanus or to the praetor peregrinus; 2nd, certain rules concerning highways and the duties of the ediles; 3rd, a collection of special provisions for the municipia, the colo- nia, the prefecture, the fora and the conciliabula, relating to the city magis- tracies, age, qualifications, disburse- ments and incapacity. Certain pro- visions which they contain would lead to the conviction that their promulga~ tion must be ascribed to a period when the Italian towns enjoyed the rights of Roman citizenship, and consequently subsequent to the social war. : Mazochi (1755) was of opinion that it might be regarded as a plebiscitum regulating the application of the deges Julia et Plautia de civitate (B.C. 90 and B.C. 89). M. de Hanbold, in his Chronology, places it in or about B.C. Julius Cesar, when dictator, 74. According to the conjecture of M. de Savigny, of whom we shall have occasion to make further mention, its date is B.c. 45. The two fragments, one of which is sometimes called @s Britannicum, because upon its dis- covery it was carried to England, the other @s Neapolitanum, are now at Naples. M. Blondeau has given their text in his Recueil antéjustinien, p. 81. ‘2 The contents of this plebiscitum are confined to the oppidum, munici- pium, colonia, prefectura, forum, vi- cum, conciliabulum castellumve que in Gallia Cisalpina sunt, and refer to operis novi nunciatio, damnum infec- tum, pecunia certa credita, signata forma publica populi Romani, and the familia erciscunde. This plebiscitum is sometimes called the lex Rubria, but this must be an error, inasmuch as we find in one of its sections (article 20) the expression Prefectusve ex lege Rubria, evidently referring to some other plebiscitwm. The text of this plebiscitum will be found in M. Blon- deaw’s Recueil antéjustinien, p. TT. $2 260 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 Epistole 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.41.1 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 munictpalis. 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. Soctt.—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 Cesar regarded them as gifts at their disposal; and Antony placed at the feet of Cleopatra the kingdoms of Pheenicia, ! Cicero, Ad familiares, lib. vi.ep.18: Quare bono animo sint et tui et mei “Simul (ac) accepi a Seleuco tuo lit- familiares: neque enim erat ferendum teras, statim quesivi a Balbo per codi- quum qui hodie aruspicinam facerent cillos, quid esset in lege. Rescripsiteos in senatum Rome legerentur, eos qui qui facerent preconium vetari esse in aliquando preconium fecissent, in mu- decurionibus: qui fecissent non vetari. _nicipiis decuriones esse non licere.” THE HISTORY OF ROMAN LAW. : 261 Cyprus and Judea, which he 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 questors 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 Manilia and in that against Verres, and by Cesar 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. Pusuic Law (Jus publicum). 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 ;! and we learn from Livy that the centu- ries were formed from or distributed amongst the thirty-five local tribes, the distinction, however, beng preserved between the seniores and the juniores.2 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 or juniores ;3 1 Dionysius, lib. iv. § 25. 2 Livy, lib. i. § 43. “Nec mirari oportet hunc ordinem qui nunc est, post expletas quinta et triginta tribus, dupli- cato earum numero centuriis juniorum seniorumque, ad institutam ab Servio Tullio summam non convenire.” (This is the principal document, and seems to indicate that each tribe formed two centuries, the one seniores the other juniores. It is however susceptible of other interpretation.) Cicero, In Ver- rem, 2, lib. v. § 15. 3 Livy, 24, § 7: “ Quum sors prero- gative Aniensi juniorwm exisset.” Ibid. § 8. Preco, “ Aniensem junio- rum in suffragium revoca,” 26, § 22; “ Prerogativa Veturia juniorwm,” 27, § 26; Galeria juniorum, que sorte preerogativa erat.” (Vide supra, § 66, and note.) THE HISTORY OF ROMAN LAW. 263 hence the confusion we sometimes meet with in the Latin writers between tribes and centuries.! The points still doubtful are, Ist. Whether each local tribe was simply divided into two centuries, the one seniores the other juniores, 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 junitorum, 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.* 817. The most important change that had taken place as to matters of form was the adoption of secret voting? Hach 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 (antiqguo) written upon it. The barriers within which the citizens, in tribes or centuries, were packed (septa, ovilia); the use of narrow bridges over which they 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 manceuvres practised to secure and even to purchase votes, when it was the question of an ! Cicero, Pro Plancio, §§ 20, 22; De lege agraria, 2, § 2. 2 Livy, 43, § 16: “ Quum ex duode- cim centuriis equitum octo censorem condemnassent, multeque alia prime classis .- &e.” (Case of Clandius, colleague of T. Gracchus.) 3 Cicero, De legibus, 3, §§ 15, 16, 17, discusses the relative advantages of public audible voting and secret voting by means of tabell@, and from his remarks upon the supporters of the ballot, his strong aversion to it is ap- parent. The Jeges upon this subject enumerated by him, and styled Jeges tabellaria, are four in number: the lex Gabinia, tadellaria, B.C. 140, for the appointment of magistrates; the lea Cassia, tabellaria, B.C. 138, affect- ing the judgments in criminal prosecu- tions, high treason excepted (perduel- lionis); a law of Papirius Celius Cal- dus, B.c. 108, including high treason; and finally the law of Papirius Carbo, B.C. 92, as to the votes for the passing of laws. It is however evident from the same passages of Cicero that the people were of opinion that the ballot was the guarantee of their liberty in voting, to which Cicero assents, “‘ Habeat sane populus tabellam, quasi vindicem libertatis,” provided that they acted conscientiously. 264 THE HISTORY 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 ; plebiscita, which had been multiplied and almost superseded the former; senatis-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—l. The edicts of the magistrates,! 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 responsa prudentum, 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, senatis-consultis, rebus judicatis, juris peritorum auctoritate, edictis magistratuum, more, equitate consistat.? 319. Executive Power—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 yanked as lew non seripta, notwith- standing the fact that they were written in albo, ubi de plano recte legi possit ; because at the period at which we have arrived the edict was not, properly speaking, a law; it was only obligatory for one_year, it formed a part of the executive administration of the magis- trate who promulgated it and ended with his functions (lex annua). They therefore differed widely from laws regularly enacted, and such only of these edicts could be regarded as form- ing a part of the customary law as had by custom been perpetuated and were considered by the pretors as continu- ously binding. ? Cicero, Top., 5. THE HISTORY OF ROMAN LAW. 265 to.the consuls, or, by a lex curtata, to proconsuls and pro- pretors.: 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.* 820. 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 (senatis habendi) ;3 their right and practice of intercessio had been established and largely extended.* 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 existimare contra rempublicam fecisse.® 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.§ ' Military power could only be con- ferred upon a proconsul or a propretor by a special law passed by the curies. 2 Prior to Sylla no dictator had been appointed for nearly one hundred years. The senate in cases of danger had con- tented itself with increasing the power of the consuls for the time being, using the following formula: “ Videant, or Caveant consules ne quid detrimenti respublica capiat.” 5 Aul. Gell. lib. xiv. ch. 8: “Nam- que et tribunis, inquit (Atteius Capito), plebis senatis habendi jus erat, quam- quam senatores non essent, ante Ati- nium plebiscitum.” + See Aul. Gell. lib. vii. ch. 19. 5 Cicero, De provinciis consular., § 8; Ad familiar., lib. viii. ep. 8. ® Cicero, De leg., lib. iii. § 9: “ Vehe- menter Sullam probo, qui tribunis plebis, sua lege, injuriz faciende potestatem ademerit, auxilii_ferendi reliquerit.” And as regards Pompey: “ De tribu- nitia potestate taceo: nec enim repre- hendere libet, nec laudare possum.” J. Cesar, De bello civili, lib. i. § 7: “ Sullam, nudata omnibus rebus tribu- nitia potestate, tamen intercessionem liberam reliquisse: Pompeium, qui amissam restituisse videatur, dona etiam quz ante habuerit ademisse.” 266 THE HISTORY OF ROMAN Law. 821. The newly-created magistrates were the Tribuni LEyarii, Triumviri Monitales, Triumviri Capitales, Quatuor- virt Viarum, Quinqueviri, the two Aédiles Cereales, Proconsul, Legati, and the Questores Provincia. 822. Judicial Power.—The pretors, now sixteen in number, the centumvirs, the decemvirs, the juges-jurés or arbitrators, and the recuperators, co-operated in the administration of jus- tice, the pretors, as magistrates, having a jurisdiction; the others simply as judges selected in each individual case; the eediles had also a tribunal and a jurisdiction. 323. Criminal Matters.—The establishment of guestiones perpetue, 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 questiones 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 senatis-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 guestio; 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 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 * Cicero, Ad Altic., 1, 16, §§ 3,4.and 5. 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 guesitores that did not fall within the scope of a questio perpetua. 824. 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 and judicium. The pretors were the principal magistrates invested with the juris- dictio. The unus judex, the arhiter or the recuperatores had. for each case the judictum. 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 extraordinaria was applied to those cases where the magistrate himself determined the suit without send- ing it to a judex, arbiter or recuperatores. 825. In the provinces the proconsul, the propretor and their lieutenant, as magistrates invested with jurisdiction, and the recuperators, as juges-jurés, selected in a manner analogous to that in vogue in the case of the jugesjurés 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. 826. 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 capitaloffence _fiscated. was at liberty to go into voluntary exile, 268 THE HISTORY OF ROMAN LAW. by Servius 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 censi being exempted altogether. Those not enrolled in a tribe, and consequently not in a census, but classed amongst the @rarii, 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 (@s militare, es 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 cclebes. 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.! 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 propreetors 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. ' Cicero, De officiis, lib. ii. § 22: tantum in erarium pecunie invexit “Omni Macedonum gaza, quefuitmaxi- ut unius imperatoris preda finem ma, potitus est Paullus (milius): attulerit tributorum.” THE HISTORY OF ROMAN LAW. 269 Jus Sacrum. 827. 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. 828. 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 preetors, 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. 829. 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 (wsus) appears to have been no longer practised. The power over freemen bought or given away as property, 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,! 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 pretor, but for which no exact term exists. .This was 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 nec 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 exheredatio, otherwise his will was in some cases altogether void, or, in others, void so far as to pre- * Women, by a simulated sale, per @s et tibram (coemptiv), feigned to pass under the power, in manu, of the pur- chaser. And as they then got out of their family, as we have shown when speaking of the woman in manw con-~ venta, §§ 121 and 125, the agnates lost their right, and their tutelage ceased. This is a case in which they used the procedure of the ancient law to evade the law. 272 THE HISTORY OF 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.* _ 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 pretorian inheritance, Lonorum possessio, which was often given to persons to whom the inheritance was refused by the civil law.? 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, wasincreased. 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 ' “ Hoe colore quasi non sane mentis fuerint cum testamentum ordinarent,” say the Institutes, lib. ii. tit. 18, pr. This affords an illustration of a case in which one ground of nullity, which did not exist under the ancient law, is assi- milated to a ground of nullity which did actually exist. In the same way the necessity of exheredatio is derived by the jurists from the civil-law prin- ciple of the co-ownership of a family; the children being, as it were, co-pro- prietors of the family patrimony, the head of the family could only deprive them of their rights by a formal decla- ration of his intention so to do. 2 This is an instance where, with the help of one word, they changed the ancient law, whilst appearing to respect it. They did not give to the child the inheritance, or the title of heir, because the civil law refused them to him; but they gave him the possession of the property, bonorum possessio, the title of possessor, which, under the pretorian system, came to nearly the same thing in other words. 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 nerum— the ancient Quiritarian 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 nerum must be added a second, the contract Litterts, 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 prextor, 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 preetorian influence, certain effects which were deemed inci- dental to natural obligations; and, having received pretorian sanction, were called and recognized as pretorian pacts. In the same way the jurists, under pretorian 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 pretorian and the natural. 834. Actiones.— The procedure in the actiones legis, abolished by the lex butia and by the two leges Julie, was replaced by the formulary system. The actiones legis, however, were still preserved in two 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 OF 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 pretorian, 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 pretor permitted actions called honorarie actiones: and universally in cases where the strict law gave actions contrary to equitable principles, the praetor 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.’ 835. 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 pretorian law, and the principles contained ! This is another instance of anin- 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 pretor did an exceptio, which was a means of not declare that he abolished it, nor defence against the attack (actio). did he prohibit it from taking placc. THE HISTORY OF ROMAN LAW. 275 in the responsa 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 pretors 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, we 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- ‘ It may not, perhaps, be useless to give an idea of the way in which the Romans designated persons: 1st. The pre-name, prenomen, served to distin- guish the various members of the same family; the Roman language did not contain a great number of them, and therefore they were generally written only with the initial letter. Theeldest son took that of the father; the daugh- ters in general did not bear any; they were distinguished in the family by the epithets of major, minor, prima, se- cunda, tertia, and so on. 2nd. The T2 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 former, belonged to the whole race. It was applied to the daughters in the feminine gender. 3rd. The surname, cognomen, was a kind of epithet, given on the occasion of some great deed, or in celebration of some brilliant sally of wit, or in consequence of some pe- culiar charm of person, or else some deformity. Sometimes the cognomen remained in the family of the man who had borne it first, and in such cases, in addition to that general surname, the various members could bear a second surname personal and peculiar to them; this second surname is called by some authors agnomen. Thus in the desig- nation of the great pontiff App. Clandius Ceecus, we find the prenomen Appius, the nomen Claudius, and the cognomen Cecus. In the family of the Scipios, we have P. Cornelius Scipio Africa- nus, L. Cornelius Scipio Asiaticus; here Publicus and Lucius are the pre- nomina of the two brothers, Cornelius the nomen of the race, Scipio the gene- ral cognomen of the family, Africanus and Asiaticus the particular surname of each of the brothers. The adopted took the name of the adopter, and preserved that of his for- mer family, transformed into an adjec- tive, thus; Cesar Augustus was styled Octavianus, because being the son of C. Octavius, he had been adopted by the will of J. Cxsar. Married women added to the name of their family that of their husband, in the genitive case, as a mark of their dependance. Thus Calpurnia Antistii, Calpurnia wife of Antistius, the lady who swallowed hot charcoal when her husband had fallen a victim of the party of Marius. Slaves never had more than one name, as Stichus, Geta, Davus; when once they were freed, they joined to it the prenomen and the nomen of their patron. In this way Terence, whose name as a slave we do not know, took, upon gaining his freedom, that of his master, P. Yerentius, which he has transmitted to posterity. THE HISTORY OF ROMAN LAW. 277 t. And, we may observe, that this practice came in with the sivil wars and the proscriptions, and those who died by their »wn hand were in reality men condemned to death, who killed hemselves to escape an ignominious end. It was necessity shat made suicide a point of honour. 1 There was no hope of escape for an asylum anywhere, it would only be ‘hese men, for the power of their con- to meet the fate of Pompey and his son juerors extended over the whole of the Sextus. ‘hen known world; and if they sought THE HISTORY OF ROMAN LAW. THE THIRD EPOCH. THE EMPERORS. L—FROM THE ESTABLISHMENT OF THE EMPIRE TO CONSTANTINE. B.C. 31. Casar Aveustus (Cesar Octavianus, Augustus cognomine).' 837. Arrer the battle of Actium and the triumphs which followed, Cesar 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,} 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- able military title, derived from the Oscan language, and is still to be seen on the old Oscan coins, spelt according to the early system of writing, now ob- solete, embratur. It was given by the Roman soldiers by acclamation to a victorious general in the transport of joy with which they greeted him on a successful field. More than one person could bear the title at the same time, and it conferred no particular authority. (Tac., Ann., 3, § 74.) It afterwards came to designate the supreme chief ruler. of the state. 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 Cesaris, reserving for the people, as provincie populi, the provinces which were the most quiet and submissive. This was inB.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 power, 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,! proconsuls, pretors, 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 Cesaris, the procuratores Cesaris, the prefectus urbi, the prefectus pretorius, the questores candidati principis, the prefectus an- nonarum and the prefectus vigilum. 1 Asthe 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 pretor some functions of criminal self, a portion of the jurisdiction which —_ jurisdiction. 280 THE HISTORY OF ROMAN LAW. Section LVIII. LigvTENANTS OF THE EmpEror (Legati Cesaris). 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 (provincie populi) was governed, as formerly, by the consuls and by the preetors after leaving their office. The revenue derived from them, and paid into the public treasury, was called stipendium. The others were the property of Cesar (provincie Cesaris), and the revenue derived from them was called ¢ri- butum.1 They were administered by officers appointed by the prince, legati Cesaris. There were, however, some distinc- tions between the privileges and powers enjoyed and exercised by the proconsuls and by the legati Cesaris, 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 preses provincie.® —~+— Srection LIX. PROCURATORS OF THE Emperor (Procuratores Cesaris). 340. The treasury, like the provinces, was divided into two parts—one for the public, erarium, the other for the prince, jiscus. 1 Gai., Instit., 2, § 21. 2 Dig. 1, 16, De officio proconsulis et legati; ib. 18, De officio presidis. The government of Egypt ranked above that of all the other imperial provinces; the lieutenant there had a particular. title, prafectus augustalis. They used also to depute into that province a functionary whose duty it was to ad- minister justice, in concert. with the president ; he bore the name of juridi- cus per Aigyptum, juridicus Alexan- drie. Dig. 1, 17, De officio prafecti augustatis; 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 questors, 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 Cesar; 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 Cesaris acquired afterwards an important administrative position, were empowered to adjudicate on all questions connected with the Jiscus, and sometimes even replaced the preses provincie Section LX. Tuer PREFECT OF THE City (Prefectus urbi). 841. From the most remote period of Roman history, we frequently meet with mention of the prefectus 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 prefectus 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 ediles 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 pretors. There was, however, no prefect 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.? 1 Dig. 1, 19, De officio procuratoris 2 Dig. 1, 12, De officio prafecti urbi. Cesaris, vel rationalis. 282, THE HISTORY OF ROMAN LAW. Section LXI. PR#TORIAN Prarects (Prefecti Pretorio). 842. Augustus raised for himself a body of troops called pretorian guards, who were soldiers exclusively attached to the person of the sovereign. At their head were two knights, styled pretorian preefects, 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 prefects 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. His- torians derive them from the celeres, or guards of Romulus. —~—. Section LXII. QUZESTORES CANDIDATI PRINCIPIS. 843. These were functionaries differing from the questors 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.? —~—- Section LXIII. THE Prarectus 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 prefectus urbi. 1 Dig. 1, 11, De officio prefecti ° Dig. 1, 13, De officio questoris. pratorio, —~— THE HISTORY OF ROMAN LAW. 283 Section LXIV. PREFECT OF THE NigutT Guarps (Prefectus vigilum). 845. The duty of securing public tranquillity during the night had formerly been entrusted to five magistrates, called the quingue 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, prefectus 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 prefectus vigilum was required to send the case before the prefectus urbi.? 846. 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 pretors, partially retained their importance, and the absolute power of the emperor was erected amid new institutions which 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 senatis-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 prafecti vigilum. —~— 284 THE HISTORY OF ROMAN LAW. Section LXV. Tae Senatis-ConsuLTA: THEIR EFFECTS UPON THE Jus PRIvATUM. 847. 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- lata 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 Cesar: 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 Cesar 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.”! This practice of the emperor officially nominating persons to office commenced with Julius Cesar. 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: “ Cesar, dictator, to such a tribe: I recommend to you N. or M., that he may receive the honour of your votes.”* These recommendations then “from Cesar 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, ! Tacitus, Annales, 1,15: “Tum primum e campo comitia ad patres translata sunt. Neque populus ademptum jus questus est, nisi inani rumore: et Senatus, largitionibus ac pre- cibus sordidis exsolutus, libens tenuit, moderante Tiberio, ne plures quam quatuor candidatos commendaret.” 2 Suetonius, Julius Cesar, 21:“Comi- tia cum populo partitus est; ut exceptis consulatus competitoribus, de cetero nu- mero candidatorum, pro parte dimidia quos populus vellet pronunciaretur, pro parte altera, quos ipse edidisset. Et edebat per libellos, circum tribus missos, seriptura brevi: ‘Cesar, dictator, illi tribui: Commando vobis illum et illum, ut vestro suffragio suam dignitatem teneant,’ ” THE HISTORY OF ROMAN LAW. 285 Cicero reckoned the senattis-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.! There are, however, a few also bearing on the jus priva- tum which can, it is thought, without precise proofs, be attributed to the epoch of Augustus: such are the senatits-consultum on the usufruct of perishable goods, and the senatis-consultum Sila- nianum, both of uncertain date; two under Tiberius; a greater number under Claudius, among which are the two famous senatis-consulta Macedonianum and Velleianum; and still more under Nero, among which are the senatis-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 senatis-consulta completely established.* Gaius, after having said “ Idque legis vicem obtinet,” adds this observation: “ Quamvis fuit quesitum,” 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 executive 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 was carried as a rogatio 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 et seq. consultum.” Gaius, Znstit., comm. 1, ® Dig. 1, 2, De orig. jur., 2,§9, fr. § 4: “Senatis consultum est quod Pompon.: “ Ita coepit senatus se inter- ponere ; et quidquid constituisset, obser- yabatur: idque jus appellabatur senatus- senatus jubet atque constituit: idque legis vicem obtinet, quamvis fuit queesi- tum.” 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 senatis-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 senatis-consulta, leges.1 A sign of the en- croachment of the senatis-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 senatis-consultum Mace- donianum. It is, however, to be remarked that the termina- tion zanum was specially reserved for them. 349. The series of senatis-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.”? It is not difficult to account for this. In proportion as the form which the legislation took in the senatis-consultum acquired strength and permanence, by being frequently em- ployed, the plebiscita diminished in number, and soon disap- peared; and in proportion as the imperial constitutions increased in number and in power, the senatis-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. ' Thus, J. Capitolinus (Marc. Ant. dixisset, Nihil vos moramur, patres philos., § 10), speaking of the assiduity conseripti.” Thus Gaius( Znstit., com. of Marcus Aurelius at the sittings of 1, § 86) says, “ Illa pars ejusdem legis,” the senate, expresses himself in these speaking of the Senatiés-consultum terms: “ Comitiis pretereaetiamusque Claudianum. ad noctem frequenter interfuit: neque ? Dig. 1, 8, De legid. senat., 9, fr. unguam recessit de curia nisi consul Ulp. —~——- THE HISTORY OF ROMAN LAW. 287 Section LXVI. CoNSTITUTIONS OF THE EMPEROR ( Constitutiones principum). 350. This 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:—I1st, 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 pretor, or proconsul, who interrogated him on any doubtful point of law; to private in- dividuals, who petitioned him in any circumstance whatever (mandata, epistole, rescripta). 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 senatis-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 Gaius, Jnstit. § 5: “Constitutio scriptionem statuit, vel cognoscens de- principis est quod imperator decreto, crevit, vel de plano interlocutus est, vel vel edicto, vel epistola constituit.” edicto pracepit, legem esse constat. Dig. 1, 4, De constitutionibus princi- hee sunt quas vulgo constitutivnes pum, 1, § 1, fr. Ulp: “ Quodeunque 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 reseripta. 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 (Cesarem 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. 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 Cesar, indirect quotations from constitutions which introduced new provisions into the law, and could only be, for the most part, edicta.? It is admitted, that many innovations 1 Suetonius, Oct. Augustus, § 33: diligenter et industrie dixit, plerumque “Tpse jus dixit assidue, et in noctem et in Foro pro tribunali extra ordinem. nonnnnoquam: si parum corpore valeret, Ambitiosas centumvirorum sententias lectica pro tribunali collocata, veletiam — rescidit.”” domi cubans.” Domitian, § 8: “Jus ? Julius Casar was the first to grant THE HISTORY OF ROMAN LAW. 289 which took place in the civil law were ratified by plebiscita or by senatés-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.! 852. 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 to soldiers the right of making wills without the usual formalities. ‘“ Mili- tibus liberam testamenti factionem primus quidem divus Julius Cesar concessit. Sed ea concessio temporalis erat.” Dig. 29, 1, De testam. mitit., 1, prine. frag. Ulp. Augustus, Nerva and Trajan granted to soldiers the right of bequeathing their peculium castrense. “. . Quod quidem jus in primis tantum militanti- bus datum est, tam auctoritate divi Augusti, quam Nerve necnon optimi imperatoris Trajani: postea vero sub- scriptione divi Hadriani etiam dimissis a militia, id est veteranis concessum est.” Inst. 2, 12, pr. Augustus was the first who conferred imperial authority upon the jurists, respondere. ‘ Primus divus Augustus _ constituit ut ex auctoritate ejus responderent.” Dig. 1, 2, De orig. jur., 2, § 47, fr. Pomp. Augustus was the first to order the execution of the jidei commissa. ‘“Pos- tea primus divus Augustus semel ite- supreme over the voice of the rumque gratia personarum motus vel quia per ipsius salutem rogatus quis diceretur, aut ob insignem quorumdam perfidiam, jussit consulibus auctorita- tem suam interponere.” nst., 2, 23, § 1. These were mandata and re- scripta. Augustus, and afterwards Claudius, prohibited by their edicts women from taking upon themselves the debts of their husbands. “Et primo quidem, temporibus divi Augusti, mox deinde Claudii, edictis eorum erat interdictum, ne feminz pro viris suis intercederent.” Dig. 16,1, Ad senat. cons, Vélleianum, 2, pr. f. Ulp. Tiberius decided a point of law in a case concerning one of his slaves. The Institutes, after setting out the legal point and the decision, add: “ Idque Tiberius Casar in persona Parthenii servi sui constituit.” Instit., 2,15, § 4. This constitution became at least a decretum. 1 Vide supra, § 235. 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 Recta. 8538. 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 The following are the passages and the arguments. When I produced them in 1827 for the first time, the question had not been, as it is now, settled. “ Sed et quod principi placuit, legis habet vigorem; cum lege Regia, gue de ejus imperio lata est, populus ei et im eum omne Imperium suum et potes- tatem concedat (others have concessit).” Inst. 1, 1, § 6. “Quod principi placnit, legis habet vigorem, utpote cum lege Regia, gue THE HISTORY OF 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.? This lx 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, populus ei et in eum omne suum imperium et potes- tatem conferat.” Dig. 1, 4,1 f£. Ulp. “Constitutio principis est quod im- perator decreto, vel edicto, vel epistola constituit, nec unquam dubitatum est quin id legis vicem obtineat, cum ipse imperator per legem imperium acci- piat.” Gaius, Znstit., 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-’ secure. The difficulty lies in the exact weight of the words gue de imperio ejus lata est. 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 : sé . Numam Pompilinm. . . regem . . patribus auctoribus, sibi ipse populus adscivit, . -qui ut hue venit, quamquam populus curiatis eum comitiis regem esse jusserat, tamen ipse de suo imperio curiatam legem tulit.” Cicero, De republ., 2, § 13. “Mortuo rege Pompilio, Tullium Hostilium populus regem, interrege ro- gante, comitiis curiatis creavit: isque de imperio suo, exemplo Pompilii, ee consuluit curiatim.” Ibid. 2, § 17. “Post eum, Numz Pompilii nepos ex filia, rex a populo est Ancus Martius constitutus: idemque de imperio suo legem curiatam tulit.”? Ibid. § 18. “ Mortuo Martio, cunctis populi suf- fragiis rex est creatus L. Tarquinius . « . isque ut de suo imperio legem tulit,” ete. Ibid. § 20. “ Post eum, Servius Sulpicius primus injussu populi regnavisse traditur. . . sed Tarquinio sepulto, populum de se ipse consuluit, 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: gue 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 suo ferebat. Each emperor was nominated by his predecessor, or by the acclamations of the army. The senatés-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 hune Maximinus ex corpore militari primus ad imperium accessit, sola militum voluntate, cum nulla senatus intercessissit auctoritas.” utr. lib. ix. 1 Lib. xxxiv. § 6. 2 Vide supra, §§ 27, 45, 68. u2 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 ler 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.! The emperor Alexander Severus, somewhere in the Code, calls it the lex imperii.2 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.? ! Cicero, De lege agraria, iii. § 2: “Omnium legum iniquissimam dissi- millimamque legis esse arbitror eam quam L. Flaccus, interrex, de Sulla tulit: UT OMNIA QUAZCUMQUE ILLE FECISSET, ESSENT RATA.” 2 Code, 6, 23, De testamentis, 3, constit. Alexand.: “ Licet enim lex imperit solemnibus juris imperatorem solverit, nihil tamen tam proprium im- perii est, quam legibus vivere.” . We shall find in one of the articles of the law, De imperio Vespasiani, the pro- vision which absolves the emperor from the power of the laws. - 3 Tac., Hist., lib. iv. §3: “ At Rome Senatus cuncta principibus solita Ves- pasiano decrevit.” See the text of the articles which have reached us: Orelli has inserted them in his Inseriptionwm latinarum selectarum amplissima collectio, tit. 1, p. 567: “ Foedusque . cum . quibus. volet . fa- cere . liceat. ita . uti. licuit. divo. Aug. Ti. Julio. Cesari . Aug . Tiberioque. Claudio . Cesari. Aug . Germanico “ Utique . ei . senatum . habere . rela- tionem . facere . remittere . senatuscon- sulta . per. relationem . discessionemque. facere . liceat . ita . uti . licuit . divo. Aug . Ti. Julio. Cesari . Aug. Ti. Claudio . Cesari . Augusto. Germanico “ Utique . cum. ex. voluntate . aucto- ritateve . jussu . mandatuve . ejus . pree- senteve . eo . Senatus . habebitur . om- nium . rerum . jus. perinde . habeatur. servetur.ac.si.e.lege.senatus . edictus, esset . habereturque “ Utique . quos . magistratum . potes- tatem . imperium . curationemve .cujus. rei. petentes . Senatui. Populoque. Ro- mano . commendaverit . quibusve . suf- fragationem.suam . dederit . promiserit. eorum. comitls . quibusque. extra. ordi- nem. ratio . habeatur “Utique . ei . fines . pomerii . proferre. promovere . cum . ex . republica . cense- THE HISTORY OF ROMAN LAW. 293 Secrion LX VIII. THE Responsa PRUDENTUM. 355. 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 . esse . liceat . ita . uti . licuit . Ti. Claudio . Cesari . Aug . Germanico “ Utique . quecumque . ex . usu. rei- public . majestate . divinarum . huma- narum . publicarum . privatarumque. rerum . esse.censebit . ei . agere . facere. jus . potestasque . sit . ita . uti. divo. Aug . Tiberioque. Julio. Cesari. Aug. Tiberiogue . Claudio . Cesari . Aug. Germanico . fuit “ Utique . quibus . legibus . plebeive. scitis . scriptum . fuit . ne. divus. Aug. Tiberiusve . Julius . Cesar. Aug . Ti- beriusque . Claudius. Cesar. Aug. Ger- manicus . tenerentur . iis . legibus . ple- bisque . scitis .imp.Czsar.Vespasianus. solutus.sit. Quaque.ex.quaque.lege. rogatione . divum . Aug . Tiberiumve. Julium . Cesarem . Aug . Tiberiumve. Claudium . Casarem . Aug . Germani- cum . facere . oportuit . ea . omnia. imp. Ceesari. Vespasiano. Aug. facere. liceat “Utique . que . ante . hanc . legem. . rogata. acta. gesta . decreta . imperata, ab . imperatore . Cesare . Vespasiano. Aug . jussu. mandatuve. ejus. #. quo- que .sunt.ea. perinde . justa. rataque. sint .ac. si. populi. plebisve. jussu. acta. essent SANCTIO. “Si. quis. hujusce. legis . ergo . ad- versus .leges.rogationes.plebisve .scita, senatusve . consulta . fecit . fecerit . sive. quod . eum . ex . lege . rogatione . ple- bisve . scito.s. ve.c. facere. oportebit. non. fecerit . hujus . legis. ergo . id. ei. ne. fraudi . esto. neve. quid. ob. eam. rem . populo . dare .debeto . neve . cui. de.ea.re.actio. neve. judicatio . esto. neve. quis.de.ea.re. apud. se. agi, sinito 1 Dig. 1, 2, De orig. jur., 2, § 4K, f, Pomp.: “Et, ut obiter sciamus, ante tempora Augusti publice respondendi jus non a principibus dabatur: sed qui oo M 4h 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- rent): 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. 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 written by the jurist himself fiduciam studiorum suorum habebant, consulentibus respondehant. Neque re- sponsa utique signata dabant: sed ple- illo tempore peti hoc pro beneficio coepit.” rumque judicibus ipsi scribebant; aut testabantur qui illos consulebant. Pri- mus divus Augustus, ut major juris auctoritas haberetur, constituit, ut ex auctoritate ejus responderent: et ex ' Suet., Caligula, § 34: “De juris quoque consultis, quasi scientizs eorum omnem usum aboliturus, seepe jactavit, se, mehercle, effecturum, ne qui respon- dere possint preeter eum.” THE HISTORY OF ROMAN 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. 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 asan 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 Tiberium 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.? Pubdlice scribere is used by Pomponius as synonymous with populo respondere ; the two expressions being used indifferently by 1 Cod. 1,7, De advocatis diversorum et medicis. judiciorum; 10, 52, De professoribus 2 Vide supra, § 236. 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 law, 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.? 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 we shall find in many documents; but till the reign of Adrian, saving the 1 Dig. 1, 2, De orig. jur., 2, § 47, £. Cesare: hoc tamen illi concessum erat. Pomp.: “Masurins Sabinus . . . Ergo Sabino concessum est a Tiberio- publice primus seripsit ; posteaque Cesare, ut populo responderect.” hoc ccepit beneficium (dari) a Tiberio ®? 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. 860. 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.! 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.? Nor was it so when the same Aulus Gellius* was sent back to consult the jurists or their pupils commencing to practise (juris studiost). The idea of Caligula, it is true, was radically ex- clusive, but this was but an idea of Caligula. 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, ' Dig. 3, 1, De postulando, 1, § 3,f. de jure responsitasse.”” Ulp.: “Qua state (17 years), aut paulo 2 Aul. Gell. lib. xiii. 13, majore, fertur Nerva filius et publice 3 Thid. 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.! 860 4. 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 connec- ! Vide § 357. ? 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 preetors 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.' 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.* We read also of a council under Claudius and his successors. Adrian added to his council the pretors, the distinguished senators and certain knights. Alexander Severus summoned to his council, according to the nature of the subject, the most competent persons, learned and discreet men when 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. ' Suet., Octav., 35: “Sibique insti- tuit consilia sortiri semestria, cum quibus de negotiis ad frequentem sena~ tum referendis ante tractaret.” Also Dion Cassius, liii. 21, and lvi. 28. 2 Snet., Tiberius, 55: “Super ve- teres amicos ac familiares, viginti sibi e numero principum civitatis depopos- The counsellors had a certain cerat, veluti consiliarios in negotiis publicis. Horum omnium vix duos aut tres incolumes prestitit: ceteros alium alia de causa, perculit.”” See also Dion Cassius, lvii. 7. 3 Dion Cassius, lx. 4, Claudius ; Spartian, Adrian, 8 and 21, 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. 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.® 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. 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,‘ the preetorian 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 senatis-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 ' Lampridius, Alexander Severus, 15. See the whole paragraph and the last. passage: “Ut si de jure aut de negotiis tractaret, solos doctos et di- sertos adhiberet: si vero de re militari, milites veteres et senes ac bene me- ritos.” 2 Ibid. § 27. ® Dig. 36, 1, ad S.C Trebell., 22, PR f. Ulp.; 4, 4, De minor., 18, §§ 1, 2, £. Ulp. ‘ Dig. 49, 9, An per alium, 1, f. Ulp.; 12, 1, ‘De red. credit., 40, £. Paul. See also "40, 15, Ne de statu defunct.., 1, § 4, fr. Marcian. 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.' 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.2 The counsellors of Antoninus Pius in legal matters were jurists, Vindius Varus, Salvius Valens, Marcellus and Meoecianus.2 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.« 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-twenty 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, !“Dicitur autem Augustus convo- casse prudentes, inter quos Trebatium quoque cujus tunc auctoritas maxima erat, et quesiisse an posset hoc recipi, nec absonans a juris ratione codicil- lorum usus esset.” Instit. 2, 25, De codicillis, pr. 2 Spartian, Adrian, 17: “ Cum ju- dicaret, in consilio habuit non amicos suos aut comites solum, sed juriscon- sultos, et preecipue Julium Celsum, Sal- vium Julianum, Neratium Priscum, quos tamen Senatus omnis probasset.” 5: “ Frequens sane opinio fuit, Trajano id animi fuisse, ut Neratium Priscum, non Adrianum, succesgorem relin- queret.”” 3 Capitolin, Antoninus Pius, 12: “Multa de jure sanxit, ususque est jurisperitis, Vinidio Varo, Salvio Va- lente, Volusio Mceciano, Ulpio Mar- cello et Jabolleno.” It is doubtful whether Javolenus was alive at this period, and it is suspected that there is an error here either of the writer or in the MS. 4«. . , Volusius Mecianus, amicus noster.” “Sed cum et ipso Meeciano, et aliis amicis nostris jurisperitis ad- hibitis, plenius tractaremus: magis visum est, ”? &e, Dig. 37, 14, De jur. patron., 17, pr. £. Ulp. 5 Dig. 49, 14, De jure fisci, 50, fr. 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 without 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. 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 preetorian preefect 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 justitie singularis). Whenever he had to entertain the other preefects, 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.? 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.* Every one knows how many high offices, preetoriates, preefectu- rates, consulates and proconsulates, were filled under Augustus and his successors by jurists. —p>— Section LXIX. Lasgo anv Capito (WM. Antistius Labeo et C. Ateius Capito)— THE Two SCHOOLS OF THE JuURISTS: THE PROCULEIANS OR PEGASIANS AND THE SABINIANS OR CASSIANS. 862. 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 ' Lampridius, Alexander Severus, * Lamprid., Alex. Sever , §§ 26, 30, 67: “. . .Hiomnes juris professores 33 discipuli fuere splendidissimi Papiniani, ‘ Lamprid., Alex. Sever, § 50: . et Alexandri imperatoris familiares et ‘ Ulpianum pro tutore habuit . : soci.” atque ideo summus imperator fuit, quod 2 Ibid. § 15. ejus consiliis precipue rempublicam rexit.” THE HISTORY OF ROMAN LAW. 303 grandfather a centurion of Sylla, and for his father an ancient pretor, 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.” ! 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.” 863. 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, Pegasiani); to Capito that of the Sabinians or Cassians (Sabiniani, Cassiani). Such an event was not without 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. Bit Duber wan moO Ore As youn olet, od Ha than. bie ute will, 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 (preceptores) and schools (schole). 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;! 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 Sabinians, whose doctrines he followed, pre- ceptores nostri, and the Proculeians, diverse schole auctores, expressions which denote distinctive teaching. Javolenus, speaking of a still earlier period, also makes use of the terms preceptores tui.3 We know that Sabinus, the disciple of Capito,-under Tiberius, made his livelihood by the fees he re- ceived from his auditors.* 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 (schole), or bodies of students (studios?), attached to each of these jurists. ' Dig. 50,18, De eatraord, cognit.,1, facultates fuerunt, sed plurimum a, suis § 5, f. Ulp. auditoribus sustentatus est.” 2 Dig. 27, 1, De excusat., 6, § 12, f. 5 «. . . Totum annum ita diviserat, Modest. ut Rome sex mensibus cum studiosis 3 Dig. 42, 5, De reb. auct. judic., esset, sex mensibus secederet, et con- 28, f. Javolen. scribendis libris operam daret. » Dig., 4 Dig. 1, 2, De orig. jur., 2,§47,f De orig., 2, § 47. Pomp.: “ "Huic (Sabino) nec ample 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. 865. Now 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.t On the other hand, time and study gave rise to new points involving fresh conflict of opinion: eas dissensiones auxerunt, says Pom- ponius.* 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. 866. 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,? who can be arranged in the following order: Sabinian or Cassian. Proculeians or Pegasians. Capito. Labeo. Masurius Sabinus. Nerva the elder. ' Thus Proculus and Celsus, in the furnished by the Digest (28, 5, De fragments quoted in the Digest (7,5, heredit. instit., 11, £. J: avol.), approves De usuf. ear. rer., 3, £. Ulp; 28,5, De an opinion of Proculus, hered. inst., 9, § 14, £. Ulp.), adopt * Dig. 1, 2, De orig. jur., 2, § 47, some opinions of the Sabinians, And f. Pomp. inversely Javolenus, in the example 3 Thid, THE HISTORY OF ROMAN LAW. 307 Gaius Cassius Longinus. Proculus. Celius Sabinus. Nerva the younger. Priscus Javolenus. Pegasus. Alburnus Valens. Juventius Celsus the elder. Tuscianus or Tuscius Fusci- | Celsus the younger. anus. Neratius Priscus. Salvius Julianus. 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 preceptores.) 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 Juiia, Dr MARITANDIS ORDINIBUS; LEX Parra Poppaia: called also Luces Jutia ET Paria, sometimes Novae Luces, or simply Luces ON MARRIAGE AND ON PATER- NITY. 869. The last days of the republic were marked by an astonishing depravity in morals; the marriage of citizens (juste nuptie) 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 plediscitum, 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.p. 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 Poppea, some years afterwards, 4.D. 9, completed the enactments on this subject.!. The title technically adopted by the Roman jurists, for their commentaries on these legislative measures was that of ad legem Juliam et Papiam? 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 Poppsea, quam senior Au- gustus, post Julias rogationes, inci- tandisccelibum peenis et augendo erario, sanxerat.” (Tacitus, Anna. tii. § 25.) Ortolan’s learned colleague, M. Macha- lard, has published a very interesting book on these laws, * Such is the title which is constantly to be met with in the Digest of Justi- nian, at the head of the fragments of Lt commentaries which are inserted in it. THE HISTORY OF ROMAN LAW. 309 the lex Julia or the lex Papia. And the title nove leges, or simply deges, 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.} 871. The lex Julia and the lex Papia Poppea divided the whole of Roman society into two distinct classes: Ist, by virtue of the lex Julia, the unmarried (calibes) and the married; 2nd, by virtue of the lex Papia, persons without children (ordi), and those who had some (patres or matres). The word celebs, 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, § 206 et seq., § 286, &c. 310 THE HISTORY 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 lez 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 Regule of Ulpian (tit. 16), unfor- tunately partly lost. Except within these conditions, marriage was insufficient to prevent persons from being classed as celibes, 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 senatis-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 guaterve enixa), she had the jus liberorum. The leges Julia et Papia Poppea 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 (ord7), and more severely still unmarried persons (celibes). 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 Poppea did not take away from the celibes or from the orbi 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 proportions, from the celibes 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 (celebs) 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 poimt, 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 HISTORY 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 bemg in causé 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 causd 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 pateres! . . . of Juvenal, Legatum omne capis, nec non et dulce caducum, was not well understood. We, however, can read all the details of it in the Institutes of Gaius. It is now known that the lex Papia gave those portions which were in causd 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 (patres); 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 was jus 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 erarium 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 /ex 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 persone excepte, and as, in virtue of the 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 capaces; 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- Ulp., Regul, 19, § 17. vacantia teneret.” Tacit., Ann., 3, * Gai., Instit., 2, §§ 206, 207. § 28. Also Gaius, 2, § 286: “ Aut, si ° “Utsia privilegiis parentumcessa- _nullos liberos habebunt, ad populum.” retur, velut parens omnium populus 314 THE HISTORY OF ROMAN LAW. tamed 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 causd caduci if there were any. 877. Such were the leges Julia et Papia Poppea, 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. Secrion LX XI, Fipeicommissa—Copici1s ( Codicilli). 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 (fide? eommittere), and ask him to be good enough to execute them. Those dispositions were called fideicommissa. 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 OF 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 jideicommissa and without codicils. It became neces- sary, as we shall see, at last to create two fresh pretors, for the special purpose of dealing with these matters, who decided each case extraordinarily, without sending it before a judge, upon its merits.2 —>— Section LXXII. ENFRANCHISEMENT— LEX ELIA SENTIA—LEX Furia CaANINIA. 879. The wars of Marius and of Sylla, of Pompey and of Cesar, 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 Alia 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 universe. 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 Judza. ' Instit. 2, 23, De fideic. hereditatibus, §§ 1 and 25, De codicillis. 316 THE HISTORY OF ROMAN LAW. A.D. 14. TrsER ius 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: 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. 882. 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 Junia 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 nove leges.' 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;* 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 nghts, 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 Znst., vol. ii. pp. 65, can only give their names; the figures 719, bis. indicate the number of fragments which 2 We shall indicate under each em- _ have been borrowed from them as laws peror the principal jumiists, 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 pretorian guards, is poisoned by his wife; Nero is compelled to stab- himself; Galba, elected by the legions of Spain, cut to pieces by the preetorians; 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 Cesar, cog. Caligula). >» 41. Claudius. Under the latter were created the two pretores fidei- commissarii, of whom we have already spoken. » 04. Nero. », 68. Galba (Servius Sulpicius). >» 69. Otho. » 9 Vitellius. » 70. Vespasian. » 79. Titus. Under the latter one of the pretores fideicommissarii created under Claudius was suppressed. »,5 81. Domitian. >» 96. Nerva. »5 98. Trajan. (Ulpius Trajanus Crinitus, a senatu optimi cognomine 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. ApRrIAN.(/ELIUS 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+ under the name of consistory and auditory (consisto- rium, auditorium principis); also the commencement of the civil jurisdiction of the preetorian preefects, who up to that time had been regarded only as military authorities; also the institu- tion of appeals (appellatio provocatio), 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 LX XIII. Jus HonorartuMm—Tue Edictum Perpetuum or 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 ! 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 preetorian 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 pretor. Before his time, however, similar arrangements had been made by pretors who had preceded him. Pomponius, in his abridged exposition of the History of Roman Law, cites Aulus Ofilius, one of the intimate friends of Casar (Cesari familiarissimus), as having been the first to publish a carefully-made collection of the edicts of the preetors, edictum pretoris primus diligenter composuit.? 38'7. 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. It must be admitted that this prohibition would 1 Vide supra, § 288. 2 Dig. 1, 2, De orig. jur., 2, § 44, £. 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 Hdictum Perpetuum, Eutropius says, when speaking of him: “Qui sub divo Adriano perpetuum composuit edictum ”’ (lib. viii. Hmperor Julian) ; and Aurelius Victor: “ Primus edictum, quod varie inconditeque a pretoribus promebatur, in ordinem composuit” (De Cesaribus,§ 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 edictwm, 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 pretors, 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 perpetut sub- tilissimus conditor, in suis libris hoc retulerit: ut si quid imperfectum in- veniatur, ab imperiali sanctione hoc repleatur; et non ipse solus, sed et divus Hadrianus in compositione edicti, et senatusconsulto quod eam secutus est, hoc apertissime definivit ut si quid in edicto positum non in- veniatur, hoc ad ejus regulas ejusque conjecturas et imitationes possit nova instruere auctoritas.”’ 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 senatis-consultum, 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 prators 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 pretorian 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 pretors; 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 ear. 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 habent magistratus populi; sed amplissimum jus est in edictis duo- rum preetorum, urbani et peregrini, quo- rum in provinciis jurisdictionem pre- sides earum habent; item in edicto eedilium curulium, quorum jurisdictio- nem in provinciis populi queestores ha- bent; nam in provincias Cxsaris om- nino questores 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 questors were not sent into Cesarian provinces, nor had they in those provinces this species of edict. What then must be our conclusion? On the one hand that the edictum perpetuwm 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 publishing their edicts, which, however, they conformed to the edictum perpetuum, adding those ne- cessary provisions which the course of time or altered circumstances necessi- tated. —~— Y 322 THE HISTORY OF ROMAN LAW. Section LX XIV. Tae ADVICE AND THE OPINIONS OF THE JURISTS ( Sen- tentie et Opiniones). Tur Express AUTHORITY CONFERRED BY THE RESCRIPT oF ADRIAN. 888. The rescript addressed by Adrian to those praetorian 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 prestari solere: et ideo si quis fiduciam sui haberet, delectari si populo ad respondendum se prepararet.” 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. “Ht ex illo tempore peti hoe pro beneficio cepit,” says Pomponius. “ Hoc non peti, sed prestari 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 " Dig. 1, 2, De origine juris, 2,§47, ceps Hadrianus, cum ab eo viri pretorii fr. Pomp.: “Primus divus Augustus, peterent ut sibi liceret respondere, re- ut major juris auctoritas haberetur, scripsit eis, hoe non peti, sed prestari 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 cepit, et ideo optimus prin- dum se prepararet.” THE HISTORY OF ROMAN LAW. 323 generous terms, concede to those pretorians 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 (que legis 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 guibus permissum est jura condere. Our esteemed and learned colleague, M. Demangeat, urges that two entirely distinct things should not be confounded, ! Gaius, Znstit., comm. 1,§7: “Re- sentiunt legis vicem obtinet; si vero sponsa prudentium sunt sententie et dissentiunt judici licet quam velit sen- opiniones eorum quibus permissum est tentiam sequi; idque rescripto divi jwra condere; quorum omnium si in Hadriani significatur.”’ unum sententiz concurrant, id quod ita y¥2 324 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 condere1 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 ;* 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 Manilius, and of the " Demangeat, Cours élémentaire de of my colleagues, M. Bodin, in the droit romain, vol.i.p.88et seq. Upon Revue historique, vol. iv. p. 197 et seq., this subject, which has been dealt with and M. Glasson, Etude sur Gaius et by a great many writers, I must espe- sur Je jus respondendi, Paris, 1867. cially draw attention to essays by two ? Vide supra, § 361. THE HISTORY OF ROMAN LAW. 325 Pontifex Maximus Quintus Mutius Scevola, all of the time of the republic, “ gui 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.”' 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.”*® 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 Cesare 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.”* 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 ' Cod. 1,17, De vet. jure enucleando, const. 2, § 18: “Cum et ipse Julianus legum et edicti perpetui subtilissimus conditor, in suis libris hoc retulerit.”’ 2 Cod. 6, 21, De testam. milit., 5, const. Alexand. 3 Just. Znstit., 1, 2,§ 8: “ Responsa prudentium sunt sententiz et opiniones eorum guibus permissum erat jura condere. Nam antiquitus institutum erat, ut essent qui jura publice inter- pretarentur, guibus a Cesare jus re- spondendi datum est.” 4 Pliny the younger, Letters, vi. 15. A Roman knight of some position gave a public reading of some elegies, when Priscus Javolenus, his intimate friend, was present. The poet commenced in these terms: “ Priscus! You order!” “J,” said Priscus Javolenus, surprised and thereby distressed, “I don’t order anything!” This produced consider- able merriment; and Pliny the younger makes this the basis of the following opinion :—“ List omnino Priscus dubie sanitatis: interest tamen affciis, ad- hibetur consiliis, atque etiam jus civile publice respondet.” 326 THE HISTORY OF ROMAN LAW. authority given to Innocentius.: 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. 891. 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, legis 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 See § 361. THE HISTORY OF ROMAN LAW. 327 JuRIsts: VALENS (ALBERNUS VALENS, frag. 20), JULIAN (SaLvius JULIANUS, frag. 457). Julian was pretor, prefectus 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, 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 CazciLius, 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.s 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 Futvius, Prus 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 seq. the work of Veyhe, Libri tres edicti, ° Haubold 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. comp., 45, pr. f. lection of texts. We may alsoreferto Paul; 25,3, De agn. lid., 3, §4,£.Ulp.; 30, De legat., 1°, 39, pr. f. Ulp. 328 THE HISTORY OF ROMAN LAW. JuURISTS: TERENTIUS CLEMENS (frag. 35). Pompontus (Sextus Pompontus, 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. Votustus Mactanus (frag. 44) was, according to Capi- tolinus, the legal instructor of Marcus Aurelius. A.D. 161. Emperors: Marcus Avretius and Lucius Verus (M. Avretius 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. EmMprRoR: Marcus AURELIUS. JuRISTS: Paprrrius 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 preetorian prefect under Commodus, he was put to death upon the charge of conspiracy against the life of this prince. Scavota (Q. CERvinius, 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. Gatus (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.!. He lived under Antoninus Pius and Marcus Aurelius,’ and perhaps, when still young, in the time of Adrian.? 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, edilitium, provinciale), and the ler Papia, but also the works of the Pontifex Maximus, Quintus Mucius Scevola, gui 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 précis 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 précis of Pomponius. Besides his Institutiones and his Regula, 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- ! Quintilian, Znstit. orat., 1, 7: “Quid? Que scribuntur aliter quam enuntiantur? Nam et Guius C. littera pression he uses elsewhere when speak- ing of the senattis-consultum orphitia- num, referring to Marcus Aurelius. notatur.” 2 In the twelfth commentary of his Institutes, § 195, be applies the ex- préssion divus to Antoninus Pius, an epithet applied to those emperors who had been deified by the senate; he also adds the term pius, whereas in earlier portions of his work he calls him only Imperator Antoninus, whence we con- clude that at this time Antoninus Pius must have been dead. “Sed nuper Imperator Antoninus,’ he says in par. 126, already quoted. “ Sacratissimi principis nostri oratione” is the ex- 3 Dig. 34, 5, De rebus dubiis, 7, pr. f. Gai.: “ Nostra quidem etate Serapias, Alexandrina mulier, ad divum Hadrianum perducta est,” referring to a woman who had five children at a birth. , 4 Dig. 1, 2, De orig. jur., 1, f. Gai. : “Facturus legum vetustarum interpre- tationem, necessario prius ab Urbis initiis repetendum existimavi; non quia velim verbosos commentarios facere; sed quod in omnibus rebus animad- verto, id perfectum esse, quod ex om- 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. 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,® 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, 24, 3, Soluto matrim., 59, £. Julian. (Sabinus dicebat . . Gaius idem) ; 45, 8, De stipul. servor., 39, f. Pomp. (Gaius noster, because Pomponius was a Cassian); 46, 3, De solution., 78, f. Javol. (“in libris Gaii scriptum est’’) ; refers to Gaius Cassius Longinus, more generally called Cassius. 2 Gai., Inst., ii. 7: “In provinciali solo placet plerisque solum religiosam non fieri, quia in eo solo dominium populi Romani est vel Cesaris; os autem possessionem tantum et usu- fructum habere videmur.” 5 This law is always referred to by M. Ortolan as the loi des citations, and will be found in extenso in note 1, § 501. 4 See § 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 preceptores, diverse schole 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. 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 Alarict, .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.p. 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. Geschen, Bekker and Bethmann-Hollweg, who had been employed by the Academy of Berlin to decipher these parch- ' Gai. Inst., i. 196; ii. 15, 37, 79, 87, 98, 108, 133, 140, 141, 167, 178; i 128, 195, 200, 217-228, 231, 244; iii, 78,79,114,163. °° : 3 Vide infra, § 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 résumé 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 précis 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 “ Tnstitutes 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. Emprrors: Marcus AURELIUS and Commopvs. » 180. 4g Commopus alone (L. Antoninus Commodus). » 193. 35 PERTINAX. ge. ai 5 JuLian (Didius Julianus). 1 This manuscript, which consists of | but the identity of the work, demon- 126 sheets, is of a date anterior to the time of Justinian. Three of the middle sheets are wanting. The parchment has been scraped upon one side and washed upon the other, and the leaves arranged indiscriminately for the pur- pose of writing upon them the letters of St. Jerome. Sixty-two leaves have, in addition, a third writing, a work on theology. The last page remains intact and contains a passage relating to in- terdicts, which had already been noticed in the eighteenth century, though it was impossible to determine its author. The manuscript neither bears the title “ In- stitutiones” nor the name of Gaius; strated by the complete accordance with what we already possess, is abun- dantly evident. A second labour of revision upon this manuscript, by M. Blume, enabled M. Geschen to publish in 1824 a second and more complete edition. The blanks, however, which occur, whether as the result of the three missing leaves or the impossibility of reading that which still exists, are numerous. M. Geschen had com- menced a third edition, which was completed after his death by M. Charles Lachmann (Bonn, 1841), and many other editions have subsequently ap- peared. THE HISTORY OF ROMAN LAW. 333 894. 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 pretorian 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 Septimius 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: Paprnian, or AiMILius Papmnianus (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.? The most remarkable of these are his “‘ Questions, Answers and Definitions” (Questionum, 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 pretorian 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 Papinian 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 féte in honour of this jurist. when the students arrived at that point From this they took the name Papi- when 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,! is as honourable to Papinian as are any of his writings. Ciaupius TRYPHONINUS (frag. 79). A.D. 211. Emprrors: ANTONINUS CARACALLA and GETA. A.D. 212. 3 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 pretorian 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 LX XV. THe Jus Latii AND THE Jus Italicum UNDER THE EMPERORS. 8396. 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 ' The truth of this fact is questioned died by the order of Caracalla (Dion. by the historians about this period. Cass, lib. xxvii. §4; Spartianus, Cara- Nevertheless it is certain that Papinian call. 8; Aurelius Victor, Cxs., 20, 83). 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 ; Latii jus, or Latinorum ; Latii Veteris, or Latinorum Veterum ; libera, immunis, federata, 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. 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.* 897. 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., Mero, § 24: “Sed excussus curru, ac rursus repositus, quum per- durare non posset, destitit ante decur- sum; neque eo secius coronatus est. Decedens deinde, provinciam universam libertate donavit; simulque judices civitate Romana et pecunia grandi.” Pliny, Watur. histor., lib. iv. § 10: “ Universe Achaiz libertatem Domi- tins Nero dedit.”’ 2 Pliny, Watur. histor., lib. iii. et seq. The expression jus Quiritium, as syno- nymous with the rights of citizenship as applied to persons, is met with in connection with Cornelius Bellus, who was born at Cadiz, and was the first foreigner to whom a triumph and the rights of citizenship had been conceded. “Uni huic omnium externo curru et Quiritium jure donato.” 3 Ibid. lib, iii. § 4, in fine: “ Uni- verse Hispaniz Vespasianus imperator Augustus, jactatus procellis Reipublice, Latii jus tribuit.” 4 “ Neapolitanis etiam Palzstinensi- bus jus civitatis tulit, quod pro Nigro diu in armis fuerant.” Spartian, Life 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: Cives, Latini, or Peregrini. This personal character is still more marked after the ler Junia 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 Jtalici 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 Italicus, 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, in jure 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. 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 ' Cod. 11, 20, De privilegiis urbis tana non solum juris italici, sed etiam Constantinopolitane, 1, const. Honor. ipsius Rome veteris prerogativa lete- et Theodos.: “ Urbs Constantinopoli- tur.” : THE HISTORY OF ROMAN LAW. 337 to the condition of individuals, and whether the jus Latii, either 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 ;' all the others, amongst which are the most considerable and the most highly privileged, are only designated by him, as we have already seen,” by the terms Civium Romanorum, Latii veteris, Latti, 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. 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, who were, at a later date, ' Pliny, Hist. natur., lib. iii. § 4: “Tx colonia Accitana, Gemellenses et Libisosona cognomine Foroaugustana, quibus duabus jus Italie datum.” Abid. § 25; “Jus Italicam habent eo conventu,” etc. (Then follows a de- scription of seven populations of Illyria to whom this right had been granted.) And again, we find in the fragments of Celsus, Gaius, Paul and Ulpian, in the Digest, lib. 1. tit. 15, De censibus, intimations of many colonies, cities and territories, which had received the jus Italicum for the most part after Pliny’s time. See this subject dealt with under the head De censibus in the Digest of Justinian. 2 Vide supra, § 396. 3 Dig., ut supra, 7, fr. G. 4 Spartian, Adrian, § 21: “Quatuor consulares per omnem Italiam judices constituit.” J. Capitol, Mare. Aur. Antonin., § 11: “Datis juridicis Italie consuluit, ad id exemplum quo Adrianus consnlares viros reddere jura pracepe- rat. Z 338 THE HISTORY OF ROMAN LAW. replaced by correctores or presides, as in the provinces, and under Maximin it also lost its exemption from taxation. Section LX XVI. THE CoLonies AND MUNICIPIA UNDER THE EARLY EMPERORS —Tue Tasies oF Maraaa. 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 lxix.) of the municipal law of Malaga, which is placed by Pliny in the list of federal towns, 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, foederatorum.” THE HISTORY OF ROMAN LAW. 339 M. Giraud as to their authenticity, a fact now no longer in dispute.} 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 prefect to exercise jurisdiction in his place, and article xxvii. establishes the right of intercessio between the municipal magistrates. Articles li. to lix. of the table of Malaga treat of the convocation of the comitia and the manner of voting therein. —_~— Section LX XVII. THE RIGHTS 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. “Jn orbe Romano qui sunt, ex constitutione imperatoris Antonini cives Romani effecti sunt,” remarks Ulpian, as quoted in the Digest of Justinian.? 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- quez de Berlanga, which contains the textanda commentary; it was published in 1853 at Malaga. ‘Two other editions of the text, with notes, were published at Leipsic in 1855 by M. Mommsen and by M. Bussemeker. Another edition, by M. Henzen, came out in 1855 in the Bolletino del’ Instituto di correspon- denza archeologica. The last came out in France by M. Ed. Laboulaye (Les tables de bronze de Malaga et de Salpenza, traduites et annotées), 1856, and by M. Ch. Giraud (Les tables de Salpensa et de Malaga), 1856; Lex Malacitana, 1868, by M. Asher of Heidelburg, which contains an interest- ing discussion on the authenticity of the two monuments, ? Dig. 1,5, De statu hominum, 17, fr, Ulp. zZ2 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. 408. 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.! But this is clearly an error. And we may 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.? This is the satirical view of the ques- 1 Justin., Nov. 78, 5, by which he suppressed all the differences between the enfranchised: ‘“ Facimus autem novum nihil, sed egregios ante nos im- peratores sequimur. Sicut enim Anto- ninus Pius cognominatus (ex quo etiam ad nos appellatio hee pervenit) jus Ro- mane civitatis prius ab unoquoque sub- jectorum petitus et taliter ex iis qui vocantur peregrini, ad Romanam inge- nuitatem deducens, hoc ille omnibus in commune subjectis donavit, Theodosius junior post Constantinum maximum sanctissimum hujus civitatis condito- rem, filiorum prius jus petitum in com- mune dedit subjectis: sic etiam nos hoe videlicet regenerationis et aureorum annulorum jus, unicuique petentium datum et damni et scrupulositatis prae- bens occasionem, et manumissorum in- digens auctoritate, omnibus similiter subjectis ex hac lege damus: restitui- mus enim nature ingenuitate dignos, non per singulos de cztero, sed omnes deinceps qui libertatem a dominis me- ruerint, ut hanc magnam quamdam et generalem largitatem nostris subjectis adjiciamus.” 2 Dion Cassius, lib. Ixxvii. § 9: “Cujus rei causa etiam omnibus qui in orbe Romano erant civitatem dedit, specie quidem ipsa eis honorem tribuens, sed revera ut fiscum suum augeret, quippe cum peregrini pleraque horum THE HISTORY OF ROMAN LAW. 341 tion, a view to which the historian, writing of such a prince as Caracalla, naturally inclines, and it was a matter deeply in- teresting, 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. Cata- calla placed all upon a level, but that level was subjection to the imperial will. 405. This opinion, however, 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 czves and peregrini.' 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.? 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,’ is that the constitution of Cara- 2 The following is the translation of this sentence: —“ He (Macrin) abolished the provisions of Caracalla concerning inheritances and _ enfranchisements,” Dion Cassius, lib. Ixxviii. 12. ® Haubold: “Ex constitutione imp. vectigalium non penderent.’’ The pro- vincials did not pay these imposts be- cause, not being citizens, they could neither be heirs nor legatees under the civil law, and they could not make those enfranchisements which conferred upon the enfranchised the rights of citizenship. 1 Ulp., Regul., 17, § 1. Antonini quomodo qui in orbe Romano essent, cives Romani effecti sunt.” Leipsic, 1819. 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 Juniant. The leges Alia 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. Nor 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 subjecti. 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, De libertinis, § 3; Cod. 7,5, De deditit. lidert., and 6, De latin. libert.; Nov. 78. THE HISTORY OF ROMAN LAW. 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, Aulus 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 datam),and it is the Emperor Diocletian that the historian is addressing.! 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? 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. Severus, § 1. Geta, majores equites Romani ante 344 THE HISTORY OF ROMAN LAW. mercenaries in the pay of the emperor, who located on the furthest 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, « Rome, the capital of the entire world, in which no one is peregrinus but the barbarian and the slave.”+ 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 which 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 Cesar had already done in Rome with one of his own legions.* 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 Romans juste nuptie, 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.? “ Distantes regione plage divisaque ponto Littora conveniunt pen ta Nam per genialia fulcra Externi ad jus connubii; nam sanguine mixto Texitur, alternis ex gentibus, una propago.” The Roman armies were no longer recruited for slavery 1 “(Romam) domicilium legum, gym- * “ Quirites, discedite, atque arma nasium litterarum, curiam dignitatum, deponite.”” Lampridins, Life of Alez. yverticem mundi, patriam libertatis, in Sev., § 53; Suet., Life of J. Cesar, § 70. qua totius mundi civitate soli Barbari 3 Prudentius (a native of Tarra- et servi peregrinantur!” Sidonius conensis), y. 348. 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 mélange 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 would 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.? But from the time of the constitution of Caracalla, all subjects 1 “Supplementa legionibus scripta time of Constantius, lib. 24, § 6, sunt, indictis per provincias tirociniis.” ? Cod. 7, 25, De nud. jur. Quir.; 7 Ammian. Marcellinus, speaking of the 31, De usucap. 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 Jtalicum from this time was exclusively territorial. Section LX XVIII. Tue MopIFICATION OF THE LEGES JULIA AND Paprs POPPA —Tue 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.”? 412. Our older writers upon Roman law having only a vague notion of what could be meant by premia 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 erarium or public treasury to the jiseus or imperial treasury. Such is the sense in which Pothier, who conforms to the more advanced ! Vide supra, § 377; Ulp., Reg., tit. ? Cujas, Notes on tit. 17 of Ulpian. 17, De caducis, § 2. THE HISTORY OF ROMAN LAW. 347 interpretation of J. Godefroy and of Heineccius, understood it, as expressed in these terms, “Caduca igitur ex illa lege erario Populi Romani cedebant. Hodie ex constitutione imp. Antonini omnia caduca fisco vindicantur.” } 413. 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 (quiz 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 the jiscus the entire claim wpon the caduca. He had doubled the impost upon inheritance, legacies, donationes mortis causd (vicesima hereditatum), as also that upon enfranchisements. He filled his treasury by giving to the fiseus all the caduca. The celebes 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.* And this explains the fragment of Ulpian: “ Hodie ex constitutione imperatoris Antonini omnia caduca fisco vindicantur, sed servato jure antiquo liberis et parentibus.” 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 Regule of Ulpian and the Sententie 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 Antoninus, the whole went to the erarium; but now, by the caduca passes to the fiscus, 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.t 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 ! Regule, Ulpian, tit. 1, De libertis, § 21: “Quod loco non adeuntis lega- tarii patres heeredes fiunt.’’ Cujas, being unable to understand this text, proposed to read it, “ Prefecti erar it heredes fiunt.” Ibid. tit. 25, De fidei- commissis: “ Nec caducum vindicare ex eo testamento, si liberos habeat.” He proposed to read, “Si ex liberis existat.”? This double mention of the privilege of paternity as to claims for caduea is the only reference to it in the Regule of Ulpian. The allusions are in each case merely incidental, the one being introduced in connection with the question of validity in the case of controverted enfranchisements, in which Ulpian sets forth the points in contro- versy; the other in reference to a prior senatis-consultum, But when the jurist is actually treating of the sub- ject, under the title De caducis, he does not make the slightest mention of the rights of parents, and only refers to the claim concerning caduca in order to say that it belongs entirely to the fiscus, saving the rights of ascend- ants and descendants who enjoy the jus antiquum. The other text offers an objection in par. 3 of “ Frapmentum veteris cujus- dam jurisconsulti, De jure fisci:... Sane si post diem centesimum patres caducum vindicent omnino fisco locus non est.” This text is commonly supposed to be by Paul; some suppose it to be by Ulpian or by some other jurist. How- ever, as it is impossible to say whether this is anterior or posterior to the con- stitution of Caracalla, it ought not to be allowed as an objection. In our 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 the jfiscus instead of to the erarium. 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 erarium 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 erarium heretofore is now specifically stated to belong to the fiscus.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 the jiseus 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, antequam causa ejus era- rium deferatur professus esset eam rem quam possideret capere sibi non licere ex ea partem fisco inferret, etc. Et probasset jam id ad fiscum pertinere ac ex eo quod redactum esset a Preefectis erario partem dimidiam ferat” (Dig. 49, 14, De jure fisci, 13, pr. and § 1)—in arescript of Adrian (ibid. § 4), and in a senatis-consultum preserved by Junius Mauritianus, who wrote under Marcus Aurelius: “ Senatus censuit ut perinde rationes ad zrarium deferat is a quo tota hereditas fisco evicta est, vel universa legata” (ibid. 15, § 5). All these texts are taken from treatises upon the leges Julia et Paypia. No one can say that the word Jiseus has been substituted by Tribo- nian for @rarium, 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 under Marcus Aurelius, procced- ings took place before the prefectus e@rarii; but it was the fiseus that was proprietor, which made the claim, and which received the portion on the score of the caduca, The jfisews appears as exercising the same right in the frag- ments that we possess of jurists anterior to Caracalla (Dig. 30, De legat., 96, § 1); Gaius (Dig. 49, 14, De jure fisci, 14); Junius Mauritianus (ibid. 15, § 5 ; and in adecree and constitution of Sep- timius Severus, Circa delationes fiscales, mentioned by Ulpian (ibid. 25). It is casy to say that it is Tribonian who has used the word jfiseus instead of @rarium in every place in his frag- ments; but how does it happen that in the very chapter, De jure fisci, he so frequently employs the word @rarium, which is to be met with in almost every paragraph in a text of Junius Mauritianus (ibid. 15, §§ 1, 3, 4,5, 6), and in another of Valens (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: “Bene u Zenone dive memoria fiscalibus alienationibus prospectum est, ne ho; mines qui ex nostro @rario donationis vel emptionis . accipiunt ?” 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 “‘riehts 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, the jiscus 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 erarium and the fiscus ? 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 caduea, and then immediately adds, in his second paragraph, “ Hodie omnia caduca fisco vindicantur,” without any indication or warning that there is a whole series of persons enjoying the nights of THE HISTORY OF ROMAN LAW. 351 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 jisci, as there is nothing to authorize us in placing it posterior to the constitution of Caracalla, but of the two paragraphs taken from the Regule of Ulpian, in which can still be read the mention of the right of the patres 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 Regule 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 Antonini omnia caduca fisco 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 Regule, 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 Regule where it was indispensable to speak of them; how Paul, who wrote ten books on the same laws, pre- serves in his Sententie the same silence under the headings which most strongly suggested their mention, as those on the institution of heirs, upon legacies and upon jfideicommissa. 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 Novelle 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 Novelle 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.! 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 erarium, and he used to say that it was shameful to consider as laws the orders of a Commodus and a Caracalla.? It is not therefore without probability that among the provi- sicns 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.’ 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 guasi liability,—and taking into consideration the fact of the treasury setting aside, for those portions eaduca 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 ' Vide § 405 and reference. pridius, Life of Diadumenianus, § 4. 2 J. Capitolinus, Life of Macrinus, 3 Lampridius, Life of Alexander § 4 and § 13: “Nefas esse dicensleges Severus, § 15: “ Leges de jure populi videri Commodi et Caracalle et homi- et fisci moderatas et infinitas sanxit.” num imperitorum voluntates.” TLam- AA 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 anGestors 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 ig to another period, that of the Christian legislation inaugurated by Constantine, that it appears to us more conformable with the general course of events to attribute at gnce 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 caducq.1 JURISTS: VENULEIUS SATURNINUS (frag. 71). 419. Urpin and Pavx (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 pretorian 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). /tlius Marcianus (frag. 275). Florentinus (frag. 42). Ewilius Macer (frag. 62). Herennius Modestinus (frag. 345). EMPERORS. A.D. 217. Macrinus (Oprnius Macrinvs). » 218. HELiocasauus (M. AURELIUS ANTONINUS, cogno- mine HELIOGABALUS). 3° 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.! Pérhaps 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 § 347. AA2 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 pretors or of the proconsuls (ad edictum ; ad edictum provinciale); treatises on the functions of the magistrates (De officio prefecti urbi, pro- consulis, &c.); extensive works on the whole body of law (Digesta, Pandecte) ; or, lastly, abridgments, elementary lessons (Institutiones, Regule, Sententie). The jurists rose to the highest offices; they were counsellors of the emperor, consuls, pretorian prefects, prefects 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. GorpIAN Ist and Gorpian 2nd (Gorpranus I. and IT.). (Less than two months after) Maximus Paprenus and BALBINus. » 238. GORDIAN 3rd. » 244, Puiie (Puiviprus Arass). Purvrerus the elder, Augustus ; Puiippus the younger, Cesar. >» 249. Dxcrus. » 251. GaLLius Hostitius and Vo.ustus. » 253. AUMILIANUS. (Three months afterwards) Licmyrus VaLERIANUS and GALLIENUS. The same and VALERIANUS 2nd, Cesar. (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. CLauprus 2nd (M. Ciauprvs). » 270, AURELIANUS. » 275. TacrtTus. THE HISTORY OF ROMAN LAW. 357 A.D. 276. FLORIANUS. (Three months after) Prosus. » 282. Carus, Cartnus 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 LX XIX. 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 Rome as firmly attached to the jus publicum, and forming an important portion of that system. The pontiffs were 358 THE HISTORY OF 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 fora 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 LX XX. Tur IRRUPTION OF 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, 360 THE HISTORY OF ROMAN 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. DiocteT1an and Maxruran, A.A. (MaxIMianus HERCULIUS). CoNSTANTIUS and GALERIUS, Cesars. 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 law is the final change which he accomplished in procedure, by definitively and generally substituting the ertraordinarium judicium for the formula system. In political matters, the division of the empire and of the government between the two Augusti and the two Cesars is the principal feature of his reign. THE HISTORY OF ROMAN LAW. 361 Section LX X XI. Decay OF THE FORMULARY SYSTEM OR OF THE Ordo Judi- ciorum—TuHE EXTRAORDINARY PROCEDURE (Judicia Ex- traordinaria) INTRODUCED GENERALLY—PETTY JUDGES (Judices Pedanet). 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 legis as well as in that of the formule. 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 jurés 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 his jurisdictio 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 extraordinary recourse was had to the power itself of the magis- trate (cognitio exrtraordinaria, 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 preetorian prefects and his lieutenants participated, through delegation, in the powers of their master, the practice of using the cognitiones extraordinarie became very much more frequent. The emperor did not always himself decide the matters in which * Vide § 252. 362 THE HISTORY OF ROMAN 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 formulx, without the ordo 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 extraordinaria). 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 jurés (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 ;! 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 judictum, 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, Presides de his causis, in quibus, quod non ipsi possent cognoscere, antehac pedaneos judices dabant, notionis suze examen adhibere: ita tamen, ut, si vel propter occupa- tiones publicas, vel propter causarum multitudinem, omnia hujusmodi negotia non potuerint cognoscere, judices dandi habeant potestatem.” Cod. 3, 3, De pedaneis judicibus, 2 const. Dioclet. et Maximian. 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 judicium, 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 sug. 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 pretor 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.' The names remained, but they did not harmonize with the institutions, which were radically changed. 4830. 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 actionis), 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 pedanez?, 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, were 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 pedanet 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 disceptant, con- stituendi damus presidibus potestatem.1 Thus a constitution of Zeno attaches them in a certain number to each pretoriate. Zenonis constitutio que unicuique pretorio certos definivit judices.* 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. -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 hearg 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.* Section LX XXII. DIvIsIon OF THE IMPERIAL GOVERNMENT—Two AvuGuUSTI AND Two Czmsars. 432. Before Diocletian several princes had sometimes been seen together in the empire, Augusti and Cesars; Diocletian, 1 Cod. 3, 3, De pedaneis judicibus, 5, Const. Julian. See also Diocl. Const. 4 torian prefect; and another, “ peda- neum judicem pretorit gloriosissiméi magistri sacrorum officiorum,” 2 Novella, 82, De judicibus, cap. i. And also the preface, where it can be seen that Zeno had named in the con- stitution itself the very persons of the judices pedanei. 3 Ibid. cap. i, ii, iii, iv., v. It isin cap. i. that certain advocates personally named are qualified “ pedanei judices tui fori: this is addressed to the pre- 4 Cod. 3, 1, De judiciis, 16 const. Justinian: “ Apertissimi juris est, licere litigatoribus judices delegatos, ante- quam lis inchoetur, recusare: cum etiam ex generalibus formis sublimis- sim tue sedis statutum sit, necessita- tem imponi, judice recusato, partibus ad eligendos arbitros venire, et sub audientia eorum sua jura proponere.” 366 THE HISTORY OF 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 Casars. 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 Cesars 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 Cesars, 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, AVA. SEVERUS and Maxrimintvs, Ceesars. 433. We have now arrived at the period when the death of Constantius Chlorus brought forward on the political arena his son Constantine, 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. 367 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 Pusiicum. 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. 486. 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 senatis-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 Cesars, 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. 369 439. The ancient magistracies had either disappeared, or had become nullities. The consuls, the pro-consuls, and the pretors were still in existence, but had lost the greater part of their power and all their supremacy. From the débris 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 pretorian prefect united within himself military and civil power: the prefectus urbanus was charged with the functions of the ancient wdiles, and had a large portion of the criminal jurisdiction—the prefectus vigilum, the legati, the Czesarian 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 pretorian preefects, the urban prefects, the presidents of the provinces, were assisted by numerous persons whom they selected and who received public distinction. These functionaries, styled asses- sores (ad sessores) 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. LecisLaTIvE Powrr.—From the earliest period of the empire the leges and the plebiscita had ceased, and in the later times of the empire the senatis-consulta also disappeared, and there remained but one single source of law,—the imperial will.' ‘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 senatis-consulta of which Those referred to a later period, even we know the date with certainty be- down to Alexander Severus, are doubt- longs to the reign of Septimius Severus. ful. Vide § 349. BB 370 THE HISTORY OF ROMAN LAW. nomination or confirmation of the choice already made by the emperor of certain magistrates,! 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. Jupic1aL Powrrs.—The emperor, the senate, the pretors, the consuls, the urban prefects, the preetorian preefects 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 Marters.—To the plebiscita, enacted under the republic against certain crimes, must be added other senatis- consulta, and the constitutiones, which attach penalties to par- ticular acts styled extraordinary crimes (extraordinaria crimina). 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 prefectus 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. Highteen preetors presided at Rome over the different branches of criminal jurisprudence ; in the provinces the preses or president of each province, or the vicarius or other lieu- tenant delegated by the preefect, and above those the preetorian preefects, 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 comitia, Augustus, tickets being forwarded to each city by according to Suetonius, in order toen- _ the decurions, 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 and judicium ceased, as also between the judex and the magistrate, with this exception, that the superior magistrates, in their capacity as judices majores, in the event of being overburdened with work, delegated the trial of inferior causes to the judices pedanei. 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 Czesar. 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 Cesars 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 curiales, or curie subjecti. Wealthy citizens could be eligible to this class, and their children inherited this privilege (curialis origo). The BB2 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 curie summoned them and compelled them to return. Hence the term curie 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- bendo), 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.? 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. Tur Jus Sacrum. 445. Paganism was still the system of religion recognized by the public law ; the emperor was still the sovereign pontiff; to the divinities worshipped by the Romans the senate added the person of the deified sovereign, who took the name of divinus. 'This class, therefore, became new deities, to whose ' Cod. 20, 31, De decurionibus et filiis 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. Tuer 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 fragmenta 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, public 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, the jus 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, when 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 HISTORY OF ROMAN 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. Prrsons.—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. 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, usus was no longer a medium of acquiring it; coemptio had become rare, and confarreatio was confined to the pontiffs. Natural paren- 1 Cod. 4, 43, De patr. qui fil., 1 const. Diocl. THE HISTORY OF ROMAN LAW. 375 tage was that chiefly considered by the praetor; 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 celibes 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. Tunes AND Prorerty.—The distinction between res mancipii and res nee mancipiti 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. 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 proprietor, 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. Tesraments.—The father ofthe family had no longer the exclusive privilege of making a will, for the sons might in this way dispose of their castrense peculium. In order, how- ever, to be able to accept without restriction testamentary gra- tuities, the beneficiary must not be of the class celebs, but must have the jus liberorum, that is to say, the nghts 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 preetor had introduced another form, in which manci- 1 Dig. 41, 1, De adg. rer. 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 jidetcommissarit ap- pointed, provisions which the heir was bound to observe. 451. Succrssions.—The tendency of legislation was con- tinually leaning towards the rights of succession to natural relations ; by virtue of two senatis-consulta, children succeeded to their mother, and, in certain cases, mothers to their children.* The pretor, in order to correct and to supplement the civil law, continued to give the possessio bonorum. 452. Conrracts anp Acrions.—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 pretorian law as obligatory, had been augmented. Pacts, however, although obligatory, were not dignified with the title of contracts, which 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 extraordinaria judicia. 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 withdrawn from the striking differences which characterize distant epochs; the extent of the changes which ' The 8. C. Zertullianum (Antoni- right of succession of the mother, the nus Pius) and the 8. C. Orphitianwm _ latter the children. (Marcus Aurelius), the former for the THE HISTORY OF ROMAN LAW. 377 had taken place can only be fully realized by noting sudden tran- sitions from one period to the other. Taught 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 the jus privatum, 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. Il.—FROM CONSTANTINE TO JUSTINIAN. 454. The system introduced by Diocletian soon bore fruit ; military émeutes disappeared, and the constitutional struggle between the Augusti and the Caesars 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 Czsars, 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, Licinrus, Maximin. In the West, Maxenrius, Maxuuran, CONSTANTINE. 378 THE HISTORY OF ROMAN LAW. Death reduced the number to four, A.D. 310, and there then remained— In the East, Maximin and Licrnivs. In the West, MaxEntTIUs 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.p. 313. In the East, Licrnrus. 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 ;! and at a later date, a.D. 320, he as a consequence of this protection abolished the disability under which the celibes 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 celibes 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. * Licinius also was favourably dis- edictwm Mediolanense 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 LX XXIII. CONSTITUTIONS INVALIDATING THE Nores oF Pau, ULPIAN AND MaRrcIsN 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 Constantine 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, Scevola, Gaius, Papinian, Ulpian, 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 when 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 (propter honorem splendidissimi Papiniant), had been disparaged in the imperial constitutions ;1 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.p. 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 prudentium contentiones eruere cupientes).2 In fact, having regard to the practice in vogue in his time of accepting the authority of Papimian, 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, 48, De sentent. passis, const. unic. Constantin.: “ Re- motis Ulpiani atque Pauli notis, Papi- niani placet valere sententiam” (A.D. 321). Ibid. 1, 4, De responsis pruden- tum, 3, const. Theodos, et Valentin. : “Notas etiam Pauli atque Ulpiani in Papiniani corpus factas, sicut dudum statutum est, preecipimus infirmari” (A.D. 426). Cod. Justinian. 1, 17, De veteri jure enucleando, 1, § 6: “ Que antea in notis /imilii Papiniani ex Ulpiano, et Paulo, nec non Marciano adscripta sunt, que antea nullam vim obtinebant propter honorem splendidis- simi Papiniani, ete. . . .”” (A.D. 530). ? Cod. Theod. 1, 4, De responsis prudentum, 1, Constantinus A. ad Max. Preef. Preet.: “ Perpetuas pra- dentium contentiones eruere cupientes, ULPIANI ac PAULI in PaPINIANUM notas, qui dum ingenii landem sectan- tur, non tam corrigere eum quam de- pravare maluerunt, aboleri precipi- mus.” Dat. IIIf. Kau. oct. Con- STANTINO Il et CRISPO II Coss. (A. 821). THE HISTORY OF ROMAN LAW. 381 ‘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 sententie, worthy of being confirmed and quoted as an authority before the judges. The provisions of this constitution, which belonged to 4.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 im which the emperor alludes to the works, and especially to the sententie, of Paul. ? 458. These are the only texts relating to the authority of the jurists with which we are acquainted, and from them we 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 Papinian; 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 veter. juriscons., § 7: “Secundum sententiam Pauli juridici cujus sententias sacratissimorum prin- -cipum scita semper valituras divalis constitutio declarat.” 2 Cod. Theod. 1, 4, De responsis -prudentum, Constantinus A. ad Max- im. Pref. Pret.: “ Universa, que scriptura PAULI continentur, recepta auctoritate firmanda sunt et omni vene- ratione celebranda. Ideoque Sententi- arum libros, plenissima luce et perfec- tissima elocutione et justissima juris ratione succinctos, in judiciis prolatos valere minime dubitatur.” Dar, V KAv. oct. TREVIRIS, CONSTANTINO Cus, V et Maximo Coss, (A. 327), 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 38rd, who, in a.p. 426, introduced other changes. —~— Section LX XXIV. Tue 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. Toy of one by Papirius Justus, who lived under Marctis“Aupelius: addition to his Institutes,! 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. We also know, from passages in the Digest of Justinian, that Paul, who belonged to the time of Septimius Severus and of Caracalla, published a collection of decrees, three books of which are quoted (Decretorum, 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.4 In these 1 Dig. 2, 14, De pactis, 60, Papirius Justus, lib. viii. Znstitutionwm. 2 Dig. 49, 1, De appellation., 21; 50, 1, Ad municip., 38; 50, 8, De ad- minist. rerum ad civit. pertin., 9; all fragments of Papirius Justus, lib. i. or lib. ii, De constitutionibus. 5 Dig. 26,5, De tutor. et curat. datis, 28; 44, 7, De oblig. et action., 33; 48, 19, De penis, 40; 49, 15, De captiv. et postlim., 47, 48 and 50; 50, 2, De decurion., 9; all fragments of Paul, lib. i. or ii. or iii., Deeretorum. 4 Dig. 28, 5, De hered. instit., 92; 35, 1, De condit. et demonstrat., 113; 36, 1, Ad S. P. Trebell., 81; 37, 14, De jure patron., 24; 40, 1, De manu- miss., 10; 50, 16, De verbor. signif, 240; all fragments of Paul, Imperiali- wm sententiarum in cognitionibus pro- latarum libri sea, THE HISTORY OF ROMAN LAW. 383 collections the fact and the emperor’s decision are briefly stated: Severus Augustus dixtt ; imperator noster pronunciavit; or simply Decrevit, putavit tmperator ; placutt, 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.t 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, arg, 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.? It is cer- "Dig. 23, 1, De ritu nuptiar., 60, cianum,; others in the Mosaicarwm et Paul, ‘lib. sing. Ad Orationem Div. Romanarum legum collatio, called in Antonini et Commodi; 27,9, Derebus the middle ages Lew Dei; in the Con- cor. qui sub tutel., 2.and 13, Paul, lib. sultatio veteris cujusdam jwriscon- sing., Ad Orationem Div. Severi. sulti; some in the Lew Romana Bur- 2 Many in the Lew Romana Visigo- gundiorum, or Responsa Papiani; thorum, called also Breviarium Aliri- and in the Vaticana fragmenta, 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 Hermogentant 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.? It was divided into books, the number of which, according to the indices we 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.pD. 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.p. 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. Theod. 1,1, De constitutioni- bus principum et edictis, 5, const. Theod. et Valentin.: “ Ad similitudi- 2 The title De nuptiis alone con- tained at least thirty-two, from what we read in the following passage of the nem Gregoriani et Hermogeniani codi- cis, cunctas colligi constitutiones de- cernimus, quas Constantinus inclytus, et post eum divi Frincipes Nosque tulimus.” Collatio legum Mosaicarum et Roma- narum, tit. 6,c.5: “Hane quogne con- stitutionem Gregorianus, titulo De nup- tiis inseruit, que est trigesima et se- cunda.” THE HISTORY OF ROMAN LAW. 385 463. The information we have about the code of Hermo- genianus 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 (4.D. 364 and 365) placed under the heading, Ex corpore Her- mogeniant. 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. t., 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 whether, 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 ce 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 epitome), 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.? 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.? ' Dig. 1, 5, De statu hominum, 2, f. Hermogen.; “ Ordinem edicti perpetui secuti.”’ 2 Tituli ex corpore Codicis Grego- riani et Hermogeniani, et multo plu- res quam prioribus editionibus habe- rentur; placed-by Cujas at the end of his edition of the code of Theodosius, Lyons, 1566, in fol. Codicis Gregori- ani et Codicis Hermogeniani frag- menta, placed by Gustavus Haenel at the head of his edition of the Code Theodosius, Berlin, 1837, in quarto. 3 For the study of the public law of “this epoch I can with much satisfaction refer the reader to the work of our col- league of Dijon, entitled “ Public and Administrative Roman Law from the Fourth to the fifth century (from Constantine to Justinian),” by M. De Serrigny, Professor of Administra- tive Law of the Faculty of Dijon (Paris, 1862, 2 vols. 8vo). The laws on the subject of religion form the last book of the Cod. Theod. and the beginning of the first book of the Cod. Just. Several constitutions of Constantine are to be found in it from 4 THE HISTORY OF ROMAN LAW. 387 Section LXXXYV. CHRISTIANITY THE RELIGION 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 Cesar, 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 the jus 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.’ A.D. 313 to 336: Cod. Theod. 16, 2, De episcopis, ecclesiis, &c., seven consti- tutions, from 313 to 330; 5, De here- ticis, two constitutions, 326; 8, De Jud@is, five constitutions, from 315 to 835; 9, Ne Christianum mancipium Judaus habeat, one constitution, of 836; 10, De paganis, one constitution, of 321; and the famous constitutions of Gratian, Valentinian and Theodosius (1, De fide cathol., 2): “ Cunctos popu- los, quos clementie nostre regit tem- peramentum, in tali volumus religione versari, quam divinum Petrum aposto- lum tradidisse Romanis religio usque ad nune ab ipso insinuata declarat ” (A.D. 380). ! It was to put an end to these dis- putes that the first general assembly, known under the name of council, took place at Nicsea, A.D. 325, where there were assembled 318 bishops and a great number of priests; the emperor himself attended it. The opinions of Arius were condemned as heretical, but they were not put down, and were destined for a long time to divide the empire. cc2 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 LX X XVI. 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. Constantine 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 ideas, 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. 4°70. 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 questores sacri palatii, and the magistrates of the provinces. Section LX X XVII. Tue BisHors (Episcop?). 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 pretors, 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. —~—- Section LX XXVIII. 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 honorantur— quem sibi patrem imperator elegit). This dignity, which was honorary and lasted for life, but without any jurisdiction or im- ! Cod. 1, 4, De episcopali audientia. THE HISTORY OF ROMAN LAW. 391 pertum, 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 (qui ceteris om- nibus anteponitur). The emperor Zeno designated it an hono- rary consulship. —— Section LXX XIX. 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 consistoriant. 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.” —~— SEcTION XC. QuzstToR Sacri Paatil. 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 questor 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, De consulibus. . .et patriciis. 2 Cod. 12, 10, De comitibus consisto- sacrarum largitionum, comes rerum privatarum, comes sacri palatii, co- mites militares. It was also at this rianis. The title of comes, which sig- nifies, properly speaking, companion, and from which we have derived that of count, was not applied merely to the members of the consistory ; there were several other officers who bore it: comes epoch that the name of duz, duke, began to form the title of certain func- tionaries. See Cod. 1, 46, De officio militarium judicwm, 3, const. Theod. et Val. —~— 392 THE HISTORY OF ROMAN LAW. Section XCI. MAGISTRATES OF THE PROVINCES. 476. The empire was divided by Constantine into four great pretorian prefectorates,—the East, Illyria, Italy and Gaul. Each preefectorate was divided into several dioceses, and each diocese into several provinces.* At the head of each prefectorate was placed a pretorian prefect; to the dioceses the emperor sent, to represent the prefects, magistrates named vicars (vicari?); lastly, each pro- vince was confided to a president, who bore the title either of proconsul or of rector (rector provincia). —~— Section XCII. OTHER FUNCTIONARIES OF THE Emprre.—A NEw HieRARcHICAL NOBILITY. 4'77. To complete the list of the functionaries we must add to it the consuls, the pretors, the prefectus vigilum, the pre- Jfectus annonarum, the prefectus urbi, 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 preetorian prefects: for Constantine had suppressed the preetorian soldiers, and had left to the prefects 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 cudicu- larit, castrensiani, ministeriant, 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. 4'78. From all those offices there had issued a sort of new ! Prefectorate of the East, com- Prefectorate 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. Prefectorate of Illyria, comprising Prefectorate of Gaul, comprising Moesia, Macedonia, Greece and Crete: Gaul, Spain and Brittany: three dio- two 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 pretorian preefects and preefects of the city, the queestors of the sacred palace, and several classes of comites, gave to those who were invested with them the title and the rank of dlustres. Others, in the second degree, especially certain proconsuls or vicars, certain classes of comites or dukes (duces), &c., enjoyed the title and rank of spectabiles. 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 egregit. 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 PRIvVATUM— ABROGATION OF THE PENALTIES AGAINST C@LIBES AND Orsi—New AMENDMENTS OF THE LEcGEs Julia AND Papia. 4'79. Constantine 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 ! Notitia dignitatum Orientis et Occidentis. 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 Poppea, upon the celibes 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 penis coelibatus et orbitatis. The emperor desired that those who were styled calibes should be liberated from the penalties imposed on them by those laws, imminentibus legum terroribus liberentur, 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, sitgue 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- tur, imminentibus legum terroribus li- berentur, atque ita vivant ac si numero maritorum matrimonii foedere fulciren- tur, sitque omnibus xqua conditio ca- pessendi quod quisque mereatur. Nec vero quisquam orbus habeatur : propo- sita huic nomini damna non noceant. § 1. Quam rem et circa feminas esti- mamus, earumque cervicibus imposita juris imperia, velut quedam juga solvi- mus promiscue omnibus. § 2. Verum hujus beneficii maritis et uxoribus inter se usurpatio non patebit, quorum fal- laces plerumque blanditiz vix etiam opposito juris rigore cohibentur, sed maneat inter istas personas legum prisca auctoritas.” Cod. Theod. lib. viii. tit. 16, De infirmandis penis celibatus et orbitatis, const. Constantine, A.D. 320. The same constitution, with the exception of clause 2, which was sup- pressed in consequence of the change of 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.’ 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. Ina 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 celibes and the orbi, every vestige of which it was#onstantine’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 infirmandis penis celibatus, orbi- tatis, et de decimariis sublatis, under the name of the children of Constan- tine, A.D. 339; but it is asserted by the historians that Constantine was the first author of it, and that the code Theodosian is right. 1 « Aut si filium filiamve communem habeant.” Regule Ulp. tit. 16, De solidi capacitate inter virwm et ua- orem. We have in this article of the Regula of Ulpian, and in that which precedes it (tit. 15, De decimis), de- tailed indications on the limits of the capacity which husband and wife had to receive legacies from each other, and on the various conditions the fulfilling of which would confer that capacity in 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, vel reformatur non sit incognitum).! 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 init. 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 solicite@ 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 hec a nobis jus liberorum petat, quod simul hac lege detulimus.”* This is not so general as it might 1 Code, lib. vi. tit. 51, De caducis tollendis, const. Justinian, A.D. 534: “§ 2. . Consentaneum est et tem- pora eorum, et nomina manifeste expo- nere: ut quod vel tollitur, vel reforma- tur non sitincognitum. . .” “§10. Necessarium esse duximus omnem in- spectionem hujus articuli latius et cum subtiliori tractatu dirimere, ut sit om- nibus et hoc apertissime constitutum.’’ 2 Code Theod. lib. viii. tit. 17, De jure liberorum, constitution 3 of Hono- rius and of Theodosius, A.D. 410. 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.p. 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.} 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. It was applied to the right of mothers to succeed to their own children. The question is not here about testamen- ' Code Theod. lib. viii. tit. 17, con- stitution 1, Arcadius and Honorius, A.D. 396: “Sancimus, ut sit in petendo jure liberorum sine definitione temporis licentia supplicandi, nec implorantum preces xtas vel tempus impediat, sed sola miseris ad poscendum auxilium sufficiat desperatio liberorum.” 2 Code Theod. lib. viii. tit. 17, con- stitution 2, Honorius and Theodosius, A.D. 410: “In perpetuum hac lege de- cernimus, inter virum et uxorem ratio- nem cessare ex lege Papia decimarum, et quamvis non interveniant liberi, ex suis quoque eos solidum capere testa- mentis, nisi forte lex alia imminuerit derelicta. Tantum igitur post hec ma- ritus vel uxor sibi invicem derelinquant, quantum superstes amor exegerit.” It is in the latter part of this constitution that the prohibition occurs, made by these same emperors, forbidding any application to them for the future for the jus lberorwm, since they had granted the concession generally. Cujas and Godefroy were perfectly right in saying that the only thing referred to in this constitution was the jus liberorwm between husband and wife ; the provision is quiteclear. But we must go further; all this article of the code Theodosian, De jure libero- rum, relates to that same question; the four laws which compose it, from the first to the second, have no other sense, meaning or application; it is sufficient to note the terms used in connection with the whole context from the first to the fourth to be convinced of this. 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 senatis-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 senatés-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 ingenue, 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 eniza). 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 ceelibes and ordi, had no con- nection with those special rules regulating the succession ad 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 infestato to a third portion.! 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.” 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- ? Code Just. lib. viii. tit. 59, De jure mis heredibus, 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- tine’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 fiscus 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 the fiscus, 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 the fiscus claimant of all the caduca. The reaction which took place in subsequent reigns resulted in the abrogation of the constitution of Cara- 1 Tantum etenim nobis superest cle- prodest, hoc (rei) private: nostra utili- mentia, quod scientes etiam fiscum nos- tati preeferendum esse censemus, nos- trum ultimum ad caducorum vindica- trum esse proprium subjectorum com- tionem yocari, tamen nec illi peperci- modum imperialiter existimantes.” mus, nec Augustum privilegium exer- Cod. Just. 6, 51, De caducis tollendis, cemus: sed quod communiter 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 celibes 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. (S% omnibus equa 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.t 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 celibes 1 «Ht quemadmodum in multis capi- tulis lex Papia ab anterioribus Princi- pibus emendata fuit, et per desuetudi- nem abolita: ita et a nobis circa caduco- rum observationem invidiosum suum amittat vigorem. . . Et cum lex Papia, jus antiquum, quod ante eam in omnibus simpliciter versabatur, suis machinationibus et angustiis circum- cludens, solis parentibus et liberis testa- toris usque ad tertium gradum, si scripti fuerant heredes, suum imponere jugum erubuit, jus antiquum intactum eis con- servans: nos omnibus nostris subjectis sine differentia personarum (hoc) con- cedimus.” No explanation will ac- count, as this does, for all this constitu- tion De caducis tollendis, considered either in its entirety or in each of its details. Independently of what con- cerns the suppression of the provisions by which the time of the opening of the will had been substituted for that of death, by the lex Papia, sole cause of exceptional lapse which still existed and which Justinian removed, we see that the tendency of this constitution was to regulate anew the jus accre- scendi and the results arising from va- rious joinders of beneficiaries, by sub- stituting for all, this jus accrescendi to the caducorum vindicatio, without a single word indicating that this vindi- catio was not itself already general, but, on the contrary, distinctly declar- ing that without distinction it had reference to all, THE HISTORY OF ROMAN LAW. 401 and of orbi, they had almost all disappeared; that arising from 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 celibes and orbi, which Constantine had desired to suppress, for from whom would the patres have taken these lapsed portions? Clearly from the celibes 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). 402 THE HISTORY OF ROMAN LAW. Section XCIV. AGRICOLE 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 agricole, 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 inguilini, 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 censitt, adscriptitii or tributarit, the other, inguilini, 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 origin of our ancient serfdom. 1 See Cod. Theod. lib. v. tit.9, De peculium vel litem inferat et civilem. Sugitivis colonis, inquilinis et servis; Also Cod. Just, lib. xi, tit. 47, De agri- tit. 10, De inguilinis et colonis; tit. 11, — colis et censitis et colonis, et seq., 49, Ne colonus insciv domino suumalienet 60, 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 tributarii, 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. The name of censiti, adscriptttit or tributarii was given to them from the fact that their names were inscribed in the census as servi colon, and as subject to the payment to the fiscus of a capitation or poll tax. As to the proprietor of the land, as they were his slaves and as their pecudium 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 inguilini, sometimes termed simply coloni, more closely resembled the class of freemen. 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. 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.® 490. To what cause must this new form of human servitude 1 Alii sunt adscriptitit et eorwm (Cod. ibid.). : peculia dominis competunt (Cod. 11, 4 Cod. 11, 47, De agric., 23, § 1, 47, De agricolis et censitis et colonis, const. Justinian, ; 19 const. Theod. and Valent.). 5 Ut licet conditione videantur in- 2 Thid. const. 10, Valent. and Valens. genwi, servi tamen terre ipsius cui 3 Alii coloni fiunt, liberi manentes nati sunt existimentur (Cod. 11, 51, cum rebus suis, et ti etiam coguntur De colonis Thracensibus). terram colere et canonem prestare 6 Ibid. 4, const. Valent. and Valens. z DD2 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 Scevola, 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 fundo 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 Sententie of Paul, that it was a question whether the master could transfer them from one estate to another.2 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;? 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 colonit of the wealthy, giving up their liberty, and submitting themselves to the condition of inqutlini.* 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 colont. To this effect is the constitution of Honorius, discovered in our own time by M. Peyron, amongst the fragments of the Theodosian code.® ' Dig. 33, 7, De instructo vel in- strumento legato, 20, pr. £. Sczevol. 2 Paul, Sentent., 3, 6, De legatis, 48. : 3 “Si quis inquilinos sine prediis quibus adherent legaverit: inutile est legatum.” Dig. 30, De legatis, 1, 112, pr. f. Marcian. “Si quis inquilinum, vel colonum, non fuerit professus, vin- culis censualibus tenetur.” Dig. 50, 15, De censibus, 4, § 8, f.Ulp.; “. . . Nisi ex his (servis) aliqui perpetuo ad opus rusticum transferantur.” Paul, Sen- tent., 3, 6, De legatis, § 70. See also Dig. 27, 1, De excusationibus, 17, §7, a frag. of Callistratus. 4« ., Fundos majorum expetunt, et coloni divitum fiunt . . jugo se inquiline abjectionis addicunt, in hanc necessitatem reducti, ut extorres non facultatis tantum, sed etiam conditionis suze . ., et jus libertatis amittant.” Salv., De gubernatione Dei, ch. 8. * Cod. Theod. 5, 4, De bonis mitlit., const. 8, Honorius: “ Scyras barbaram nationem . . imperio nostro subegi- mus. Ideoque damus omnibus copiam ex pradicta gente hominum agros pro- prios frequentandi; ita ut omnes sciant, susceptos non alio jure quam colonatus apud se futuros: mnullique licere ex hoc genere colonorum ab eo cui semel adtributi fuerint vel fraude aliqua ab- ducere, vel fugientem suscipere; pcena proposita que recipientes alienis cen- sibus adscriptos vel non proprios colonos insequitur. “QOpera autem eorum terrarum do- mini libera wtantur, ac nullus subacta perzquationi vel censui swbjaceat : nul- lique liceat velut donatos eos a jure census in servitutem trahere, urbanisve obsequiis addicere.” 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 CoNnsTANs. 3 340. ConsTans and CoNnsTANTIUS. —~— SEcTION XCV. SUPPRESSION OF THE ForRMULE (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 eretiones 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 OF ROMAN LAW. 407 them verbal snares, apt to mislead. “ Juris formule, aucupa- tione syllabarum instdiantes, 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.p. 339, had abolished the necessity of all symbolic formule, in the institution of heirs, grants of legacies, and generally in testamentary documents.” The rescript of Constantius extended and generalized this aboli- tion to all legal formule (Juris formule, 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 verbdis. 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. 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 uponmen? 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- 2 Cod. 6, 23, De testamentis, 15 trationibus actionwm sublatis,1. This const. Constantine IT.; 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, 11, De paganis, et sacrific., tion of the consulate, show that it 1 const. Const. A.D. 342, belongs to the time of Constantius. 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.! EEMPERORS. A.D. 350. ConsTANTius and Maenentius, A.A. — GaALLus, Cesar. A.D. 353. Constantius, alone.—Avueustrus GALLus, Cesar. A.D. 355. CONsTANTIUS, alone.— AUG. JULIAN, Cesar. It was about this period, a.D. 360, that Constantius established at Constantinople a prefectus 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 Cesar 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 wandering 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 et Mathematicis, 2 const. Diocl, and 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 his successor, who immediately restored the Christian religion throughout the whole empire. 410 THE HISTORY OF ROMAN LAW. EMPERORS. A.D. 363. JOVIANUS. » 364, VALENTINIANUS Ist and VALEns, A.A. » 867. VALENTINIANUS lst, VALENS and GRATIANUS. » 9375. VALENTINIANUS 2nd, VALENS and GRATIANUS. » 879. VALENTINIANUS 2nd, THEoposius Ist and GRa- TIANUS. » 383. VALENTINIANUS 2nd, THEODOSsIUS Ist (384), ARCA- prus (son of THropostius, declared Augustus). » 3892. THEoposius Ist, ARCADIUS. » 393. THEoposius Ist, Arcaprus, Honorius (son of THEoposIvs, 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. 411 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. 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. The East. A.D. 395. Honortus. A.D. 395. ARCADIUS. » 408. THEoDosIUS 2nd. » 423. JOHN W@Woannes ty- rannus). », 425. VALENTINIANUs 3rd. —— Section XCVIII. Tur Pusiic ScHOOLS OF CONSTANTINOPLE AND OF RomE. 498. A school was already in existence at Rome, when Theodosius established one at Constantinople, a.p. 425. His Just., Vov., 15, preface. ‘ ; Cod. 1, 55, De defensoribus civi- atu, 412 THE HISTORY OF ROMAN LAW. constitution, which was published under his own name and that of Valentinian, 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.! —>— Section XCIX. Tue Responsa PRupENTUM—LEX DE RESPONSIS PRUDENTUM. 499. s.p. 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.* 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. Theod. 14, 9, and Cod. Just. 2 See § 389. 11, 18, De studiis liber. urbis Rome % See § 456, 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 Sczevola, 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 text of which we do not however possess. 501. The jurists whose works it was permitted to quote and whose opinions were thus supposed to be settled, having been fixed by law, the judge and the parties interested were bound by them, provided that if these authorities differed the majority determined the point; if they were equally divided, the opinion supported by Papinian was to prevail; and if the opinion of Papinian was not expressed the judge was at liberty to follow whichever he pleased.? 1 Cod. Theod. 1, 4, De responsis prudentum, 3; Impp. Theodosius et Valentinianus AA. ad Senatum urbis Rome: “PAPINIANI, Pavui, Gat, ULPIANI atque MODESTINI scripta universa firmamus, ita ut Gaium, que Paulum, Ulpianum et ceteros, comite- tur auctoritas, lectionesque ex omni ejus opere recitentur. Eorum quoque scientiam, quorum tractatus atque sen- tentias preedicti omnes suis operibus miscuerunt, ratam esse censemus, ut ScaZVOLA, SABINI, JULIANI atque MARCELLI, omniumque quos illi cele- brarunt; si tamen eorum libri, prop- ter antiquitatis incertum, codicum col- latione firmentur. Ubi autem diverse sententiz proferuntur, potior numerus vincat auctorum ; vel si numerus equa- lis sit, ejus partis pracedat auctoritas, in qua excellentis ingenii vir Papinianus emineat, qui, ut singulos vincit, ita cedit duobus, Notas etiam Pauli atque Ulpiani in Papiniani corpus factas, si- cut dudum statutum est, precipimus infirmari. Ubi autem pares eorum sen- tentize recitantur quorum par censetur auctoritas, quod sequi debeat eligat mo- deratio judicantis, Pauli quoque sen- tentias semper valere precipimus.” Dat. VII ID. Nov. RAVENNA, DD. NN. THEOD. XII ET VALENT. Il. Coss, (426). Several difficulties have in modern THE HISTORY OF ROMAN LAW. 415 We may well ask what the magistrates, judges and lawyers of that period were like when we find the duties of their respec- times been started in Germany con- cerning this constitution, which, in our opinion, are of secondary importance, inasmuch as they in no way affect the general spirit of the history. Ist. The lex de responsis prudentum confirms and authorizes the quotation and calculation before the judge of the decisions of the five jurists whom it specifies, and of all other jurists quoted bythem. Does the maxim apply, “ Qui dicit de uno negat de altero?” Speak- ing generally, we answer in the aftirma~- tive; that is to say, no other jurists except those comprised within the terms of the constitution could be cited and counted. It is difficult to see how this can be disputed, inasmuch as this is the direct object of the constitution; but looking at the provisions of the consti- tution itself, as regards the older jurists, whose opinions are cited by the five select jurists, it may be a question whether all the works of the former are referred to, or only those passages which are quoted. The text appears ambiguous ; we are, however, of opinion that it refers solely to the passages cited; and, in addition to general reasons, we see direct proof of this in the necessity imposed by the constitution of verifying the correctness of the quotation by means of the com- parison of manuscripts. In the disser- tation of Puchta, in his Cours d’ Insti- tuts, par. 133, we do not see any opinion clearly expressed upon this point, nor is it certain that he is in fact referring toitatall. With regard to those jurists who are neither referred to directly or indirectly in the provisions of the con- stitution, it may be asked whether they were excluded by it? and was this the case with respect to those who had been amongst the number of the authorized jurists, or did they preserve their ancient authority ? As opinions to be cited and reckoned, their authority was cer- tainly not retained, but in a scientific point of view the case was different. The constitution could not affect their authority as individual writers. This question, however, does not in reality arise, because the decisions of the autho- rized jurists never had, in our opinion, the force of law, except so far as it was given them by the provisions of the constitutions of Adrian, Constantine, and of Theodosius and Valentinian, all other documents were hypothetical and little known. Notwithstanding the argument and the quotation adduced by Puchta in support of this theory, that all the ancient jurists formerly authorized preserved their authority, he does not give it as his opinion that they could be quoted independently of the constitution ; but he intimates that they were comprehended in the constitution. In effect, Puchta says, and I am of opinion that this is the only conclusion to be arrived at, that the only object of this law was to lessen the burden of the judges, and to restrain within certain limits the number and authority of the authorized jurists. Its sole object was to furnish an easy and practical means of determining which authorities should be recognized, and it specified the five jurists and those quoted by them, and the emperor was sure to comprehend all jurists who were really good autho- rities, and to exclude those who were not. We must not be misunderstood as saying that the five jurists never cited in their works any jurist except those authorized; this is extremely doubtful, and it is equally difficult to believe that they cited all those jurists who were in fact authorized. But be this as it may, whether we admit it or not, it does not come under considera- tion in the question as to the basis of the law; it is simply a question of in- tention. We adhere to what we have already said, and we find ourselves con- firmed by Theodosius himself in con- nection with the publication of the Theodosian Code, (See § 502.) The following is the expression used in the Breviarium Alarici, as well as in all the editions of the Theodosian Code: “ Hae lex ostendit, quorum Juris conditorum sententiea valeant. Hoe est Papiani, Pauli, Gaii, Ulpi- ani, Modestini, Scavola, Sabini, Juliani atque Marcelli. . . sScevola, Sabinus, Julianus atque Marcellus in swis corporibus non inveniuntur sed in praefatorwm opere tenentur in- serti.” Apart from all uncertainty as to detail, this extract clearly shows the 416 THE HISTORY OF ROMAN LAW. tive offices reduced to mere compilation or comparison, and numerical calculation of legal opinions? Was this a legitimate application of the powers of reason and of learning? Assuredly the science of jurisprudence could not sink to lower depths of degradation. But it is to be observed that Justinian, in his Digest, discarded this numerical operation, giving to those whom he charged with the work of compiling the Digest free choice to select the opinions of the jurists, and even to adopt that of one in opposition to the many, and to use the notes of Paul, Ulpian and Marcian upon Papinian, notwithstanding the fact that they had been proscribed. —~—- Section C. Tue THEODOSIAN CODE. 502. a.p. 438. In addition to the enactments of Theodosius upon the works of the jurists, to which we have just alluded, we have others enacted three years later, on the imperial con- stitutions. He took as a model (ad similitudinem Gregoriani atque Hermogeniani Uodicis) the collection of rescripts methodi- cally arranged and published under the title of codes, but with- out legislative authority, by Gregorianus and Hermogenianus, and which did not go below the time of Constantine ; and he directed a similar collection of all the constitutions of Constan- tine and the succeeding emperors, including himself, com- spirit in which this law was understood after it had been in application for eighty years. 2nd. The expression in the text is, “ Si tamen eorum libri.” Does this relate to the works of the jurists speci- fied, certain editions of which were to be referred to in order to ascertain that the text was correct; or to the works of the jurists cited by them, copies of which must be compared in order to verify the accuracy of the passage quoted? We are of the latter opinion, but though the question is not without interest it is most unimportant. In either case comparison is to be made. Puchta, who agrees with us in this opinion, also thinks that the passages quoted are those alone which bear upon the point. 3rd. The third difficulty results from the mode in which reference is made to Gaius, “ita ut Gaium . » ete.” Was it necessary for the emperor to insist upon Gaius being held to have this authority as well as the others? In certain parts of the empire this might be attended with some difficulty. Was Gaius in fact one of the authorized jurists? It appears that he was not; we have already referred to this in § 393. 1 Just., De conceptione Digest., § 6. THE HISTORY OF ROMAN LAW. 417 mencing from the period when the other collection left off, to be drawn up by two successive commissions under the super- intendence of Antiochus, ex-consul and ex-pretorian preefect (cunctas colligi constitutiones decernimus, quas Constantinus inelytus, et post eum divi Principes Nosque tulimus). In the title of this collection we find set down the composition of the first commission which was appointed, a.p. 429, in which there were eight members of the rank of illustres or spectabiles, and a jurist styled vir disertissimus et scolasticus ; and the appoint- ment for the same object of a second commission, A.D. 435, in which were sixteen members, zllustres or spectabiles. In both cases, at the head of these commissions, we find the name of Antiochus, a personage of consular and prefectorial dignity. The principal object assigned by Theodosius for this under- taking was the astonishing paucity of persons familiar with the civil law (tam pauci raroque extiterint, qui plena juris civilis seientia ditarentur). After all their labours scarcely two were to be found who had anything like a perfect acquaintance with the law (tn tanto lucubrationum tristi pallore vix unus aut alter receperit soliditatem perfecte doctrine). This is a result which must be attributed to the immense accumulation of books (copia immensa librorum) and to the pile of imperial constitu- tions (moles constitutionum divalium), which involved the human mind in a maze of inextricable confusion (qu@ velut sub crasse@ demersa caliginis et obscuritatis vallo, sui notitiam humanis ingeniis interclusit). 508. This work, which was completed after nine years’ labour, received the imperial sanction, and was published in the East in the February of a.p. 438, under the name of the Theodosian Code, with the injunction that from the calends of January, A.D. 439, it was to be the sole source of imperial law (jus principale).® ! Cod. Theod. 1, 1, De constitutioni- §2: “Nulli post. Kal. Jan. concessa bus principum et edictis. 5 Theod. and Valent. A.D. 429 and 6 Ibid. A.D. 435. 2 De Theodosiani codicis auctori- tate, const. Theod. and Valent. A.D. 438, princip. et § 1 in the introduction. 3 De Theod. codicis auctoritate, licentia, ad forum et quotidianas advo- cationes jus principale deferre vel litis instrumenta componere, nisi ex his vide- licet libris, qui in nostri nominis voca- bulum transierunt et sacris habentur in scriniis.” EE 418 THE HISTORY OF ROMAN LAW. Valentinian III., the Emperor of the West, also published it in the same year, and the discovery made by M. Clossius in our own time, together with other interesting documents, pre- sents us with the verbal process employed for the reception of this code by the Roman senate, and the acclamations to which it gave rise: “Augusti Augustorum, Maximi Augustorum,” eight times repeated; “God has given thee to us, may He preserve thee to us”(Deus vos nobis dedit, Deus vos nobis servet), repeated twenty-seven times; “ Hope lives in thee, safety depends upon thee” (Spes in vobis, salus in vobis), repeated twenty-six times; “ Dearer than our children, dearer than our fathers” (Liberis cariores, parentibus cariores), re- peated sixteen times; “ Honours spring from thee, patrimonies are derived from thee, all things flow from thee” (Per vos honores, per vos patrimonia, per vos omnia), repeated twenty- eight times. Such were the utterances of the Roman Senate under the Lower Empire! We sometimes hear similar senti- ments uttered in the shape of after-dinner speeches and toasts at public banquets, but never in any other form or at any other time, and then their character is well understood and their value appreciated. But here we reckon fifty-one of these expres- sions, for in each case the number of times each expression was repeated is stated. Of these expressions or acclamations some were addressed to the high functionaries of the palace and others to the code itself, thus: “ Let numerous copies be made at the public expense! Let the seal be impressed upon them, and let them be deposited in the public archives! Let them be circulated throughout the provinces! Let a copy be suspended in the office of every prefecture! Let it be for- bidden to add notes!”1 It is reported that Napoleon I., when he saw the first commentary upon the civil code, exclaimed, ** My code is lost !” 504. The Theodosian code is divided into sixteen books, and each book into a number of titles, in which the matter is methodically distributed, and each constitution placed, accord- 1“ Gesta in Senatu urbis Rome de the introduction to the Theodosian recipiendo Codice Theodosiano” (in code). THE HISTORY OF ROMAN LAW. 419 ing to the subject of which it treats, in its chronological order. When a constitution embraces several subjects, its provisions are divided and placed under the respective heads to which they refer... The second commission had received the power to make such alterations and modifications of the text in the constitutions as might appear desirable; the result is that we do not in all cases possess the true original text.* The jus civile privatum occupies the first five books; certain additional provisions, however, respecting it, and of a very im- portant character, are blended with other books (lib. viii., tits. 12 to 19 and lib. x1., tits. 30 to 39). It was arranged like the commentaries upon the edict; we already know that this was the traditional classification observed in jurisprudence, and this was the order followed by Hermogenianus in his abridgment of the law.’ In the following eleven books, with certain exceptions where there is some confusion, the law is dealt with in the following manner: lib. vi. treats of magistracies and other offices; lib. vil. of military matters; lib. viii. of inferior offices and certain accessory institutions; lib. ix. of criminal matters; lib. x. and xi. of fiscal matters and tribute; lib. xii. to xiv. of towns and corporations; lib. xv. of public works and games; lib. xvi. of ecclesiastical matters. 505. The first five books, dedicated to the jus ctvile pri- vatum, are the most defective; but from the end of the sixth book till the last they are complete. Of the first five books all that we possessed consisted of some incomplete extracts quoted in the Breviarium Alaricum when M. Amédée Peyron discovered in the library of Turin, and M. Clossius discovered in the Ambrosian library of Milan, portions of the constitutions com- prised in the first five books. M. Haenel at Leipzig in 1842, and M. Vesme at Turin in 1844, published complete editions of the Theodosian code, so far as these new discoveries permitted. 1 Cod. Theod. 1, De constitut. prin- ? Thid. § 1: “Et demendi superva- cip., 6, pr. Theod. and Valentin. A.D. canea verba, et adjiciendi necessaria, 435: “Ac si qua earum in plura sit et mutandi ambigua, et emendandi in- divisa, capita, unumquodque eorum dis- congrua tribuimus potestatem.” junctum a ceteris, apto subjiciatur 3 Vide § 465. titulo.” EE2 420 THE HISTORY OF ROMAN LAW. 506. Were the three codes of which we have already spoken, the Gregorian, the Hermogenian, and the Theodosian, in our possession they would furnish us with a series of the most important imperial constitutions, from the reign, at least, of Septimius Severus to that of Theodosius and Valentinian. Unfortunately, however, we have but a few extracts from the two former. The Theodosian code forms one of the most important monuments extant concerning the history of the law, whether we consider the great number of the legislative enact- ments which it contains, or its application and influence upon the two divisions of the Roman world; an influence which, in the western empire, even survived its fall. 507. The Theodosian code was followed by new constitu- tions, designated by the general name of novelle. Measures had been taken to prevent the unity of the imperial law (jus principale), which had been formerly established both in the East and West by the publication of this code, from being disturbed by subsequent constitutions. These novelle were not to have the force of law till they had been published in one of the two empires, and transmitted to the other and there also published.'. We have proof that these regulations were observed by Theodosius and his successor Marcian, probably also on his side by Valentinian; but this practice fell into disuse, and we are indebted to Haenel for the remark that the novelle of the emperors of the East, but none of those of the emperors of the West, appeared in the code of Justinian; whence we conclude that the novelle of the West had not been recognized in the East.? ! Cod. Theod. 1, 1, De constit. prin- cip., 5(A.D. 429): “In futurum autem, si quid promulgari placuerit . . . etc.” De Theodosiani codicis auctoritate (A.D. 438), § 5: “His adjicimus nul- lam constitutionem in posterum velut latam in partibus Occidentis, aliove in loco ab invictissimo principe, filio nos- tre clementiz, perpetuo augusto, Valen- tiniano posse proferri, vel vim legis ali- quam obtinere, nisi hoc idem divina pragmatica nostris mentionibus obtine- tur, § 6. Quod observari necesse est in his etiam que per Orientem nobis auc- toribus promulgantur.”’ ? Editions of these novelle have been published by Godefroy in 1566 as an- nexes to his Theodosian code; by J. Sirmond, Paris, in 1631; and by J.C. Amadutius, Rome, 1767; the most recent and complete being that by Haenel in 1844, —~—. THE HISTORY OF ROMAN LAW. 421 Section CI. THEODOSIUS PROJECTS AN EXTENDED Copp. 508. The reign of Theodosius, whether it is to be ascribed to the tendency of the prince himself or to the influence of Antiochus, his preetorian preefect and the president of his law commissions, was characterized by the efforts made to elucidate, simplify and reduce the bulk of legal compilations, which had been accumulating through centuries, to a reasonable and manageable compass, and for the attempt to extract rules adapted to the conditions of the time. The lex de responsis pendentum or loi des citations was the first step in this direction, so far as regarded the works and responsa of the jurists, but much remained to be done. Three years later, a.pD. 429, the constitution appeared direct~ ing the collection of the imperial constitutions, from the time of Constantine, upon the model of the Gregorian and Hermogenian codes. This same constitution reveals the project of the emperor and the end which he had in view. 509. The three codes, the Gregorian, the Hermogenian and the Theodosian, according to this first ordinance, were to form, in a certain sense, three historical codes, containing the series of imperial constitutions up to that time chronologically arranged, so as to preserve the record of these constitutions, showing at once by this arrangement, both in the order of the subject ‘matter and in the chronological arrangement of each subject, what were the previous provisions which had been abrogated by subsequent enactments (non solum reputatis consulibus et tempore quesito imperti, sed ipsius etiam compositione operis, validiora esse que sunt posteriora monstrante). But as it was more simple and more correct in practice to omit the portion which had been abrogated, or which had fallen into disuse, and only to cite that which remained in force (sed cum simplicius justiusque sit, pretermissis eis quas posteriores infirmant, explicari solas quas valere conveniet), the emperor announced a new code of a different description to the preceding, which was to be undertaken and published after the completion of his 422 THE HISTORY OF ROMAN LAW. first code (qui, cum primum Codicem nostre scientie et publice auctoritati obtulerint, aggredientur alium, donec dignus editione Suerit, pertractandum). 510. This was to contain, arranged under each title, the extracts from the three preceding codes, and those from the treatises and responsa of the jurists in force (ex his autem tribus Codicibus et per singulos titulos coherentibus prudentium tractatibus et responsis). ‘ This would be,” said the emperor, “ another code for us, which would not admit of any error or ambiguity, and which, bearing our name, would show to all what should be followed and what avoided” (noster erit alius, qui nullum errorem, nullas patietur ambages, qui, nostro nomine nuncupatus, sequenda omnibus vitandaque monstrabit).+ This last project was not carried into effect, and it was reserved till the reign of Justinian, when the idea, with certain modifi- tions, was carried out. —>— Section CII. FRAGMENTA VATICANA—MosaICARUM ET ROMANARUM LEGUM CoLLATIO — CONSULTATIO VETERIS CUJUSDAM JURIS- CONSULTI. 511. We must notice in this place three documents, or three classes of works upon Roman law, the precise date of which is uncertain, but which belonged to the period of the fourth and fifth centuries, in which we find an indication of a sort of revival of the study of law, at least so far as regards the compilation and quotation of texts. These works are consequently of much value. The first is anterior to the code of Theodosius, the date of the second is doubtful, and the third certainly belongs to a date subsequent to that of Theodosius. 512. M. A. Mai, a librarian of the Vatican, recognized in a manuscript of Cassian twenty-eight folios or leaves of palimpsests, the first of which consisted of a collection of fragments from 1 Cod. Theod. 1, 1, De constit. princip., 5, Theod. and Valent. A.D. 429. THE HISTORY OF ROMAN LAW. 423 the works of Roman jurists and from the imperial constitutions: he published the first edition at Rome in 1823 under the title of Juris civilis antejustinianei reliquie inedite ; a publication which was reproduced at Paris in 1823 by the editors of the Themis, and at Berlin in 1828 under the title of Fragmenta Vaticana; several other German and French editions have also appeared.1 513. We see, by the numbering of the sections or parts that we possess, that those which have been discovered are neither the commencement nor the end of the collection, nor do they follow in a regular order, being separated, in the greater number of instances, by gaps more or less considerable, the extent of which we are able to determine by means of the missing numbers; it is also apparent that this collection was of a most extensive character. Calculating from the numbers of the sections in our possession, we conclude that they do not comprise a fifth of the whole. The collection was divided into sections or titles, each with its own rubric; seven of these titles, at least in part, are in our possession.? For the convenience of reference late editions are divided and numbered by paragraphs which do not belong to the manuscripts. The illegible passages, or those of which only a portion are legible, are numerous. 514. This collection, in which it is difficult to discover any general design, and, frequently, any logical connection, it is clear was not a complete work. It appears to be a mere collection of materials, intended either to be consulted at will by the collec- tor, or to serve some purpose preparatory to some other com- position. An attempt has been made to connect it with the final project of Theodosius, and it has been attributed to Her- mogenianus, the author cf the Juris epitome, on account of the almost complete identity that exists between one of its para- 1 The besteditionis that by Betmann fructu; De re uxoria et dotibus; De Hollweg, 48 incerto scriptore collecta excusatione; Quando donator intel- fragmenta que dicuntur Vaticana, ligatur revocasse voluntatem ; De do- Bonn, 1833, in 8vo., upon which the xationibus ad legem Cinciam 3; De later editions have been founded. cognitoribus et procuratoribus. 2 Ex empto et vendito; De usu- 424 THE HISTORY OF ROMAN LAW. graphs and the fragment of this author cited by Justinian.’ These are, however ingenious, mere conjectures. 515. The works of Roman jurists whose fragments we find quoted verbatim in this collection, with an indication of the author, are principally those of Paul, and less frequently those of Ulpian; Papinian is also quoted, but more rarely, and there is a single extract from Celsus, from Julian, and from Marcellus. The writings or the opinions of the ancient jurists Trebatius, Labeo, Cassius, Proculus, Sabinus, and of their successors, Celsus, Aristo, Neratius, Julian, Marcellus, Pomponius, and Scevola, are frequently quoted in the course of numerous para- graphs which have the appearance of notes. Amongst the im- perial constitutions cited as extracts, the dates of which may be determined by the consulates, the most ancient is that of Marcus Aurelius, A.D. 163, and the most recent that of Valentinian I., A.D. 372. The collection is therefore posterior to this latter epoch. The Gregorian code is quoted five times, and the Her- mogenian code once; but there is no trace either of the con- stitutions or the code of Theodosius, whence the probable con- jecture that this collection is anterior to its publication. 516. The law thus collected in the texts or quotations from the ancient jurists is the pure classical law of the age of the jurists, which had been in many particulars abrogated at the time of the collection. The nature and indication of the sources whence the law is derived is of great service to us in the his- torical study of Roman law; and we have gathered from it some information concerning usufruct, dower, and especially the provisions of the lex Cincia relative to the regulations concerning donations, on which points we were previously without details. 517. The second work to be noticed is a comparison between the Mosaic and the Roman laws, made by an unknown author, and at a date which is also uncertain. It was discovered in the sixteenth century. Tillet found certain manuscripts, and ° Fragmenta Vaticana, ex empto et actionibus empti ct venditi, 49, pr. fr vendito, § 13; and Dig. 19, 1, De Hermogen, . PE THE HISTORY OF ROMAN LAW. 425 believed that he was able to decipher on one of them the name of the author, “ Rufinus.” The first edition was published by P. Pithou, in Paris, in 1573. 518. This work is divided into several titles, with their rubrics, the first paragraph of each commencing with these words: ‘ Moises dicit.” Title 16, which commences “ Serip- tura Divina sic dicit,” is the sole exception. After this very very laconic indication of the Mosaic law follows a series of paragraphs consisting entirely of textual extracts upon the same subject, from the writings of the Roman jurists or from the im- perial constitutions. The author does not add any comment, and the comparison which he wishes to establish in order to show the resemblance between the two systems of law is made solely by placing the texts in juxtaposition. The jurists who are quoted are the five designated by Adrian, but whether the compiler was guided by the lex de responsis prudentum, or whether he acted upon the usage which preceded that enact- ment, is doubtful. There are thirty-three extracts from Paul, twenty-two from Ulpian, eight from Papinian, two from Modestinus, one only from Gaius, eight from the Gregorian code, and five from the Hermogenian. It is uncertain how many belong to the Theodosian code. There is a constitution of Theodosius I. quoted a.p. 390, from which we determine the fact that this compilation is posterior to that date. This constitution is preceded by the expression “Item Theodosianus,” but grave doubts exist as to the accuracy of this rendering, whether in the original it was not Item Theodosius, and was transformed by the error of the copyist into Theodosianus.1_ No other quotation from the Theodosian code or from contemporaneous constitutions occurs. 4 Grounds of doubt: Ist. The phrase Item Theodosianus is not followed by any mention of a book or title, whereas the author has in no case failed to indi- cate precisely the text, whether the Gregorian code, the Heromogenian code, or the works of the jurists. 2nd. The constitution in question is in fact found in the Theodosian code (lib. ix. tit. 7, Ad leg. Jul. de adult., const. 6), but it is without preamble or conclusion, whereas these exist in the Collatio ; whence the conclusion that the compiler had derived the text not from the Theo- dosian code, but from archives, or some other document in which it was con- tained intact. 426 THE HISTORY OF ROMAN LAW. 519. The objections raised serve as a basis from which we may form some conjecture as to the date of the Collatio. It is clearly posterior to the year a.p. 390. If we retain the name of Rufinus as that of its author, it cannot refer to the jurist Licinus Rufinus, the contemporary of Paul, but it may refer to one of two individuals,—either to Rufinus, the Gallo-Roman pretorian prefect and minister under Theodosius I., who was raised to this position on account of his erudition as a jurist, and to whom several of the rescripts of that prince are addressed ; he died in the year 4.p. 395: or it may refer to Rufinus, the fellow pupil of St. Jerome, the founder of the convent of the Mount of Olives at Jerusalem, the author of several theological works, which are received amongst those of the Fathers of the Church ; he died in a.p. 410. Either of these dates, that is to say A.D. 395 or A.D. 410, may agree with that of a.pD. 390, the date of the most recent of the quotations contained in the Col- latio. The ecclesiastical character of the writings of Rufinus, one of the Fathers of the Church, has in our days determined Husckhe to regard him as the author of the Comparison between the Mosaic and the Roman laws. According to another con- jecture of Haenel, the unknown author must have made his compilation after the constitution of a.D. 429, in which is found the first order for the preparation of the Theodosian code, and before the publication of it, that is to say, between a.p. 429 and A.D. 438. And, finally, Haubold, in his chronological tables, who has in this respect been followed by M. Blondeau, places the Collatio at a much later period, even after the fall of the western empire, at about the time that the collections of the Roman laws were made by the order of the barbarian kings. 520. From a phrase which appears at the head of a manu- script: ‘Lex Det quam Deus precepit ad Moysen,” and which certain critics regard as merely the commencement of the pre- face, this compilation has received the name of Lez Dei. 521. From the indication that we have given of the extracts which the Collatio contains, it is easy to see that it has been of great service in aiding the re-construction of the ancient works THE HISTORY OF ROMAN LAW. 427 upon the law which are therein quoted, particularly the Sen- tentie of Paul, the Regule of Ulpian, the Gregorian and Her- mogenian codes. 522. In 1577, Cujas, in the first volume of his works, from a manuscript of Ant. Oiselius which was in his possession, but which has since been lost, published a document which emanated from a jurist of the Lower Empire whose name he was unable to discover. He has placed this document under the title of Consultatio veteris cujusdam jurisconsulti, at the head of his consultationes, sixty in number, and has given it as an example of the consultationes of the period to which the jurist belonged. 523. In this aspect, it is a document of primary importance. The author addresses himself to some person who is supposed to consult him, and places the various legal points referred to him, with their solution, in regular order under chapters. Indeed, this jurist of the Lower Empire has very little of his own; his answer to each question consists of a series of quotations of texts, the source of which he indicates with precision. This is an application of the lex de responsis prudentum, and a speci- men of the character and method which the practice of the law had at that time acquired. 524. The application of the ler de responsis is limited, be- cause the quotations are confined to the elementary work of the Sententie of Paul and to the three codes—the Gregorian, the Hermogenian and the Theodosian. We find twenty-one ex- tracts from the Sententie of Paul, sixteen from the Gregorian, twenty from the Hermogenian, and eight from the Theodosian codes. But the great utility of this publication consists in the fact that it facilitates the interpretation of the texts. 525. The “ jurist of the Lower Empire ” qualifies as leges the Sententie Pauli, which he quotes, and in cap. vii. assigns the following reasons: “‘cujus Sententias sacratissimorum princi- pum scita semper valituras ac divalis constitutto declarat.” 428 THE HISTORY OF ROMAN LAW. ‘This evidently refers to the constitution of Constantine, A.D. 327, and to the lex de responsis prudentum, A.D. 426.* The extracts from the Theodosian code contained in his work place it beyond doubt that he wrote subsequently to the publication of that code, but nothing more can be said as to the date of his work. EMPERORS. Western Empire. Eastern Empire. A.D. 450. VALENTINIAN 3RD. | A.D. 450. MARCIANUS. » 455. Prerronius Maxt- MUS. 9 9 AVITUS. >, 456. The throne vacant. » 457. Masorianus. » 457. Lxo Ist. » 461. Lisyus SEvVERUS. » 465. Interregnum (two years). » 467. ANTHEMIUS. > 472. OLYBRIUS. 3» 473. GLYCERIUS. » 474. JuLius NEpos. » 474. Leo 2nd. > 95 ZENO IsavuRus, » 475. Romutus AvuGuUs- TULUS. —~— Secrion CITI. Tur EnD oF THE WESTERN EMPIRE. 526. We have now arrived at the end of the list of the emperors of the West. Their empire had been broken up by the barbarians and parcelled out among the invaders. Nothing could be more dramatic than the picture of the events which terminated in this catastrophe. Up to the reign of Valens, the barbarians, who flocked to the plunder of the provinces and retired with their booty, were more 1 See §§ 457 and 459. THE HISTORY OF ROMAN LAW. 429 frequently the conquered than the conquerors. Numbers of them had been enlisted by this emperor and had formed inde- pendent corps which fought side by side with the Romans, taking part in the wars between the princes and attaching themselves to their respective interests. They had thus, with- out losing their native hardihood and power of endurance, learnt the art of war; they also became acquainted with the decay of Roman power and with the resources of the interior of the empire. Under Valens an Asiatic race, before unknown, called the Huns, appeared in great force along the Danube; they pressed upon the Alani, the Alani pressed upon the Goths, and the Goths threw themselves into the empire. And while the Huns established themselves in the place of the hordes whom they had either destroyed or dislodged, the Goths demanded a settlement in the Empire. They were received; but, deprived of their women and children, who were taken from them as hostages, made the victims of the rapacity of the imperial officers, distressed for want of food, yet retaining their arms, they yielded to the pressure of necessity, ravaged the country, destroyed Valens, and forced tribute from the Romans; an ignominy, however, with which the Roman emperors were not altogether unacquainted. We find these barbarian chiefs, in their wooden huts or under tents made of the skins of wild beasts, surrounded by savage hordes, receiving with insolence ambassadors clothed in purple and counting out the gold sent to them by the masters of Rome and Constantinople. But the time came when gold no longer satisfied them ; they established themselves and settled in the countries with the plunder of which they had heretofore been contented. Alaric and Rada- gaisus under Honorius, Attila and Genseric under Theodosius, dispersed their soldiers through the length and breadth of the empire and commenced its dismemberment. Alaric headed the Goths, to whom the ordinary tribute had been refused, and, being joined by the Huns, the Alani and the Sarmatians, ravaged Thrace, and passing Constantinople pre- cipitated himself upon the West, 4.p. 403. Being defeated by Stilico, he was bribed to withdraw, but being again defeated during his retreat, he retired, meditating revenge, A.D. 406. 430 THE HISTORY OF ROMAN LAW. Radagaisus, with the Suevi, the Vandals, the Burgundians, the Germans, the Alani and the Sarmatians, who followed him, penetrated Italy, a.p. 406. Stilico dispersed this army like- wise, and destroyed its chief: but though vanquished the barba- rians were no less dangerous than before, for they had entered Italy never to leave it. Alaric reappeared; by heaping upon him untold treasures the Romans induced him to retire, but he again reappeared in order to proclaim an emperor of the West, who, as a reward, styled him master-general of the empire. Upon his third appearauce he battered down the gates of Rome, and let loose his devastating hordes upon the venerable city, 4.D.410. Death stayed the hand of the victor in the midst of his triumphs, and the Gothic leader, by whom Alaric was succeeded, received the sister of an emperor as his wife, and invested with the title of Roman general took the command in Gaul. The Franks, the Burgundians and the Visigoths divided the country between them, the Franks occupying the provinces in the north, situated near the Loire and the Seine; the Burgun- dians, in A.D. 414, the eastern provinces; the Visigoths, a.p. 419, the southern parts. Thus were founded three kingdoms, in which the Romans and the ancient inhabitants of the country were mingled with the conquering races, but only allowed to enjoy an inferior position. 527. Alaric and Radagaisus were soon replaced by Attila and Genseric. Attila, the king of the Huns, who ravaged the provinces of the East, and pitched his tents under the walls of Constanti- nople, consented for a large sum of money to quit that spot for the West, a.p. 450. He first threw himself upon the Gauls, but the Saxons, the Franks, the Burgundians, the Visigoths, and the different races who were established in those territories, immediately arose to defend their prey. Attila, defeated near Chalons, changed his course, and fell upon Italy. He then marched towards Rome, pillaging the country as he proceeded, ' The student of this interesting por- Histoire des institutions Méerovingi- tion of history is referred to Lehuerou’s —ennes, Paris, 1842. THE HISTORY OF ROMAN LAW. 431 and massacring the inhabitants. He demanded as his wife Honoria, the sister of Valentinian III., who, almost a captive at the court of Constantinople, had conceived the idea of having recourse to the barbarian. The intercession of Pope Leo I., and the conditions ‘offered to Attila, arrested his pro- gress, and Rome was for the moment saved. The chief of the Huns, however, soon made preparations for a second invasion, and declared his determination of getting possession of Honoria, who had been kept from him, when he was struck with sudden death, a.p. 453. Genseric, the king of the Vandals, who had snatched from the Roman empire first Spain and afterwards nearly all the provinces of Africa, was the enemy who was destined to inflict the most terrible blow upon Rome. In a.p. 455 he appeared under the walls of the city; it surrendered at discretion, and was sacked during a period of forty days by the barbarians, so that what had been left by the Goths had only been reserved for the Vandals. Genseric departed with his vessels laden with plundered treasures, leaving behind him a heap of ruins and ashes, a vacant throne and an empire almost overturned. 528. This empire, after the sacking of Rome, languished for about twenty years. Emperor succeeded emperor; the barbarian Ricimer, under the title of general, made and unmade them at his pleasure, and sacked Rome a third time to place Olybrius on its throne. He was succeeded by Gondobald, a Burgundian chief, who, in his turn, made Glycerius emperor. Finally, a third barbarian, Orestes, one of the ambassadors of Attila, caused his son Romulus Augustulus to be proclaimed emperor. Then the Huns, the Suevi, the Heruli, and all the tribes that followed his standard and who constituted a large part of the army, claimed their share of the spoils of the West, and tumultuously demanded that Italy should be divided amongst them. Orestes refused; Odoacer collected about him the malcontents, assassinated Orestes, compelled Augustulus to resign his purple, and declared himself king of all Italy, which country he partitioned out amongst his soldiers. Thus fell to pieces the remains of the western empire, while 432 THE HISTORY OF ROMAN LAW. the throne of the Byzantine emperors remained secure amid all the shocks from barbarian invasions, its preservation being due to the continuous flow of the invading races towards the west. Odoacer did not retain the throne long, for he was driven from it by Theodoric, who, at the head of the Ostrogoths, wrested the sceptre from his hand. —~— Section CIV. Roman LAWS PUBLISHED BY GERMAN KINGS. 529. But while all those new races were thus establishing themselves in Gaul, Spain, Africa, and Italy, what became of Roman law? The barbarians, who brought with them their own manners and national customs, had a certain respect for, and even some acquaintance with, the laws of the empire; and when they settled down with the now-conquered Romans, divid- ing with them their lands and goods, they adopted the prin- ciple of the personality of law. Every man was judged by the laws of the nationality to which he belonged, or, even in certain cases, pretended to belong. ‘Thus there were on the one hand the different Germanic laws drawn out and promulgated in the new kingdoms, and on the other collections of Roman laws composed by order and with the sanction of the German kings. Such were, in Gaul, the Roman law of the Visigoths (lex Romana Visigothorum), called also, since the sixteenth century, the Breviary (abridgment, abridged collection) of Alaric, and some- times the Breviarium Alaricianum or Aniani; and the Roman law of the Burgundians (lex Romana Burgundiorum), desig- nated also in the sixteenth century by the names of Papiani responsa, or simply the Papian law. In Italy, among the Ostrogoths, there was the edict of Theodoric (edictum Theo- dorici). 530. It is to be remarked that it was with the consent of the emperors of Constantinople, who, amid the convulsions that attended the disruption of the Empire, did not seruple, with the hope of creating a diversion in favour of the empire of the THE HISTORY OF ROMAN LAW. 433 East, to join the barbarians, that those three nations laid the first foundation of their kingdoms in the West. The Visigoths, in consequence of a treaty with Honorius, established them- selves between the Loire and the Pyrenees, taking Toulouse for their capital; the Burgundians, in consequence of a treaty with the same emperor, in the country watered by the Saone and the Rhone, extending to the Durance, taking for their capital Geneva; the Ostrogoths, eighty years later, directed by the Emperor Zeno to Italy, achieved in four years, against the barbarians who had preceded them there, the conquest of the Peninsula, and, taking Ravenna for the capital of their kingdom, were recognized by Anastasius. Ataulf, king of the Visigoths, with whom Honorius had treated, married a short time afterwards (4.p. 414) Placidia, sister of that emperor, and daughter of Theodosius the Great. Theodoric, king of the Ostrogoths, had been brought up as a hostage in the court of Constantinople, and it was through the delegation of the rights of the Emperor Zeno that he had advanced into Italy against Odoacer and his Heruli. He aimed at nothing less than reconstructing by his own hands the empire of the West. THe had coin struck with two effigies, one side bearing that of the emperor of the East, the other his own. All these facts must be borne in mind if we would properly understand how the Roman law preserved its influence and was received as an inheritance, at least for the Roman populations, by the German chiefs, in the new states which they formed. It must be noted that the date of the foundation of the two kingdoms, the Visigoth and Burgundian, in Gaul, in the years 412-413 respectively, is anterior, by more than twenty years, to the publication of the Theodosian code, a.D. 438; and that con- sequently it was not in the form of a system of laws promulgated by the reigning power, but only as a code regulating and sup- plementing the law followed by the Roman population, under the superior influence of the Roman law and of the supremacy of the emperors of the East, that this code, and subsequently the Novelle, penetrated into these two kingdoms. They re- ceived their local legislative character by the promulgation in the beginning of the sixth century of the lex Romana. On the Fr 434 THE HISTORY OF ROMAN LAW. other hand, the date of the establishment of the kingdom of the Ostrogoths in Italy, a.p. 493, is subsequent, by fifty-five years, to the publication of the Theodosian code. 531. 1. The history of the formation of the Roman law of the Visigoths is to be found in the Commonitorium or notice placed at the head of the copy addressed to each count, re- quiring him to enforce it. The one which we possess is entitled “ Alarici regis exemplar auctoritatis,” and is addressed to a Count Timotheus, vir spectabilis; edited, subscribed and certi- fied (edidi, atque subscripsi: Recognovimus), in execution of the orders of the king, by Anianus, vir spectabilis also, secretary or referendarius, if we are to judge by the mission he executed, of the chancery of the kingdom. We see in it that this collection (hoc corpus) was prepared, in conformity with written orders (sicut preceptum est), under the direction of Gojaric (ordinante Gojarico), count of the palace, vir illustris (in those kingdoms the rank of the Roman nobility was preserved in the person of the Barbarians), pro- bably by a commission composed for the greater part, if not entirely, of Roman jurists, and that it was decreed at Aire in Gascony, in the twenty-second year of the reign of Alaric II., consequently in A.D. 506. The king declares in the Commonitorium, or notice, that, for the benefit of his people, with the help of the Deity, he wishes to correct what appears unjust in the laws, to remodel them, and to do away with the obscurity of the Roman laws and ancient rights (omnis legum Romanarum et antiqui juris ob- scuritas), so that there may be nothing ambiguous in them: everything being made plain (omnibus enucleatis), and the extracts chosen from the works of the ancient jurists collected into a single volume. It is an echo of what had already been said seventy years before by Theodosius, in the preparatory con- stitution of his code, and a prelude to what was to be said with more emphasis and more prolixity, and which was to be exe- cuted with more amplitude, by Justinian more than thirty years afterwards. This collection is not published by the sole authority of the THE HISTORY OF ROMAN LAW. 435 Visigoth king, as were those of the Lower Empire; it was submitted, according to some ancient custom of the people, to the assent of the ecclesiastics and of the principal nobles (ad- hibitis sacerdotibus et nobilibus), and in the provinces to that of the bishops and of the provincials chosen for that purpose (venerabilium episcoporum vel electorum provincialium nos- trorum roboravit adsensus). The king ordains that the original collection shall be entrusted to the Count Gojaric, and that no copy shall be officially received or have any authority except such as shall have been subscribed by Anianus (vir spectabilis) with his own hand. No one is to be permitted to quote, in litigation, any law or work of any jurist (aut de legibus, aut de jure), except what is contained in the collection thus subscribed and certified. An order is given to the count, to whom the Commonitorium is addressed, to see to this in his jurisdiction; he is answerable for it with his head (ad periculum capitis tut), or at the peril of his property. If we pass from the form to the contents, we shall find them indicated by this general formula: Jn hoe corpore continentur leges sive species juris de Theodosiano et diversis libris electe. This antithesis between the /eges, meaning here the constitu- tions, and jus, that is to say, the works of the jurists, occurs several times, with a few changes of expression, either in the Commonitorium or in the body itself of the document; and it is summed up there in its shortest form: “aut de legibus aut de jure” —*jure et legibus continetur,”* in which the word jus, by the force of habit, had assumed a sense, already given to it, it is true, by Pomponius,? but which had now become its technical signification, viz., the “ law of the jurists.” These two sources of law are arranged as follows in the col- lection of Alaric:—Ilst, Leges:—The Theodosian Code, con- 1 Commonitorium, passim: “Legum body of the document: Interpretation Romanarum et antiqui juris obscuri- of the law of the Theodosian Code (iii. tas.’ “Nulla alia lex neque juris for- 13, De dotibus): “ Quia hoc lex ista mula.” ‘ De Theodosiani legibus, at- non evidenter ostendit, in jure, hoc est que sententiis juris vel diversis libris in Pauli Sententiis, sub titulo De doté- electe.” bus requirendum.” Interpretation of 2 See § 236. the law of the Gregorian Code (ii. 2, 1). 3 In the Commonitorium, and in the FF2 436 THE HISTORY OF ROMAN LAW. sisting of extracts from the sixteen books, and a series of the Noveile of Theodosius and of his successors down to Severus. 2nd, Jus :— An abridgment of the Institutes of Gaius, in which the whole of the fourth book, treating of actions, and several parts of the other books, have been omitted, as being obsolete ; the Sententie of Paul (five books); the Gregorian Code (thirteen articles); the Hermogenian Code (two articles) ; and, lastly, a single fragment in two lines, of the first book of the responsa Papiniani, which gave rise to the belief that perhaps the con- tinuation was lost. A passage in this collection, following the lex de responsis prudentum, which is recited, after pointing out who the jurists were who were accredited by that law, explains that it is with a view only to the necessities of the present time that the compilers have confined themselves to selecting extracts from Gaius, Papinian and Paul, adding to them Gregorian and Hermogenian,! whose codes are placed here among the works of the jurists, because they were, in effect, private and not imperial publications. The texts inserted in our collection, with the exception of Gaius’s epitome, are accompanied by an Interpretatio, in the Latin of the time, which is useful as showing the condition of the institutions of the epoch, and indicating the manner in which the Roman law, as published by Alaric, had been modified and applied. This Interpretatio is still to be found in our editions of the Theodosian Code. The expressions elegimus, inseruimus,? which we meet with there, show that it is the work of the compilers themselves. This code is frequently quoted in the middle ages, under the title of lea Theodosiana, Corpus Theodosianum, Liber legum, Lex Romana. The name Breviarium Alarici appears in the books only of the sixteenth century, but it has a flavour of age about it and of more ancient usage. As to the Breviarium Aniani, the secondary part which Anian plays has not been fully realized. ' Interpretation of the Cod. Theod. presentium temporum videbantur ele- 1,4, De respons. prudent.: “Sed ex gimus.” his omnibus juris consultoribus, ex * See the preceding note, togeth Gregoriano, Hermogeniano, Gaio, Papi- with the Z uterpretation of lex 7, Cod, niano, et Paulo, que necessaria cansis Theod. 4, 1, De legit. hered. ; ; THE HISTORY OF ROMAN LAW. 437 Alaric IT. did not long survive his work; less than one yeal afterwards, a.p. 507, he perished in the battle of Vouillé, killed by Clovis’s own hand, and the Franks replaced the Visigoths ir almost all their possessions in Gaul; but the legislative work of Alaric survived these disasters; and of all the collections o: Roman laws made by the barbarian princes, it was this whos« authority spread the farthest and lasted the longest.1 The Visigoths spreading from Gaul to Spain (a.p. 415), under their kings Theodoric II. and Euric (from a.p. 453 to A.D. 484) conquered the whole of that country, and there published, < century and a half after the Breviary of Alaric, a code of law: for the Visigoths (codex legis Visigothorum), which we must not confound with their Roman law. 531. 2.° The Lex Romana of the Burgundians had beer preceded, among that people, by the publication of the Ger- manic law, which is called the Lex Gondobada, from the name oi their king Gondobald. The second preface of that law, under king Sigismund, son of the preceding (4.D. 517), in ordain- ing that Romans should have Roman law administered tc them, announces a special code of that law.? This is in our possession ; it is subsequent to the a.D. 517, and is divided into forty-seven articles. M. Savigny has shown, by the mere comparison of the headings, that the arrangement is the same as that of the lex Gondobada. This code is formed in great part of texts taken from the Breviary of Alaric; there are also a few from direct Roman sources, the whole being very brief. The name of Responsa Papiani, or the Papian law, is taken from the first edition by Cujas, in 1566, who mistook Papianus, a contraction of Papinianus, sometimes used by an- cient copyists, for the name of an unknown jurist, the author of the collection. It is apparent at once, from the first page of this edition of 1566, how this mistake took place ; the fragment, ' The edition recommended is that of 2 Prologue, 2nd preface: “ Inter Romanos . Haenel, Leipzig, 1849, for which the learned editor has consulted seventy- six manuscripts and seven ancient abridgments of the Breviarium, five of which are manuscripts; this edition is enriched with notes and appendices. . Romanis legibus pre - cipimas judicari: qui formam et expo- sitionem legum conscriptam, qualiter judicent, se noverint accepturos, ut per ignorantiam se nullus excuset.” 438 THE HISTORY OF ROMAN LAW. in two lines, of the responsa Papiniani, which ‘concludes the Breviary of Alaric, is immediately followed, in the manuscript of Cujas, by the Roman law of the Burgundians, in such a man- ner as to induce the reader to believe that it formed its heading and title. Cujas recognized and rectified the error in the edi- tion of 1586; but the name of Papian has remained. This Roman law did not survive the fall of the kingdom: this hap- pened less than seventeen years afterwards (a.D. 534), and the kingdom of the Burgundians was absorbed by the Franks. After the fall it yielded to the authority of the Breviary of Alaric, which was very superior to it, or to that of the text itself of the Theodosian code, promulgated, at its origin, in the countries occupied by the Franks.? 531. 3.° The edict published by Theodoric, who aspired to maintain the empire of the West, and to Romanize his people, was drawn up by Cassiodorus and Boetius, two men learned in Roman literature, and was an edict at once for the Goths and for the Romans.* The Roman sources had been blended and accommodated to the proposed end; but the edict scarcely touched upon private law. The date generally attributed to this edict, even by Savigny, is a.p. 500; but the opinion of M. Gloeden (1843) has now obtained favour, that the date of this edict should be placed after the year 506. The conquests of Justinian, and the publication of his code of laws in Italy (4.D. 554), put an end to the kingdom of the Ostrogoths, and to the edict of Theodoric.s 532. Historians look at the laws we have been alluding to in the light they throw upon the fate of populations and the course of events. Students of Roman law value them for the services they have rendered us (the Breviarium especially), in 1 The first edition is that of Cujas, Lyons, 1566, in folio, at the end of his Theodosian Code. Modern edition by Aug. Fred. Barkow, Lea Romana Burgundiana, Eryphiswaldiz, 1826. 2 Kad. of Theodoric, Prologue: “ Quee Barbari Romanique sequi debeant.” Epilogue: “Que omnium Barbarorum sive Romanorum debet servare devotio.” * It is Pithou who gave the first edition of the Edict of Theodoric, in con- tinuation of the works of Cassiodorus, Paris, 1579, in folio. Modern edition by G. F. Rhon, Commentatio ad Edic- tum Lheodorici, regis Ostrogothorum, Hale, 1816. THE HISTORY OF ROMAN LAW. 439 transmitting various texts which, without them, would have been lost. 532a. In the meanwhile (4.p. 469) Anastasius had suc- ceeded to Zeno in the empire of Byzantium. Justin succeeded to Anastasius, A.D. 518. The issue of a barbarian shepherd, he came from the wilds of Bulgaria to ascend the throne. His nephew, Justinian, was brought up with care in the midst of the court, received the title of Augustus, was associated with him in the administration of the empire (a.D. 527), and on the death of his uncle, a few months afterwards, he succeeded to the throne of the Eastern Empire. II.—JUSTINIAN EMPEROR, a.v. 527.1 533. The invasion of the barbarians in the south ended in the possession of Africa and Spain by the Vandals and Visi- goths; of Gaul by the Franks, the Burgundians, and the Visigoths; Italy by the Ostrogoths; and the other parts of the West by other hordes of barbarians. The empire of Constanti- nople subsisted alone; it still preserved the title Roman, which it should have lost with Rome to assume that of Greek. On its Asiatic limits were, among other enemies, the Persians, who had profited by the fall of one empire and the troubles of another, and had become formidable. It was under these cir- cumstances that Justinian ascended the throne. The victories of a young Thracian, Belisarius, appearing for the first time at the head of an army, soon procured him an honourable treaty with the Persians; and then a peace of a few years permitted Justinian to give his attention to the internal condition of his dominions. The only relics of the old Roman manners and character now remaining in the East were a few names, a few reminiscences, and many vices; Greek was the language generally spoken, Latin was almost obsolete as regards common use. Men’s minds were oceupied with theological disputes and divided between ortho- dox and heretical doctrine, Eutycheans, Arians, and others; or 1 For more ample biographical de- Ortolan’s Mxplication Historique des tails, see article Justinian, vol. ii., M. Instituts. 440 THE HISTORY OF ROMAN LAW. else with contests in the circus, where the colours worn by the charioteers divided the population into factions, —the whites, the reds, the blues, and the greens; these divisions, at first created for a frivolous cause, became gradually transformed into political factions, animated with all the ardour and the enmity of party spirit. : We shall not pause to examine the conduct of J ustinian in reference to these matters, and we shall pass over with silence his persecutions against all who were not orthodox Christians ; the massacre which he ordered of all the Samaritan Jews who had revolted in Palestine; the ardour with which he embraced the party of the blues against the greens; the mischief which that partizanship, on more than one occasion, brought about, resulting as it did in a sedition of the greens, to which he nearly fell a victim. This commenced in the exasperation of the greens, supported by the discontent of the people, against the exactions of John, pretorian prefect, and Tribonian, then quzestor; and was aimed at nothing less than replacing on the throne the family of Anastasius, the last emperor but one. It is principally Justinian’s character as a legislator with which we have to deal. 584. Since the time of Alexander Severus, when the series of illustrious men who had by their works thrown so mucb light upon the study of jurisprudence was interrupted, no great jurist had appeared. *The study of law had not indeed been entirely abandoned, but it had only produced men of ordi- nary intellectual calibre-—men who merely followed the writings left by the jurists, and the constitutions promulgated by the emperors. They could do nothing more than quote the authorities, or at the very outside string together extracts. Most of them conducted cases before the magistrate (advocati, togati); some gave lessons in law (antecessores) in the public schools, of which there were two in the Fast, one at Con- stantinople and one at Berytus, a town in Syria; those who acquired reputation or fortune filled high offices of the empire, or exercised the functions of magistrates or of judges. The most learned, of whom there happened to be a few, as was shown in the reigns of Theodosius II. and of Justinian, were THE HISTORY OF ROMAN LAW. 441 those who were most versed in retrospective studies of a former age, and in the bibliographical knowledge of ancient texts; they were in some sort, to use the expression of a poet, but the larvee and the spectres of the ancient jurists. We know of no writers who in this age of the decline of legal knowledge pub- lished any original works on law, except Aurelius Arcadius Charisius, magister libellorum, who wrote three books,—one on the office of the preetorian prefect, one on civil offices, and another on witnesses, a few fragments of which have been quoted in the Digest of Justinian. In addition to this writer, Hermogenian was the author of an epitome or abridgment of the law which is frequently quoted. 535. If science had thus sunk into decay, it must be confessed that the laws as they multiplied had become very obscure. The plebiscita of ancient Rome, the senatis-consulta, the edicts of the pretors, the numerous books of the authorized jurists, the codes of Gregorian, of Hermogenian, of Theodosius, the con- stitutions of all the emperors who had come after him, texts accumulated, confused and contradictory, formed altogether a real legislative chaos. Theodosius II. had already described the writings of the jurists as an immensa copia, and the moun- tains of imperial constitutions had done nothing but increase since that time. 586. As to practice, as far as the works of the jurists are concerned, everything was determined by the lex de responsis prudentum; and as regards the imperial constitutions, the text books were the Gregorian, Hermogenian and Theodosian codes, to which must be added the numerous Novelle which had followed. The lex de responsis had not much diminished the evil. It was always an embarrassment, and, besides, it lowered the dignity of jurisprudence ; it was a temporary and at the same time a poor expedient. We know that Theodosius intended to settle it definitely, but he never carried out the project; so the 1 Dig. 1,11, De officio pref. pret.,1; 22, 5, De testibus, 21; 50, 4, De mune - ribus, 18. 442 THE HISTORY OF ROMAN LAW. expedient, with its difficulties ever increasing, lasted out a hundred years. The three codes of constitutions also, with all the subsequent enactments superadded, owing to the changes that had come over the spirit of the age, and the peculiar wants of the time, loudly called for revision. - 587. It will be remarked in all the histories of nations, how at certain epochs men with extensive views, who have become members of the government, have been seized with the idea of introducing clearness, uniformity and unity into legislation and jurisprudence. Julius Cesar had conceived some idea of this kind with regard to the laws and the works on jurisprudence in the time of the republic, which he found to be very voluminous and wanting uniformity. But what must it have been after five centuries of the empire? The project of Theodosius II. progressed no further than the stage of partial and preliminary preparation. And it was left to Justinian to carry it out, which he did under another form. The practical code projected y Theodosius was intended to contain an amalgamated and arranged compilation of the imperial enactments and the de- cisions of the jurists which should be considered fit to be retained in force, to form thenceforth the only code binding on all. There would thus have been a single code, which would have fused the divers elements that had entered into the historical composition of Roman law. The legislative works of Justinian have kept up a line of demarcation between these elements,—the constitutions of the princes and the works of the jurists,—in which, in the shape of exposition, or commen- tary, or analysis, the deges, the plebiscita, the senatis-consulta, the edicta of the magistrates and the other legal forms are to be found. The work of Justinian has, therefore, less of the principle of unity than the project of Theodosius, but it served better both as a monument of ancient law and as a code adapted for practical purposes. The division of the work was easier, and it required less power of conception. As historians we may con- gratulate ourselves that the double form was preserved. THE HISTORY OF ROMAN LAW. 443 538. Justinian having succeeded his uncle, a.p. 527, issued in the very next year his constitution directing the construction of a new code. At that time, a.p. 528, the code of Theodosius was only ninety years old. His other legislative works fol- lowed each other successively, and in the space of six years the whole was finished. We shall let the emperor tell us the objects for which, and the method in which, each part of the code was composed. The following, if not a translation, is at least an analysis of his preliminary constitution. —~— Section CY. CopEX J USTINIANEUS—CODEX VETUS. 539. The word “code,” in other than its general signifi- cation, had been applied technically, in the publications of Gregorian, Hermogenian and Theodosius, to designate a col- lection of imperial constitutions. ‘Theodosius indeed enter- tained the project of using it in a more general sense, but his project having come to nothing, the more limited and technical signification had remained; this was, however, no obstacle to its being still very often used in its general sense. The first body of laws which Justinian promulgated was a collection of this sort. “ To the Senate of Constantinople. “To diminish the length of lawsuits and to do away with the confused mass of constitutions contained in the Gre- gorian, Hermogenian and Theodosian codes, published by Theodosius, by his successors and by ourselves, we wish to put them altogether in a single code, under our own auspicious name.” (Theodosius had merely said, “nostro nomine nuncu- patus; with Justinian it is, “ sub felici,” and later, “ divino nostri nominis vocabulo.”) « Efficiently to perform so great a work, we choose . (Here follow the names of ten personages whom Justinian dis- tinguishes respectively with one of these epithets: Excellen- tissimus, Eminentissimus, Magnificus, Disertissimus, &c. At their head can be remarked John, ex-questor of the sacred 444 THE HISTORY OF ROMAN LAW. palace, ex-consul and patrician; among them Tribonian or Tribunian, who was soon to assume the first place, and Theo- philus, count of the consistory, professor of law at Con- stantinople). “We permit them, suppressing preambles, repetitions, con- tradictory or disused clauses, to collect and classify the laws under proper titles, adding, cutting down, modifying, compress- ing, if need be, several constitutions into a single enactment, so as to render the sense more clear, and yet preserve in each title the chronological order, so that this order may be noted by position in the code as well as by date.” Ides of February (13 Feb.), A.D. 528.1 The work was entrusted to six jurists and was divided into twelve books. The code was concluded in the space of one year, was published on the 7th of the ides of April (7th April), A.D. 529, and came into force from the 16th of the kalends of May of the same year: “ We forbid all pleaders and advocates to quote, under the penalty of making themselves guilty of fraud, any other constitutions than those which are inserted in our code, or to quote otherwise than is written there: for these con- stitutions, together with the works of the ancient interpreters of the law, must suffice to decide all suits. No difficulty must be raised on account of some of them being without date, or of their having been originally only private rescripts.” -—~>—_ Section CVI. QUINQUAGINTA DECISIONEs. 540. After the work on the imperial constitutions and the publication of the code which contained them in their new form, 1 De novo Codice faciendo (first con- stitution at the head of the code). 2 De Justinianeo Codice confirmando (second constitution at the head of the code). What is said about constitu- tions without date is in allusion to a rule which is found in the Theodosian code (lib. i. tit. 1, const. 1), to the effect that such constitutions are devoid of authority. This provision will be in- applicable to the constitutions inserted in the code of Justinian, because the latter will all have for the future, as a legislative date, the date of that code. Justinian, in declaring that he abro- gates all the anterior constitutions not inserted in his code, reserves those cun- nected with certain particular or official interests, which he designates. THE HISTORY OF ROMAN LAW. 445 the legislative activity of Justinian was brought to bear on ancient law (Postea vero cum vetus jus considerandum recepimus, &¢.), that is to say, on the writings of the jurists which then repre- sented all ancient law. The first thing to be considered was the existence of numerous points on which there was divergence of opinion and contradiction between the jurists, which were the cause of much embarrassment and uncertainty to pleaders and judges. Instead of the mechanical, and to the last degree embarrassing, lex de responsis prudentum, Tribonian suggested to the emperor (suggerente nobis Triboniano) a scheme more worthy of a legislator: it was to make a series of constitutions, in which each of these controverted points should be successively dealt with and definitively settled, so as to put an end to per- petual altercations (antiqui juris altercationes placavimus). These Decisions were published at intervals before the Digest and the Institutes, the greatest number in A.D. 529 and in A.D. 530, amounting in all to fifty (quinguaginta Decisiones fecimus). About the same time a great number of other constitutions were promulgated (alias plurimas Constitutiones promulgavimus), which were distinct from the Decisiones, because they were not specially intended, as the latter were, to put an end to ancient controversies; but to establish a new rule in the place of the antiquated institutions which they abrogated. 541. The fifty Decisions have not reached us in their entirety; they are mentioned in various passages of the work of Justinian,! and it is thus that their existence became known to us. It is probable that they formed, either by themselves alone, or in conjunction with the other contemporary constitu- tions of which we have just spoken, a collection which was rendered useless by the publication of the Digest, of the In- stitutes, and especially that of the second edition of Justinian’s ' Instit. 1, 5, De libertis,§ 3: “Et altercationes placavimus.” 4, 1, De dediticios quidem per Constitutionem nostram expulimus, quam promulgavi- mus inter nostras decisiones: per quas, suggerente nobis Triboniano, viro ex- celso, queestore nostro, antiqui juris oblig. que ex delicto nase.,§ 76: “Sed nostra providentia etiam hoc in nostris decisionibus emendavit.” Constitution iii., De emendatione Codicis, §§ 1 and 5; Cod. 6, 51, De caducis tollendis, § 10, 446 THE HISTORY OF ROMAN LAW. Code. M. de Savigny, in his “ History of Roman Law in the Middle Ages,” mentions an ancient gloss of the Institutes, anterior to the school of Bologna, which is designated by the qualification of “the Turin Gloss,” because the manuscript of it exists in the royal library of Turin, from which it is clear that the fifty Decisions must have formed a collection by themselves, known to the writer of the gloss, and divided at least into fifty books, since that gloss cites a fragment of it as forming a part of the fiftieth book of the constitutions (sicut libro L. constitutionum invenies). This reference has not the word Decisionum, but Constitu- tionum, and consequently does not decide whether it is a sepa- rate collection of the Decisions alone; but it may be inferred that it is so, from the nature and the scope of those Decisions being quite special, and from the number (fifty) agreeing with that of the book of the collection, as also from the expressions used by Justinian: “ Per constitutionem nostram quam pro- mulgavimus inter nostras Decisiones,”* and elsewhere, “ Se- eundum quod in divini nostri nominis Decisionibus statutum est.”3 542. If the collection of the fifty Decisions have not reached us, there is not the least doubt but that the provisions, inde- pendently of the influence which they have exercised on the composition of the Digest and of the Institutes, have passed for the greatest part into the second edition of the Code, as well as those of the contemporary constitutions. It is there that we can partially find them with the indication of their date; and if a specimen is desired of the course pursued in those Decisions, it can be found in the constitutions, which we cite in a note, the date of which is of a.p. 530, and which indubitably formed a part of the fifty Decisions.* ! De Savigny, History of Roman Law in the Middle Ages, ch. 12, § 71, and 3rd appendix, No. 241, in which the whole text of that gloss is reported ; vol. ii. p. 122, and vol. iv. p. 381, of the French translation. 2 Inst. 1, 5, De libertis, § 3, cited in the preceding note. 3 Cod. 6, 51, De caducis tollendis, § 10. ‘ Cod. 6, 2, De furtis, 20, 21 and 22; collated with Instit. 4, 1, De oblig. que ex delicto nasc., § 16: 7, 5, De dediticia libertate, and 6, De latina libertate tollenda; collated with Instit. 1, 5, De libertis, § 3: 8, 48, De adop- tiontbus, 10; collated with Instit. 1, 11, De adopt., § 2. THE HISTORY OF ROMAN LAW. 447 543. Justinian represents the fifty Decisions and the contem- porary constitutions as having been connected with the execution of his project of amalgamating the ancient law (ad commodum propositt operis pertinentes), and as having led to the com- pletion of that work in the publication of the Institutes and of the Digest ;' it is, indeed, as a preparation for the construction of this edifice that these publications are of interest. Section CVII. Tue Dicest or Panvects (Digesta, Pandecte).* 544, These names had been given by certain jurists to ex- tensive treatises on law: that of Digesta was the more ancient ; Pandecte, a Greek form, belonged to a more recent date.3 Justinian adopted them for his code, in which he designed to amalgamate and to arrange the whole system of ancient juris- prudence. The constitution, in which he developes this project, is addressed to Tribonian; it is dated a.p. 530, in the same year in which he had published a large number of his fifty De- cisions ; a proof that the two works were coexistent in design, and that one was by anticipation a preliminary step towards the other. The following is the analysis of the constitution :— “ To Tribonian. « After the code of the imperial constitutions which we have published in our name, we have resolved to make a complete revision of the whole civil law, and of all Roman 2 The word Digesta has a Latin ' De emendatione Codicis (constitu- etymology, Pandecte a Greek one; tion iii. at the head of the code), § 1: “ Postea vero cum vetus jus consider- andum recepimus, tam quinquaginta Decisiones fecimus, quam alias ad com- modum propositi operis pertinentes plurimas Constitutiones promulgavi- mus: quibus maximus antiquarum le- gum articulus emendatus et coarctatus est, omneque jus antiqnum supervacua prolixitate liberum atque enucleatum in nostris Institutionibus et Digestis reddidimus.” the former signifies something methodi- cally classified, the latter comprising everything. 2 Authors who had published Digests, according to the quotations which are to be found in the work of Justinian: Alphanus Varus, 40 books; Celsus, 39 ; Julian, 90; Marcellus, 30; and Cerbi- dius Scvola, 40.—Pandects: Ulpian, 10 books, and Modestinus, 12. 448 THE HISTORY OF ROMAN LAW. jurisprudence, by collecting together in a single code the dis- persed volumes of so many jurists.” “ § 3. We have entrusted you with the office of choosing for this work the most skilful professors, the greatest advocates; and accepting those you have presented to us, we order them to perform that work, but under your direction. * § 4, Choose and correct all that has been written by the jurists whom the emperors authorized to interpret the laws (conscribendarum interpretandarumque legum). But as others have also written books of law, which have neither been recog- nized as texts nor in practice, we do not desire to have them incorporated in your collection. « §5. From this collection we have determined to draw up a work of the utmost perfection, to be sacred as a temple of justice, to be in fifty books, divided by titles according to the order observed in our code, or in imitation of the Edietum Perpetuum, as you may think best. In these fifty books, let all the ancient laws, thrown into confusion during the course of nearly fourteen hundred years, be expurgated, and surrounded as it were by a rampart, beyond which there shall be nothing more: equal authority being given to all jurists, and no pre- ference observed for one above another.” (This is an allusion to the preponderance which the lex de responsis prudentum gave Papinian in case of a division.) “ § 6. Do not set down one opinion as the best because a majority has adopted it; one alone, and the least, might by chance, on a certain point, surpass all the others. “Do not absolutely reject the notes of Ulpian, of Paul, and of Marcian on Papinian, which were formerly denuded of all authority on account of the honour paid to the most illustrious Papinian ;” (This is an allusion to the constitution of Constantine, and to the lex de responsis which had proscribed these notes); ‘ but do not hesitate to take and lay down as law whatever you shall think fit. The decisions of all the authors you quote will have authority just as if they emanated from the imperial constitutions and were given forth by our divine breath (et nostro divino fuerant ore profusa).” “§ 7. Eliminate everything which may appear to you out of THE HISTORY OF ROMAN LAW. 449 place, superfluous or bad; the corrections you make, even con- trary to the ancient laws, will have legal force; and let no one dare, by making comparisons of ancient manuscripts, to impute any imperfection to anything which you shall have written.” (This is an allusion to the same enactment which required a collation of quoted passages with the old manuscripts.) “ The sanction which we give it is not divided between these or those frag- ments of the founders of the laws, but comes entirely from us, entirely from the choice we make. How should antiquity abrogate any of our laws?” §§ 8, 9 and 10. “ Do not leave any antinomy” (the name in Greek for a contradiction between two laws), “any repetitions ; avoid as much as possible inserting anew the imperial con- stitutions contained in our code; put aside all things that have fallen into disuse. “ § 11. Everything will be ruled by these two codes—the code of the constitutions, and that, to be drawn up, of the revised laws; and, if we promulgate a third, in the shape of institutes, that code also, in order that learners, after being grounded on principles, may proceed to higher and more ab- struse studies. * § 12. This work will bear the name of Digest or Pandects ; we forbid jurists to add commentaries and to obscure it with their prolix observations, as was done in the case of the ancient laws.” (This was one of the acclamations of the senate at Rome on the reception of the Code of the Constitutions: Jus- tinian however did it more than once. The legislator easily believes that there is nothing to come after the code which he publishes, and supposes that his formulas can settle facts or supplant science.) “ It will only be allowed to add under each article a summary indicating its contents, which is called nupdéritaz, without interpretation. « § 13. We forbid, in writing this code, the use of signs or abbreviations, confusing enigmas, sources of numerous an- tinomies. The succession of letters must be used everywhere, even to indicate the numbers of the articles, or what not.” (This injunction was addressed to the copyists, who were much given to the use of signs or abbreviations, and it will be repeated. GG 450 THE HISTORY OF ROMAN LAW. again in other constitutions, with penalties attached.) “Given the 18th of the Kal. of January, a.p. 531 (15th December, A.D. 530).”! 545. The coadjutors of Tribonian were sixteen in number, whose names Justinian will give us further on: they finished the Digest in the space of three years. This rapidity for an immense work was incompatible with accuracy. The recom- mendations of Justinian were not always followed. We find occasionally in the Digest confusion, repetitions and antinomies, the number of which, prodigiously increased by the commen- tators, still exercises the patience of those who devote them- selves to reconciling them. But this work, besides its great practical use to the empire of Justinian, is of the utmost value to us, in spite of mutilations and alterations, as a monument of Roman law. It has preserved in the formule given by the accredited authors the principles of the ancient laws, the pro- visions, sometimes even the text, of a great number of leges, plebiscita and senatis-consulta. It is composed, like a kind of mosaic, of fragments taken from thirty-nine of the most eminent jurists: each of these fragments bears the name of the author and of the work from which it was drawn, so that we gain information from it of the fact of the existence and the per- sonality of these numerous jurists, as well as of the nomen- clature, so varied, of their books. Nevertheless too much trust must not be placed in the purity of the text handed down. Whether to efface the traces of abrogated institutions, whether to substitute new solutions for those formerly given, or to recon- cile the different fragments, or to secure greater lucidity, or for the sake of brevity, or for other reasons, the writers of the Digest made ample use of the licence they had received to change and correct the quotations, and some jurists never broached that which the Digest causes them to say. These alterations, by suppression, by addition, by arrangement, are called interpola- tiones (readjustings), emblemata (insertions) of Tribonian, or more laconically tribonianisms. An impartial criticism will ' Preefationes, 1, De conceptione jure enucleando, et de auctoritate Digestorum (at the head of the Digest). jurisprudentium qui in Digesti = Reproduced in Cod., 1, 17, De vetert — runtur. # seeerale THE DISTORY OF ROMAN LAW. 451 detect the traces of these defects by demonstration, but will not be too ready to suggest them for the sole purposes of a thesis. 546. We are indebted to a German jurist, M. Blume, for an ingenious work, in which this author has examined whether it would not be possible, in observing the manner in which the fragments are grouped and follow each other under each article of the Digest, to explain the course which the commissicn instituted by Justinian followed in its operations. On a careful inspection of these different fragments, we cannot help observing that they do not appear promiscuously, but that they seem to group themselves into three distinct series, which M. Blume has thought proper to designate as the Series of Sabinus, the Series of the Edict, the Series of Papinian. Not that each of these series is composed solely of works answering to these names; each of them, on the contrary, contains a great number which are foreign to them; whence it follows that this classifi- cation can only be accepted for the sake of brevity, as indicating at least the most salient characteristics of each series.? It is to be noted also that the order of these three series corresponds to the order of the first three years’ instruction in the schools of law, whether by the old or by the new regula- tions of Justinian, according to the description which we shall shortly have to give of them; a correspondence which does not ! Blume, Order of the fragments in the articles of the Pandects (Journal for the historical science of the laws, iv. 6, p. 257, in German). 2 Ist Series: Extracts from the com- mentaries of divers jurists (Pomponius, Ulpian, Paul) on the writings of Sabinus (ad Sabinwm) ; from the commentaries on certain parts of the edict (ad Hdic- tum); from the digests of Alfenus Varus and Julian; from the institutes of Gaius and others (Callistratus, Paul, Marcian, Florentine); from the rules (Regula), a title under which a great number of jurists have written (Nera- tius, Gaius, Pomponius, Cervidius Scx- yola, Paul, Ulpian, Licinius Rufinus, Marcian) ; and lastly from a very great number of other works. 2nd Series: Extracts from the commentaries on the remaining parts of the edict (ad Edic- tum, ad Kdictum provinciale); from the commentaries of divers others (Javo- Jenus, Neratius, Pomponius, Paul); on the writings of Plautius(ad Plautiwm); from the digests of Celsus and of Mo- destinus; and from a great number of other works, principally from Modesti- nus. 8rd Series: Extracts from the questions, answers and definitions of Papinian; from the questions and an- swers of divers others (Neratius, A fri- canus, Marcellus, Cervidius Sczevola, Callistratus, Tertullian, Paul, Ulpian, Modestinus, Julius Aquila), and from many other works; with an appendix of a few other writings, added, apparently afterwards, as a supplement, amongst which is principally the digest of Sceevola. GG2 452 THE HISTORY OF ROMAN LAW. exist, it is well to remark, in all points, but only in some: notably as to the first series in the Institutes; as to the second in the Edict; and as to the third in Papinian. From the preceding observations, we may conjecture, that the commission, composed of sixteen persons, besides the pre- sident, Tribonian, was divided into three sections, in each of which there figured four professors of law, who were ranked according to the order of their schools; that the works to be despoiled were divided between these three sections or sub- commissions, according to the three series we have just pointed out, most of the commissioners having allotted to them the works with which they were best acquainted ; finally, that each section, having separately formed its extracts for the successive composition of each article which was to be taken in hand, all these extracts were afterwards united, and so made up the article in question. Then the question occurs whether the extracts were first made by each commissioner individually from the set of books which had been given him to despoil, or were they made toge- ther in each section, for all the respective series of books attri- buted to that section; and was the form of the compilation finally fixed upon in a committee of the three united sections, or only by Tribonian, assisted by some of the commissioners according to the cases? These are all matters of minute detail which it is useless to discuss, unsupported as they are by any documentary evidence. No doubt, in the general division into fifty books, and in the affix of the number in each book, the order and the rubric of the articles, the compilers of the Digest of Jus- tinian followed the model of the ancient authors, especially of the numerous Digests or Pandects composed in former times. The extracts from the three series of works by which the division of labour was effected do not always succeed each other, in each article, in the same order; the series which has supplied the most considerable extracts, whether in number or in importance, generally commences the article, though other considerations have determined, in certain cases, a different course. For in- stance, Justinian himself points out how, in order to introduce into the third year of legal studies the dicta of Papinian, and THE IISTORY OF ROMAN LAW. 453 to preserve to the students their surname of Papinianists, the fragments of Papinian were placed at the beginning of most of the articles of the Digest explained in that year.' Finally, the separation is not always radical between the series, the plan of the work having frequently caused fragments to be carried from one series into another; for example, at the beginning of an article appear the passages which explain the notion, the defi- nitions or the preliminary principles, and at the end those which best expressed the conclusions. It is on this account that the distinction between the three series is not always recognizable at the first glance in each article, and that sometimes a very attentive examination is necessary to discern and follow the digressions. These conjectures of M. Blume are not wanting in probability, and are generally received at the present day. 547. The Digest or Pandects was declared to be in force from the 30th December, a.p. 533, by two constitutions, one in Latin, the other in Greek, the latter being a translation or paraphrase of the preceding one; each dated the 17th of the kalends of January, 4.D. 534 (16th December, 4.p. 533). These constitutions Justinian addressed to the senate at Constan- tinople, and to all the people. We give an analysis of them, retaining all the details of any interest.? ** To the Senate and to all the Peoples. ‘* It were a marvellous thing to reduce into one uniform shape all the laws of Rome, from the foundation of the city down to our own time, a period of nearly fourteen hundred years. After having invoked the aid of God, we have com- missioned Tribonian, a high personage, with other very illus- trious and very learned men, to carry out our design; all the results of their labours being first submitted to our royal inves- gation and scrutiny.” 3 “ Nostra quoque Majestas, semper ' See § 578. 2 Prefationes, 2, De confirmatione Digestorum, ad Senatum et omnes populos. Reproduced in Cod. 1, 17, De veteri jure enucleando, et de auc- toritate jurisprudentium qui im Digestis referuntur, 2°. investigando ct perscrutando ea que ab his componebantur, quidquid dubium et incertum inveniebatur, hoc, Numine celesti erecta, emendabat et in compe- tentem formam redigebat.” 454 THE HISTORY OF ROMAN LAW. We observe here the work of final revision which Justinian personally reserves to himself, a reservation elsewhere expressed in the composition of the work. § 1. “ After arranging the imperial constitutions in twelve books in the code which is adorned with our name, we have entered on a more considerable work, the revision and the arrangement of the whole of the ancient jurisprudence, com- prising nearly two thousand volumes, and more than three million lines, which we have undertaken to read and examine in order to make the best selections; and we have collected the whole into fifty books, under the name of Digest or Pandects, reducing it to about one hundred and fifty thousand lines (that is to say, about a twentieth), and dividing it into seven parts, not promiscuously, but in order of numbers (sed in numerorum naturam et artem respicientes).” §.2 to 8. “ The first part contains what the Greeks call spare (premises), divided into four books; the second into seven; the third.into eight ; the fourth, which is, as it were, the pith of the whole composition (qui totius compositionis quasi quoddam in- venitur umbilicum), into eight books; the fifth into nine books; the sixth into eight; and the seventh into six.” (The text, in mentioning each part summarily, indicates the different subjects which are therein treated. This division of the Digest into seven parts is no longer, in the work of Justinian, of any prac- tical utility.)! .§ 9. « All these things have been brought to an end by . . . (Here follows the designation of the seventeen commissioners. Tribonian, who directed it; Constantine, comes sacrarum lar- gitionum ; two professors of law at Constantinople, Theophilus and Cratinus; two at Berytus, Dorotheus and Anatolius; be- sides eleven lawyers of renown occupying a superior position in Constantinople, whose names the constitution gives indi- vidually. ) “§ 10. Our respect for antiquity is so great that we have in nowise suffered the names of the jurists to be passed over in silence; each of them who was the author of a law (qui auctor legis fuit) is inscribed in our Digest. All the modifi- 1 See § 573. THE HISTORY OF ROMAN LAW. 455 cations made in their laws (én legibus eorum), or even in the im- perial constitutions quoted by them, are sanctioned by us, as if the whole had been written by ourselves, no one having autho- rity to compare the text as it formerly stood with that which we have declared authorized. * § 11. But in order to afford beginners the opportunity of commencing their primary studies, so as to facilitate their subse- quent progress to deeper subjects, we have charged Tribonian, and, under his direction, Theophilus and Dorotheus, to collect the divers works of the ancients, which contained the elementary exposition of the laws, and which were called Institutiones, to extract the passages which might be most useful and best adapted to the present time, and to form them into four books, with authority to exercise the same power of revision as in our other compilations. This work, when completed and laid before us, will be re-read by us (nobis oblatum et relectum), and will have the force of a constitution emanating from us. *“§ 12. The whole of this compilation of the Roman Jaw in three volumes, the Institutes, the Digest or Pandects, and the Code, has been completed, by the favour of Almighty God, in three years—a work which, when it was begun, we scarcely hoped to accomplish in ten. “§ 13. We notify this act of legislation to all. Itis a colla- tion of direct concise laws, placed within the reach of. every- body, the text of which can be obtained by the poor as well as by the rich, for a small sum instead of the expense which would have been entailed in procuring a large and superfluous mass of volumes.” L §§ 14, 15 and 16. “ Should there be any repetitions or any apparent discordance—for there is no real discordance and no omission—it must be excused on the score of the imperfection of human nature; for it is Deity alone which fails in nothing. “ § 17, These laws have been collected from so many volumes that the most aged men not only were ignorant of their names, but had never heard them mentioned. These volumes of an- cient lore have been furnished for the most part by Tribonian, a most excellent personage, many of them being unknown even to 456 THE HISTORY OF ROMAN LAW. the most learned. The collectors of our work have read not only all the books from which our laws have been extracted, but also a great number of others, in which they have found nothing either useful or new fit to be incorporated into our Digest. “ § 18. But as even Divine works are susceptible of improve- ment, and as there is nothing which can perpetually remain in the same condition, if there should arise any reason to add to or to modify the Code, wisdom and imperial power will minister to that want. “ § 19. Conscript fathers, and all inhabitants of the terrestrial globe, render ye therefore thanks to the Supreme Divinity, which has reserved for your age so salutary a work! Vene- rate, observe these laws (et adorate, et observate). Let no one attempt, either before the judge, or in any other discussion where the law should intervene, to quote, or to point out any passage whatever of other books than our Institutes, our Digest and our Constitutions, arranged and promulgated by us, under the penalty due to the crime of fraud to the fool capable of such a deed, and to the judge who shall have suffered it in his hearing. «° § 20. In order that it may be manifest from what legislators (ex quibus legislatoribus), from which of their works (quibusque libris eorum), and from what thousands of materials this temple of Roman law has been constructed, we have ordered the list of them to be placed at the beginning of our Digest. We have chosen the legislators or commentators (legislatores autem vel commentatores) who were worthy of so great a work, whose ability the princes, our predecessors, condescended to recognize, and we have invested them with an equal authority, no supe- riority of one over the other being recognized; for all the provisions adopted by us, having the force of a constitution promulgated by us, there can be no distinction.” (Has the register or catalogue here sanctioned by Justinian been trans- mitted to us? There is one, written half in Greek and half in Latin, at the beginning of a very ancient manuscript, called The Florentine Pandects, but the enumeration of the works of the jurists, from whose fragments the Digest was compiled, THE HISTORY OF ROMAN LAW. 457 is so incomplete that it is difficult to believe it is the original catalogue.! These jurists are thirty-nine in number. Though Justinian professes only to have made a choice of ancient autho- rized jurists, there are two amongst them, Hermogenianus and ‘Arcadius Charisius, of too late a date to be reckoned in that class.2. The expression legislatores should be noted, for there was no hesitation in applying it, in Justinian’s time, to the ancient authorized jurists; and that of leges, applied to their writings: this is a point to which we have already called attention. ) * § 21. Let no jurist, at the present time or in the future, dare to annex commentaries to these laws: we only permit translations from Latin into Greek, and the summaries called paratitla, intended to describe the articles; but not interpre- tationes, or rather perversiones. Penalties due to the crime of fraud are threatened on those who shall contravene this pro- hibition, and the destruction of their works. ** § 22. The same penalties are applicable to those who shall, in future, write our laws in signs or abbreviations; everthing, including the names of the jurists, the articles, the numbers of the articles, must be expressed, not by signs, but by letters. Let those who buy books written with signs in any portion whatever, know that they will have a useless property, as they will not be allowed to quote them before a court of justice. As to the writer, over and above the penalty of fraud, he will be bound to restore double the estimated value of the book to him who shall have bought, or caused it to be bought, in good faith. “ § 23. The laws of these codes, namely, the Institutes or Elements, and the Digest or Pandects, will be in force from our third and blessed consulate, the third of the kalends of January 1D. Godefroy has given this cata- logue, half in Greek half in Latin, at the beginning of his edition of Corpus juris; Pothier has given it in Latin in his Pandects (p. cxxxvi.), making the necessary additions to explain or com- plete it. We give it as an appendix at the end of this history. This catalogue only enumerates the jurists whose frag- ments, headed by their name and by the title of the work from which each fragment is taken, form a law in the Digest, and not the large number of jurists whose opinions are quoted or copied therein. , 2 See § 534. 3 See § 526, 458 THE HISTORY OF ROMAN LAW. (30th December, a.p. 533), over all future or still pending suits before the judges, but not those settled by final judgment or by amicable arrangement, which we would not in any way disturb.” (To give power to new laws, not only over future events, but even over still pending suits, is an abuse of the principle of re- trospective operation, in regard to any law introducing innova- tion, and thus interfering with rights previously obtained; but not in regard to those which only interpret the pre-existing right. ) « § 24, Let all our judges adopt these laws within their juris- diction, and especially let the prefect of Constantinople and the three preetorian preefects of the east of Illyria and of Lybia have them published and made known to all within their respective jurisdiction. “* Given the 17th of the kalends of January, under the third consulate of Justinian (16th December, a.p. 533).” Section CVIII. Institutes (Institutiones, Instituta, Elementa). 548. Even before the publication of the Digest, the emperor, as he had announced in his first constitution, De conceptione Digestorum, and as he says in his constitution De confirmatione, entrusted to Tribonian, Theophilus and Dorotheus, professors of law, one at the college of Constantinople, the other at that of Berytus, the duty of collecting together the different elementary treatises left by the ancients under the title of Institutiones, and of constructing thereupon a treatise of the same kind bearing the same title, intended to supply students with a simple abridgment of the principles of the laws. Works designed on this plan were not rare amongst the ancients ; and judging only by those indicated to us in the Digest, we know that Gaius, Callistratus, Paul, Marcianus and Florentinus had published Jnstitutiones ; under other titles also had appeared other elementary treatises, such as the Sententie of Paul and the Regule of Upian, which have been in part handed down to us. The book designed by THE HISTORY OF ROMAN LAW. 459 Justinian, under the name of Institutiones or Elementa, was speedily completed ; it was extracted, to a great extent, from the ancient elementary treatises which we have just pointed out, and especially from the Institutes of Gaius, which had the greatest reputation. Since we have been able to compare them we have found that, in the division and the order of the subjects, there are numerous passages which are identical. But in the Institutes of Justinian the different fragments have not been, as in the Digest, separated, and the sources from which they have been taken have not been indicated: they are all con- founded and mixed up with the explanations, and the new theories which the editors of the Institutes themselves gave, so as to form a consecutive exposition. 549. This treatise, though it was only, so to speak, a book intended for schools of jurisprudence, nevertheless received the character of laws. It was commenced long before the Digest, and was published nearly a month before (22nd November, A.D. 533) by a special constitution, which serves as a preamble (premium) to the Institutes. But these two legislative works could only have come into force from and after 30th December, A.D. 533.) —~+— Section CIX. New EpIvIon oF THE CODE ( Codex repetite Prelectionis). 550. “ Justinian to the Senate of Constantinople.* “Since the publication of the Code, in which we have caused the imperial constitutions to be gathered together in one collection (in unum corpus colligere), and purged from all de- fect (omnique vitio purgare): “§ 1. Having resolved to proceed to the revision of the ancient laws, we have published fifty decisions and many other ! For more ample details, see M. ? Const. iii., at the beginning of the Ortolan’s article “ Institutes,” vol. ii, Cod. De emendatione codicis de Jus- at the commencement of L’explication tiniani, historique des Instituts. 460 THE HISTORY OF ROMAN LAW. constitutions connected with the execution of this project (ad commodum propositi operis pertinentes); and, finally, the whole of the ancient law, amended, freed from all superfluous polixity and elucidated, has been exhibited in our Institutes and Digest.” §§ 2 and 3. “ But the fifty decisions and the new constitutions not being found in the body of our Code, to which they are posterior, and many which were there wanting correction, we have commissioned Tribonian, the director-general of all our legislative measures, Dorotheus, professor of law at Berytus, Menas, Constantine and John, lawyers of the highest rank in Constantinople, to unite, under the articles to which they belong, the new constitutions to the former ones, and, without scruple, to suppress whatever appears to be superfluous, abro- gated provisions, repetitions, or contradictions. No one is ignorant of the advantages of a second edition. We find amongst ancient books not only first but second editions, to which the ancients gave the name of repetite prelectiones.” §§ 4 and 5. “ This new work has therefore been undertaken by us; and we order a second edition of the Code to be prepared ; and we forbid that from the 4th of the kalends of January, of the year of our fourth consulate (29th December, a.D. 534), any- thing to be quoted, before the judges, from the fifty decisions, from the previous constitutions, or from the first Code, except what is to be found in the second edition. If, hereafter, any amendment should be deemed useful, we will provide for it by constitutions which shall form a collection by itself (in aliam congregationem), under the name of new constitutions” (novelle constitutiones). (We would not attribute, like Puchta, this last provision to the desire of reassuring purchasers of the second edition against the inconvenience experienced by the purchasers of the first, that is to say, against the fear of being forced, after a while, to purchase a third. This would be to take a narrow view of the matter, for there were better reasons for the step being taken, such as the dignity and reputation of the Code itself and the example of what had previously been done with the Theodosian Code and the collection of subsequent Novella. Then follows the same prohibition as that published in the case of the Institutes and the Digest, against writing any THE HISTORY OF ROMAN LAW. 461 part of the Code in signs or abbreviations.) “ Given at Con- stantinople, the 16th of the kalends of December, in the fourth consulate of Justinian” (17th November, a.p. 534). 551. This new edition is the one we possess: the first, which had fallen into disuse, is unknown to us. This Code is, like the first, divided into twelve books: it contains several consti- tutions less, which have been suppressed; so it happens occasion- ally that the Institutes refer back to certain passages not con- tained in the new Code, and which were probably in the first. The constitutions are placed under different articles, with the names of the emperors to whom they belong, but they have been altered in the same manner as the fragments of the jurists. The most ancient is that of Adrian, from which some writers have concluded that the imperial constitutions date only from this prince—an opinion seldom advanced in these days. Section CX. NoveELL& CONSTITUTIONES— AFTERWARDS AUTHENTICH, CORPUS AUTHENTICORUM. 552. The name of Novelle constitutiones (by abbreviation Novelle) had already been given to constitutions published sub- sequently to the Theodosian Code, by Theodosius and his imme- diate successors. Justinian, whose reign lasted more than thirty years, after his collection of laws was completed, promulgated, as he had announced in the constitution referring to the second edition of his Code, numerous Novelle which often modify the Digest, the Institutes and the Code. This began the very year following that in which the second edition of his.Code was put in force, that is to say, from a.p. 535, and continued de- creasing every year from A.D. 543, the date of the death of Tribonian, up to the death of Justinian in a.p. 565. Dividing this space of thirty years into quinquennial periods, out of one hundred and forty-six Novell of which it is possible to fix the date with certainty, or at any rate with probability, we find one 462 THE HISTORY OF ROMAN LAW. hundred and eight in the first period and only twenty in the second, six in each of the two following, and three only in each of the latter. 558. Whilst Latin was the national language of the State, in which the legislative works of Justinian were written, Greek was in Constantinople and amongst the Byzantine population the vulgar tongue. It was in Greek that most of the Novelle were promulgated, which made a greater distinction between them and the ancient laws, and did not increase the connection with the West, where Justinian only obtained a partial and precarious influence. A few Novelle, however, were drawn up in Latin, and sometimes even in both languages. In Greek, says Justinian, for the use of the multitude (propter multitu- dinis frequentiam): in Latin, which will have no less force, by reason of this language being the representative of the Republic (propter Reipublice figuram.| This diversity or alternation of language has not been favourable to the preservation of uni- formity. It has necessitated translation from one language to the other, which the Constitutions of Justinian permitted ; some of these translations were made under Justinian, others after him, and there have been some even in modern times. Those intended for promulgation in Italy, which were ordered by Justinian, a.D. 554, must have been official translations, others are private works. This practice interfered with the accuracy and with the official character of these laws. 554. Justinian certainly intended that his Movelle should form a continuation of the Institutes, the Digest and the Code. This he announced in the same constitution as that which directed the publication of the second edition of his Code (et in aliam congregationem referatur); but it is in the nature of such a work for its author to continue his labours throughout his whole career, and consequently to die, leaving it incomplete. We see by several passages from the Novelle that they were ' Novel. 66, ch. 1, § 2: “Alia qui- Latina, que etiam firmissima, propter dem Greecorum lingua conscripta prop- = Reipublice figuram, est.” ter multitudinis frequentiam, alia yero THE HISTORY OF ROMAN LAW. 463 deposited in the archives of the empire (in sacro laterculo deponi); and that there existed a book, volume or collection of laws in which they were inscribed (in Udris legum transecribi ; legum volumen; sacrarum nostrarum Constitutionum volumen ; sacrarum nostrarum Constitutionum lectio).1 They came to take their place there, as our laws, ordinances or decrees take theirs in our archives,—a mass of fragments not published but heaped together, with no other connection but that of chrono- logical arrangement, and that with occasional blanks. It is doubtful if the Movelle ever bore any other character.2. Were they ever collected and published by Justinian, or say, by Justin II., his immediate successor? This matter is open to doubt, though it must be acknowledged that there is no trace of the text of any constitution ordering anything of the kind, as was done for the other collections of Justinian, and that it would be strange, supposing such a constitution to have been passed, if the text had not been reported or quoted somewhere. One thing is certain, viz., that different collections, more or less * Nov. 17, De mandatis Principum, Preef.: “Eadem mandata et in libris legum transcribi, et in sacro laterculo deponi precipiat.” Nov. 24, De pra- side Pisidia, ch. 6, pr.: “Sacra man- data jussimus in sacro laterculo re- poni.” §1: “Hane sane legem tum sacrarum nostrarum Constitutionum lectio monstrabit; jussimus enim et hanc inter eas describere.” Nov. 25, De pretore Lycaonia, Epilog. : “ Pre- sentem itaque legem Nos quidem sacra- rum nostrarum Constitutionum volu-- mini jussimus inseri.” Nov. 26, De pretore Thracie, in fine: “ Atque hance sane presentem legem habebit quidem legum volumen.” 2 Paul Warnefride, known under the name of Paul the Deacon, born about 740 at Cividale (the ancient Forwm Julii of Venetia), who, after having been secretary of Didier, king of the Lombards, and after having lived at the court of Charlemagne and that of the Duke of Benevent, died in 801 at the monastery of Monte-Casino, has in- serted in his history of the Lombards (De gestis Longobardorum) a short chapter devoted to the reign of Justinian. He has there exactly and laconically de- scribed the Code, the Digest or Pan- dects, and the Institutes; and as to the Novella he expresses himself thus: Novas quoque leges, quasipse statuerat in unum volumen redactas, eundem codicem Novellarum nuncupari san- civit. (This work will be found in the first volume of Rerum Italicarwm Scriptores by Muratori.) Here is tes- timony showing the Novelle to have been united in one volume or code by the orders of Justinian himself. It is true that it is the testimony of a historian and not of a jurist, in the eighth century only, and it has been supposed, rather gratuitously, that it was the abridged volume of Justinian which he had before him. The asser- tion of a learned Greek canonist, patri- arch of Constantinople in the time of Justinian himself, John of Antioch, sur- named Scholasticus, is usually urgéd in opposition to this, but we shall show in another place how that quite a different interpretation may be placed on the passage of John of Antioch, so that the question remains doubtful. We are rather inclined, however, in the absence of more certain proof, to deny the fact of a Code of Novelle ever having had wu fixed and official cha- racter. 464 THE HISTORY OF ROMAN LAW. extensive, have been made from different quarters, as private works; there are others whose character is doubtful; and it is in this form, good, bad, or indifferent, that the text of the Novelle has reached us, but we possess none in an official form. 555. The collections known to us, having undoubtedly a private character, are those of John of Antioch, surnamed Scholasticus, and that of Julian. There are two remarkable points about these collections which are calculated to mspire some confidence in their genuineness; one is the position of the authors, and the other the time when they appeared, that is, shortly after the death of Justinian. John, a learned ecclesiastic, who was, during the reign of Justinian, a priest (presbyter) of Antioch, published a collec- tion of the sacred canons, extracts from the books of the apostles, from the councils or synods, and from the fathers of the Church. This book, which was in Greek, was divided into fifty titles; perhaps in imitation of the fifty books of the Digest. One year before the death of Justinian (4.D. 564) he was nominated, by the emperor, patriarch of Constantinople, and replaced Eutychius, who was exiled. While occupying this post, which he filled till the year a.p. 578, he undertook and completed the labour of arranging, under each of the titles of his collection of canons, the corresponding provisions of the Novelle of Justinian. This work, also published in Greek, was entitled by him Néwoxavay, a title at a later period adopted by Photius, another patriarch of Constantinople. Although well known to the canonists, the work has been too much neg- lected by the historians of the civil law. It was compiled with a definite object, and only contained extracts from the Novelle bearing upon ecclesiastical law. The passages quoted from the Novelle are not given in their integrity, but are cut up into fragments and analyzed according to the title of the canon under which they are placed, and are without date; but the classification is valuable, because each extract is numbered, and the numbers doubtless indicate the date to which each belonged: and it is well worthy of notice, that neither of these numbers, ex- THE HISTORY OF ROMAN LAW. 465 cept that of Novella VI, agrees with those which the Novelle in our collections bear. It is customary to regard a passage from this book as a proof that the Novelle of Justinian were never codified, but this passage is susceptible of another render- ing. It may be, on the contrary, that John was alluding to the design of a Code, and that the Novell scattered here and there in this Code, which it was necessary for John to search out and collect, are those relating to ecclesiastical law, the different provisions of which he transcribed, following the order of his titles of the canon law, thus frequently mixing extracts from the Code of Justinian and from his Digest under the. rubric, Leges cum hoc titulo concordantes.1. John of Antioch has done much by the labour he underwent in collecting and arranging these scattered materials. As to Julian, he was, in the time of Constantine, a professor of law in the public school of Constantinople, and a successor of Theophilus and of Cratinus; he published, either during the life of Justinian, or, according to others, shortly after his death, A.D. 570, an abridgment of the Movelle, in Latin, under the title of Juliani Novellarum Epitome. This collection, which is divided into two books, only contains a hundred and twenty- five Novelle, which are not given in their entirety, but abridged. Though thus limited in extent, it is a collection on which the utmost reliance may be placed, inasmuch as its origin is certain, and it was written by a person of considerable aptitude for the task and who had access to contemporary documents. The book was no doubt intended chiefly for elementary instruction. Biener, in his Histoire des Novelles de Justinien (1824), started the idea, subsequently adopted by Puchta and others, that this Latin abridgment was made by Julian in order to facilitate the application of the Novelle to 1 There is in France a good edi- tion of the two collections of John of Antioch, with Greek text and Latin translation, in the second volume of the Bibliotheca juris canonici veteris, by Guil. Noell and H. Justel, Paris, 1661. he Latin translation of the passage allnded to in the text occurs at p. 603 in the preface of the first title of the Nomocanon: “Ea que that part of Italy which was cum. . sacris Canonibus conjuncta sunt, e divinis novis constitutionibus, que secundum codicem a divine sortis Justiniano promulgate passim disperse sunt, transcripsi.” We may notice that even the fathers of the Christian Church used the expression~-“ divine” when speaking of the Novell and of Justi- nian. HH 466 THE HISTORY OF ROMAN LAW. subject to the empire. That this may have been partly Julian’s design is most probable; but it is clear that a professor of law at Constaritinople, in the habit of explaining to his students the Roman law, as contained in the text of Justinian, in the original and national language (propter retpublice figuram), would be compelled to make his abridgment of the Novelle in that language. The population of the empire, it must be remem- bered, spoke two different tongues. Justinian had foreseen the necessity of, and had authorized, translations. Theophilus pro- duced a Greek paraphrase of the Institutes, and Julian, his successor, a Latin abridgment of the Novelle. As to Italy, we have every reason to believe that when the Novelle were published by the order of Justinian, a.p. 554, they were trans- lated into Latin entire and not abridged. Such are then the two private collections which we possess, the character of which is unquestionable: that of John of Antioch having been framed for a definite object and useful only in respect to certain historical points concerning the Novelle; the other, that of Julian, embracing, if not all the Novelle, at least the greater part, but only by way of abridg- ment. It is precisely on account of the fact that it was an abridg- ment that the abridgment of Julian was more widely circulated, and more particularly in Italy by reason of the language in which ii was composed, and at an early date in Gaul, where it was known before other parts of the laws of Justinian, which were never promulgated there. The work was therefore, in the middle ages, frequently called by the simple title Novelle. A number of copies are extant, some of which have been recently discovered, and several editions have been published, amongst others that of Ant. Augustinus, in the sixteenth century, and that of the brothers Pithou.? 556. The collections, the origin and character of which remain doubtful, but which have the great advantage over those 1 Ant, Augustini Collectio consti- 1567; Basilee, 1576. Pet. et Fy. tutionum grecarum Codicis Justini- Pithoeorum, Odservationes ad Codi- ani, et Juliani Novellarwm epitome, cem et Novellas Justiniani, Paris cum paratitlis et scholiis, Herde, 1689. THE HISTORY OF ROMAN LAW. 467 already mentioned of giving the text of the greater part of the Novelle entire, are only two in number, one in Latin the other in Greek. The Latin collection, which contains a hundred and thirty- four Novelle, with Latin translations of those which were pro- mulgated in Greek, was, at an early date, widely circulated in Italy under the name of Authentice, as to the Novella, and of Liber or Corpus authenticarum, or, more briefly, Authenticum, as to the collection. Several manuscript copies have descended to us; but their source remains unknown. It is a common mistake to connect the name Authentice with an anecdote about ‘Irnerius, and which is dated at the period when this chief of glossators recognized the authenticity of the text, which he had at first denied; the name Authentice existed at an earlier period, and the anecdote, whether true or false in itself, is a proof of this fact. The fact was that, in a certain lawsuit in which he was concerned, a text from this collection was quoted, under this title, against him, when he exclaimed, “ Look else- where, my good man!” ( Vade bone homo!) adding that this book was not the work of Justinian, but of some monk, and that consequently it was not authentic; and it is also under the same title that, in one of his earlier glosses upon the Code, he gives various grounds for disputing its authenticity.1 This title existed long before the glossators, whether as distinguish- ing it from the abridgment of Julian, or, what is more likely, it was handed down by a tradition which represented these texts of the Novelle as the texts which had been promulgated in Italy, about the year A.D. 554, by order of Justinian. The same tradition represented this Latin version (the author of which is unknown) as that promulgated in Italy under the title which it bore of versio vulgata. Some critics have quoted, in support of this opinion, the passage of Paul the Deacon, given by us in ! Imerius, De emendatione Codicis, § 4: “Hine argumentum sumi potest quod liber iste, id est Autentica, sit repudiandus. Ejus enim stylus cum ceteris Justiniani constitutionibus nullo modo concordat, sed omnino inter se discrepant. Item ejus libri principium nullum est, nec seriem nec ordinem aliquem habet. Item Novella ists con- stitutiones, de quibus hic loquitur, non promittuntur nisi de novis negotiis et nundum legum laqueis innodatis.” (Quoted by Savigny, Hist. du droit Romain au moyen-dge, t. 8, p. 346 of the translation from the MSS., Munich, No, 22, and Vienna, No. 15.) HH 2 468 THE HISTORY OF ROMAN LAW. the note to paragraph 554; but it is clear, from its perusal, that no reference is there made to its being a translation. The name Authentice, which does not belong to the time of Justinian, but is of later date, for a long period almost sup- planted that of Novelle, and was in common use in legal works, at the court, and in literature; so much so, that the expression is met with, in ancient authors, to “authenticate” a woman, or a woman “authenticated,” meaning a woman treated as pre- scribed in Nov. 134, cap. 10, in the case of adultery. The Authenticum was modified, both in its form and con- tents, by the glossators,! and the manuscripts which have been transmitted to us through that channel are, in consequence, more or less defective. M.de Savigny mentions one at Vienna, in which one only is wanting of the whole hundred and thirty- four Novelle. M. Heimbach has availed himself of this to give an edition as far as possible free from the alterations of the glossators, and in other respects as pure as possible.? 557. The only other collection to which attention is directed, which has given us the Novelle in Greek, is, like the last, of unknown origin. Of this collection there are two manuscript copies, one at Florence and the other at Venice, and these two mutually supply the blanks that oceur in each other. There are altogether one hundred and sixty-eight documents, each bearing its own number; and amongst them are intercalated, towards the latter numbers, certain Wovelle of Justin II. and Tiberius II., the two immediate successors of Justinian, and two edicts of the preetorian preefects; under the other numbers, down to one hundred and fifty-nine, we have the constitutions of Justinian. Among these however are four which, with the exception of slight variations, appear in duplicate: this is ex- plained in the one case by its having been promulgated in the two languages, and the translation of the Latin into Greek 1 Of the one hundred and thirty- four Novelle of the Authenticum, the glossators have detached thirty-seven as being inapplicable to their time, and these they have called ‘“ extravagant” or “ extraordinary ;” the others, ninety- seven in all, were called “ordinary.” The whole have been divided, like the Code, into twelve parts, called col- lationes. 2G. E. Heimbach, Authentieum : Novellarum constitutionumJustinians pee vulgata. Leipsic, 1846—1851, vols, THE HISTORY OF ROMAN LAW. 469 having caused a repetition in the collection; and in the other, by the fact that the same constitution was addressed, with slight variations, to different parts of the empire. In addition to these there are three which belong to a special collection of thirteen constitutions, which are not styled Novelle, but Jus- tiniani imp. Edicta. If we deduct these four duplicates and three edicts, we have in this Greek translation a hundred and fifty-two different Novelle of Justinian. The language of the Novell in this collection has suggested the belief that we have here the text of those originally promul- gated in Greek; and, so far from the fact that certain consti- tutions appear in duplicate, and that there are to be found inter- calated in the latter numbers certain Novelle of Justin II. and Tiberius II., and two edicts of the pretorian prefect, being unfavourable to this view, we take it as a strong indication of its being original. The compiler probably made his collec- tion under Tiberius II., certainly not before. The arrange- ment is not good, or it is perhaps better to say that there is none. But what is of importance to us is the fact of the text being original. The better arrangement for a series of docu- ments like these would have been an exact chronological order. This however has not been observed either in the Greek or in the Latin collection of the Authenticum. Besides this, and this is the greatest defect in both these collections, a great number of the Novelle do not bear any date, or have only an incomplete date. Critical labour is therefore necessary to determine these dates with anything like accuracy, and in many instances they can only be arrived at approximately. The Greek collection was edited for the first time in 1531, from the Florentine MS., by Greg. Haloandre, with a Latin translation, and, in 1558, from the Venetian MS., by Henr. Scrimger Scot. Several Greek editions have followed, and ! The ancient editors or commenta- tors, and Cujas, in his Laposition des Novelles, have remarked that the num- bers 140, 144, 148 and 149 of the Greek collection are the Novelle of Justin IL: the numbers 161, 163 and 164 those of Tiberius IL, and the two numbers, 167 and 168, the edicts of the pretorian prefects; that as.to the rest, except slight differences, there is repetition between the numbers 32 and 34, 41 and 50, 75 and 104, 143 and 150; and that, finally, the numbers 8, 111 and 122 belong to the thirteen edicts of Jus- tinian, 470 THE HISTORY OF ROMAN LAW. even in the eighteenth century other Latin translations ap- peared, which are considered more correct, more elegant, and in purer Latin, than the versio vulgata of the Authenticum. 558. To the four collections to which we have already referred, that of John of Antioch, the epitome of Julian, the Authenticum, and the Greek collection, must be added a MS. in the royal library of Paris, which contains an index or cata- logue in Greek of the Novelle. » Cujas published the transla- tion of it in Latin, at the head of his commentary, in the second volume of his work, and the Greek text was produced in Germany in 1840. This catalogue appears to have been prepared as a kind of table of the Greek collection. Like the original collections, it is free from the divisions and subdivi- sions introduced by the glossators, and is confined to a classifi- cation under one series of numbers, each novel being designated by its rubric. These rubrics to a certain extent differ from those in common use; they are in general more brief, but they refer to the same constitutions. 559. Such are the materials from which our present edition of the entire body of Justinian law has been prepared. These editions have been confused, both by the use of the name Authentice and by the division into nine collationes, and the subdivision into titles (each Novella forming one),—distinctions which originated with the glossators, which are in themselves useless, and which are not to be met with in the Novelle of Justinian. It is now the common practice to quote the Novelle by their numbers. 560. Of the hundred and fifty-two different Novelle of Justinian to which we have alluded, thirty refer to ecclesiastical matters, fifty-eight to the administration of the public or criminal law, and sixty-four to private law. Those portions of the works of the ancient Roman jurists which are inconsistent with an ad- vanced civilization here rarely make their appearance, or are altogether discarded; while principles more adapted to further the improvement and progress of mankind are allowed to have THE HISTORY OF ROMAN LAW. 471 their sway. It is impossible to read such passages of the Novelle without giving them our cordial approbation and sym- pathy. We find, indeed, side by side with some of the defects of earlier institutions, certain points, such as the succession ab intestato, well worthy of our consideration. —~— Section CXI. Corpus Juris CIvIzis. 561. The whole collection of the Institutes, the Digest, the Code and the Novelle is called the Corpus juris, or more com- monly the Corpus juris civilis by way of antithesis to Corpus juris Canonici. In the text of Justinian, and even anterior to him, we meet with the expression corpus: for example, in con- nection with the jurists, Papiniani corpus; and the codes, ex corpore Gregoriani, Hermogeniani, Theodosiani, and in allu- sion to the Breviarium Alarict, in hoc corpore, and to Justinian’s code, in unum corpus colligere. But as a technical expression used to express the whole body of Justinian’s law with certain additions,! we derive the term from the glossators. The various fragments which are scattered and separated from each other, of which the Code and the Digest are to a great extent composed, have for a long time been designated leges. Many authors, however, when referring to the Code, prefer to call them, in the Code, constitutiones, and, in the Digest, fragmenta. These titles are more in conformity with the general history of Roman law, inasmuch as they indicate the origin and essential character of the passages quoted. The word leges, used by Justinian himself, is more suitable to the character of the Code and of the Digest; as passages inserted they have acquired thereby an imperial authority (though in fact for the most part they enjoyed this previously), and have thus become in the proper sense of the term leges, that is, in the sense in which we now understand that word. We know how 1 Constitutions of different successors Canons; customs of the Lombards as of Justinian; of the emperors of Ger- to fiefs; Peace of Constance, many, Frederick I. and I1.; Apostolic 472 THE HISTORY OF ROMAN LAW. the term leges was frequently applied by Justinian, not merely to provisions contained in the Institutes, in the Digest, in the Code and in the Novelle, but also to the sententie or decisions of the authorized jurists. The mode of quoting the Code and the Digest is not uniform, but with all authors of works published before the time of’ the glossators, whether in the East or West, we find only the numbers showing the position of the book, of the title and the passage quoted, to which are sometimes, though rarely, added the com- mencement of the passage; but since their time, for the con- venience of quotation and for the sake of accuracy, numbers were added, which of themselves convey little idea to the mind; the commencement of the sentence, however, gives a clue to the subject. This change in annotation served, in the opinion of Savigny, as a means of judging of the antiquity of the MSS., whether they are anterior or posterior to the school of glossators. The practice of indicating the first word of the rubric of the title as well as of the Jex and of the paragraph was observed by the older French jurists, as may be seen from the following quotation from the burlesque of Racine, L’Intimé des Plaideurs: “ Qui ne sait que la loi Si guis canis: DIGESTE, De vi; paragrapho, Messieurs, Caponibus, Est manifestement contraire 4 cet abus ?” We now adopt the numbers, and it is well, lest there should be an error in the figures, to add the first word of the rubric of the title, and by way of historical allusion the name of the emperor or the jurist who was the author of the passage quoted. It is scarcely necessary to add that in order to indicate the Digest or Pandects the sign ff is used, which is supposed to be derived from the Greek II, or from the symbol of the copyists representing D. 562. Such were the results of Justinian’s labours in the de- partment of legislation. During this undertaking the emperor was engaged in carrying out his design of reconquering the various parts of the Western empire. It is generally said that his reign was as illustrious for feats of arms and achievements in the arts as for his legal reforms. Under Belisarius the dis- THE HISTORY OF ROMAN LAW. 473 cipline and the courage of the soldiers reappeared, and their bravery was crowned with triumph. Before the Institutes and the Digest had been promulgated, the kingdom of the Vandals had been overthrown in Africa; and that country, again attached as a preefectorate to the empire, was divided into dioceses and provinces, which were presided over by a prefect, by rectores, and by presidents, a.D. 533. And Justinian, who, in the titles of his laws, had contented himself with the common epithets of Pius, Felix, semper Augustus, added, when pub- lishing his Institutes, the appellations of Alemanicus, Gothicus, Alanicus, Vandalicus, Africanus, and many others, to which he was in no way entitled. Sicily soon followed Africa; Italy followed Sicily; and in time the Goths even abandoned Rome itself, the keys of which, as a mark of its subjection, were sent to Constantinople, A.D. 537. Captured and recaptured, however, by the bar- barians and the troops of Justinian, the cities of Italy were not permanently reconquered. When, under the walls of Car- thage, on the shores of Sicily, on the banks of the Tiber, the great Belisarius had rekindled in the East the ancient glory of the empire, the feeling of envy was aroused against him at the court. When for a whole year he had maintained a glorious defence in Rome, and, after raising the siege and overrunning Italy, had shut up the Gothic king in Ravenna, a treaty made by the emperor sacrificed the greater part of the advantages he had won, and he was recalled by an imperial order to Constan- tinople. No sooner had he carried his arms into the heart of Assyria and threatened the capital of the Persian king, thus forcing him to abandon the Roman provinces that he had invaded, A.D. 544, than an imperial order recalled the victorious gencral to Rome. Again he reappeared in Italy, where the safety of his former conquests had been menaced, but no sooner had he delivered Rome from the Goths, who had recaptured it, and taken measures which would have secured the complete overthrow of the barbarian power, than an imperial order again called him to Constantinople. Such was the system of refined persecution to which a great, a noble and a sensitive mind was exposed. Belisarius was replaced by the eunuch Narses, who was 474 THE HISTORY OF ROMAN LAW. not unworthy of the trust, and who successfully completed the labours commenced by his predecessor. After delivering the whole of Italy, and making it over to the Emperor of the East, he was appointed, under the title of exarch, to the government of those countries, and established himself at Ravenna, which he selected as the capital of his exarchate. In a.p. 559 Belisarius again rendered eminent service to his imperial master by driving the Bulgarians from Constantinople, but he finished his glorious career by falling a victim to court intrigue. He was accused of plotting against his imperial master, disgraced and despoiled of his dignities and his honours. It is true he was restored, but not till it was too late, though it was only in the following year, for he died. The poet and the painter have represented him as sitting by the wayside suffering from the loss of sight cruelly inflicted by an ungrateful master, or as led by the hand by a child, the only companion of his misfortune, begging out of charity, “ an obolus for Belisarius.” Thus had tradition, the poet and the artist imputed to Justi- nian a crime of which he was never really guilty. 563. The emperor did not long survive Belisarius, for he died a.D. 565, after a reign of thirty-nine years, being himself about eighty-four years of age. What judgment should history pass upon him? At a time when the study of Roman law was general throughout Europe, Justinian’s character was the subject of much controversy ; some attacked, others defended him, and the historians and the jurists occupied antagonistic positions in the discussion. There came to be two schools, the Justinianists and the anti-Justinianists. Montesquieu is far from sparing him. The worst part of Justinian, he said, was his profusion, his exaction, his rapacity, his rage for building, his inconstancy, the alternate weakness and harshness of his rule, which were the more disastrous from the length to which his reign was protracted. These were real evils for which use- less successes and empty glory could not compensate. This is in substance a brief summary of the estimate formed of him by Procopius, Evagrius, Agathias and John Zonaras. Most of these reproaches are merited, and to them may be added his THE HISTORY OF ROMAN LAW. 475 weakness for Theodora, who ascended the throne of Constan- tinople as his consort after having frequently taken a part in the games of the circus and appearing on the stage, and after having inhabited the Embolum, the chief abode of prostitution. To this woman he more than once entrusted the sceptre that it was his duty to sway. His legislative measures are not suffi- cient to compensate for the defects of his moral character; and as the credit of his victories is due to Belisarius and Narses, so his laws are attributable to Tribonian and to his fellow labourers. At the same time, Justinian prided himself upon an acquaintance with philosophy, theology, the arts and the laws; he took pleasure in personally determining theological controversies, and in tracing the designs for monuments to be erected to himself; he also boasted of having revised the laws. The project which he conceived of codifying the law, though borrowed from previous efforts of his predecessors, should entitle him to the credit of a legislator; and he has the merit of having persevered in his intentions, and having brought his great work to a successful termination. 564. The jurists, and especially those belonging to the his- toric school, have bitterly reproached him for having mutilated the ancient authors, and for having misrepresented both their opinions and those of the emperors in his compilations. But is he to be regarded as a historian, or as a legislator? Was it his duty to give his subjects a correct view of the develop- ment of the science of law, or was he bound to furnish them with laws? We ought not to judge him from a point of view of our own selection, but we should regard his character in the light in which it must have been seen by an inhabitant of Constantinople and a subject of the empire. Besides, to be just, it is not to the handiwork of Justinian, but to that of bar- barism, that we must ascribe the loss of the ancient manuscripts and legal documents. The greater portion of the reforms in- troduced by Justinian were judicious, for they were suited to the times. Discarding the useless subtelties then in vogue in the Eastern Empire, he created a system of law conspicuous for simplicity and equity. And certainly for the revival of legal 476 THE HISTORY OF ROMAN LAW. study in our own age, European writers have chiefly rested upon the body of laws promulgated by Justinian; the legisla- tive measures of this emperor, which were attuned to the voice of nature and better adapted to human wants than the laws of ancient Rome, exerted upon European civilization an influence which never could have been exercised by the latter. It is un- philosophical to attack Justinian for his repeated changes, for the modification of the Digests and the Institutes by the Code, and the modification of the Code by the Novelle, amendments that nullified each other; while his detractors do not scruple to add to this charge of irresolution the calumny that he divided with Tribonian the proceeds derived from an infamous traffic in the sale of judgments, and even of laws. Asa matter of fact he accomplished a great work. —~—- Section C XII. TRIBONIAN or TRIBUNIAN. 565. From more than one historian of this period we learn that Tribonian excited a revolt by his exactions when minister, and that the emperor, in order to appease the sedition, was obliged to banish him for a time. As a jurist he possessed a varied stock of information; he was well versed in the study of the ancient writers upon jurisprudence, and had, beyond doubt, an exceedingly-well stocked library at his disposal, for of the 2,000 volumes collected for the composition of the Digest, the acquisition of which must have involved an enormous outlay, and of which many must have been unobtainable, the greater part were furnished from his own collection. Justinian, in one of his constitutions, styles him the minister of all his legislative work (legitimum operis nostri ministrum). It was he who sug- gested projects and provisions (suggerente nobis Triboniano), and who directed the composition of the whole. And it is to him that to a great extent must be attributed the merits and defects of this work. And, certainly, his vast erudition, and his assiduous references to the writings of the great Roman jurists, had not narrowed his mind; for notwithstanding the respect THE HISTORY OF ROMAN LAW. 477 which he professed for them, and his attachment to what was obsolete in their systems, he knew how to raise himself to a level with the new order of things. He has left the traces of this in his laws, especially in the Novella, and this to us is the greatest proof of his intellectual power. After his death, which took place a.p. 543, the number of Novelle published by Justinian decreased to such an extent, that, though the number during the life of Tribonian extended in the space of the first eight years immediately following the second edition of the code to about one hundred and twenty-five, reckoning only those the dates of which we are able to determine, only twenty-one appear after the death of Tribonian in a period of twenty-two years. Section C XIII. THEOPHILUS AND SOME OTHER PROFESSORS OF Law. 566. Theophilus, who was a professor of law at Constanti- nople, took part in the compilation of the first Code, the Digest and the Institutes. One of his works which we possess, and which is of great value, is a Greek paraphrase of the Institutes, in the preparation of which he took part. It is true that attempts have been made to show that this Greek paraphrase was not made by him. The groundlessness of this objection is established in the opinion of all students of Roman law who accord to the commentaries of Theophilus the credit they deserve. 567. The preliminary constitutions of Justinian, relating to the composition and to the promulgation of his laws, mention as having taken part in their elaboration three other professors: Ist. Dorotheus, of the school of Berytus, who worked at the Digest, the Institutes and the 2nd edition of the Code—the constitutions say of him, that it was in consequence of the great reputation which he enjoyed at Berytus and the fame that he had acquired that the emperor summoned him to take part in his work; 2nd. Anatolius, also a professor of Berytus; and 478 THE HISTORY OF ROMAN LAW. 3rd. Cratinus, a professor at Constantinople, who, however, only assisted in the preparation of the Digest. 568. We must not omit to notice the great dignity which attached to the office of public professor of law (Professor legi- time scientie constitutus, Juris interpres constitutus, Antecessor, Magister, Legum vel Juris doctor, Leges discipulis tradens, Optimam legum gubernationem extendens). All four occupied among the nobility of the Lower Empire the elevated rank of Iilustres. In the composition of the first Code, a.p. 528, Theo- philus only appears as clarissimus: after this, however, he always appears with the higher title of vir illustris. He had been a knight of the sacred consistorium. Dorotheus was a queestor, and Cratinus was a knight, comes sacrarum largi- tionum. We need not pause to enumerate the epithets Jauda- bilis, optimus, facundissimus, magnificus, magnificentissimus, and the other complimentary titles heaped upon them by oriental usage. 569. As their successor in the school of law at Constantinople Julian distinguished himself as the author of the abridgment of the Novelle in Latin which we possess. The mention of these professors leads us to say a few words upon the subject of legal education. Section CXIV. THE TEACHING OF LAW BEFORE AND AFTER JUSTINIAN, 570. a.p. 533. On the same day that Justinian promul- gated the Digest by two constitutions, in Latin and Greek, which were addressed to the senate and to the entire nation, he addressed a third to eight professors of the law of the empire, who were individually mentioned, with the view of indicating the course that they should thenceforth pursue in their instruc- tions. THE HISTORY OF ROMAN LAW. 479 571. Legal education had undergone various changes. We have described its character as connected with the great jurists of the republic. It then depended on the diligence of the pupils who attached themselves to a jurist as their master, and who derived instruction by imitating the example of their pre- ceptor. These practical lessons were, when necessity required it, accompanied with explanation; in fact the course pursued was somewhat similar to that of medical students of our day, who accompany and observe the practice of a great surgeon, or to that of a young artist who patiently watches, in the studio of his master, his mode of operation. In due course the habit of lecturing, which practice had become prevalent by the time of Cicero, was supplemented. And in this way theory and prac- tice had, to a greater or less extent, become united. The teaching of Tiberius Coruncanius and others is described by Pomponius.!. It is when speaking of this instruction that Cicero observes, “Jus civile semper pulchrum fuit docere ; hominumque clarissimorum discipulis floruerunt domus.” At the beginning of the empire, still adhering to this practice of combining theoretical and practical instruction, they laid greater stress upon teaching and upon the reading of legal works, which by this time had greatly multiplied. This was the method of Labeo’s system of instruction, who divided his time between literary labours and study in the country, and reading with the studiost in town. These studiosit were advanced students, as distinguished from another class, the auditores, and were, in fact, already in practice, but under the direction of their master, answering to the stagiaires, or law students, of France. The system of Sabinus was also on this model. When Pomponius said concerning this jurist that, not having pecuniary resources of his own, he was chiefly supported by his auditores,? it must not be understood as indicating that he was paid any common school fees, but that the sums given to him were marks of respect tendered by appreciating pupils to an eminent and esteemed professor. At the time of Paul, Ulpian t os 1, 2, De orig. jur., 2, § 40 Pomp.: “Huic nec ample facultates to 4 fuerunt, sed plurimum a suis auditori- 2 Dig. 1, 2, De orig. jur., 2, § 47, £ bus sustentatus est.” 480 THE HISTORY OF ROMAN LAW. and Modestinus, this method of initiation into legal mysteries, to which such men as Papinian had given great éclat, was drawing to a close, inasmuch as the series of classical jurists was entirely at an end. Ulpian, who designates Modestinus studiosus meus, is perhaps the last example of any importance ; but at a given period, not precisely known to us, men commenced the profession of law in the same way as that of philosophy and literature. This profession was free and private, both in Rome and in other parts of the empire, and we find from a fragment of Modestinus that he secured for the professors of law at Rome (legum doctores) exemption from the burdens of tutorship and curatorship.! The honourable character of this profession is duly estimated by Ulpian, who refused to allow professors, juris civilis professoribus, access ordinary or extraordinary to the pretor for the recovery of the honorarium which was due to them from their pupils, upon the ground that the science of civil law was too sacred a thing to suffer from being estimated or dishonoured by money payment, and that remuneration might be honourably accepted, but that it could not be de- manded.? It was to this private instruction that the stationes jus publice docentium aut respondentium belonged,—a species of classes for the teaching of law or for consultation (the word was also employed to signify “‘ shops”),3 to which Aulus Gellius refers in the time of Antoninus Pius, which existed in certain numbers at Rome, and where the discussion was being carried on in all of them, at the time of which Aulus Gellius was speaking, upon the question raised by a recent event, whether a questor could be summoned in jus before the pretor.* At a later period, in the Lower Empire, a system of public instruction, independent of private instruction, came into vogue, that is to say, a system of 1 Dig. 27, 1, De ewcus., 6, § 12, f. Modest. 2 Dig. 50, 13, De extraord. cognit., 1, § 5: “Proinde ne juris quidem 3 Dig. 42, 4, Quid. ex caus. in poss., 7, § 13, f. Ulp.: “In foro . . circa columnas aut stationes se occultet.” 47, 10, De injur., 17,§7: “ Ad statio- civilis professoribus jus dicent : est qui- dem res sanctissima civilis sapientia: sed que pretio nummario non sit esti- manda, nec deshonestanda, dum in judi- cio honor petitur, qui in ingressu sacra- menti offerri debuit: quadam enim, tametsi honeste accipiantur, inhoneste tamen petuntur.”’ nem vel tabernam.” 4 Aul. Gell. xiii. 13: “Quesitum esse memini in plerisque Rome sta- tionibus jus publice docentium aut re- spondentium, an queestor Populi Romani ad pretorem in jus vocari posset.” Aulus Gellins clenches the question by a passage from Varro, THE HISTORY OF ROMAN LAW. 481 authorized public instruction. It is more than probable that Rome had one of these schools before they were established in Constantinople, in which studies, which the Romans called liberal studies, were conducted; but we do not possess any documentary evidence as to the organization of this school, nor as to the various branches of study pursued in it. We only find in the Theodosian Code, under the title De studiis liberalibus urbis Rome et Constantinopolitane, A.D. 370, a con- stitution of the emperors Valentinian I., Valens and Gratian, concerning the discipline to be observed by the students; in which, after enjoining on the students to be punctual at their classes, to take care not to acquire a character in anyway disgraceful or disreputable, to avoid associates of questionable reputation, it proceeds to forbid the too frequent resort to places of amusement and taking part in boisterous banquets ; and adds, that those amongst them who do not conduct them- selves with the propriety that a liberal profession demands shall be publicly scourged, banished the town, and sent back to their homes.? This constitution does not appear in the Code of Justinian, in which we only find one that was issued fifty-five years after- wards, A.D. 425, by Theodosius II. and Valentinian III., regulating the organization of the public school at Constan- tinople, with its thirty-one professors, two of whom were pro- fessors of law. 572. At the time of the promulgation of the Digest, the second edition of the Code, and the first fifty or sixty Novelle, Rome was in the hands of the Ostrogoths; it was not till 537 that the keys of that city were carried to Constantinople, nor till 554 that Italy was reconquered by Justinian; but we know that the emperors of the East acted towards those portions of the empire which were ovcupied by the invading Germans, and especially towards Rome, as is the habit with fallen princes, who will not look upon facts as they are, and regard lost rights as if still subsisting. Thus in the laws of Justinian, especially in ! Cod. Theod. 14, 9, De stud. liber., 1, const. Valent., Valens and Grat., A.D, 370, II 482 THE HISTORY OF ROMAN LAW. those which refer to liberal studies, and in the constitution addressed by Justinian to the professors of law throughout the empire, Rome continues to be mentioned as if it was still the Urbs regia, whose institutions and privileges served as the type of those of Constantinople. In reality the constitution of A.D. 533, at the moment at which it was promulgated, only actually affected the schools of the East, viz., those. of Con- stantinople and Berytus. The allusion to Rome was merely nominal, and introduced to maintain the imperial pretensions, and in anticipation of a future, and the eight professors of law who are mentioned all belonged to the schools of Constantinople and Berytus.: Of these eight professors, seven were dllustres, the eighth was simply styled vir disertissimus. 5'73. In order to gather more accurately the details of this constitution concerning instruction in legal matters, both an- terior and posterior to its promulgation, we shall follow our usual system of analysis. * To the professors (Antecessoribus), Theophilus, Doro- theus, Theodosius, Isodorus, Anatolius, Thalleleonus, Cratinus, Illustres, and Salaminius vir disertissimus, greeting :” Pr. “ None know better than you that all the law of our re- public has been revised and classified in the four books of the Institutes or Elements, the fifty books of the Digest or Pan- dects, and the twelve books of the Imperial Constitutions. We have already published both in Greek and Latin the necessary constitutions, both to order the preparation of these works and to give them publicity. We now address you and your successors, professors of the science of the law, who shall be rightly so constituted (et omnes postea professores legitime scienti@ constituti), in order briefly to note the ancient practice 1 The number eight is double the recognized number of professors of law. It must not be supposed that the num- ber was increased permanently, because in the next year, 4.D. 534, we find the recognized number two for each school. The explanation most probably is, that during the compilation of Justinian’s works, the four professors, Theophilus, Dorotheus, Anatolius and Cratinus, being withdrawn from their ordinary duties for that period (in nostro pala~ tio introductis ;—ad nos deduximus), others were temporarily appointed to fill their place. THE HISTORY OF ROMAN LAW. 483 as to legal instruction, and to point out the course to be followed in the future. *§ I. You know that of the immense mass of law contained in two thousand works (3,000,000 lines), the professors have hitherto confined themselves to six works, these being them- selves confused, containing much useless matter; the others being either obsolete, or not procurable by all. ‘“¢ The first year’s course included the Institutes of Gaius and four special books: the first upon the ancient res uzoria; the second upon tutelage; the third and fourth upon wills and legacies. The whole of these were not to be read, many parts being superfluous. The order of the perpetual Edict was not followed, but pieces were selected here and there, the useful being mixed with the useless, the useless being in excess. * The second year’s course, following an order which deserves to be called preposterous, because this immediately followed the Institutes, included instruction in the first part of the law (ac- cording to the Edict), with the exception of certain titles, not continuous but partial, and containing much that is useless. Then followed other titles, including portions of the law which treat De judicits (a small fraction only, the whole volume almost having become obsolete); those which treat De rebus, seven books, having been discarded either because they were inac- cessible to students or unfit or not proper subjects of instruc- tion. ‘ ‘During the third year the course of instruction embraced those subjects which had not been explained to the students in the first years in either work De rebus or De judiciis, after which the pupils were introduced to the glorious Papinian and his responsa. Of the nineteen books of which these responsa are composed, eight only were used as subjects of instruction, and these only partially. “The fourth year’s course included instruction in subjects already detailed. The students repeated the responsa of Paul, not, indeed, in a complete form, but in an extremely discon- nected manner, no order whatever being observed. «Thus, in four years, the whole of the ancient learning was exhausted; and if we calculate, we shall find that of this im- 112 484 THE HISTORY OF ROMAN LAW. mense quantity of laws, in all three million lines, scarcely six thousand were introduced to the notice of the student. “§ II. The miserable deficiency of this system has been apparent to us, and we have, therefore, placed in the hands of all who desire to avail themselves of it those treasures which, when arranged by you, are calculated to make your pupils learned jurists. * During the first year let them learn our Institutes, which have been derived from the ancient source of the old Institutes, and reduced to a simple and intelligible form by Tribonian, a man of transcendant genius, and two of your number, Theophilus and Dorotheus, illustrious professors. The remainder of the year is to be occupied with that which logically follows, viz. the first portion of the laws, called by the Greeks mpara (pre- liminary books 1, 2, 3 and 4 of the Digest). “The students are no longer to use the old, frivolous and ridiculous appellation of Dupondii (students of the double as, ironically of two sous); they will be called Justinianani novi. Let those who aspire to the science of law bear for the first year our name, inasmuch as the first volume of our work is placed in their hands. They heretofore have borne a name answering to the ancient confusion of laws; but since the laws have been presented to them in a clear and lucid manner, it has become necessary to exchange this name for a more honourable one. “§ III. During the second year we sanction the use of the name edictales, given to them in allusion to the Edict: as students of the Edict, they shall be instructed in this, or rather in the seven books (De judiciis, lib. 5 to 11 of the Digest), or in eight books (De rebus, lib. 12 to 19 of the Digest), according to the opportunity that the professor shall have of selecting either subject, so it be done without confusion. These books, whether De judiciis or De rebus, must be explained completely and. in their order, without any omission whatsoever, inasmuch as everything has been arranged in them in excellent order, and nothing will be found there that is useless or obsolete. To these let there be added four books, at discretion, taken from the fourteen relative to specialities, one of the three treating upon dower (lib. 23, 24 and 25 of the Digest); one of the two THE HISTORY OF ROMAN LAW. 485 treating upon tutelage and curatorship (lib. 26 and 27 of the Digest); one of the two upon wills (lib. 28 and 29 of the Digest); and one of the seven treating upon legacies, fideicom- missa and their accessories (lib. 30 to 36 of the Digest); the ten remaining books of the fourteen being reserved for a convenient occasion, for it is impossible, in the second year’s course, for the professor to take the whole fourteen. “§ IV. The third year’s course shall include either the books De judiciis or De rebus, according as the professor has adopted one or other in the preceding year. After this, three courses of special subjects: the book upon pledges and hypothecations (lib. 20 of the Digest); the book upon interest (lib. 22 of the Digest, De usuris); the book upon the Edict of the ediles; the actio redhibitoria, evictions and stipulationes dupli; subjects which were placed in the latter part of the Edict, but which we have transposed in order that they may be more approximate to the subject of sale, with which they are intimately connected. These three books shall be taught conjointly with the reading of the most ingenious Papinian. The students shall, in their third year, learn to recite his works, in fragments, upon various subjects. As to you, the illustrious Papinian will furnish re- markable lessons, derived not merely from the nineteen books of his responsa, but also from the thirty-seven books of his questions, from the double volume of his definitions, from his book upon adultery, and from almost the whole of his works which are distributed throughout our Digest. “In order that the students in their third year, who were formerly called Papinianists, may not lose the name and the Séte, the study of his works has been introduced into this third year, for we have supplemented the book upon hypothecation by the reading of the great Papinian : thus the students, rightly deriving their name of Papinianists, in which they rejoice, and which is to be retained, shall continue to celebrate the féte, to which they have been accustomed, upon their entrance upon the study of his laws, in order that the memory of the sublime Papinian, of preefectorial dignity, may endure for ever. « § V. During the fourth year the students shall preserve the name derived from the Greek Avras (licentiates) as hereto- fore. In the place of the responsa of Paul, eighteen books out of 486 THE HISTORY OF ROMAN LAW. the twenty-three which they were in the habit of reciting in a partial and confused manner, let them learn to read frequently the ten books of the specialities out of the fourteen to which we have already referred, from which they will derive greater benefit than from the responsa of Paul. Thus the seventeen books which we have composed upon the specialities, forming the fourth and fifth parts of our Digest, will have been acquired by them, and from the commencement of their studies they will have learned in all thirty-six books; as to the remaining four- teen books, which constitute the sixth and seventh parts of the Digest, let them be so explained as to enable them to study them afterwards in private, and, when required, to be able to cite them in court. “ During the fifth year, when they enjoy the name of Prolyte, if after having been well grounded in the subjects already indicated, they devote themselves to the reading and thorough understanding of the constitutions contained in our Code, they will lack nothing of the science of the law. “ § VI. Thus may they succeed in becoming great orators, satellites of justice and powerful advocates or judges—happy in all places and in all ages. * § VII. Instruction shall be given, as our imperial prede- cessors have directed, in the royal cities only (Rome and Con- stantinople), and at the lovely city of Berytus, which indeed well merits the appellation of ‘nursery of the laws,’ but in no other place. We have been informed that in Alexandria, Cesarea and in other cities ignorant men have imparted spurious instruction to their pupils; these we prohibit, and those who shall be so presumptuous as to constitute themselves professors of law, otherwise than in the royal cities or Berytus, shall be liable to a penalty of twenty-one pounds of gold, and to be expelled from the city, where they, instead of having taught the law, have contravened the law.” § VIII. continues the same provisions as in the preceding constitutions against copyists, who, in the MS. of Justinian, should use signs or abbreviations; the penalty being double the value of the work payable to any person who purchases these productions in good faith. “§ IX. No one following the legal course shall dare, either THE HISTORY OF ROMAN LAW. 487 in this sublime city or at Berytus, to permit any unworthy tricks or other practices, the effect of which might be injurious, nor to commit any other malpractices in respect of their pro- fessors or their fellow pupils, particularly in connection with the junior pupils.” (It appears that the practice of the senior students imposing on the juniors vexatious or oppressive tasks, a practice which has been kept up to our own time in many even of the best of our schools, had a very early origin.) “ How is it that such disgraceful conduct can be called a game? For our part we will not tolerate it. Let the soul be first ele- vated, the language will follow!” (Saint Augustine, in his Confessions (v. 8), relates the fact of his quitting Carthage, notwithstanding the great grief of his mother, chiefly on ac- count of the unrestrained licence of the students, whose lawless conduct would have entailed heavy punishments had they not been screened by traditional custom, and of his going to Rome, having heard that such practices were not permitted amongst the students of that city.1 This was about the year 372, shortly after the constitution of 370 had commenced to take effect in the schools of Rome and of Constantinople.) “ §X. The urban prefect at Constantinople, and at Berytus, the president of the Phoenician marine, the bishop and the pro- fessors of law, are charged with the observance of all these instructions. «§ XT. Commence then to give, under the direction of God, instructions in the laws. Open up the road that we have dis- closed. Make good officers of justice and of the state, and may honour attend you through all ages—you who have had the good fortune to see in your own time changes in the state of the laws equal to what is related by Homer of Glaucus and Diomede. “Gold for copper, centuries for decades.’ “ Given at Constantinople the 17th of the kalends of January, in our third consulate” (10th December, a.D. 533). 1§. Augustin, Confessions, v. 8: perans licentia scholasticorum . . . “ Quod audiebam quietiusibi(at Rome) Multa injuriosa faciunt, mira hebetu- studere adolescentes, et ordinatiore dis- dine, et punienda legibus, nisi con- cipline coertione sedari. . . Contra suetudo patrona sit.” apud Carthaginem foeda est et intem- 488 THE HISTORY OF ROMAN LAW. 5'74. The tenth paragraph of this constitution shows us, both by its contents and by the mention of the magistrates charged with the execution of the duty, that two schools only, viz. those of Constantinople and Berytus, were recognized. Rome at this time was in the hands of the Ostrogoths, and is only incidentally referred to. A public school, however, had been maintained there by a foreigner, Cassiodorus, who, as minister and favourite of Theodoric, had assisted this conqueror in the preservation of Roman civilization in Italy, and who, during the minority of his successor and grandson, Atalaric, had retained the same functions. Amongst many other works, he has left a collection of letters, in which we find a large number of minutes and rules concerning the administration. He relates, that towards the end of the reign of Atalaric, who died a.D. 534, an ordinance was promulgated relating to this school at Rome (schola liberalium litterarum), in which are mentioned, in addition to the professors of grammar and rhetoric (grammaticus—grammaticorum schola ; orator—doctores elo- guentie), those of jurisprudence (nec non et juris expositor);1 and, finally, we find twenty years later, a.p. 554, at the period when Italy was reconquered, Justinian preserving to these professors of Rome (grammaticis ac oratoribus, vel etiam medicis, vel “jurisperitis), the privileges conceded them by Theodoric (quam et Theodoricus dare solitus erat).? With this change of rule a corresponding change in the instruction given in the public school at Rome became neces- sary. Whereas those texts hitherto used were compiled from the works of the classical jurists of Rome sanctioned by the lex de responsis, the codes of Gregorian, of Hermogenian, of Theo- dosius, and the Novelle subsequent to this Code, to which were doubtless added the compilations contained in the edict of Theo- 1 Cassiodorus, Var., ix. 21. * The pragmatic sanction of Justi- nian which has been transmitted to us jn an analysis of the Epitome of Julian, and which appears in the editions of the Corpus juris after the Novelle of Tiberius, ch. 22: “ Annonam etiam, quam et Theodoricus dare solitus erat, et nos etiam Romanis indulsimus, in posterum etiam dari precipimus: sicut etiam annonas, que grammaticis ac oratoribus, vel etiam medicis, vel juris- peritis antea dari solitum erat, et in posterum suam professionem scilicet exercentibus erogari precipimus, qua- tenus juvenes liberalibus studiis eruditi per nostram Rempublicam floreant (A.D. 554).” THE HISTORY OF ROMAN LAW. 489 doric—whereas instruction, based upon these texts, was in all probability given as described by Justinian in the period anterior to his own—with his accession it became necessary to add or to substitute the Institutes, the Digest and the second edition of the Code, the promulgation of which he had ordered to be made in Italy, and to be taught in the order prescribed by the con- stitution of A.D. 533, relating to the reformed method of giving legal instruction. And, finally, we have introduced the law of the Novell and the Epitome of Julian, which appeared at a later date, either during the life or shortly after the death of Justi- nian. This Epitome was a Latin abridgment of the Novelle, which constituted a portion of the instruction given in the schools, and which was widely circulated throughout Italy. 5'75. We have now arrived at the point which serves as a limit to this work. Our labours must end with the legislative measures of Justinian, and all that remains to us is to cast a final glance at the institutions of the empire, in order to realize in their entirety the changes which have been wrought since the time of Constantine. GENERAL SURVEY OF THE PRECEDING PERIOD. Tue EXTERNAL SITUATION OF CONSTANTINOPLE. 576. This title sufficiently indicates that the nations which had gathered upon the frontiers of the empire, menacing its provinces with invasion, had achieved their work. It recalls to our mind the migration of Constantine with his court to a new capital, and the division of the Roman people into two empires; the hordes of barbarians crowding from the north to the south, and the disappearance of the Western Empire. Under the reign of Justinian the victorious arms of Belisarius and Narses for awhile reconquered the shores of Africa, Sicily, and Italy. That which was the republic of Rome was now the exarchate of Ravenna. The Bulgarians, the Persians, the Avars, and tribes emanating 490 THE HISTORY OF ROMAN LAW. from Thrace, had descended upon the Eastern Empire. Beli- sarius, time after time, had repulsed them, but his victories had no permanent effect. The surrounding nations, among whom were some who received tribute from the Emperor of Constan- tinople, were ever ready to make fresh invasions. Tue Jus Pusiicum. 577. The emperor was paramount, the people and the army powerless. The patricii, the bishops, the urban prefect, the pretorian prefect, the questor of the sacred palace, the officers of the household, the knights of the consistorium, all ¢llustres, specta- biles or clarissimi, formed the imperial cortége. These officials were simply, all of them, his most submissive subjects. The senate was reduced to a species of tribunal, the consulate to a mere date; for from his palace the Emperor declared war or dictated the terms of peace, levied taxes, promulgated laws, appointed or deposed magistrates, condemned or pardoned his subjects. The legislative department of the empire, the judicial, the executive, were all in his hands. There was no will save that of the prince, and the corpus juris published by Justinian is but a collection of ancient laws modified to suit the imperial whim. There was no justice except that which was rendered or caused to be rendered by the prince. The number of pretors was reduced to three, and their power was eclipsed by that of the urban preefect, the preetorian prefect, and numerous other officers. 578. CriminaL Marrers.— A lex, or a plebiscitum, no longer served, as in the time of the republic, as the basis of an accusation. The prosecutor caused his charge to be written in the presence of a magistrate; at Constantinople before one of the superior officers, according to the nature of the offence, and in the provinces before the rector, the president or the prefect of the provincial pretorium. This magistrate constituted the tribunal, and investigated the case. The senate took cognizance of certain cases, the emperor himself of a great number. THE HISTORY OF ROMAN LAW. 491 579. Civin Marrers.—From the time of Diocletian, and especially after the constitution of Constantius, after that of Theodosius and of Valentinian, solemn judicial formulz were dispensed with, even by way of fiction, and there no longer existed any necessity to solicit the actio from the preetors (im- petrare actionem); the separation between the jus and the judicium was no longer observed, and all trials were now extraordinaria, that is to say, in every case the magistrate him- self tried and determined the case. The plaintiff presented himself before him; the proceeding commenced by the allega- tion of his claim and the assertion of his right (editio). After a certain delay came the in jus vocare, and the case was argued by the advocates (causidici, togati, advocati), and the judge decided it by the evidence submitted to him. He also looked after the execution of his judgment. In this way he united in himself all the powers which were previously distinct —jurisdictio, imperium, judicium. 580. The system of administration outside the limits of the capital was entirely that established by Constantine. The prefectures were divided into dioceses, and the dioceses into provinces, which were under the direction of preefects, vicars, rectors and presidents. The bishops wielded great authority: but each city had, in addition, its decurions and its municipal magistrates: the office of the Defensores civis had fallen into discredit, and Justinian, in one of his Novelle, endeavoured to replace it on its former basis. It is to this tribunal that matters of minor importance were referred. Tue Jus SACRUM. 581. The profession of Christianity had been at one time a crime which was punished by the emperors; at the period of which we are now treating it was paganism which was pro- scribed, and all who did not profess orthodox opinions were liable to severe penalties. They constituted, indeed, a repro- bated class, and Christians believed themselves contaminated by contact with an apostate, a heretic, a Jew or a pagan, words which have descended to us as synonymous with infamy. 492 THE HISTORY OF ROMAN LAW. In its principles and its code of morality, the religion of Christ is superior to temporal dominion, from which it en- deavoured to detach itself, but forgetting its characteristics so worthy of the Deity, its priests and bishops approximated it as closely as possible to earthly power. Bishops were elected by the suffrage of the faithful, and were numbered among the chief magistrates of the empire, and to their spiritual functions were added extensive civil powers. The Church was enriched by the gifts of emperors and their subjects: it saw its wealth increase day by day. Convents for women and monasteries for men were multiplied. Orders of monks spread in every direction. Theological controversy however continued to rage with bitterness, and councils were from time to time held to determine disputes which can never be adjusted. Tue Jus Privatum. 582. Born with Rome itself, inscribed upon the Twelve Tables, the primitive civil law of the Romans preserved its character and all its republican severity until the subjection of Italy. The principles of the jus gentium and the decisions of the pretors, together modified the system, and it may be said to have ceased to exist with the fall of the republic. The efforts of legislation were then directed to an entirely different end,—natural justice and equity. The succeeding age brought with it superior genius, and distinguished jurists succeeded one another as if they had borne to each other the relation of father and son, and by their writings they converted jurisprudence into a splendid science. Itis a curious study to follow the history of original Roman law, which fell with the republic, through its various vicissitudes, and to trace it to its destiny. At first its principles were in all points in direct contrast with the new institutions, which were only introduced by the aid of ingenious subtleties; imperial constitutions constantly assailed the ancient régime, and the change of the capital denationalized it; from this moment we find old institutions disappearing day by day, those which remain being less in harmony with the pre- vailing manners. Finally, Justinian published an entire body THE HISTORY OF ROMAN LAW. 493 of jurisprudence, and at once swept away the greater part of the subtleties and excrescences still existing, leaving little beyond traces of primitive legislation, and finished by annihi- lating by one of his Novelle one of the most remarkable of Roman institutions,—the civil composition of the familia and the rights which belonged to it. 583. Prersons.—The law now favoured enfranchisement; all the enfranchised were citizens, and the difference heretofore existing between them and the ingenui was gone. The men belonging to a special class, a species of serf, formed a link between slavery and freedom. Marital power (manus) no longer gave the right to sell a free man or to abandon him to another; mancipum had disappeared; the paternal power had lost nearly all authority except what it derives from nature; the son had an individuality which became more and more com- plete; he was the proprietor of various kinds of property over which his father had no control; the civil composition of families, the difference between civic relationship (agnatio) and blood relationship (cognatio) but little affected the rights of indi- viduals; and Justinian, by one of his Novelle, almost wholly effaced the distinction. 584. Tunes AnD Property.— There was no longer any dis- tinction between res mancipi and res nec mancipi; consequently mancipatio or other solemn formalities were no longer necessary for the transfer of property. There was no longer any difference between Italian and provincial property; there was but one kind—natural property, or that which springs from common right. 585. Witis.—The solemn and fictitious sale of the inherit- ance was gone. Testamentary dispositions had become simpli- fied. The son, as well as the head of a family, might by will dispose of much that he possessed; and the restrictions once placed upon the capacity to receive testamentary bequests in the case of celibes and orbi had been removed. 494 THE HISTORY OF ROMAN LAW. 586. Succession.— The Institutes of Justinian gave to natural relations the ordinary rights of succession; and by the Novelle of the same emperor the distinction between the agnati and the cognati being suppressed, an order of succession was established in which no vestige of the ancient idea is to be traced, and which is based solely upon the ties of blood. 587. Conrracts.—Contracts having been modified during the preceding period, underwent little change in this. The provisions of the praetor, which rendered many agreements obli- gatory which were not sanctioned by the civil law, became a portion of the legal Code of Justinian. Symbolic words. were no longer necessary in stipulations,- and it sufficed that the question ‘and answer corresponded. It became the general practice to negociate by the instrumentality of persons clothed with a certain public character, and who were styled Tabel- liones. 588. Actiones.—All the characteristics of the ancient actio had disappeared. There were no longer any symbolic forms as in the actiones legis. No demand for the formula intended as a species of instruction for the judge, which had been the characteristic of the formulary system, was any longer necessary, nor was any notice of action. At this period, the word actio simply meant the right to take legal measures to enforce a claim, or the act of so doing. MANNERS AND Customs. 589. Throughout the State, in the magistracies, and even in families, we in vain seek Roman manners,—we find those of Constantinople. In the State, that which occupied the public mind was neither liberty, nor public good, nor the success of the national arms; it was the colour of a rider, or a religious dogma. If we look at the magistracies we no longer see them the object of ambition, as affording an opportunity of contributing to the public weal, or offering honourable posts to citizens; but THE HISTORY OF ROMAN LAW. 495 we find place regarded as a means and sought after for the purpose of gratifying ambition and of amassing wealth. The close bond of union between the members of a family is gone: the internal discipline, and the submission to the will of the chief, no longer exist, a striking contrast with the condition of the familia under the republic, when the head of the family, as the owner of its property, and the proprietor of the persons that constituted it, had absolute power. Each family then formed a species of despotic little state, from the union of which sprang a great nation, free within and formid- able without. Under the empire the head of the family ceased to be the proprietor either of the persons or of the property : the members were in a certain measure free, and from their union sprang a great nation, servile within, cowardly and contemptible without. 496 THE HISTORY OF ROMAN LAW. THE DESTINY OF THE ROMAN LAW IN THE EAST AND WEST UNDER JUSTINIAN. §I. IN THE EAST. Section CXV. Tuer GREEK JURISTS OF THE SIXTH CENTURY. 590. The Eastern Empire existed about nine centuries after Justinian’s death, till a.p. 1453; and excepting the Novelle of his successors, his legal Code maintained its authority till about the end of the eleventh century, and finally ceased to be regarded as the governing law without any special enactment having abrogated it. This transformation is attributable to various causes. The principal cause was the transformation which the Eastern empire itself underwent. It became more and more detached from the West, losing not only in common use, in society, in the administration of the laws, but even in the acts of the impe- rial officials, the last trace of the Roman language, in which Justinian saw a reminiscence of the republic (propter reipub- lice figquram). Notwithstanding the fact that the emperors of Constantinople preserved the title of the “ great kings of the Romans,”—and notwithstanding the fact, that in the greater number of their acts (for example, in the Novelle by which the emperor Theophilus Flavius, a.p. 829 to 842, authorized mar- riage between the Persians and his subjects), their subjects were styled “ Romans,”—the Eastern empire had become ex- clusively Greek. It was in fact the Byzantine empire. The power of the emperor, unlimited in law, often found itself THE HISTORY OF ROMAN LAW. 497 powerless in fact. Invested with a supremacy over the Greek Church, he had more than once to settle accounts with the patriarchs and clergy of Constantinople. The science of law acquired such a character, that the practices, the controversies and the subtelties of religion had become mixed up with it, and exercised upon it a gradually increasing influence. The Novelle of the later emperors were to a great extent nothing but eccle- siastical rules, and secular jurisprudence vanished by being almost totally absorbed in the ecclesiastical. In this way the collections and writings of the Greek canonists became docu- ments of considerable importance in the study of that law which is known as Greco-Roman. As to the system of law which had been founded by the great jurists of Rome, it was no longer understood, either in the language in which it had been written or in the historical frame in which Justinian had placed it. Altogether powerless at any period of its existence to give birth to a legislation, or to create a code in conformity with its necessities, the Greek empire continued, so to speak, to live upon the legislation of Justinian, which it left to be transformed by translation, by the practice of the period and the jurisprudence of the time. In this way the works of Justinian preserved for five hundred years after his death a nominal authority, and even after this period they appear as the basis of the forms and new decisions by which they were definitively replaced. 591. The first phase of this transformation commenced even in the time of Justinian, and continued during the remainder of the sixth century into the commencement of the seventh, that is to say, during a period of about fifty years after the death of the imperial legislator. This phase was the practice of literal or epitomized translations, summaries or logical tables (indices, paratitla), or annotations and tables of reference and concordance—three kinds of works specially authorized by Justinian himself. But there were also interpretations, com- mentaries more or less extended, abridgments or epitomes which had been prohibited by Justinian, but which prohibition was even in his own time a dead letter. All these were written in Greek, and all Latin forms and expressions were discarded. KK 498 TIE HISTORY OF ROMAN LAW. Amongst the authors who figure in this first phase, we find the names of jurists who were for the most part professors of law, and with whom we have already become acquainted. Three of these had taken part in the work of Justinian— Theophilus, Dorotheus and Anatolius, the two former having predeceased the emperor. Two of them, to whom indepen- dently of the three already mentioned, Justinian had addressed his constitution of A.D. 533 relative to legal instruction, were Isidorus and Thalleleo; and there were five others who, not- withstanding the fact of their not being mentioned, neverthe- less lived and wrote during the time of Justinian: Stephen, a professor of law at Berytus in a.p. 555; Julian, celebrated for his Epitome Novellarum, published a.p. 556, according to others in A.D. 570, and who is described in various manuscript copies of this work as professor of law in Constantinople. There was another writer, who is quoted under the mysterious appellation of Anonymous, but who, if we can rely upon the conjectures of Biener and C. Zacharie, was the same as Julian; another was Athanasius, an advocate and jurist of renown at Antioch and Assyria; and, finally, there was the canonist John of Antioch, surnamed “ Scholasticus,” to whom we have already referred. He had commenced his career as an advocate, and having afterwards taken orders became a priest at Antioch, and was elevated by Justinian in A.D. 565 to the dignity of patriarch of Constantinople. This school, which may be termed the school of Justinian, was continued by a series of writers posterior to that emperor, but belonging to the sixth century and the commencement of the seventh: Cyrill, Theodorus of Hermopolis, Gobidas or Cubidius, Phocas, Anas- tasius, Philoxenes and Symbatius, who undertook the trans- formation and interpretation of the great legislative work into Greek, adapted to the practice of their own time. With the exception of three or four works which we have in manuscript, the existence of the greater portion of these writers and the results of their labours are only known to us in a manner similar to that of the great Roman jurists of the classical era, that is to say, by fragments from their works collected with the title of the work and the name of the author in the imperial compila- THE HISTORY OF ROMAN LAW. 499 tions of the ninth century, principally in the Basilicss, or as quoted in subsequent documents, or by writers of a later time. It is to these Greek jurists, connected with this first phase of transformation, that in later works the collective appellation of Antiqui has been applied. These writers studied the collec- tions of Justinian himself, many of them having before them the pure texts of the classical period.t The four parts of the legislative work of Justinian formed each a portion of their labours. 1. Tue InstiruTEs.— There were the paraphrased trans- lation of the Institutes in Greek by Theophilus, which had the widest circulation and which has descended to us in various manuscripts, and two commentaries, the one by Dorotheus and ‘the other by Stephen, with which we have become acquainted merely by the quotations.” 2. Tue Dicest.— We know of the existence of commentaries by Theophilus, Dorotheus, Isidorus, Stephen, by the anonymous writer, Cyrill, Theodorus of Hermopolis, Gobidas or Cubidius, and Anastasius, but merely by quotations. 3. Tae Copr.—In the same way we know of a Greek trans- lation, with succinct commentaries, by Anatolius; a more voluminous commentary by Isidorus; a translation, with a still more extensive commentary, by Thalleleo; two abridgments, the one by Stephen and the other by Theodorus of Hermopolis; and a new commentary by Phocas; known only by quotation. 4, THe NoveLtL&.—We know of three abridgments or epi- tomes, the one by the anonymous writer, another by Athanasius, 1 It is unnecessary to observe, that_ when we are reduced to mere quotations from the Basilice, or writers of more recent date, the biography of these jurists is uncertain, as also the period at which they actually lived. Reitz, who wrote during the last century, Biener, Heimbach and C. Zachariz, who belonged to our own time, have expended great labour in endeavouring to determine certain points. We must take care not to confound Stephen, Theodorus, Phocas, now under con- sideration, with jurists of the same name who appeared in the constitu- tions of Justinian as having taken a part in that work; nor Cyrill with the Greek of the same name, of a date prior to Justinian; nor Symbatius with the writer who appears to have directed the labours connected with the compila- tion of the Basilicaes under Leo the Philosopher. 2 The edition published by Guil. Otto Reitz, Theophili antecessoris paraphrasis greaca. Hage comit. 1751, 2 vols., presents a rich collection of material and much instruction con- cerning this paraphrase, the other la- bours of Theophilus, his biography, and concerning the Greek jurists his con- temporaries. KK 2 500 THE HISTORY OF ROMAN LAW. and the third by Theodorus of Hermopolis. These three abridgments have descended to us in manuscript, the first how- ever only in fragments, and by way of quotation. We must add to these certain works which have been published in our own days! upon the Novelle, and those mentioned in § 554.* There is a great analogy between the Greek abridgment by Anonymus and the Latin epitome by Julian, which has sug- gested the belief that these two works were by one and the same person, and that Julian, after having published it in Latin, published it with trifling alterations in Greek. To these abridgments must be added two commentaries upon the Novelle, our acquaintance with which is limited to certain quotations ; one is by Philoxenes, the other by Symbatius. Independently of these Greek works upon the collections of Justinian, the number of which, as has been seen, is consider- able, we find mention of three monographs upon special sub- jects. This period of activity, which was commenced by the efforts of Justinian, extended through the sixth century, and was suc- ceeded by a period of two centuries and a-half of inaction, during which period the texts themselves were forgotten, and translations and abridgments only resorted to when necessary in practice. To such an extent was this the case, that during more than a hundred years from the time of Leo III. the Isaurian (from 4.D. 717 to A.D. 741), till Michael III. and Bardas (4.D. 856 to 4.D. 866), the public school at Constanti- nople was closed, and all public instruction abandoned. The second phase of the transformation which the law of Justinian 1 Athanasit Epitome Novellarum, published by Heimbach in his Anec- dota, vol. 1, Leips. 1838. Anonymi Lipitome Novellarum, fragments pub- lished by C. Zacharie in his Anecdota, Leips. 1843, pp. 196 to 211. Lheodori Breviarium Novellarum, published by C. Zacharie in his Anecdota, Leips. 1843, pp. 10 to 61 and 1to 165. The manuscript is in the Imperial Library of Paris, Coté Acq., No. 15950 F. 2 The Womocanon of Jobn of Antioch, to which we have referred, par. 419, has been disputed, and has been attributed to some other unknown person, who borrowed from John of Antioch the rubric and the titles of his collection of canons in order to add extracts from the corresponding novels; we do not see, in the evidence derived by Biener from certain manuscripts, sufficient reason to warrant this sup- position. Whoever may have been the author, the work itself exists, and it is ascribed to a period shortly after the death of Justinian; it holds an impor- tant though special place in the history of the Wovelle. THE HISTORY OF ROMAN LAW. 501 underwent was not in works published by jurists, but in official promulgations made by certain emperors. —— Section CX VI. Toe Manuats or Copres oF Tur ByzANTINE EMPERORS: Ecloga, Prochiron, Epanagoge, Basilice. 592. The emperors to be considered under this head are Leo the Isaurian, surnamed Iconoclastes, and his son Constan- tine Copronymus, who reigned together for one and twenty years, from a.D. 720 to a.p. 741. Basil the Macedonian, who first alone, and afterwards in association successively with his sons Constantine, Leo the Philosopher, and Alexander, reigned nineteen years (from a.D. 867 to a.D. 886). Leo the Philo- sopher, who, in conjunction with his brother Alexander, and afterwards in conjunction with his son Constantine Porphyro- genitus, reigned twenty-five years, from A.D. 886 to A.D. 911. The first, that is to say, Leo the Isaurian, with his son Con- stantine Copronymus, published a.p. 740 a manual of the law which is known by the name of E'cloga legum, sometimes also called Enchiridium (manual), or the Isaurian law. The second, that is to say, Basil of Macedonia, with his sons Constantine and Leo the Philosopher, produced, a hundred and thirty years later, A.D. 870, a second imperial manual, which declared the former abrogated, and which is known under the name of Prochiron, sometimes also called the constitution of Basil, or the constitution of the three emperors. The prologue of the Prochiron announced a more extended work and adjust- ment or revision of the entire body of the ancient laws. This work was commenced, and several volumes were published, under these emperors. A second manual, intended as a species of in- troduction to this projected work, and which was a revised edition of the Prochiron, was published by Basil in conjunction with his sons Leo the Philosopher, and Alexander (between a.p. 879 and A.D. 886), under the title of Epanagoge (repetita prelectio). And, finally, Leo the Philosopher continued and brought to 502 THE HISTORY OF ROMAN LAW. a successful termination the work which was partly executed by his father, and which was known as the Repurgatio veterum legum, or revision of the ancient laws, and which has been handed down to us under the title of the Basilica. The pro- mulgation of this work was in all probability made at the time when Leo was associated with his brother Alexander and his son Constantine Porphyrogenitus (from A.D. 906 to A.D. 911). The imperial promulgations to which we have referred ought to bear the names of the emperors who reigned together at the time of their publication, but for the sake of brevity and in order to indicate solely the directing emperor, the respective works are said to belong to Leo the Isaurian, to Basil of Mace- donia, and to Leo the Philosopher. 593. Each of these imperial publications more or less ex- plicitly announced in their titles or prefaces the fact that they were derived from the Institutes, the Digest, the Code, and the Novella of Justinian the Great, but they were in fact derived from translations, abridgments or commentaries in Greek on the texts. The actual works of Justinian, and especially those which were in Latin, being only at-that period ad honorem and entirely neglected in practice. The Ecloga legum of Leo the Isaurian, a collection of laws reduced to the form of a manual, has descended to us in various manuscripts. The one which is in the Imperial Library of Paris (Cété Acq., No. 33011 F) was published by M. C. E. Zacharie in 1852. It consists of a preface and eighteen titles. Three jurists are mentioned as the commission for its preparation, the Questor Nicetas, another Nicetas and Marinus. The date of its publication corresponds with the year a.p. 740. The con- tents of this official manual, and the popularity which it acquired in practice, attest the low condition of jurisprudence at the date of its publication. It was under Leo the Isaurian that the school for the public instruction of law at Constantinople was closed. The official Ecloga passed in manuscript into the hands of the practitioners who used it, and has received from many of them, according to their necessities or tastes, additions or appendices upon various subjects, most of which are extracts from the THE HISTORY OF ROMAN LAW. 503 juridical works of the sixth century, and it is indeed from some of these appendices that we have obtained our knowledge of certain of the works of that time. These manuscripts, of which we possess several augmented in this manner by annotations, are private editions, and have received the name of Ecloge private. The appendices are not the same in all. It is easy to recognize, however, the fact, that as a result of tradition and and translation on the part of the copyists, they acquired a common characteristic. This is the only effort of jurisprudence, and it is a meagre one, which we find up to the time of Basil the Macedonian. The MS. which appears to contain the most complete appendix, and which most closely approximates to the law of Justinian, is that now in the Imperial Library of Paris (fonds grec, 1384), and is known by the name of Ecloga privata aucta. This can only be ascribed to the middle of the ninth century, shortly before the publication of Basil,—to a period when, owing to the action of the Emperor Bardas, the public instruction of law had been re-established at Constan- tinople. This appendix contains fifty-four additions, amongst which numbers 32, 52 and 54 are extracts from the military and maritime laws, styled the Rhodian, and from the Georgian or rural laws. An edition of this work was published at Leipsic by M. C. E. Zacharie in 1843, in his Aneedota. The Prochiron, or manual of the law of Basil the Mace- donian, A.D. 870, has also reached us in various manuscripts. One edition was published in 1837, in Heidelburgh, by M. C. E. Zacharie. It consists of a prologue, or preamble, and forty titles, under which are placed fragments extracted from the Greek abridgments or commentaries of Justinian, some from the E'cloga of Leo the Isaurian or from the imperial constitu- tions which had introduced certain recognized changes. We find in the preface the assertion that the Ecloga of Leo the Tsaurian was rather a jumble than a selection of laws, and that it was an affront to the pious legislators from whom those laws had emanated, that preceding princes had rejected it, not indeed in whole, but to a great extent, and that it would be absurd to allow it to remain. The Epanagoge of Basil the Macedonian (repetita prelectio 504 THE HISTORY OF ROMAN LAW. legis) also consists of a preamble and forty titles. It was nothing more than a republication of the Prochiron, with certain alterations and modifications. The date of this is between A.D. 879 and A.D. 886; it is to be found in the Collectio juris libro- rum Greco-Romani ineditorum, published at Leipsic, in 1852, by M. C. E. Zacharie. The Emperor Basil also, in his pre- amble, makes an attack upon the Ecloga of Leo the Isaurian, and declares that he rejects and abrogates in toto the futilities of the Isaurian, which resulted from his hostility to the divine dogma and to his confusion of the laws. Here we see traces of the resentment against Leo the Isaurian and the princes of his family, which resulted from the war that they had waged against the worship of images. Whereas the Ecloga of the Isaurian,—thus abrogated and fallen into discredit, ceased, except rarely and in certain works of the jurists, to have any authority,—the Prochiron and the Epanagoge became, both in Byzantine jurisprudence and prac- tice, till the end of the Eastern Empire, the constant resource and chief authority of the lawyer; but the most important portion of this legislation is the Basiilice. The Basilics of Leo the Philosopher, the date of which is somewhat uncertain, but is usually placed between a.p. 906 and A.D. 911, did not receive this name till long after their promul- gation: the original title, that adopted by Basil in conformity with the project he had conceived, was Repurgatio veterum legum. The name Basilice, sometimes Basilicus, was adopted either in honour of the memory of Basil of Macedonia, to whom the initiative of the work was due, or rather from the Greek Bacidimal diardkers (¢mperatorie constitutiones). This work is a general compilation and revision of the laws analogous to the labours of Justinian, but bearing characteristic differences. The texts used are supposed to be those of Jus- tinian combined with the provisions of a later jurisprudence. In reality they were the Greek works upon jurisprudence of the sixth century which were laid under contribution. The Basilice consist of extracts from the translations, paraphrases, commentaries or abridgments which had been made upon the ‘Institutes and which were few in number, and of those made THE HISTORY OF ROMAN LAW. 505 upon the Digest, the Code and the Novelle,—of the text itself of that part of the Movelle which had been promulgated in Greek and in the Prochiron of Basil the Macedonian. The preamble of the Bastlice notices as a capital defect in the work of Jus- tinian its division into four different parts, which must be con- sulted and compared in order to ascertain the rule necessary to be followed. The compilation of the Basilice professes to unite in one, by collating and placing in concordance, the scattered provisions contained in the four collections of Justinian upon each head of law. The character of this compilation bears an exceedingly remarkable feature, in that the text even of the Basilice, designated by the name of Capitula, sometimes Basi- licus, with the exception of that part which is derived from the Institutes, gives the collections of Justinian surrounded by an- notations, which have obtained the name of scholia, very similar to that found in our glossarized editions of the text of Justinian, accompanied with notes. We find in these scholia interpreta- tions, examples, developments and sometimes conflicting de- cisions upon the text. Indeed, a striking distinction exists between these scholia: some are extracts from the works of the jurists of the sixth century; others are annotations made to the Basilice by jurists of later date. This distinction has been marked in Greco-Roman literature by the use of different expressions, the term antigua being frequently applied to the former, and scholia, properly so called, to the latter; the term antiqui being applied to authors of the sixth century, the others being scholiasts, properly so called, as in the West glossators. M. Mortreuil, in his Histoire du droit Byzantin (v. 2, par. 121 et seq.), asserts with authority the opinion that the ancient an- notations taken from the writings of the sixth century are ad- mitted under the form of notes developing the text, and form a portion of the plan itself of the Basilice, and belonged to the original composition of these collections, and that these other scholia were an afterthought. It must, however, be remarked ‘that the Basilice were not, as were the collections of Justinian, promulgated under the head of laws which abrogated the ante- rior legislation from which they had been derived. The legis- 506 THE HISTORY OF ROMAN LAW, to which recourse must be had as to the source of law, and to which obedience must be paid upon all points which had not been overruled by later provisions. It was not an abrogation, it was a second transformation which had received imperial sanction; and we must go to the latter end of the eleventh cen- tury in order to find Justinian’s legislation entirely replaced by that of the Basilice. The Basilice, as their introduction states, were divided into six volumes, containing sixty books, each book being subdivided into various titles, with their respective rubrics. The names and the numbers of the commission appointed to superintend this official compilation are unknown, unless the name of the president was Symbatius, invested with the dignity of Proto- spathaire. We have not a single complete manuscript of the Basilice, and it is only by the aid of various manuscripts be- longing to different periods, some containing certain books, and others others, that the attempt has been made to reconstruct the entire Basilice; and we are indebted to M. Heimbach for the most complete and learned edition, to which he devoted fourteen years of labour, from 1836 to 1850. lation of Justinian continued nominally as a superior legislation Secrion CX VII. Ture GREEK JURISTS POSTERIOR TO THE BASsILiCa—THE Faw. of THE EASTERN EMPIRE. 594. The impulse given by the legislative publications of Basil the Macedonian, and of his sons, encouraged private efforts which contrast with the inaction of the preceding century. This renewed activity, with the exception of certain intervals, continued down to the fall of the Eastern Empire. Greek jurisprudence had its codes, imperial transformations of the the works of Justinian; as elements the Prochiron and the Epanagoge, as developments the Basilica. The jurists wrote upon these codes either for the purpose of explaining them, in THE HISTORY OF ROMAN LAW. 507 order to indicate their effect, or to adapt them to the changes which had from time to time taken place. Of these works we shall first consider those upon the Basilice. Independently of the scholia antiqua derived from those works nearest to the time of Justinian, whether these antigua constituted a part of the original compilation of the Basilice, or whether they were added. shortly after its promul- gation, they were added and written in the margin during almost the entire course of the empire, with amendments, sup- pressions, or successive additions, the whole comprising anno- tations of various kinds, the character of which the science of bibliography has laboured to unravel. As the principal text (or capitula) remained unaltered, it was the movable and flexible portion, the field open to the doctrine of each jurist upon the MS. that happened to be in his possession, a specu- lum by the aid. of which we are able to trace and to appreciate the progress of this doctrine. Of these annotations some have the appearance of being continuous, that is to say, carried out on the same system throughout the entire code, there being no indication of the author. Others are individually more detached, according to the tendency of the speciality of the study, or the opinions of each of those who have written, and to which the name is at times attached. If we are in a certain number of cases enabled from these scholia antiqua to learn the names of the jurists and the works of the sixth century, the more recent scholia have in like manner, but in fewer instances, revealed the names of some of the scholiasts of the eleventh and twelfth centuries. The list, however, as it has reached us is reduced to five: John Nomophylax and Calocyrus Sextus, both probably of the eleventh century; Constantine of Nice, subsequent to these; Gregory Doxapater and Hagiotheodo- ritus of the twelfth century. The scholia were, as to the Basi- lice, detailed annotations, which greatly increased the volume of the work. On the other hand, other efforts were directed to abridgment, and to facilitate use in practice. With this object the synopsis or abridgment of the Basilice, in alpha- betical order, was composed about the middle of the tenth century by an unknown jurist. It contained notices of and 508 THE HISTORY OF ROMAN LAW. references to various texts, a species of dictionary, the use of which is thoroughly understood in our own day. The Synopsis Basilicorum was in universal request, and enjoyed a high reputation till the close of the empire. Various appendices or additions were from time to time made to it. We are also indebted to M. C. E. Zacharie for an edition of it, published by him at Leipsic, in 1869. This dates about twenty years after the Synopsis, that is, about 4.D. 1072. Michael Attaliota, under the modest title of [Tolyye (opusculum de jure), pub- lished a succinct and methodic abridgment of the Basilice ; and another jurist in the thirteenth century, in order still farther to diminish the labour of the practitioner, made an abridgment of the two preceding works, alphabetically arranged and known under the name of Muixpév, or Synopsis minor, edited by M. C. E. Zachariz in 1857. The imperial MSS., that is to say, the Prochiron and the Epanagoge of Basil of Macedonia, and even the Feloga of Leo the Isaurian as to certain parts, have served both as texts, models and documents for analogous manuals published by private jurists :— Ist. The Epitome legum, in fifty titles, composed about A.D. 920, presents this feature in particular, that, having fol- lowed closely upon the promulgation of the Basilice at a period at which the works of Justinian, translated into Greek by the authors of the sixth century, had been discarded, it is drawn directly from these sources themselves and from the Epanagoge or from the Prochiron. A revision, with numerous additions, was made at a later date, towards the end of the same century, as a result of which it was placed in the same position as the Prochiron, whence it derived the name of Epitome ad Prochiron mutata. Qnd. The Ecloga ad Prochiron mutata, a compilation from the Ecloga, from the Prochiron, and from the Epitome, with additions and omissions, belonging also, in all probability, to the end of the tenth century. 3rd. The Epanagoge aucta, a revision of the Epanagoge of Basil of Macedonia, with additions derived from other sources, dating, in all probability, in the eleventh century. THE HISTORY OF ROMAN LAW. 509 4th. The Prochiron auctum, a revision greatly enlarged of the Prochiron, belonging to the commencement of the thirteenth century.' It is only for the sake of bearing them in mind that mention is here made of the following works :—One, known under the name of Teipa (Experentia Romani), is a collection, in seventy- five titles, of various cases, together with their decisions, ex- tracted from treatises and from the Sententie of the jurist Eustathius Romanus; another is the Synopsis legum of Michael Constantine Psellus in 1406, iambic and political verses dedi- cated by the author to the Emperor Cesar Michael Ducas, his pupil, didactic verses totally devoid of poetry. These two works belonged to the eleventh century. The monk Matthew Blastares, with his Manual of the Civil and Canon Law, drawn up in alphabetical order and published a.p. 1335, and Constantine Harmenopulus, judge of Thessalonica, with his Hexabiblon or Promptuarium, published a.p. 1345, are the two last legal writers of the Kastern Empire whose works attained credit and became classic legal manuals of the law of the last cen- tury of the empire. The Hexabiblon of Harmenopulus especially, being the most recent and lucid exposition of Greek law in use at this later period, found its way through the whole of the East. Its authority is recognized by the Greeks under Turkish rule, and it was received at an early date in this character in the West. It is a methodical composition, derived from the Prochiron, the Synopsis Basilicorum major and the Synopsis minor, from the [eipa, and even on certain points from the Ecloga of Leo the Isaurian, the whole being adapted to the condition of jurisprudence at the time when it was compiled. Amongst those Greek jurists to whose works we have referred, many of them were equally learned writers upon ecclesiastical law, which was in very many respects allied with the civil law of the Eastern Empire. Amongst these are Psellus, Doxapater and Blastares. All the works upon canonical jurisprudence, but particularly the great collections named Nomocanons, a title which designated those collections which contrasted the 1 See the Jus Graeco-Romanum of M. Zachariz, Leipsic, 1857. 510 THE HISTORY OF ROMAN LAW. civil and the canonical Jaws, or the abridgments of those col- lections, or the methodical treatises (syntagma) which have been constructed from them, merit some attention on the part of the student of the history of Greco-Roman law. Amongst these writers we also meet with Photius, the tutor of Leo the Philosopher, who published the Basilice. After the collection of the canons, and the Nomocanon of John of Antioch, which belonged to the period of Justinian, Photius, 4.D. 883, pub- lished under Basil of Macedonia his Nomocanon, which was nothing but a revised edition of the preceding, with certain additions. The two remaining most illustrious writers of this class are John Zonoras, who wrote at the commencement of the eleventh century in the convent of Mount Athos, and Theodorus Balsamon, who died in the early part of the thirteenth century. We must add to these various sources of the history of Greeco- Roman law the series of Novelle promulgated after Justinian by the Byzantine emperors, which, for the most part, referred to political or religious matters rather than to private civil law. M. C. E. Zachariz has published an edition of these, which he has collected, analyzed, chronologically arranged, and divided into five parts. ‘We thus find ourselves in the last stage of the Empire of the East. The Latins of the second crusade took possession of Constantinople a.p. 1204, and there founded a Frank empire, which however only lasted fifty-seven years. Recaptured A.D. 1261 by the troops of Michael Paleologus, that which has been called the Second Greek Empire commenced. From the end of the fourteenth century, the enemy destined to destroy this empire—the Turks—had invaded its frontiers, reduced province after province, and narrowed the circle by which the capital was surrounded, and eventually took it by assault. Constantine Palzologus, the last emperor of the Hast, died in defence of the breach, and the Eastern Empire finally fell under the sword of Mahomed the Second, in a.p. 1453. The Prochiron, the Basilice, and all the works of a legal character of which we have made mention, were replaced by the Koran. These works 1 Jus Greco Romanum, Leipsic, 1857. THE HISTORY OF ROMAN LAW. 511 however continued to be the traditional law peculiar to the Greeks which the conqueror left to the vanquished, and in this condition have they remained even to our own day; and, not- withstanding the changes introduced by the flux of time, they have survived as the historic element and the principal basis of Greek civil law. —~— Section CX VIII. ByZANTINE LAW SUBSEQUENT TO THE SIXTEENTH CENTURY. 595. The Greeks who expatriated themselves after the capture of Constantinople, in order to avoid the Turkish rule, carried to the west, and especially into Italy, numerous relics of Byzantine art, literature and law, which were thus saved from the general wreck. The instruction given by these exiles created a taste for the Greek language, and extended the know- ledge of eastern affairs. The two Lascaris are conspicuous: Constantine, who quitted Constantinople two years before its fall, and John, who left it two years after. We know how John Lascaris, after having enriched the library of Medici at Florence with valuable MSS., in order to obtain which he risked two journies to Greece, was summoned by Charles the Eighth to France, employed by Louis the Twelfth in negotia- tions with Venice, and charged by Francis the First with the formation of the library of Fontainebleau, from which many of the MSS. now in the imperial library were obtained. Naples, Venice, Rome, Florence, and other cities, at that time re- ceived, either in parchment rolls or volumes, various copies of the works upon Greco-Roman law; a certain number, by pur- chase or gift, found their way into Germany, France, and England, while the monastery of Mount Athos, certain libraries at Constantinople, and other depéts, continued in possession of many of these treasures, which have subsequently been over- looked or lost. Thus before the impulse given by Cujas to the study of the manuscripts of Byzantine law, the Greek paraphrase of the Institutes made by Theophilus had been published at Basle in 512 THE HISTORY OF ROMAN LAW. 1534, and the Herabiblon or Manual of Harmenopulus, at Paris, in 1540. Various editions of these two works, with Latin translations, have appeared subsequently. The Latin title of the latter work, by which it was generally known, was Promptuarium. The publication of the Synopsis Basilicorum in 1575, that of the Basilice, first with certain titles only, afterwards in the great edition of Fabrot, the first portions of which were pub- lished in 1667; that of the various collection containing the texts of the Graeco-Roman law, whether canon or civil, A.D. 1573 and A.D. 1596; that of the writers of Byzantine history, beginning a.p. 1647, of the canon and the Nomocanons, be- ginning A.D. 1661, bear witness to the activity of the sixteenth and seventeenth centuries in this branch of study. These edi- tions were for the most part accompanied by Latin trans- lations. The names most conspicuous in this period of activity are Zuichem, Snallemberg, Bonefoi, Leunclavius, Marquard, Freher, Ch. Labbe, Suares, Fabrot, Voét and Justel. This activity declined in France even before the revolution of 1789, and passed into Germany, where certain efforts have been made, commencing from the early part of this century by Puhl (1804), Haubold (1818), and where, at a later period, the splendid and interesting publications of Biener (from 1824 to 1833), of Heimbach (1825 to 1851), of Ch. Witte (1826 to 1840), of Bekk (from 1826), and C. E. Zachariz (from 1836 to our own time), have appeared. It is only necessary to cast the eye over the notes attached to our previous pages, to see that there is not a relic of Byzantine law, be its importance great or small, which the German writers have not sought out, noted, compared with the manuscripts, and in the greater number of instances given new editions far superior to any which preceded them. M. Mortreuil, an advocate at Marseilles, published between 1843 and 1846 an exceedingly interesting work (in three volumes) upon the history and sources of Byzantine law. I do not attach great importance to the study of this subject as likely to assist us much in re-constructing certain texts of the law of Justinian. Its principal source of interest is historical, as enabling us to see how the jurists of the sixth century, THE HISTORY OF ROMAN LAW. 513 several of whom were contemporaries of Justinian, interpreted the texts after the death of that emperor, and then to mark how these laws were modified during the course of the nine cen- turies during which the Eastern Empire lasted, and finally the kind of law which resulted from these modifications. In this view, the really useful conclusions to be derived from so much labour and so many publications appears to me to be contained in works like that produced by M. C. E. Zachariz. No one was better able than he to draw the picture which he has given us of the internal history and methodical arrangement of Greeco- Roman law. His work, which was published in three volumes successively in 1856, 1858 and 1864, is restricted to private law. If M. Zacharize accomplishes his project of dealing in like manner with the subject of public law, he will greatly enhance the value of his work. §II. THE WEST. Section CXIX. THE PUBLICATION OF THE LAW OF JUSTINIAN IN ITALY. 596. As soon as Italy, as a result of the victories of Belisarius and Narses, had become subject to Justinian, he hastened to secure the publication of, and to establish both in the courts and in the schools of Rome, his code of laws. Julian gave us a résumé, in his abridgment of the Novelle, of a pragmatic sanction of the emperor, bearing date a.p. 554, by which this publication was authorized in Italy. It includes the Novelle in order that the unity of the republic, as it says, being achieved by the aid of God, its legislation may be extended through the whole territory (ut und, Deo volente, facté Republica, Legum etiam nostrarum ubique prolatetur auctoritas'). Thus, by the efforts of Narses, who was 1 Pragmatica sanctio (towards the end of the Corpus juris, after the Wo- velle of Tiberius), ch. 11: “ Jura in- super, vel Leges Codicibus nostris in- sertas, quas jam sub edictali program- mate in Italiam dudum misimus, obti- nere sancimus: sed et eas, quas postea promulgavimus Constitutiones, jubemus sub edictali propositione vulgari ex eo tempore, quo sub edictali programmate evulgatex fuerint, etiam per partes Italie obtinere, ut una, Deo volente, facta Republica, Legum etiam nostrarum ubique prolatetur auctoritas.” LL 514 THE HISTORY OF ROMAN LAW. the first imperial lieutenant in Italy, under the title of "EZap x05, the official MSS. of the Institutes, the Digest, the Code and the Novelle of Justinian were forwarded to and deposited at Rome. A Latin translation of those Novelle which had been published in Greek must necessarily have been made upon this occasion, and in all probability a copy of these works was for- warded to each governor or duke, who was nominated by the Exarch throughout the empire. In this way the legislation of Justinian would find its way into the various parts of Italy. The edict of Theodoric would thus have enjoyed, throughout Italy, the short existence of half a century. —~— Section CXX. THe MAINTENANCE { HE Law oF JUSTINIAN AFTER THE Fai oF THE Byzantins Power In Iraty—THE Ex- TENT OF THIS Power—THE Roman NATIONALITY OF THE POPULATION. 597. The conquests of the generals of Justinian in the West were not of long duration. Even in a.p. 568, that is, fourteen years after this pragmatic sanction and scarcely three years after the death of Justinian, the Lombards took from the Greek Empire a considerable portion of Italy. The extent of territory, however, and the condition of the cities which re- mained attached to the Eastern Empire, and the time during which this connection continued, require a passing notice. Ravenna, to which Narses in imitation of the later emperors of the West had transported his residence, and which he made the seat of his government, together with the towns comprised within the limits of his Exarchate—Rome, the seat of a duke entrusted with the government of the Duchy of Rome—the Pentapolis, including five principal towns with certain localities attached—Pisa,—the country of Naples, with Amalphi and Sd 1 We know that Justinian, in the ‘Omnes itaque judices nostri pro sua constitution by which he confirmed the _jurisdictione easdem leges suscipiant, et Digest, § 24, ordered all the judges, in tam in suis judiciis quam in hac regia their various jurisdictions, to use the urbe habeant, et proponant.’’ text of the Institutes and Digest: THE HISTORY OF ROMAN LAW. 515 Gaeta, the peninsula of Istria and the neighbouring islands, comprised the only cities and territories which remained in sub- jection to the sovereignty of the Byzantine Empire, and con- sequently to the application of the law of Justinian, for any lengthened period. Even after the enfranchisement of Rome, after the rising of Rome against the edicts of the Emperor Leo the Iconoclast, A.D. 726,—even after the fresh conquests of the Lombards, who had taken from the Eastern Empire the Exarchate of Ravenna, Pentapolis and Istria, a.p. 752, and after those of Charlemagne over the Lombards, who founded the States of the Church and the Kingdom of Italy under Frank dominion, a.p. 774,—Pisa, the kingdom of Naples and the cities on the extreme southern shores, still remained a part of the Empire of Constantinople, till, in the course of the ninth century hese cities enfranchised themselves, and commenced, at least : reater part of them, to assert their independence, so that side by side with Frank Italy, Pontifical Italy and Lombardian Italy, Greek Italy still existed. If we were to make a calculation we should find that the sovereignty of the Byzantine Empire, calculating from the year A.D. 554, when all Italy was subject to Justinian, was prolonged in Rome one hundred and seventy-two years, in the Exarchate of Ravenna, Pentapolis and Istria one hundred and ninety-eight years, and throughout the other parts of Greek dominion about three hundred years. These figures are sufficient to explain the maintenance of Justinian’s law in actual practice among those people, the greater portion of whom styled themselves Romans. This law, so far as it concerned the jus civile privatum, was only modified by cus- tom or by special provisions made from time to time, and espe- cially after the enfranchisement of the cities, to which we have already alluded: but the law of Justinian remained fundamen- tally the same. We may indeed confidently assert that this law scarcely underwent any alteration by the successors of Justinian at Constantinople, the constitutions of these emperors being limited in Italy to that which concerned public and political matters, and the new Greek form given to the text of Justinian LL2 516 THE HISTORY OF ROMAN LAW. by the Basilice, between a.D. 906 and s.D. 911, having taken place only at a period when the dominion of the Eastern emperors over these countries was at an end. 598. Among the cities comprised in the enumeration we have made we must particularize Bologna, Pisa and Amalphi, inasmuch as they are closely connected with the question relating to the preservation and study of the legislation of Justinian. Bologna, which belonged to the Exarchate, remained, for about two hundred years after Justinian, under the rule of Constan- tinople till the year a.pD. 728. Pisa and Amalphi, which re- mained under the same rule for about three hundred years, being both maritime cities, and having important commercial relations with the East, were rivals; and from the moment when they became independent this rivalry broke out into open hos- tility, which lasted till Amalphi was vanquished, between A.D. 1136 and a.p. 1138, and never recovered its prosperity. 599. The fact was preserved, and is reported in the thir- teenth century by Odofredus, one of glossators of the second phase of transformation, that the public school of Italy had been, on account of the wars, transferred from Rome to Ravenna, in which latter city the seat of the government of the Exarchate was established.t' Odofredus adds that the books of the laws had been sent to Ravenna, and that from that place they went to Bologna.? The same writer in another place refers to a celebrated MS. of the Pandects, evidently different from that to which former allusion was made, as having been carried directly from Constantinople to Pisa.’ In another chronicle, this MS. is said to have gone from Constantinople to Amalphi. At the time in which Odofredus wrote, and even before him, ‘ Odofredus, in his gloss on the law 82, Dig. 35, 8, Ad legem Falcidium, on the words ‘res partes: “ Studium primo fuit Rome; _postea, propter bella que fuerunt in ’ Marchia, destructum est studium: tunc in Italia secundum locum obtinebat eam qua dicta Ravenna . 2 Odotredus, i in ile gloss on the law 6, Dig. 1,1, De justitia et jure: “Cum studium esset destructum Rome, libri legales fuerunt deportati ad civitatem Ravenne, et de Ravenna ad civitatem istam (Bologna).”’ 3 Odofredus, in his gloss on the law 23, Dig. 6, 1, De rei vindicatione: “Unde si videatis Pandectam que est Pisis, quee Pandecta, quando Constitu- tiones fuerunt factze, fuit deportata de Constantinopoli Pisis, est de mala littera,” THE HISTORY OF ROMAN LAW. 517 there could have been but few manuscripts extant, the great bulk having perished during the previous age, and those in existence must have been copies, perhaps second or third hand, the origin of which it would he impossible to determine with precision. But we may take it as certain, that whether they came from the East, or whether they were copies made at a later date, and at whatever date, in Italy, these manuscripts were remnants of the original publications which had been made in pursuance of the pragmatic sanction of Justinian. We do not speak of the entire body of the legislation of this prince, preserved by certain Italian historians in the middle ages, nor of that passage in the works of Paul the Deacon, secretary of the King of the Lombards in the eighth century, where he describes the various parts of the MS. with so much accuracy as to suggest the inference that he had it then before him, or at least the preface.! —~—- Section CXXI. Tur INFLUENCE OF THE CLERGY UPON THE MAINTENANCE oF JUSTINIAN’s Law In ITAty. 600. In the duchy of Rome, which was enfranchised from Byzantine rule a.p. 726, and in the other cities from which, in A.D. 755 and 774, the states of the Church were formed, cities which had for the most part belonged to the Exarchate and to the Pentapolis, there was, independently of the Roman nationality which is to be met with in these populations, and independently of the connection which had lasted one hundred and seventy or two hundred years between these countries and 1 Paul Warnefrid, surnamed Paul the Deacon (died a.D. 801), De gestis Langobardorwm, 1, 25, Deregno Justi- niani: “Leges quoque Romanorum, quarum prolixitas nimia erat, et inutilis dissonantia, mirabili brevitate correxit. Nam omnes constitutiones principum, que utique multisin voluminibus habe- bantur, intra duodecim libros coarctavit, idemque volumen Codicem Justinia- num appellari precepit. Rursumque singulorum magistratuum, sive judicum (alias, judicum, jurisconsultorumque) leges, que usque ad duo millia pene libros erant extense, intra quinqua- ginta librorum numerum redegit, eum- que codicem Digestorum sive Pandec- tarum vocabulo nuncupavit. Quatuor etiam Institutionum libros, in quibus breviter universarum legum textus com- prehenditur, noviter composuit. Novas quoque leges, quas ipse statuerat, In unum volumen redactas, eundem Codi- cem Novellarum nuncupari sancivit.” 518 THE HISTORY OF ROMAN LAW. the empire of the East, another and a more active cause which contributed to the maintenance and to the study of the Roman | law as promulgated by Justinian. This was in the first instance ‘the influence, and afterwards the authority, of the Pontifical court and of the clergy. 601. The ecclesiastics, in fact, claimed the Roman law as their own, allotting it a place second only to canonical law. We find in the Corpus juris canonici, addressed to Theodoric, a letter in which Pope Gelasius the First demands that the laws of the Roman emperors, which the Ostrogoth prince had ordered to be maintained, should be so on the ground of the reverence due to the Holy See, its power and prosperity.! This reference is to ante-Justinian law. Another pope, Leo the Fourth, wrote to the emperor Lothaire the First, about s.p. 887, a letter, also inserted in the Corpus juris canonici, in which we find that the Roman law had up to that time remained in vigour, sheltered from the universal tempest (hactenus Romana lex viguit absque universis procellis), without any notice being taken of its having ever been corrupted out of consideration to any person; and the writer demands that it should be maintained in force (ita nune suum robur, propriumque vigorem obtineat).® The law here referred to is the law of Justinian in force at Rome at that time. Confining ourselves to the testimony of the popes, we find throughout the course of centuries, Gregory the Great, who died A.D. 604; John the Eighth, who died a.p. 882; Alexander the Second, who died A.p. 1073, whose letters have been preserved and printed in a general collection, more than once citing the text of Justinian as an authority. In most cases these quotations are made from the Epitome of Julian; in two instances, how- ever, they are from the original text. Under the last of these 1 Corp. JUR. CAN., Decret. 14 pars, distinct. 10, cap. 12: “Certum est magnificentiam vestram leges Romano- rum principum, quas in negotiis homi- num custodiendas esse precepit, multo magis circa reverentiam beati Petri apostoli, pro suo felicitatis augmento, velle servari.” 2 CorP. JUR. CAN., Decret.1* pars, distinct. 10, cap. 13: “ Vestram fla- gitamus clementiam, ut sicut hactenus romana lex viguit absque universis pro- cellis, et pro nullius persona hominis meminiscitur esse corrupta, ita nunc suum robur, propriumque vigorem ob- tineat.” Leo IV. Lothario Augusto, THE HISTORY OF ROMAN LAW. 519 popes, St. Damian, the Cardinal Bishop of Ostia, who was born at Ravenna a.p. 988, and who died in 1072, quotes the text of five passages from the Institutes in his opusculum,—De parentele gradibus. Similar quotations are to be found in the collections of canonical texts which were composed in Italy in the ninth, tenth and especially towards the end of the eleventh centuries; these collections have not been edited; many of them, how- ever, had been circulated in manuscript, and were in use among the clergy till the period when they were supplanted, in 1151, by that collection known as the Decretum Gratiani, which forms the first part of the Corpus juris canonici. 602. Nothing therefore is more clear than the fact that the law of Justinian was maintained without interruption as the common and governing law; ranking, however, at the Pontifical court and with the clergy, as secondary to the canonical law. When Odofredus reports the transfer of the books of law, together with the public school, from Rome to Ravenna, he does not say that copies of the Roman law no longer remained. in Rome. This transfer must be held to apply to the official manuscripts, which it is only reasonable should be transferred to the seat of government, or to those which were used for the purposes of instruction, given or sold, as the case may be, to the professors and students, either by the copyists or the libraries (stationarii); for it is reasonable to suppose that these also went with the school to Ravenna. But neither the authorities whose duty it was to apply the law, nor the clerks who were the guardians or depositories, by whose pens the manuscripts were copied, renewed and multiplied, continued without the text of the law of Justinian, which remained in force and vigour, according to Pope Leo the Fourth, in the year 887, thus having survived the universal storm. 608. The influence of the clergy in the preservation of Roman law was general, and was not limited to the States of the Church, but extended naturally to every place in which ec- clesiastical influence was felt. Thus we find in those portions 520 THE HISTORY OF ROMAN LAW. of Italy where the law of Justinian had been promulgated, A.D. 554, but where the government of Constantinople had existed but a few years, it was this law of Justinian to which the clergy always appealed; thus we find in a letter of Atto IT., bishop of Verceil, in 945, and who died about the year 960, written in those countries which had from the first formed a part of the Lombard conquests, this opinion expressed: that it behoved ecclesiastics themselves also to follow in many things the law of the Roman emperors (quorum legem, etiam nobis sacerdotibus, in multis convenit observare); and at the same time he adduces in reference to the law of marriage various fragments from the Institutes and Digest of Justinian, and from the Epitome of Julian.} We also find in other parts of the Western Empire appeal made by the clergy to the Roman law which had been in force at the time of the conquest, that is to say, to ante-Justinian law. Section CX -XTI. Tue INFLUENCE OF THE PRINCIPLE OF THE PERSONALITY OF THE Laws UPON THE MAINTENANCE OF THE LAW OF JUSTINIAN IN ITALY. 604. Another and still more general cause than ecclesiastical influence is to be found in the principle of the personality of the laws, an interesting legal phenomenon presented by the dif- ferent barbarian kingdoms. It must not be supposed that the Roman system, which had permitted so many different nations to retain their native laws, had been ignorant of this principle. The barbarians themselves, who had been admitted into the empire, had already enjoyed the privileges of Romans, but the superiority of Roman law became more conspicuous in proportion as the various barbarian tribes succeeded in supplanting the Roman sway. The edict of Theodosius, general as it was, had not de- 1 Atto, Epistola ad Azonem Epis- were edited and published by Ch. Bar- copum.” The complete works of Atto rontius, Verceil, 1768, in 2 vols. THE HISTORY OF ROMAN LAW. 521 stroyed this personality in Italy, inasmuch as this edict scarcely touched upon matters of private civil law; long afterwards, in the middle ages, towards the end of the ninth century, a constitution of the Emperor Lothaire the First, which is inserted in the Corpus juris canonict, ordered that the entire population of Rome should be interrogated, and that every man should state the law under which he desired to live.!’ This is the period at which Pope Leo IV. had demanded of this same emperor the maintenance of Roman law, which, he said, had remained in its vigour notwithstanding the “universal tempests.” The great mass of the ecclesiastics, and the larger portion of the popu- lation of Rome, then professed the Roman law, which was that of Justinian. The Germans, however, of various nationalities, who were mingled with this population, were also admitted to make a profession of their respective laws. 605. Thus, throughout all the modern nations which were founded by the superstructure of the barbarian races upon the Roman world, the law was personal: the conquerors adhered to their barbarian laws; those subjects who were of Roman origin, and all the ecclesiastics, continuing to be governed by the principles of Roman law. It was only in those countries which had been subjected to the authority of Justinian that the Roman law consisted of the law of that emperor. In the other fractions of the Western Empire it was a Roman system of anterior date that was observed, which consisted chiefly of those Roman laws which had been collected and. published by the various barbarian kings. 606. In this way Roman law, whether Justinian or whether ante-Justinian, survived the conquest ; ‘and, even in the ob- scurity and during the development of the feudal system, it was perpetuated, if not as a science at least in practice, leaving the 1 Corp. JUR. CAN., Decret. 1* pars, distinct. 10, cap. 14: Lotharius im- perator: “ Volumus, ut cunctus popu- lus Romanus interrogetur, qua lege vult vivere: ut tali lege quali lege pro- fessi sint, vivant, illisque denuntietur, ut hoc unusquisque, tam Judices quam Duces, vel reliquus populus sciet: quod si offensionem contra eandem legem fecerint, eidem legi qua profitentur vi- vere, per dispensationem pontificis ct nostram, subjacebunt.”” 522 THE IIISTORY OF ROMAN LAW. proofs of its authority in the decisions, in the acts, in the for- mul of those times, and in the letters or writings of learned men who shed light upon this age of almost universal darkness. The illustrious M. de Savigny has carefully and patiently fol- lowed, through the length and breadth of Europe during the long period of the middle ages, the traces of this practical existence of Roman law. The researches of this distinguished author have put an end to the vulgar notion that the Roman law was lost during the middle ages. The work of Savigny is not a discovery, it is a demonstration. A portion of it consists of little more than series of documents and extracts, chronologi- cally arranged, some of which are of an unimportant character, but they are valuable as arguments, elaborated with the utmost patience, and collected with the most scrupulous exactitude. In other chapters he makes use of these materials with that skill and ingenuity for which he is so remarkable. —~—- Secrion CX XIII. Frrst InpIcATION OF THE LAW OF JUSTINIAN IN GAUL. 607. The fate of Roman law during the formation of the modern nations of Europe is a matter of particular interest to us (the French), so far as it is connected with the Gauls. To this subject M. de Savigny, and with still more attention our learned and much regretted friend Laferriére, have dedicated several pages. We find that the two general causes, the influence of the clergy and the principle of the personality of the laws, produced in Gaul, from the first, their ordinary effect of maintaining Roman law. | But in parts where the collections of Justinian had never been promulgated, Roman law meant ante-Justinian law, together with the collections of the law of the Romans made and published by the order of the German kings: the Roman law of the Visigoths, commonly called the Breviarium Alarici, of the year 506, and that of the Burgundians, for the sake of brevity called the Papian, published shortly after THE HISTORY OF ROMAN LAW. 623 the year 517. The latter of these two systems enjoyed but a short-lived authority. Published at the earliest in a.p. 517, it lost in A.D. 534, that is to say, within seventeen years, the support of the power from which it had emanated, the kingdom of the Bur- gundians having been absorbed in the conquests of the Frank kings. Its credit was soon effaced by the Breviarium, which, whether as to the number, the choice or the arrangement of the texts extracted from the various sources of Roman law, was far superior. The Breviarium, though compiled in southern Gaul, extended its influence to the north. Of all the enact- ments of Justinian, it only adopted the latter part, that is to say, the Novelle, and these not from the original text, but from the abridgment of Julian; and M. Laferriére authoritatively declares that the most scrupulous research has not enabled him to trace any others down to the end of the eleventh century.! This Epitome of Julian appears to have been known in France in the ninth century, doubtless owing to the relations that existed between the French clergy and those of Rome. From this period the Breviartum and the Epitome of Julian fre- quently went together, being transcribed one after the other in the various manuscripts of the time. 1 Laferriére, Histoire du droit Frangais, vol. 4, pp. 285 and 286. We Justinian, 1, 3, De episcopis et clericis et monachis et privilegiis eorum, et de may therefore accept it as a theory, in the present state of our historical know- ledge upon this point, that all the adop- tions and all the quotations relating to the law of Justinian, whether public or private, in French documents of the middle ages, down to the end of the eleventh century,refer exclusively to the Novelle of Justinian, comprised in the collection of Julian. A constitution of Pope John VIIL, promulgated in the council held in France in the year 878—the council of Troyes —enacts, in relation to the com- position of sacrilege, “ Inspectis legibus Romanis, invenimus ibi a Justiniano imperatore legem compositionis sacri- legit compositam . . ., ete.” (Sirmond, Concil. Gail., cap. 3, p. 480). The law here alluded to is that of the emperors Arcadius and Honorius, and is to be found in the Code of Theodosius, 16, 2, De episcopis et clericis, 34, and passed from that into the Code of nuptiis clericorum vetitis seu per- missis, 13,”—a chapter unquestionably well known and studied by the clergy of the court of Rome. The Pope here discards the Roman law, and replaces it by a law of Charlemagne of more lenient character. Thus we see indi- cations of a code of Justinian in Gaul in the year 878. Wedonot agree with Laferriére, that the name of Justinian is here an error of the copyist; but this indication, though extremely vague, is found in a constitution of the Pope, made in a council presided over by himself, and not in a national docu- ment. Thus we have some little light thrown upon the existence of the works of Justinian in France by the clergy of Rome and Italy in ecclesiastical mat- ters. Similar institutions may be met with under like circumstances in other councils, without in any way affecting the law of the country. 524 TIE HISTORY OF ROMAN LAW. 608. Thus confining ourselves to the writings of the clergy, it is only passages from the Breviarium which are to be met with in a letter of Alcuin, who died in the year 804, in his abbey of St. Martin of Tours, after having seconded the efforts of Char- lemagne to establish institutions for the teaching of ecclesiastical science and literature. The Epitome of Julian, as well as the Breviarium, are referred to in the works of Hinemar, Arch- bishop of Rheims, in the year 845, who died in the year 882. It is apparent from the quotations made by this learned man that he was also acquainted with the Gregorian Code, the Her- mogenian, and the Theodosian, and with the Collatio mosaica- rum et romanarum legum. The Breviarium also appears in one passage, and the Epitome of Julian in several fragments, in the collection of canonical texts compiled by another learned French clergyman of the middle ages Abbon l’Orléanais, abbot of the monastery of Fleury, in the year 988, author of an abridgment of the lives of the Popes down to Gregory II., who was Pope from the year 714 to 731. This abbot took part in three councils, and made two journeys to Rome as envoy from King Robert to Pope John XV. in 986, and to Pope Gre- gory V. in 996. He died in the year 1004. 609. As to the other works of Justinian, in order to trace them into France, we must go to the other collections of canonical texts, the Pannormia and the Decretum, which were composed by St. Ives—not Yves, of Brittany, the patron of the advo- cates—but St. Ives who was born about the year 1035, in the territory of Beauvais, who was bishop of Chartres in 1092, and who died in 1115. In these we, for the first time, so far as we know, meet with extracts, not only from the Breviarium and the Epitome of Julian, but from the Institutes, the Digest and the Code of Justinian, numerous fragments of which are in- corporated in these collections, and are doubtless due to the influence of Italy. Ives, in fact, had been a pupil of that school of Benedictines of the Abbey of Bec in Normandy which was founded by Lanfranc, and which became one of the most celebrated in Europe. He was there initiated into Italian science by his THE HISTORY OF ROMAN LAW. 525 master Lanfranc, who, born at Pavia of a senatorial family, first made his appearance in that city as a student, and after- wards as a teacher of secular law, and there acquired a great reputation before going to France and becoming a Benedictine at Bec. Ives had as a fellow pupil another Italian, Anselm, from Aosta in Piedmont, who was of the same age, having been born in 1033; he also, at a later date, became prior of the monastery, afterwards an abbot, and subsequently Archbishop ‘of Canterbury, and was canonized, as was Ives, under the name of St. Anselm. In addition to these Italian predilections, in consequence of the objections made to his election when he had been unanimously nominated bishop by the clergy and the faith- ful of the town of Chartres, he went to Rome with deputies from the town, and was there consecrated bishop by the Pope him- self, Urban II. He took part in the council of Clermont, pre- sided over by the same Pope in the year 1095, and in the council of Beaugency, presided over by a legate in the year 1104. So that, as an ecclesiastic and scholar, having such close relations with Italy, and desiring to compose for France a collection of canonical texts, it is difficult to believe that he did not procure for the prosecution of his undertaking some collections similar to those which had been produced in Italy, and which were in vogue amongst the Catholic clergy; he would, of course, seek the most recent and latest texts. More than three hundred years separate his time from the invention of printing, but the copyists—and especially the clerks—multiplied the MSS. In addition to the collection dedicated to Anselm, Archbishop of Milan (a.D. 883 to 897), and that dedicated to Anselm, Bishop of Lucca, who was almost a contemporary of Ives of Chartres, as he died in the year 1086, only nineteen years before him (both of which collections had been widely circulated), we know of three others belonging to the eleventh century, the last of which only extends to the decretals of Urban IT., who was Pope from A.D. 1088 to a.p. 1099. In the first two of these collec- tions various passages are to be met with from the various works of Justinian, except the Pandects, and in the last from them also. We now approach the period when the study of the law of 526 THE HISTORY OF ROMAN LAW. Justinian was pursued with the greatest energy and success at Bologna. Ives was the contemporary of Irnerius, and when he died at the age of eighty, in the year 1115, this chief of the school of glossators had already attracted attention to himself at Bologna by his teaching, and was about to enter the service of the Emperor Henry V. He entered it in the year 1116, and was also in it in the year 1118. The mode of instruction adopted by Irnerius had been pursued by others before him in Italy. The possession of the legislative works of Justinian by the Bishop of Chartres, and the use made of them by him in France, in his collection of canons and in his letters, are evidently connected with these events. 610. Before devoting a few words to the revival of the public study of the law of Justinian, we shall make two obser- vations of an important character, to which we direct the atten- tion of our readers. First. The rule as to the personality of the laws, according to the origin or declaration made by each indi- vidual, could only be in force during a given time. In propor- tion as the fusion of races and the development of each nation in modern Europe progressed, individual distinction or difference must have disappeared, leaving behind it only a combination of usage with enactments and judicial practices, which would vary according to the nature of their origin, and the circumstances and conditions under which they grew up in each state. Secondly. In this work of elaboration the various Germanic laws, and the various usages of each people, would furnish elements destined to become absorbed in the new growth, with- out leaving their names attached to them; whereas beyond and besides these, two of the elements of the general structure must, from their very nature and their authority, stand out con- spicuously from the rest: these two were the canonical law and the Justinian law. THE HISTORY OF ROMAN LAW. 527 Srction CX XIV. REVIVAL OF THE STUDY AND TEACHING OF THE TEXTS OF JUSTINIAN TOWARDS THE END OF THE ELEVENTH CEN- TuRY—TuHE ScHoor or BoLoGNA AND THE GLOssATORS —PLACENTINUS IN FRANCE, VACARIUS IN ENGLAND. 611. Savigny has, more than once, employed the expression ‘ revival,” and has made it a title of one of his chapters. It is a term we may safely use. The confusion and obscurity of the middle ages in literature and science extended also to laws. The Roman law, in many places and in many points, existed in practice but without cultivation; the evidence that we have of the existence of this latent practice are a few quotations in the writings of the exceptional men of their time. Towards the latter end of the eleventh century a true revival took place, —a revival of intellect and consequently of the study of law. The movement was not sudden, but had been foretold, as the return of animation is to the body by certain faint breathings and gentle motions,—the precursors of returning life. 612. Thus Peter Damian, Bishop of Ostia, who was canonized and known under the name of St. Damian, speaks of the discussion which took place concerning civil and canonical law in his time at Ravenna as to the degrees of relationship, during which discussion the authority of the Institutes of Jus- tinian was called in aid.!. This testimony is of the greatest im- portance, because Ravenna was his native country. He was born in the year 988, and died in 1072. We can infer, inde- pendently of what he says concerning the Institutes of Justinian and of the existence of the doctors whom Damian sent back to consult their codes (ad vestros codices, ad Instituta vestra recurrite), that during the course of the eleventh century this school, originally transferred, as we know, from Rome to Ravenna, played an important part. Lanfranc, who in 1042 became a benedictine of the monastery of Bec in Normandy, 1 See his work, De parentele gra- . . . Eratautemde consanguinitatis dibus, in Italian, 1783, Paris edition, gradibus plurima disceptatio,” Vol. 1663: “ Revennam, ut nostisnuperadii ii. p. 77. 528 THE HISTORY OF ROMAN LAW. who was afterwards called by William the Conqueror to the archbishopric of Canterbury, and who was the trusted coun- sellor of that prince, first studied and afterwards publicly taught the law with great distinction at Pavia, his native place; he died in 1089. Thus we see that in the first half of the eleventh century law was publicly taught in Pavia. It is true that we gather from certain documents that this instruction was prin- cipally confined to the law of Lombardy. Pepo, a magistrate of Bologna, who figures in this character in an act of the year 1075, had in the same century given a public course of law at Bologna.? 618. It was Irnerius who was the founder of that school of Bologna, which became as famous, and as much frequented for the study of the laws of Justinian, as was that of Paris for theology and literature. Our knowledge of the nature of the instruction imparted by him is, for the want of documents, limited to a very small portion of his career. He acquired his celebrity under the protection of Mathilde, Duchess of Tuscany and Countess of Reggio and other places, who was surnamed the Great Countess, and who died in the year 1115. He confined himself chiefly to Bologna and to Rome, where the Emperor Henry V. summoned him in the year 1118 to confer upon him an important office. At this period we lose sight of him, and know nothing about his subsequent history. He belonged to Bologna, and, notwithstanding the German form of his name, he must not be regarded as a German. We find his name in various forms: for example, Wernerius or Gernerius, Warnarius or Guarnarius, Yrnerius, or, more simple, 1 Gilbert Crispin, an abbot of West- minster, who wrote his life in the intro- duction to the edition of his works pub- lished in Paris 1648 (after telling us that he had been instructed in his youth in the schools of the liberal arts and sceular laws belonging to the eleventh century), which is now in the library of Naples, adds: ‘In ipsa state sententias depromere sapuit, quas gratanter Juris- periti vel prastores civitatis acceptabant. Meminit horum Patria.” The law re- ferred to was the Lombardian law, which, during the tenth and the com- mencement of the cleventh centuries, was the chief object of study in the school of Pavia, where Lanfranc had been during his youth. 2 Odofredus, upon the law of the Digest, 1, 1, De justitia et jure, 6, f. Ulp.: “Quidam Dominus Pepo ceepit auctoritate sua legere in legibus, tamen quidquid fuerit de scientia sua, nullius nominis fuit.” THE HISTORY OF ROMAN LAW. 529 Trnerius. He was surnamed lucerna juris, and was the first of those known as the Glossators. 614. This name has been given to them on account of the nature of their principal labours, which, in addition to oral instruction, consisted in inscribing upon the manuscripts of the laws of Justinian notes, at first exceedingly brief but which afterwards became more extensive. These notes were inter- lineary or marginal; their publication served as the material out of which the whole edifice of the legal science of this period was constructed. Gdlossa, and for the sake of euphony, glosa, an obscure word, signifies the explanation of abstruse words and difficult passages, “ lingue secretioris interpretatio” (Quin- tilian, lib. i.) This practice had been known at an earlier date. The Bible had its gloss from the ninth century, and we have an example of the same system being applied to the law of Justinian in a very old gloss of the Institutes called the Gloss of Turin, which has been published by Savigny in the appendix to his History of the Roman Law of the Middle Ages. Their labours, however, in this respect were consider- able and important, and extended to the whole body of Jus- tinian’s law, and were regarded as an authority throughout Europe; indeed we at the present day are more indebted to these writers than we are generally aware. Glos, in its passage through the various languages of the world, has become commentary, jaserie (twaddle), criticism more or less ridiculous, and from being brief has grown prolix. La Fontaine makes his monkey comment (gloser) upon the ele- phant, and Boileau all mankind upon the misadventures of marriage : “ Je sais que c’est un texte ot chacun fait sa glose.” 615. The school of the glossators in its first phase, which embraces the whole of the twelfth century, decreased in value, and terminated with Accursius before the middle of the thir- teenth century. As to this period of about one hundred and thirty years, we shall limit ourselves to noticing those of the MM 530 THE HISTORY OF ROMAN LAW. glossators known as the four doctors to Placentinus and to Vacarius. The four doctors, who may be reviewed together, were— Ist, Bulgarus, surnamed, like Chrysostom, the mouth of gold (os aureum); died in the year 1166; 2nd, Martinus Gosia ; died shortly before Bulgarus; 3rd, Jacobus; died in 1178; and 4th, Ugo, who died between 1166 and 1171. AU four belonged to Bologna, as did the founder of their school. One of their contemporaries ascribed to Imerius this distich, in which he assigns to each his character, and designates Jacobus as alter ego: * Bulgarus est erum,' Martinus copia legum, Mens legum est Ugo, Jacobus id quo ego.” Placentinus, who belonged to Placentia, and was born about the year 1120, is remarkable from the fact, that after the public declaration made by William, Lord of Montpellier in the year 1180, whereby he abolished the monopoly of instruction in that city, he founded at Montpellier our first school of law and introduced the writings and the system of the glossators. Here too he composed several of his works. After being in Italy for several years he went a second time to Montpellier, where he died in the year 1192. Vacarius, who was a Lombard, was famous in the same way in the history of England. He was taken from Bologna to England in 1144, by Theobald, Archbishop of Canterbury. He took with him his manuscript of the texts of Justinian, and founded a school of law at Oxford, thus introducing as a novelty in England the system of instruction of Bologna. It was in order to spare those students who had no pecuniary resources the expense of obtaining costly manuscripts that he made ex- tracts from the various parts of the law of Justinian, adding certain extremely brief glosses. This work was entitled Liber ex universo enucleato jure exceptus (or extract), et pauperibus presertim destinatus; whence is said to.be derived the name of Pauperists, which was formerly, and for a long time, applied to the students of Oxford. ? Should not this be awrwm, in allusion to his surname, “ mouth of gold ?” TIIE HISTORY OF ROMAN LAW. 531 616. The school of Bologna, during this period of active study and propagation of the texts of Justinian, attracted to it a great crowd of students, who came from various parts of Europe. There were, it is said, at one period, ten thousand members of families, small and great, clerical or lay, studying there, many of them being already grey with age. The fame of this school had reached Paris, and it is to this that we owe the anecdote concerning Abelard, who turned the lawyers into ridicule, and boasted that he could explain any passage whatever of the Corpus juris; a small portion of the Code was presented to him, and before he had reached the second line he was obliged to confess his inability: “ Nescio quid velit dicere ista lex.” The pupils of the glossators had maliciously selected a difficult passage.t The anecdote, if true, is necessarily anterior to the year 1140. From this date the practice of translating various portions of the Corpus juris into French commenced. Many of our learned men have possessed manuscripts, the most ancient of which was a translation of the Code made about the year 1135.2 We have still in our library of Montpellier, and in the Imperial library, MSS. belonging to the thirteenth century, which are translations from the Digest, the Code and the Institutes. Bernard, preacher of the second crusade in 1146, the accuser of Abelard, whose condemnation he secured in the Council of Sens, and of Arnold of Brescia, whom he caused to be expelled from France, while waiting the slow fire which was to consume him at Rome, declaimed vehemently before Pope Eugenius III., who filled the holy see from 1145 to 1153, against the ardour with which the ecclesiastics, even in the 1 Odofredus, Gloss upon lex 5 of the Code, book 3, tit. 39, Finiwm regun- dorum (this is the law in question): “ Dicitur quod fuit quidam qui vocaba- tur Petrus Bailardus . . Et valde deridebat legistas et jactabat de quod nulla lex esset in Corpore juris, quan- tumcumque esset difficilis in littera, quin in eam poneret casum et de ea traheret sanum intellectum. Unde una die fuit sibi ostensa a quodam ista lex, et tunc ipse dixit: Nescio quid velit dicere ista lex. Unde derisus fuit.”” 2 Julien Brodeau, Annotations sur les arréts de Locret. I have in my possession the ancient French transla- tions in MS. of the Code of Justinian, made in the time of Lothaire IT. and of Pope Innocent II., about the year 1135. See also upon this subject Ménage, Observations sur la langue frangaise, part 1, cap. 3; J. Doujat, Historia juris civilis Romanorwm (1678); the President Bouhier, Observations sur la coutwme de Bourgogne, cap. 4 (34), vol. 1, p. 389. MM 2 532 THE HISTORY OF ROMAN LAW. papal palace, devoted themselves to the laws of Justinian in- stead of the laws of our Saviour: “ Quando oramus? Quando _doxemus populos? Quando edificamus Ecclesiam? Quando meditamur in lege? Et quidem quotidie perstrepunt in palatio leges, sed Justiniani, non Domini.”1 Successive councils—that at Rheims in 1131, the Lateran in 1139 and that at Tours in 1162—prohibited the religious from making a profession of the study of modern laws under penalty of excommunication. The decretal of Honorius III., in 1220, re-enacted this prohibition, adding a prohibition against teaching Roman law at Paris and the neighbouring towns, also under pain of excommunica- tion. The motive ascribed for the decretal is worthy of note. It is that in France, that is to say, in the province anciently called the “ Isle of France” and in several other provinces, the laity did not use the laws of the Roman emperors (Quia in Francia et nonnullis provinctis, laicti Romanorum imperatorum legibus non utuntur); and as to ecclesiastical matters, that there is very little which cannot be explained by canonical law. This is the reason assigned; the real object was to preserve in the university of Paris the monopoly of theological instruction, and in Italy the preponderance of the school of Bologna. There was some reason in the decretal for saying that the Roman law was not received as a governing law in the Isle of France and in the surrounding provinces, especially the texts of Justinian. The result of this prohibition as to Paris was the establishment of the school of law at Orleans, which took place about 1236; and in the south, where, from the time of Placen- tinus, the school of Montpellier had existed, several others were established, the chief of which was that of Toulouse in 1228. 1 Bernard, De consideratione, ad Eugenium IIL, lib. i, c. 4. Vol. ii. p. 410, of edition of 1690. 2 “Statuimus ut nulli omnino post votum religionis et professionem, ad physicam, legesve mundanas legendas permittatur.” This Jast council was presided over by Pope Alexander III. 3 The provisions of the decretal of Honorius III. have passed into the Cor- pus juris canonici, Decret. Greg. IX. lib. v. tit. 33, ch. 28: Purisits et in locis vicinis jus civile legit non debet: “Firmiter interdicimus, et districtius inhibemus, ne Parisiis, vel in civitati- bus seu aliis locis vicinis, quisquam do- cere vel audire jus civile prasumat.” Dumoulin, three hundred years later, made a note on this provision, with the following protest : ‘‘ Ego vero dico quod Papa non habuit potestatem prohibendi in regno Franciz, sive laicis, sive cle- ricis: quia regnum Francie nullo modo dependct a Papa.” THE WISTORY OF ROMAN LAW. 533 All these universities, and those which were established in great numbers in the following centuries, taught the canon and the civil law from the texts of Justinian, the University of Paris being only able to teach this latter law as an accessory when- ever considered necessary for the purposes of the canon law. In 1576 an order of the Parliament of Paris was necessary to accord as an exceptional favour—which was not to be held as a precedent—to Cujas and the contemporary doctors of canon law of Paris, the faculty of lecturing, professing and graduating in civil law in that city, on account of the peculiar circumstances of the time, that is to say, on account of the religious troubles which had interrupted the course of study at Bourges. The prohibitions of 1220, against which Dumoulin struggled in vain three hundred years after, in the protest which we have men- tioned in our note, which prohibitions were renewed by the edict of 1579 to the Etats de Blois, art. 69, were not removed until the edict of Louis XIV., in April, 1679, after having existed for upwards of four hundred and fifty years. 617. The glossators, notwithstanding that the gloss had been their chief and characteristic work, did not limit themselves to it. They also wrote what were called apparatus, which were extended and connected glosses, forming a species of com- mentary upon an entire title or section of the Corpus juris ;— summe, which were summaries or résumés, by the means of which they opened up the course of instruction they proposed to pursue ;—casus, confined to constructing upon each law, that contained any difficulty, a species of example or illustration ;— brocarda, or rules of law drawn from the texts and given in their entirety, with parallel paragraphs containing apparent difficulties, with the attempts to explain them. Azo, who had amongst his pupils Accursius, was celebrated, in addition to the reputation that he acquired as an instructor, for his summe, his apparatus, and his book of brocarda. We have the lessons of certain of the glossators, as published either by themselves or by their pupils. In addition to all this, the glossators, and amongst them Irnerius, were in the habit of writing special treatises, but mainly upon actions and the mode of procedure, 534 THE HISTORY OF ROMAN LAW. SECTION CX XV. BracuyLocus Et Petri Excerrionrs Lecum RoMANORUM. 618. The historian of legal literature meets about this period with two elementary manuals of Roman law upon the text of Justinian, one composed in Italy, the other at Valencia in Dauphiny, the date of which is between the end of the eleventh century and that of the twelfth, We are not able to determine accurately whether these were anterior to the school of the glossators of Bologna, or whether they may be ascribed to the impulse given by that school: both are constructed upon the model of the Institutes of Justinian, and are, like the Institutes, divided into four books, having, however, modifica- tions in the order in which the subjects of which they treat are distributed, the Institutes being the basis. We find in connec- tion with them the Pandects, the Code, and the Novelle from the Epitome of Julian. The work composed in Italy is more particularly upon Roman law; that composed at Valencia adapts this law to the various institutions or local customs, to the canon law, and to the exercise of jurisdiction in that pro- vince. It is with this object dedicated to Odilo, the vicar or representative of the lord justice, under the sovereignty of the then reigning Emperor of Germany, for the province of Arles, in which Valencia was situated. The Italian work, which in many of the manuscripts is with- out title, and in others has various titles, the Corpus legum, Summa Novellarum, has been generally known during the last three centuries under the title of Brachylogus totius juris civilis, or, more briefly, Brachylogus, which signifies a brief discourse or précis. This name was given to it arbitrarily in an edition of 1553; another edition, which appeared in 1570, gave it the name of Enchiridium, or manual; but the name Brachylogus is that by which it is generally known. Savigny is of opinion that the work was composed at the commencement of the twelfth century, and he is disposed to ascribe it, though without positive proof, to Irnerius himself. It must not be forgotten that the school of Irnerius belonged to the latter end of the eleventh THE HISTORY OF ROMAN LAW. 535 and to the earlier years of the twelfth century, and that we hear no more of him after 1118.1 As to the work commenced at Valencia, it is known under the title borne by several of the manuscripts, Petri exceptiones (extracts) legum Romanorum, or, by contraction, the Petrus. We know nothing of this Petrus except what we gather from the work itself, save that he inhabited Valencia or its territory. Savigny is of opinion that his work is anterior to the school of Bologna, and even to the collection of canons made by Yves of Chartres, of whom we have already spoken. It serves as a proof that the law of Justinian was known and observed in that part of Gaul before the works of the glossators. This is ex- plained by the influence of the sovereignty of the German em- pire upon these countries in the eleventh century, and from the connection that it had with Italy. We, however, are in- clined to adopt the opinion of Laferriére, that the book of Petrus is posterior to the collection of the canons of this Yves of Chartres, and consequently posterior to the commencement of the school of Bologna, inasmuch as Yves of Chartres was a con- temporary of Irnerius.2 This book was probably composed in the first half of the eleventh century. It must be admitted that the author does not give the text of Justinian as a novelty, and that he makes no use whatever either of the Theodosian Code or the Breviarium Alarici, the Roman law in force in Gaul before the introduction of the Corpus juris of Jus- tinian.° ' Between 1551, the date of the first edition, and 1761, we can enumerate twenty-one editions of the Brachylogus, ten of which were published at Lyons, five in Germany, and six in Italy; the modern edition, to which preference should be given, is that of Edward Boecking, published at Berlin, 1829. 2 The proof relied upon rests upon a mutilated passage no longer having any meaning which appeared in a portion of the Petrus (3, 36), which appears in a collection of the canons of Yves of Chartres (3, 98). As this mutilated passage is also to be found in the col- lection of the canons composed at Saragossa, and styled Cwsar Augus- tana, we must conclude, with Lafer- riére, that this latter collection is pos- terior to Yves of Chartres. See, upon the Brachylogus, Savigny’s Histoire du droit romain au moyen-dge, vol. ii. par. 451, etc. of the French transla- tion, and upon the Petrus, the same work, p. 82, etc., compared with Lafer- riére’s Histoire du droit, vol. iv. p. 293, etc, 3 The first edition of the Petrus was published at Strasbourg in 1500; fora modern edition of the same, reference should be made to Savigny in his Ap- pendix, vol. iv. p. 293, to the translation of his /Tistory of the Roman Law of the Middle Ages. 536 THE HISTORY OF ROMAN LAW. Section CX XVI. Manuscripts AND TEXTS OF THE Corpus juris Justiniani— Tue PanpEct& FLORENTINE AND THE VULGATE—THE ANCIENT DiGEsT, THE INFORTIATUM AND THE NEW DiGEsr. 619. The glossators do not appear to have known, and, at all events, they have not employed, in their works upon Roman law, anything but the Corpus juris of Justinian; their resources were limited to this, and to it they strictly adhered. Although their field was thus limited, it nevertheless afforded them ample scope; but they handled the text roughly; they turned and twisted it in every possible way, as the indefatigable agriculturist turns his soil. It is to them that we are indebted for the refer- ences which are contained in the current editions of the present day, and which are of so much use to us; they are the result of a herculean task, of a series of investigations and incessant com- parison of each law, and of each passage of the law, with other laws and other parallel passages, analogous, explanatory or con- tradictory. ‘They also accomplished much by the comparison and critical examination of different manuscripts, often in them- selves defective and frequently at variance. 620. There is a legend which, like all legends, has found some to attach credence to it (Sigonius was the first to give it weight)," and which was commonly received till the year 1726, when Fr. Grandi, a professor of Pisa, treated it as a fable. From that date it has been a subject of controversy. It says that, in the sacking of Amalphi, in 1137, by the people of Pisa, who were the allies of the Emperor Lothaire, a manuscript copy of the Pandects was discovered, which had been sent to Amalphi by Justinian; that the Pisans carried it to Pisa and received it from the Emperor Lothaire as a gift, and that this discovery and the appearance of the manuscript was the cause of the revival of the study of Justinian law, and the foundation of the school of the glossators at Bologna. 621. The part of this legend which is manifestly false is, * Sigonius, De regno Italia, ii. 2. THE HISTORY OF ROMAN LAW. 537 that the alleged discovery was the cause of the revival of the study of the law of Justinian, for it is quite certain that long before the year 1137 Roman law was publicly taught, both at Ravenna and at Bologna; that the school of Irnerius had shed its light far and wide; that this school terminated in 1118, and that the labours of his successors had not merely commenced but had made considerable progress. It is however true that a manuscript copy of the Pandects, of very great antiquity, embracing the entire collection, which was treated by the city with the greatest veneration and guarded with scrupulous care, did exist at Pisa; that the glossators re- ferred to this particular text by the style of Métera Pisana, and. that, in the year 1406, Pisa having fallen under the dominion of Florence, this valuable document was transported to that city, whence it derived the name under which it has remained famous, viz., that of Pandecte Florentine. The point of controversy is, how and when this manuscript fell into the possession of the Pisans? Odofredus, one of the jurists of Bologna, who belonged to the second phase, who was a pupil of Accursius, and who died in 1265, tells us in bad Latin that this manuscript had been transported from Constantinople to Pisa at the same time as the Constitutions of Justinian.' Odofredus was at least a hundred years later than the pretended conquest of Amalphi. Bartolus, who died in 1357, in the forty- fourth year of his age, that is, about a hundred years later, also says that the manuscript had always been at Pisa, and that in a complete condition.2 On the other hand, some historical notes in Latin referring to the maritime wars of the Pisans, bearing date 1320, and which are added as an appendix to a statute bearing date 1318, and a passage from a chronicle or annal at Pisa, in Italian, relative to the same wars, and two lines of a poem, all derived from manuscripts of the thirteenth century, explicitly relate the capture of the Pandects at 1 Odofredus, on the law 23, f. Paul., 2? Bartolus, on the rubric of tit. 3, Dig. 6,1, De rei vindicatione : “ Unde Soluto matrimonio, lib. xxiv. : “ Hoc si videatis Pandectam que est Pisis, volumen Cinfortiatwm) nunquam fuit que Pandecta, quando constitutiones amissum. Semper enim fuit totum fuerunt facts, fuit deportata de Con- volumen Pandectarum Pisis et adhuc stantinopoli Pisis, est de mala littera.” _—_ est.” 538 THE HISTORY OF ROMAN LAW. Amalphi. Savigny, after having investigated the matter, rejects the account given of this conquest, as had Fr. Grandi in the year 1726, and upon his authority this paltry controversy has terminated. Laferriére, nevertheless, who also investigated the matter, believes in the alleged conquest, but both agree that the matter, as it now stands, is of little importance.’ There is, however, a point which, though of secondary import- ance, is not without its value, which is, whether Irnerius and the early glossators, by whom he was succeeded up to the year 1137, were acquainted with and used this manuscript or not. If it is true that it only came to the notice of the glossators as the result of the sacking of Amalphi, and that only in the year 1137, it is probable that the sudden appearance of such a docu- ment, and under such circumstances, would have been noted in their works. No such mention however occurs. 622. The manuscript of the Florentine Pandects is the only ancient MS. now extant, neither of the others bemg of more ancient date than the time of the glossators. It is, however, certain that the glossators possessed more ancient manuscripts, which were in existence in Italy in their time, and which have since been lost, doubtless as a result of their own works. It is by the aid of these different manuscripts, by comparing them with each other, and with the MS. at Pisa, that the glossators had been able, piece by piece, to reconstruct the text of the Pandects, known as the littera Bononiensis, or text of Bologna, or the Vulgata, the accredited and generally received text. It is well to notice the three applications of this term. The Vulgate is that Latin version of the Bible alone approved as the canonical text by the council of Trent; the Vulgate is the Latin version of the Novelle contained in the Authenticum, generally accepted, without any definite authority, before the translations made by the order of the Emperor Justinian for promulgation in Italy; and, finally, the Vulgate is that text of the Pandects as reconstructed by the labours of the glossators by a critical examination of ancient manuscripts, and which is now in general circulation. 1 Savigny, vol. iii. p. 71 et seq.; Laferriére, vol. iv. p. 369. TILE HISTORY OF ROMAN LAW. 539 623. It is a singular fact that the Florentine MS. of the Pandects inverts the order of some of the parts, an arrange- ment which doubtless arose at an early though unknown date, by a misplacing of the leaves. All the other MSS. have the same inversion. We should be inclined to conclude that all the manuscripts were taken from the original Florentine, or that some still more ancient copies existed from which they all, including the Florentine, have been derived, and in which the same misplacement occurred. Certain passages, however, which are wanting, or which are evidently erroneous in the Florentine edition, but which are to be found or rectified as the case may be in the Vulgate, prove the existence of distinct copies. Among the explanations which have been suggested, and which have given rise to considerable controversy, the most simple is the following, that the manuscript possessed by the glossators did not contain the concluding part of the Pan- dects, and that recourse was had to a copy of the Florentine MS. in order to complete the others in that respect. 624. The Florentine MS. is in one volume, containing all the Pandects. This was not the case, however, with all the Italian manuscripts. The texts employed by the early glossators came to them in several volumes and at different times. Odofredus, to whom reference has already been made, and who wrote in the thirteenth century, adopted this order.t From this fact arose the traditional division into three volumes, which we find in the Vulgate, viz., the Digestum vetus, or ancient Digest, the Infortiatum and the Digestum novum— « Je sais le Code entier avec les Authentiques, Le Digeste nouveau, le vieux, l’Infortiat.” « A fine speech to make to a woman!” says the Dorante of Corneille, in the comedy of the Menteur. Many speculations have been hazarded as to the meaning of 1 Odofredus, gloss on the Znfortia- fuit inventum Infortiatum sine tribus tum, lib. xxxv. tit. ii, Ad leg. Falcid., partibus; postea fuerunt portati Tres law 82, frag. of Ulp., on the words Zres libri; _ ultimo liber Autenticorum in- partes: “Cum libri fuerunt portati, ventus est: ct ista ratio quare omnes fuerunt portati hi libri: Codex, Dig. libri antiqui habent separatum.” vetus et novum, et Institutiones; postea 540 THE TWISTORY OF ROMAN LAW. the term Infortiatum—some ingenious, others absurd. Ls- tienne Pasquier wittily refuses to enter into these subtleties ; he regards it as a stupid distinction, with three foolish titles, resulting from ignorance, and therefore inexplicable. It is sufficient for the reader to remember, that this is the name given to one of the three sections into which the Vulgate was divided, the other two being called the Digestum vetus and the Digestum novum. The division of the Pandects into three sections was trans- mitted by the glossators to the jurists, who followed them; when the art of printing came into vogue, all the editions of the Pandects, comprising for the most part those of the sixteenth century, were always arranged according to this division; but from the seventeenth century, the arrangement, which is alto- gether foreign to the spirit of Roman law, has disappeared. 625. There is nothing worthy of remark concerning the manuscripts of the Institutes, which, on account of their ele- mentary character, were far more widely circulated ; nor indeed concerning those of the Code beyond this, that the manuscripts used by the glossators only contained the first nine books, the three latter, which deal with public law, being treated separately, either as a volume or as a separate subject of instruction. It was this collection of the first nine books which bore the name of the Codex; the residue, that of Tres libri. This division also no longer exists. We will not add anything to what has already been said concerning the manuscripts of the Noveile, except that Irnerius annexed some extracts in the form of glosses to his work, with references to the Novelle or Authen- ticum from which they were derived.1 Some of his successors increased the number of these notes. These annotations, under the name of Authentica, form, in a certain sense, a portion of the body of the Code; they are contained in our editions, and are of great service; those of the Institutes have not been so well preserved. ' Odofredus, after relating the anec- libro studuit optime, et bene scivit eum, dote as above, adds: “Sed ipse postca quod apparct ex co quod ipse utilitatem mutavit opinionem snam. . .etdixit posuit super C. signando auth. que le- quod standum erat illo libro; et in illo guntur super Codice.” TIME HISTORY OF ROMAN LAW. 541 SECTION CXXVIL. THE SCHOOLS OF THE JURISTS FROM THE GLOSSATORS TO THE SIXTEENTH CENTURY. 626. The most celebrated of the ancient European jurists, down to the middle of the sixteenth century, are Accursius, Bartolus and Alciat, to whom must be added Cujas. Savigny, in his excellent History of the Roman Law of the Middle Ages, mentions during the twelfth and thirteenth cen- turies, starting with Irnerius, the names of forty-seven jurists who had attained a reputation; and during the fourteenth and fifteenth centuries more than a hundred, amongst whom there are only six Germans and four French, all the others being Italian. Savigny does not go into the sixteenth century, as not belonging to the middle ages. 627. Estienne Pasquier, who commenced the publication of his Recherches de la France in 1561, endeavoured to classify these jurists into three ages or schools; the first called the Glossators, the second, who were named, as he says, by scholars the Scribentes, and whom he called Docteurs de droit; and finally, the third class, whom he is pleased to call Humanists, “nour avoir meslé en beau langage latin les Lettres Humaines avec le Droict.” The first series, that of the glossators, closes about the year 1260 with Accursius and his sons; he gave his name to the school, which for a period of about eighty years followed in his footsteps, and laboured at his works till about the year 1340, when Bartolus, the chief of the second series, made his ap- pearance, and in his turn acquired great reputation, which resulted in the Accursians being replaced by the Bartolists, Thus, next to the glossators, who had flourished for one hundred and sixty years, that is, from the year 1100 to 1260 or there- abouts, the second series of Estienne Pasquier in its turn lasted from the year 1260 to 1510, or in other words for a period of about two hundred and fifty years, of which eighty years belonged to the Accursians and a hundred and seventy to the Bartolists. Then Alciat, about the year 1510, opened with 542 THE HISTORY OF ROMAN LAW. the sixteenth century the third school, in which, though fol- lowing in the traces of his predecessors, Cujas earned a higher reputation than any. 628. Accursius was born, about the year 1182, in a village near Florence, and died about the year 1260: he was a compiler of glosses. After following the profession of the law for about forty years in the University of Bologna, and acquiring honour and considerable wealth by lending money at interest, and that even to his pupils (so says the Satirist), he retired to the solitude of the country, probably to his beautiful chateau, the Villa Ricardina, in the midst of his vast domains, there to com- plete the compilation which he had commenced. This work has been called “the Great Gloss.” It contains extracts, collected and combined in the margin of each text, from the entire Corpus juris, and is a collection of the ancient annotations of the whole school of the glossators supplemented by his own annotations. His son Cervottus, not, as Savigny says, his son Francis, to whom the credit has been erroneously given, made some additions of slight importance. It is clear that the utility of this work must have been great, inasmuch as it condensed, in a brief and convenient form, the learning of the one hundred and sixty years which followed the revival of the study of Roman law. ‘This book, at one and the same time, gives a summary of the writings of the glossators and destroys their identity. To the fact that Accursius has, in some cases, quoted the names of works and authors we owe our acquaintance with the fragments of the writers whom he has mentioned. As to the works them- selves they were, from that time, neglected, and the manuscripts, for the greater part, are lost. For a period of about eighty years, the most servile adherence was shown to this writer, the gloss enjoying a greater authority even than the text. “I prefer the gloss to the text,” said Cinus, ironically, who was born in 1270 and died in 1336, to whom we are indebted for the reaction and for the labours of his illustrious pupil Bartolus; “for, if I quote the text, both judges and advocates say to me, ‘don’t you think that the glossator knew the text as well as you, and that he could understand it better than you?’” THE HISTORY OF ROMAN LAW. 543 It is owing to the compilation of Accursius, which is a huge mass of contradictions, that all the shafts of historical ignorance, of barbarous Latin, of puerility and of ridicule, that it has been the fashion, since the revival of letters in the fifteenth century, to hurl against the glossators as a body without any distinction, have been levelled at them. Rabelais makes his Pantagruel say (book 2, cap. 5), “du monde, lui fait-il dire, n’y ha livres tant beaulz, tant aornez, tant elegans comme sont les textes des Pandectes; mais la bordure diceulz, c’est assavoir la Glose de Accurse, est tant salle, tant infame et punaise, que ce n'est quordure et villennie.” It may be said of the satirist himself that, in his jokes and pleasantries, he not unfrequently conceals the point of his wit under a heap of rubbish. LEstienne Pasquier (lib. 9, ch. 34), in a contrary sense, has said concern- ing Accursius, that he made “un Recueil général, sous le nom de Glosses, de toutes les anciennes annotations, y adjoustant plusieurs belles observations de son creu, dont il borda les textes de la fagon que nous voyons.” In these days scarcely anyone ever reads the Great Gloss, or indeed has any occasion to read it. Very few lawyers, who by profession are civilians, find it necessary to refer to it. When they do, indeed, it is not with- out profit; but, independently of the mass of matter with which they are encumbered, the examples, observations and interpre- tations, the labours of the different glossators will always be of value, first and chiefly because of the construction of the text, secondly for the references by figures to all parallel, similar or contradictory passages which have been applied to every por- tion of the corpus juris and which constitute much of the value of our current editions. 629. Bartolus, who belonged to Sasso Ferrato, in Umbria, was born in 1314 and died in 1357, at the age of forty-four: he was a professor of law in the University of Pisa, and from the year 1343 filled the same post with great reputation in that of Perugia. The labours of the glossators upon the text were ended, and servile attachment to the gloss began to disappear. Amongst the more intelligent, Cinus, the master of Bartolus, had ridiculed it. From that time principles commenced to 544 TIE HISTORY OF ROMAN LAW. take the place of the text and the gloss. The first rank in this new school unquestionably belongs to Bartolus. His commen- taries upon the three parts of the Digest and of the Code, his Consilia, Questiones and Tractatus, attained a high reputation in Italy, France, Spain and Portugal. His opinion had so much weight in the courts of justice that, according to Estienne Pasquier, the expressions plus résolu que Bartole, and résolu comme un Bartole, were proverbial. Bartolus himself tells us that the Emperor Charles IV., to whom he had been sent as a deputy by the inhabitants of Perugia, appointed him his counsellor, and gave him a post in his household. According to him the emperor showed him many other marks of favour, and, among others, conferred on him this singular diploma, that he and all his descendants who should be professors of law should have the power of legitimizing their pupils in cases of bastardy, or relieving them from the disadvantages of minority. The conferring of such powers by a prince upon a professor and his descendants was an exhibition of imperial authority which, in those times, was not likely to. produce any very great sensation. Pantagruel, with the greatest irreverence, treats Accursius, Bartolus, his disciples Baldus, de Castro, and many others, in the same way, “ de vieulx mastins, qui jamais n’entendirent la moindre loy des Pandectes, et n’estoyent que gros veaulx de disme, ignorans de tout ce quest nécessaire a Vintelligence des lotx” (lib. 1. ch. 10). In this manner did the revivalists of letters in France throw stones at this Italian brigade and those Italian civilians; “tous tachez et infectez de ceste ancienne lourdite,” said Estienne Pasquier (book 9, cap. 39). These Italians, however, had amongst them the immortal Dante, Petrarch and Ariosto, to say nothing of their great artists. 6380. Estienne Pasquier, in his book 9, cap. 39, says: “ Le siécle de Pan mil cing cens . . . nous apporta une nouvelle estude de Loix, qui fut de faire un mariage de Vestude du Droict avecques les Lettres Humaines, par un langage latin net et poly.” This is why he calls the jurists of the third age “ Humanistes.” This was a literary and historical study of THE DISTORY OF ROMAN LAW. 545 law ; which did not merely require good and polished Latin, but also demanded the Greek. This school did not, like its prede- cessors, limit itself to the works of Justinian, it sought the sources of anterior law, both under the republic and under the empire, also tracing it into the Eastern Empire; nor did it limit its researches to these sources of information ; it ransacked, with equal ardour, the pages of the historian, the prose writer, and the poet. In this way jurists and men of letters in the sixteenth century went hand in hand, not unfrequently being mistaken the one for the other. It is to the warmth of this new dis- cussion that we must refer the invectives of Rabelais, and the ill-sounding epithets of Estienne Pasquier and of so many other writers against the Roman jurists of preceding periods. This absolute contempt, however, was not participated in by the more learned men of the new period, such as Alciat and Cujas, who in many points did honour to the services of their predecessors. These successive schools, which are marked in history in order that the table may be complete, have no clearly-defined lines of demarcation. For neither in the course of human events nor in that of physical nature are changes instantaneous; the dawn precedes the day, the twilight gives notice of approaching night, and each has its degrees. Tstienne Pasquier, when speaking of the three jurists as pioneers of this new enterprise, that is to say, as being the initiators of the school of the Humanists, Guil. Budeeus of Paris, André Alciat, an Italian of Milan, and Uldaric Zaze (or Zazius), a German, born in the town of Constance, observes that Budzeus in the year 1508, under the reign of Louis XII., published his annotations upon the Pandects in twenty-four books, in which “ non-seulement il ouvrit le pas au beau latin parsemé de belles fleurs Whistoires et sentences, mais aussi, sur le commencement de son wuvre, se desborda en invectives contre la barbarie des anciens Docteurs de Droict ;? giving therefore to him the priority over Alciat, whose first publication dates in the year 1518. But by glancing at the 59th cap. of Savigny’s work entitled “ The Precursors of the New School,” we see that the leaning towards philology, literature and history as auxiliaries to jurisprudence had been indicated by other writers, the greater number of whom were NN 546 THE HISTORY OF ROMAN LAW. Italians, there being'scarcely any French, Germans or Spaniards, and these belonged to the second half of the fifteenth century, and, consequently, before Budzeus, Alciat or Zazius, and before the movement of the Humanists had commenced. Nor must we forget that the revival of Greek literature, under the in- fluence of the Lascaris, had commenced about the same time in Italy, with John Lascaris at the court of Charles VIII., of Louis XII, and of Francis I., which was prior to its appear- ance in France. Guil. Budgeus was the secretary of Louis XII., and subse- quently was counsellor and master of requests under Francis I. He was intimately connected with John Lascaris, the first keeper of the royal library, and may be said to have been the resuscitator of Greek literature in France. He was, however, rather a scholar than a jurist. He rendered assistance to the jurists both as a literate and an antiquarian. Johannes Ulric Zazius published about the same period in Germany a catalogue with annotations and interpretations of various ante-Justinian legal documents, at that time a new field of inquiry, an edition of which was published in Paris in 1534 by Louis Charondas. But the real and greatest Roman jurist of this description before Cujas was Alciat. 681. André Alciat was born at Milan in the year 1492, and died in 1550; by 1518, he had published some of his works, and notably his commentaries upon the three last books of the Code, the Tres libri. He became professor of law in the University of Avignon in 1522, and in 1529 was called to the University of Bourges by Francis I., but, being claimed by his sovereign, the Duke of Milan, Francis Sforza, he went to Pavia, afterwards to Bologna, and after the death of Sforza to Ferrara, whither he was attracted by the munificence of the Duke of Tuscany. Estienne Pasquier says that Alciat did not meet with great success amongst his fellow citizens; and he relates that having gone from Toulouse to Italy to complete his legal studies, he received three or four lessons from Alciat at Pavia, and that passing to Bologna, where Marianus Socinus was the professor, according to the ancient practice he found THE HISTORY OF ROMAN LAW. 547 that all the scholars made much more of him, and that the pleaders preferred to address themselves to Socinus for the simple reason, as they said, that he had never lost his time in the study of the Lettres Humaines as had Alciat. The repu- tation of Alciat was not the less considerable. Several sove- reigns endeavoured to attach him to their courts, honoured him with dignities or sent him presents. Pope Paul III. created him protonotary of the Holy See, the Emperor Charles V. a county palatin and senator; and as a result he amassed, it is said, great riches, but did not escape the imputation of being avaricious. The epitaph inscribed upon his tomb in the church of the Holy Epiphany at Pavia concludes with this phrase, * Primus Legum studia antiquo restituit decori.” But gene- rosity and a consistent simplicity of character ought always, in the life of the jurist, to keep pace with the acquisition of honours and emoluments. 682. Alciat had been dead about four years, when Jacques Cujas (born at Toulouse in 1522, and who died in 1590), who had already distinguished himself in some branches of study, made his appearance, in the year 1554, as the author of some notes upon Ulpian, and assumed the character of a public pro- fessor, by being elected to the chair at Cahors. He acquired a greater reputation than either of those to whom we have already alluded. He filled a prominent place in the new school which he inaugurated, giving a strong impulse to the study of the texts, the history and the philology of Roman law. ‘The ser- vices thus rendered by him and by his numerous disciples were of the most durable character. His history, written by M. Ber- riat Saint Prix, is characterized by that accuracy for which our much-regretted colleague has been so justly famed. Estienne Pasquier, in the thirty-ninth chapter of his ninth book, concludes the picture which he has drawn of the three ages in the following words:—‘ Conclusion: repassant sur les trois chambrées de ceux qui ont escrit sur le Droict,—en la premitre, je fais grand estat d’ Accurse entre les Glossateurs ;— en la seconde de Bartole (a part Estienne Fabre et Dumoulin, les vrais jurisconsultes de nostre France) ;—et entre ceux de la NN2 548 THE HISTORY OF ROMAN LAW. trotsiesme, qu’il me plait de nommer Humanistes, je donne le premier lieu & nostre Cujas, qui n’eut, selon mon jugement, n’a et Waura jamais par aventure son pareil.” It is apparent from what has been said, that the principal field for the cultivation of Roman jurisprudence was, during four centuries, Italy; that it passed thence in the sixteenth century to France; and from the commencement of the present century it has been in Germany. Section CX XVIII. Roman Law CONSIDERED AS AN ELEMENT OF Frencu Law. 633. The principle of the personality of law which supposes distinct races living side by side must necessarily disappear in proportion as these races amalgamate. This result accrued in France as elsewhere; but as it was a work of gradual develop- ment, it left this peculiarity, that the law became territorial, whether by the influence of numbers or by that of authority, or by the depth to which the ancient roots had penetrated the soil. In the south the Roman law predominated; in the north the customary law, varying according to the locality; the dominant law in the early period of the monarchy being Germanic. This contrast is clearly marked by two documents. In the Constitution generale of Clothaire I., about the year 560, we see the principle of the personality of the laws recognized.' Three centuries later, that is, in 864, in the Edit sur la paix du royaume in the national assembly of Piste (title 36 of the Capitulaires de Charles le Chauve), we find that the law had become territorial, and a distinction drawn between the districts where Roman law was observed and where it was not.2 Thus this distinction or division of France into two different parts as to the law which was to be followed is connected with the 1 Art. 4: “Inter Romanos negotia cetur. Et in illa terra in qua judicia causarum romanis legibus precipimus secundum legem romanam non judi- terminari.” (Baluze, 1, 7.) ; cantur. . ., etc.” (Baluze, ii. 173 2 Art. 16: “In illa terra in quaju- to 196.) Many other articles, 13, 20, dicia secundum legem Romanam ter- 23, 31, contain similar provisions, minantur, secundam ipsam legem judi- THE HISTORY OF ROMAN LAW. 549 time when cohesion existed between the populations of the same place, when the personal character of the law had disappeared and its territorial character remained. This territorial character was established about three centuries before the introduction of the law of Justinian. We know that till this introduction the expression Lex Romana designated in Gaul ante-Justinian law, which consisted chiefly of the Code of Theodosius and the other texts preserved by the Breviarium Alarici, to which in the ninth century it was the habit to unite Julian’s abridgment of the Novelle. 634. As a result of the labours of Irnerius and the early glossators of the school of Bologna upon the texts of Justinian, as a result of the teachings of Placentinus at Montpellier, and of the spread of the taste throughout Europe for this new study, the law of Justinian was introduced into France, and cultivated as a science without ever having been imposed by any legisla- tive authority. In those districts which had recognized Roman law it replaced ante-Justinian law, and was regarded as the last and most perfect expression of Roman law. In the districts where the customary law prevailed, although it was true, as says the decretal of Pope Honorius III. in 1220, that these countries were not governed according to this law, the legisla~ tion of Justinian formed a part of the instruction given by the professors, and our old legal works written in the North, bear- ing the characteristic features of Coutumiers from the reign of St. Louis, exhibit numerous traces of Roman law. France was still divided into two parts, each having its own peculiar law; Petrus of Valentia notices this in his work,! but the expression of pays de loi Romaine was replaced by that of pays de droit écrit, which is to be met with twice in an ordi- nance of St. Louis, in the month of April, 1250.2 1 Petri Haceptiones legum Roma- norwm, lib. ii. chap. 31: “. . His partibus in quibus juris legisque pru- dentia viget; aliis vero partibus ubi sacratissime leges incognite sunt. . ., etc.” 2 Ordonnance de Louis IX. au sujet des hérétiques ; Vincennes, Avril 1250: “ Art. 4. Licet de consuetudine galli- cana aliter observetur, quia tamen terra illa (he refers to Carcassonne, Beau- caire, Toulouse, Cahors and Rouergue) regi consucvit (ut dicitur) et adhuc regitur jure seripto . . ., etc.” Art. 26: “. . .Tenere vos volumus, quod jure scripto in illis partibus ob- 550 THE HISTORY OF ROMAN LAW. 635. In this way France, while it continued to observe the line of demarcation produced by geographical limits and the influence of events, changed in the twelfth and thirteenth cen- turies the Roman law of Theodosius and Alaric for that of Justinian. It had its pays de droit écrit in the south, where the legislation of Justinian formed the principal basis of the law, and its pays de coutume in the provinces of the north, where this legislation was only recognized as the complement of the customary law, where it was regarded as a scientific model, and where its study was considered necessary as a branch of legal instruction. The customs did not, in the pays coutumiers, prevent, in the case of the law being defective or of a con- troversy arising, appeal being had to the Roman law, at least as a scientific authority; in the same manner, the Roman law did not in general exclude the influence of customs peculiar to the people. The difference between the two districts was a difference in the proportion in which these two elements were recognized, and still more a difference of spirit and in the general character of the public institutions. This was a con- fused period in which legislation, impressed with the spirit of feudalism, varied in each part of the same kingdom, a period at which it was only necessary to cross a river or to pass a chain of mountains to find a different code in operation. The idea had more than once occurred to the learned men of the time of introducing a uniform system of law throughout France, but itis to the constituent assembly that we are indebted for the decree which became an article of the constitution of 1791, and which was carried out, though only in part, by the Code Pénal of 1791.1 A civil code was commenced, but not completed; the conven- tion again ordered its preparation, which resulted in the Code des délits et des peines de brumaire, An IV. And, finally, servetur.’” i, p. 62.) (Recueil des Ordonn., tit. tembre 1791, tit. i., im fine: “Tl sera fait un code de lois civiles communes 4 ! Décret sur Vorganisation judici- aire, du 16-24 Aoidt 1790, tit. ii. art. 19: “ Les lois civiles seront revues et re- formées par les législateurs; et il sera fait un code général de lois simples, claires et appropriées a la constitution.” Constitution frangaise, du 3-14 Sep- tout le royaume.”” Acte constitutionnel et déclaration des droits de Vhomme et du citoyen, du 24 Juin 1792 (this constitution was never enforced), art. 85: “ Le code: des lois civiles et criminelles est uniforme pour toute la République.” THE HISTORY OF ROMAN LAW. 551 under the consulate and under the empire a simple and brief code made its appearance, of such dimensions as to enable it to circulate freely amongst the people, and which, being in har- mony with the new condition of things, has placed all upon the same legal footing. This code has been improved by various revisions, which have amended it, without destroying the advan- tages of codification. These efforts will doubtless be followed by others, for a code ought never to be suffered to stand in the way of progress. 636. The concluding pages of this volume give a mere glance at the later history of Roman law. A proper con- sideration of the subject would involve considerable space. Roman law is only one of the elements of French law, the other elements are equally worthy of consideration. In order thoroughly to understand this subject, a study of the barbarian law, the feudal law, the customary law, the ordinance law of the monarchy, and the canonical law, is necessary. I there- fore conclude, as I commenced, by entreating the reader to regard this work merely as a preliminary step, and only to look upon the history of Roman law as an introduction to the law of France. It may perhaps be permitted to me to undertake a second work. Our labours should be directed to the benefit of our age and of our country, and all intellectual effort should have for its object the welfare of the society of which we our- selves are members, and, if possible, that of the great society of the human race. 552 THE HISTORY OF ROMAN LAW. EPOCHS OF ROMAN LAW. AS GENERALLY RECEIVED. —_>——. THE divisions between the epochs of Roman law which I have adopted are those which, as it appears to me, are indicated by the course of history; and I have assigned my reasons for adopting this arrangement. It is, however, right to state the different divisions which have been generally received. The following is the division adopted by M. Hugo, and with slight variations it conforms to that of Gibbon, who has been followed by succeeding writers. THE FIRST PERIOD, OR THE INFANCY OF LAW. From the foundation of Rome to the Twelve Tables, that is, from B.c. 753 to B.c. 454, or A.U.c. 1 to a.v.c. 300. This period is the epoch of the infancy of the state and of its law. At the end of this period we have a written law, which, as to the jus privatum, places all the citizens, whether patrician or plebeian, upon the same footing. The fragments of this law constitute the source whence we have to draw the history of the law of this period. Principal jurist—Papirius. SECOND PERIOD, ITS YOUTH. From the XII Tables to the time of Cicero, that is, from B.C. 454 to B.C. 104, or A.U.C. 300 to 650. This period is the THE HISTORY OF ROMAN LAW. 553 youth of Rome, during which it extended its power. The law became divided into jus civile and jus honorarium; it was not yet studied as a science, but was a practical system. The social war broke out, and, in order to extinguish it, the rights of citi- zenship were conferred upon the greater portion of the inhabi- tants of Italy. Principal source of information—Cicero. Principal jurists—Appius Claudius, Flavius, Coruncanius, ¥lius and Cato. THIRD PERIOD, ITS MANHOOD. The manhood of Rome dates from Cicero to the time of Alexander Severus, that is, from B.c. 104 to A.D. 247, or A.U.C. 650 to 1000. The empire was during this epoch one of the greatest that the world has ever seen. Arts, sciences, and especially jurisprudence, reached their highest degree of culti- vation; the plebiscita, senatis-consulta and the imperial con- stitutions enacted various important provisions affecting the law, and numerous works aided its development into a grand science, the principles of which were closely interwoven. At the end of this period the inhabitants of the provinces were almost entirely assimilated to Roman citizens. The fragments now extant of the works which appeared during this period constitute the source of our information con- cerning it. Principal jurists—Scevola, Servius Sulpicius, Labeo, Sabi- nius, Julian, Gaius, Papinian, Paul, Ulpian and Modestinus. FOURTH PERIOD, ITS OLD AGE. From Alexander Severus to Justinian, that is, from A.D. 247 to A.D. 547, or A.U.C. 1000 to 4.u.c. 1300. During this period of old age the empire was pressed on all sides and its provinces devastated; the study of the arts and literature became extinct ; the science of law consisted in quoting the ancient jurists and the imperial constitutions. s 554 THE HISTORY OF ROMAN LAW. The various collections of these constitutions which appear during this period form our sources of information. Principal jurists—Hermogenianus, Gregorianus, Tribonius and Theophilus. This division has been adopted, especially by Mackeldey, in the historical introduction to his Manual; by M. Giraud, in his introduction to the study of Roman law; by Warnkcenig, in his history of Roman law; by M. Blondeau, in the chrono- logical table with which his translation of the Institutes is con- cluded. Holtius reckons, as the first period, the time from the origin of Rome to the appointment of the urban pretor ; the second, from the appointment of the wrban preter to Augustus; the third, from Augustus to Constantine. Marezoll, in his history of the sources of Roman law, treats the first as being from the foundation of Rome to the date of the XII Tables; the second, from the XII Tables to the Empire; the third, from the establishment of the Empire to Constantine ; and the fourth, from Constantine to and including Justinian. This division, upon the whole, corresponds with our own. Puchta, in his historical sketch, which forms the introduction to his study of the Institutes, places the first from the foun- dation of Rome to the XII Tables; the second, from the XII Tables till the Empire; the third, from the Empire to Diocletian; and the fourth, from Diocletian to and including Justinian. THE HISTORY OF ROMAN LAW. 555 List of the works of the Jurists from whose writings the Pandects of Justinian were compiled. (This is the list annexed to the Florentine MSS. of the Pandects. It is doubtful whether it is identical with the Index compiled by order of Justinian. JULIANI, Digestorum libri nonaginta, Ad Minicium libri sex. Ad Urseium libri quatuor. De ambiguitatibus liber unas, PAPINIANI. Questionum libri triginta septem. Responsorum libri decem et novem. Definitionum libri duo. De adulteriis libri duo. De adulteriis liber unus. Q. Mucit ScaVvoLe. Opav liber unus. ALPHENI. Digestorum libri quadraginta. SaBINI. Juris civilis libri tres. PROCULI. Epistolarum libri octo. LABEONIS. Te8ayev libri octo (upon probabilities).. Posteriorum libri decem, NERATII. Regularum libri quindecim. Membranarum libri septem. Responsorum libri tres. JAVOLENI, Ex Cassio libri quindecim. Epistolarum libri quatuordecim. Ad Plautium libri quinque. CELSI. Digestorum libri triginta novem. PoOMPONII. Ad Q. Mucium, Lectionum libri tri- ginta novem.. Ad Sabinum libri triginta quinque. See § 20 under section 547.) Epistolarum libri viginti. Variarum lectionum libri quindecim. Ad Plautium libri septem. Fideicommissorum libri quinque. Senatusconsultorum libri quinque. Regularum liber unus. Enchiridii libri duo. VALENTIS., Fideicommissorum libri septem. MAcrIANI. Fideicommissorum libri sexdecim, Publicorum libri quatuordecim. MAURICIANI, Ad leges libri sex. TERENTII-CLEMENTIS. Ad leges libri viginti. AFRICANI. Questionum libri noyem. MARCELLI. Digestorum libri triginta, . Ad Leges libri sex. Responsorum liber unus, CERBIDII-SCAIVOLA. Digestorum libri quadraginta, Questionum libri viginti. Responsorum libri sex. Regularum libri quatuor. De quzstione familie liber anus, Questionum publice tractatarum liber unus. FLORENTINI. TInstitutionum libri duodecim, GAIL. Ad Edictum provinciale libri triginta. Ad Leges libri quindecim. Ad Edictum urbicum libri decem, Aureorum libri septem. 556 Awdexa 3A7ov (upon the XII Tables) libri sex. Institutionum libri quatuor, De verborum obligationibus libri tres, De manumissionibus libri tres, Fideicommissorum libri duo. De casibus liber unns. Regularum liber unus. Dotalitium liber unus. TrOnuaspws liber unus, Ad Edictum de publicanis, VENULEIL. Stipulationum libri decem et novem. Actionum libri decem. De officio Proconsulis libri quatuor. De peenis paganorum liber unus. Publicorum libri tres. TERTULIANI. Questionum libri octo. De castrensi peculio liber unus. JUSTI (Papyrii). Constitutionum libri viginti. ULPIANI. Ad Edictum libri octoginta tres. Ad Sabinum libri quinquaginta et unus. Ad Leges libri viginti. Disputationum libri decem. Protribunalium libri decem. De officio Proconsulis libri decem. Pandectarum libri decem. Regularum libri septem. Fideicommissorum libri sex. Opinionum libri sex. De adulteriis libri quinque. De appellationibus libri quatuor. De officio Consulis libri tres. Institutionum libri duo. Regularum liber unus. De censibus libri sex. Responsorum libri duo. EsuspEM LIBRI SINGULARES. De sponsalibus. De officio Preefecti urbi. De officio Preefecti vigilum. De officio Curatoris Reipublice. De officio Pretoris tutelaris. De officio Questoris. PAULI. Ad Edictum libri octoginta. Questionum libri viginti sex. Responsorum libri viginti tres. Brevium libri viginti tres. Ad Plautium libri sexdecim, Ad Leges libri decem. THE HISTORY OF ROMAN LAW. Regularum libri septem. Regularum liber unus. Sententiarum seu Factorum libri sex. Sententiarum libri quinque. Ad Vitelliam libri quatuor. Ad Neratium libri quatuor. Fideicommissorum libri tres. Decretorum libri tres. De adulteriis libri tres. Manualium libri tres. Institutionum libri duo. De officio Proconsulis libri duo. Ad legem Aéliam-Sentiam libri septem. Ad legem Juliam libri duo. Regularum liber unus, De censibus libri duo. EsusDEM LIBRI SINGULARES. De penis paganorum. De penis militum. De penis omnium legum. De usuris. De gradibns et adfinibus. De jure codicillorum. De excusationibus tutelarum. Ad regulam Catonianam. Ad senatusconsultum Orficianum. Ad senatusconsultum Tertullianum. Ad senatusconsultum Syllanianum. Ad senatusconsultum Velleianum. Ad senatusconsultum Libonianum seu Claudianum. De officio Preefecti vigilum. De officio Prefecti urbi. De officio Preetoris tutelaris. De extraordinariis criminibus. Trbnxapic. Ad municipalem legem. De publicis judiciis. De inofficioso testamento. De septemviralibus judiciis. De jure singulari. De secundis tabulis. Ad orationem divi Severi. Ad orationem divi Marci. Ad legem Velleiam. Ad legem Cinciam. Ad legem Falcidiam. De tacito fideicommisso. De portionibus que liberis damnatorum conceduntur. De juris et facti ignorantia. De adulteriis. De instructo et instrumento. De appellationibus. De jure libellorum. De testamentis. De jure patronatus. De jure patronatus quando ex lege Julia et Papia venit, THE HISTORY OF ROMAN LAW. De actionibus. De concurrentibus actionibus, De intercessionibus feminarum. De donationibus inter virum et uxorem. De legibus. De legitimis hereditatibus. De libertatibus dandis. De senatusconsultis. TRYPHONINI. Disputationum libri viginti unus. CALLISTRATI. De cognitionibus libri sex. Edictorum monitoriorum libri sex. De jure fisci libri quatuor. Institutionum libri tres. Questionum libri duo. MENANDRI. Militarium libri quatuor. MARCIANI. Institutionum libri sexdecim. Regularum libri quinque. De appellationibus libri duo. Publicorum libri duo, EsusDEM LIBRI SINGULARES, De delatoribus liber singularis. VT roOnxapias liber singularis. Ad senatusconsultum Turpillianum liber singularis. GALLI-AQUILZ. Responsa. MovDESTINI. Responsorum libri novemdecim. Pandectarum libri duodecim. Regularum libri decem. 557 Differentiarum libri novem. Excusationum libri sex. De peenis libri quatuor. EsUSDEM LIBRI SINGULARES, De prescriptionibus. De inofficioso testamento. De manumissionibus. De legatis et fideicommissis, De testamentis, De eurematicis. De enucleatis casibus. De differentia dotis. De ritu nuptiarum. TARRENTINI-PATERNI. Militarium libri quatuor. Macrt. Militarium libri duo. Publicorum libri duo. De officio Presidis libri duo. Exxorvov libri duo. ARCADII. De testibus liber unus. De officio Preefecti preetorio liber unus. De muneribus civilibus liber unus. RUFINI. Regularum libri duodecim. ANTII seu FURII ANTHIANI. Partis Edicti libri quinque. Maximi, Ad legem Falcidiam. HERMOGENIANI. Epitomarum libri sex. ( 558 ) GENERALIZATION OF ROMAN LAW. THE IDEA OF THIS GENERALIZATION, AND, FIRST— ITS USES. Tue few preliminary remarks I have to offer here ought not to be passed over by the student, for whom this work is specially intended. The study of Roman law, as of that of the legislation of any country, requires the application of the faculty of generalizing or taking a comprehensive view of the subject as a whole. For by this means the student is enabled to note the diverse nature of the various matters embraced in it, to trace their connection and to initiate himself into its spirit. 2. These general expositions, which are especially valuable to us in these days, it is too much the practice to overlook. Our method of teaching is ordinarily by exegesis, or the expla- nation of texts; and the student is abruptly introduced, without any previous preparation, to a number of maxims of universal application. With all these maxims, and all the matters to which they are related, he may be brought in contact without having formed a single idea respecting them. Thus, for instance, the Institutes of Justinian form in France the basis of our instruction in Roman law, and con- 1] have not, without a reason, adopted this title of Generalization. The rules of the Roman Law are, for the most part, especially in the im- perial constitutions and in the frag- ments of jurisprudence, contained in particular decisions of divers kinds: to extract them, a real operation of gene- ralization is necessary. This operation is still more necessary, when one at- tempts, as I have done in this elemen- tary work, to sum up in a few words the history of legislation and the vicis- situdes through which it has passed, exhibiting in respect to each event in succession the prevailing spirit of the time. The sources and authorities having been carefully indicated in the body of the work as each part of the law is specially developed, I have for the most part abstained from quoting them in this section, wishing to avoid repe- titions, GENERALIZATION OF ROMAN LAW. 559 sequently they are the basis of this work. In the very first paragraph there is mention made of obligationes, dominium, possessio, actiones, exceptiones, These are all expressions quite unfamiliar to the learner, but if the study is commenced by imparting to him general ideas, the obscurity that involves the subject immediately disappears. THE IDEA OF THIS GENERALIZATION, AND, SECONDLY—ITS SPIRIT. 8, The first rule we will begin with is, that Roman law must be studied as Roman law, in its aspect, its language, its genius. These laws are dead. The mind of the student therefore must carry itself back to the epoch in which they were in force, and thence descend the series of centuries down to our own time, noting as he proceeds the characteristic features of each succes- sive epoch, but being on his guard against the tendency to view the past in the ight thrown upon it by modern ideas,—a ten- dency all the more powerful from the necessity which exists of studying the subject by comparison, so as to distinguish clearly the characteristic peculiarities of every age. He must guard - himself against the tendency to lay too much stress upon maxims and adages, upon distinctions, definitions and expres- sions which are traditionally set down to the account of Roman law, but which are completely foreign to it. The study for us isa historical study. Now, the first essential of history is truth. THE ORDER OF GENERAL EXPOSITION. 4. The rule we have laid down as a governing principle must be applied even in the elucidation of those general ideas which are so necessary to a thorough understanding of the matter : for in this case we are not at liberty to exercise our own un- fettered judgment in creating or selecting a method of analysis and philosophical deduction upon which the subject may be treated. Even in the consideration of general principles we must submit to-the influence of Roman ‘THOUGHT. 560 GENERALIZATION OF ROMAN LAW. 5. It is clear that we are more advanced than the Romans with regard to method. Take the principal monuments of their law, the Twelve Tables, of which we only know the order by conjecture, the Preetorian edicts, the Code of Theodosius, the Digest, and the Code of Justinian, it is difficult to trace in them any very methodical arrangement or any very logical connection.: As to the writings of their great jurists, which the genius of Cujas endeavoured to reconstruct, they have reached us in fragments so much scattered that it is difficult for us to judge how far the principle of uniformity governed them. That principle, which it is assumed by tradition rather than esta- blished by any clear proof they were careful to observe, is indi- cated in the Institutes of Gaius, followed very closely in the Regule of Ulpian, and adopted in the Institutes of Justinian, viz., the division of all law into that of Persons, THines and ACTIONS.? Even this classification is not always regarded. And in the Digest it is reproduced, although there is no care taken about its subsequent observance.? 6. The modern German school is divided upon this point: some adhere to the Roman division, others have substituted for it a classification more philosophical and better adapted to the grouping of ideas, and which has generally been received, sub- ject to certain modifications introduced by different authors.* This last system, in which, moreover, we find little unifor- mity, has its advantages, especially in countries where, as in most of the German states, there exists no national codification, where the Roman law forms the basis of the existing legisla- tion, and where it is studied as if still closely allied to the current system. 7. With us it is different. For us Roman law is a defunct system. It is our starting-point, whence we set out to study 1 It is the same in the Sententie of Paul. 2 Gai. 1, § 8; Znst. 1, 2, § 12. 3 Dig. 1, 5, De statu hominum, 1, f. Gai. 4 For a table of the classifications in vogue in Germany, sec Mackeldey’s Manuel, §§ 206 and 207, pp. 135 and 186, of the translation (French), and the paragraph entitled. “ On the divers systems of classification of the law,” p. 387 of M, Savigny’s treatise on Roman law. GENERALIZATION OF ROMAN LAW. 561 historically the legislation of past times. To alter its classifica- tion is therefore to deprive it of a characteristic element. To give it one of modern creation is to clothe it in a costume which is altogether foreign to it. We shall therefore remain faithful to our historical principle: without, however, following it so closely as to sacrifice the advantage which is gained by grasping the subject as a whole, by grouping analogous elements, and by making our own de- ductions. We shall allow ourselves the more latitude in our general exposition, seeing that the remainder of our work is devoted to the actual text of the Institutes; and that, more- over, the philosophical method, which commences the study by taking a comprehensive view of general principles, does not itself belong to the Roman system—it is modern. We shall, however, carefully distinguish that which belongs to our method of exposition from that which really belongs to Roman law. PART I. Or RieguT AND THE ELEMENTS OF ITS GENERATION. —~—>— PRELIMINARY ARTICLE. Section I.—Tue Ipea or Law. 8. The technical and rigorous formule of Roman law, at first a mystery monopolized by the aristocracy and used as a mere instrument of power, acquired by the progress of civilization and the advancement of science a totally different character. As the study of it became more general,—as it passed from the condition of a secret system monopolized by the patrician to that of a possession in which the plebeian might share,—as the pursuit of it became allied to the culture of letters and philo- sophy,—as it came to be modified by the influence of new customs and softened down by the annual edicts of the magis- - trate,—it underwent a complete transformation, and by the 00 562 GENERALIZATION OF ROMAN LAW. opinions and writings of the jurists was reduced to a scientific system. 9. At the epoch when Roman law, which has been called written reason, was at its highest condition of development, it had ceased to be an inflexible system of absolute power; its basis was no longer authority, but reason: it had become the science of equity. It is especially when taking this general grasp of the subject that we realize the extent to which the great Roman jurists built up the science of law upon that of philosophy.1_ Thus law, according to Paul, is that which is always equitable and just, “quod semper equum ac bonum est, jus dicitur.”* Accord- ing to the definition of Celsus, mentioned by Ulpian, it is the art of that which is good and equitable, “jus est ars boni et equi.” ‘The principle is always the same. 10. Of course these definitions have not the precision which we have at the present day the right to expect from meta- physical analysis: what is “the good?” what is “the equitable”? and has anything been done beyond employing one word in lieu of another ?4 1 Cicero commenced the movement in a great degree: “Non ergo a Pre- toris edicto, ut plerique nunc, neque a XII tabulis, ut superiores,” he makes Atticus say, in his treatise on the law, ‘sed penitus ex intima philoso- phia hauriendam Juris disciplinam “putas?” Cicero, De legibus, 1, 5. 2 Dig. 1, 1, De just. et jur., 11, f. Paul. The‘jurist applies this definition -to natural law: “ Ut est jus naturale.” He adds, and opposes to it civil law, that which, in each city, is useful to all or to the greatest number: “ Quod omnibus aut pluribus in quaque civi- tate utile est.” Thus the principle of the one is, according to this jurist, the good and the equitable, the principle of the other, utility. 3 Dig. 1, prince. f. Ulp. 4 Law is nothing else but a meta- physical conception, which our reason deduces from all relations between man and man, in which one hag the faculty They do not contain a sufficiently clear notion to exact from the other an action or an inaction: a purely rational right, if these necessities of action or inaction are plain to us from reason alone— positive right, good or bad, if they are imposed on us, rightly or wrongly, by authority; the one has its standing point in reason, the other in power. Positive right, as opposed to rational right, is not really law. There is no such thing as law in the contemplation of the jurist, except as between man and man (man taken collectively, as a people, a corporation, or taken individually). A branch of a tree broken by the wind wounds me, a wild beast tears me, a thunderbolt falls on my house, hail devastates my harvest: I shall not say my right has been violated. Bring in man, and the idea of action or inaction which is im- posed upon men relatively, and you get a notion of law, : GENERALIZATION OF ROMAN LAW. 563 of the distinction between science as a knowledge of primary truths, and art as a collection of precepts deduced from science or practice. But there is none the less a revolution in the manner of interpreting the law by Roman jurists: for the principle of authority they have substituted that of reason: and already Cicero indicated the true principle when he said that, to explain the nature of law, you must seek it in the nature itself of man.! 11. This empire of reason, of goodness and of equity as a constituent dogma of the law is reproduced in a multitude of the fragments of the Roman jurists, and has even passed into the imperial constitutions. Celsus, Julian, Marcellus, Paul, Modes- tinus, each invoke on occasion, even against the positively- established rule, the predominance of reason, of right, of the bonum et equum;? and later, the emperors Constantine and Licinius, in one of their constitutions, announce the predomi- nance as an incontestably accepted doctrine. “ Placuit (it has pleased) in omnibus rebus, precipuam esse justitie equitatis- que quam stricti juris rationem.3 12. The profession of law, which has been thus characterized as the art of that which is good and equitable, has been invested by Ulpian with the sanctity of a sacerdotal system. “ For we cultivate justice,” he says, “the science of goodness and of equity, separating justice from injustice, that which is lawful from that which is unlawful, wishing to render men good, not 1. Natara enim juris nobis expli- canda est, eaque ab hominis repetenda natura” (Cic., De leg., 1,5). ‘Nos ad justitiam esse natos, neque opinione sed natura constitutum esse jus” (Ibid.). 2 « Quod vero contra rationem juris receptum est, non est producendum ad consequentias” (Dig. 1, 3, De legib., 14, f. Paul). ‘In his que contra ra- tionem juris constituta sunt, non pos- sumus sequi regulam juris” (Ibid. 15, f. Julian), “Nulla juris ratio, aut eequitatis benignitas patitur, ut que salubriter pro utilitate hominum intro- ducuntur, ea nos duriore interpretatione contra ipsorum commodum producamus ad severitatem” (Ibid. 25, f. Modestin. ). “Quod non ratione introductum, sed errore primum, deinde consuetudine obtentum est: in aliis similibus non obtinet?’ (Ibid. 39, f. Cels.). “In om- nibus quidem, maxime tamen in jure zquitas spectanda sit” (Dig. 50, 17, De reg. jur., 90, £. Paul). “ Etsi nihil facile mutandum est ex solemnibus, tamen ubi zquitas evidens poscit, sub- veniendum est” (Ibid. 183, f. Marcell.), 3 Cod. 3,1, De judic., 8, constitut, Constant. et Licin. 002 564 GENERALIZATION OF ROMAN LAW. only by the fear of penalties, but also by the encouragement of rewards: true philosophy, if I mistake not, and not assumed.” We see how highly he estimates the honourable character of this profession. For ifhe grants to rhetoricians, to grammarians, to geometricians, to medical men, to professors of liberal studies a recourse to the extraordinary jurisdiction of the president of the province for actions in recovery of their honoraria, he denies it to philosophers and law professors. “It is a holy thing, indeed, that civil wisdom (i.e. the science of law), but it is not to be valued nor sullied by money payment; there are things one can accept, but never ask, with honour.* 18. Law (jus) from this philosophical point of view of the Roman jurists is then, in an abstract and general sense, that which is always good and equitable; or, in a collective sense, as a body of precepts, or of doctrines, the art of doing good and equity. 14. We shall not speak here of the division of law, amongst the Romans, into public law, guod ad statum rei romane spectat; and into private law, quod ad singulorum utilitatem ; nor of the subdivisions of the latter; nor of the philosophical classification, perfectly established by jurisprudence, and transmitted, at all events as far as regards its last two terms, into the reality of social life; into natural law, or that law which is common to all animate beings; into personal law, or that which is common to all men; and into civil law, or that which exclusively appertains to citizens. This development will come later, when we treat of the text .1 “Jus est ars boni et equi, cujus merito quis nos sacerdotes appellet. Justitiam namque colimus, et boni et eequi notitiam profitemur: zquum ab iniquo separantes, licitum ab illicito discernentes; bonos non solum metu pewnarum, verum etiam premiorum quoque exhortatione efficere cupientes : veram, nisi fallor, philosophiam, non simulatam affectantes.” Dig. 1, 1, De justitia et jure, 1, § 1, f£. Ulp. 28 4, An et philosophi profes- sorum numero sint? et non putem: non quia non religiosa res est; sed quia hoe primum profiteri eos oportet, mer- cenariam operam spernere. § 5. Pro- inde ne juris quidem civilis professori- bus jus dicent: est quidem res sanctis- sima civilis sapientia: sed que pretio nummario non sit zstimanda nec de- honestanda, dum in judicio honor peti- tur, qui in ingressu sacramenti efferri debuit : quedam enim, tametsi honeste accipiantur, inhoneste tamen petuntur.” Dig. 50, 13, De extr, cogn., 1, §§ 4 and 5, f. Ulp GENERALIZATION OF ROMAN LAW. 565 of the Institutes. It is sufficient to say that in this work we confine ourselves principally to private law. —>— Section II.—Immep1atTe Consequences or Law. 15. After the first idea of law, the logical connection leads to the idea of its immediate consequences; these are the rights and obligations which it creates. In order to express this result the term jus, right, has been adopted. This term is frequently used in the plural, jura, rights; also, according to this accepta- tion a right, jus, is the power to do, to omit, or to require a given thing. In the first sense it was cause; here it is effect.! On this point, also, we find amongst Roman jurists traces of a principle of philosophical equity; that is, that no one should be allowed to exercise his right with the sole motive of injuring his neighbour, without having therein any interest.? 16. From these two principal acceptations of law, as cause and as effect, we pass on to the component elements of its gene- ration. —~— Section III.—Component ELEMENTS OF THE GENERATION oF Law. 17. These elements are three in number :— : 1°. Persons ( persone), that is to say, men and abstract beings of pure legal conception, considered as susceptible of having and of owing rights. 2°. Things (res), that is to say, all corporate things and abstract objects of pure legal conception, considered as sub- mitted, or capable of being submitted, to the wants, utility or pleasures of man, and therefore as susceptible of forming the object of rights. ' The German school says, that in with the faculty, and liable to the obli- the first case the word jus is taken in gation resulting from the right. an objective sense, and in the second in 2 Dig. 6, 1, 38, in sine, f. Cels.; 39, a subjective sense, that is to say, rela- 3, 1, § 12, f. Ulp. tively to the subject who is endowed 566 GENERALIZATION OF ROMAN LAW. The Roman method had appreciated and distinguished these two primary elements: persons first, for, says Hermogenianus, it is for mankind that all law is established ;1 and, secondly, things. 18. But their deduction ended there; it was not complete. We have, it is true, in persons the active or passive subject of laws; in things, the object of rights; but law is not yet engen- dered. There is wanting the efficient cause, the generating cause, the cause which will give birth to rights, which will transmit them from one to another, modify and destroy them. This third element is— _ 8°. Events, facts, acts of man, judicial or non-judicial ; that which involves the idea of time, of place, of intention, of form ; all things which enter into the composition of human acts and deeds. Unite and combine these three ideas: persons, the active or passive subject; things, the object; and events, facts, acts of men, the active cause; and rights are engendered, transmitted, modified and extinguished. 19. The notion of fact, the appreciation of events and of human acts, with regard to the generation and modification of rights, repeatedly occurs in Roman jurisprudence ; it could not be otherwise, since the very nature of things exacts it, but the idea of it is not unfettered, classed apart and methodically treated. This classification or theoretical individual development is the work of modern analysis. It is universal with the Germans. 20. It remains for us to give a few general ideas upon each of these. 1 Dig. 1, 5, 1, £. Gai, and 2, £, Hermogenian. GENERALIZATION OF ROMAN LAW. 567 I. OF PERSONS. Carter I. Comronent Notions. ——— Section IV.—Ipra or Person. 21. The word person (persona). does not in the language of the law, as in ordinary language, designate the physical man." This word, in law, has two acceptations: in the first, it is every being considered as capable of having or owing rights, of being the active or passive subject of rights. We say every being, for men are not alone comprised therein. In fact, law, by its power of abstraction, creates persons, as we shall see that it creates things, which do not exist in nature. Thus, it erects into persons the state, cities, communities, cha- ritable or other institutions, even purely material objects, such as the fiscus, or inheritance in abeyance, because it makes of them beings capable of having or owing rights. In the inverse sense, every man in Roman law is not a person; for example, slaves when considered as the property of the master, especially under the rigorous system of primitive legislation, because they are the object and not the subject of law:® this, however, did not prevent the Romans from including them in another sense in the class of persons.? 22. We shall therefore have to discriminate between and to study two classes of persone. Physical or natural persons, for 1 See it, however, employed in that sense by Ulpian, Dig. 50, 17, De div. reg. jur., 22, f. Ulp. 2 ‘Inst., 1, 16, § 4. 3? Roman law, though so rigorous, could not completely destroy the per- sonality of slaves; because it is impos- sible for a human being to live in rela- tion with other men without there being rights and duties from one to the other. Thus the slave was liable to punish- ment for his misdemeanors. Thus the faculty of being instituted heir, of being honoured with a legacy, and of obtaining the rights even for himself, if he were a freeman at the moment of their devolution; the faculty of being placed by his master over a business, to conduct any 6ne operation, to manage his peculium ; the capacity to take part in contracts or other proceedings calcu- lated to acquire for his master obliga- tions or real rights: all this constitutes a capacity in law which can only belong to a person. Lastly, slaves had rights even against their masters from the time when it was no longer allowed to put them to death, nor to make them undergo bad treatment. 568 GENERALIZATION OF ROMAN LAW. which we find no distinctive denomination in Roman juris- prudence, except the expression taken from Ulpian, singularis persona, that is to say, the man-person ; and abstract persons, which are fictitious, and which have no existence except in law, that is to say, those which are purely legal conceptions or creations.! ~~ ‘Section V.—SEconD ACCEPTATION OF THE WORD PERSON. 23. In another sense, very frequently employed, the word ** person” designates each character man is called upon to play on the judicial stage ; that is to say, each quality which gives him certain rights or certain obligations: for instance, the person of father; of son as subject to his father; of husband; of guardian. In this sense, the same man can have several persone at the same time. In this respect he resembles the mask in a comedy or drama— “ Personam tragicam forte vulpes viderat,” says the fabulist. “, . . Persone pallentis hiatum In gremio matris, formidat rusticus infans,” says the satirical poet.? —~— Cuapter II. STATUS. Section VI.—IpEAa AND COMPONENT ELEMENT or STaTUs. 24. These elements are three in number— Libertas, Civitas, Familia. Their conjunction constitutes that which the Romans 1 These expressions are not from the “Sum figali lusus Ruf, persona Batavi : language of Roman law, though the Que tu derides, hee Limes ora puer.” difference between these two classes of eee Me Ie) persons is well defined. We find in Add this phrase, so characteristic of Ulpian the expression singularis per- Pliny: “Persona adjicitur capiti den- sona for natural person, in opposition —_susve reticulus” (Pliny, book 12, ch. 14). to populus, curia, collegiwm, corpus. This is why they say, in the language of Dig. 4, 2, 9, § 1, f. Ulp. ; the law: Sustinere personam, to wear ? Pheedr, fab. 7; Juvenal, 3rd satire, amask,aperson—Aereditas personam v. 174; and see the epigrammatic defuneti sustinet (Dig. 41, 1); an in- poet: heritance in abeyance wears the mask, the person of the deceased. GENERALIZATION OF ROMAN LAW. 569 called status, state—or caput, headi1—the state, the person of Roman civil law. This word status is, in the language of Roman law, a tech- nical word; and the student must especially remark the sense which there belongs to it, and which refers exclusively to these three elements—libertas, civitas, familia; for this has not pre- vented Roman jurists from often employing it in the common and ordinary acceptation. The same remark applies to the word caput.® 25. The study of persons, to be methodical, must be confined to the framework of these three elements: liberty first—next the city—lastly the family, with all the rules and institutions referring to each of them; and we shall then have before us the principal table of “persons” in the civil society of the Romans. —— § Il. LIBERTY (Libertas). Section VII.—Liserty—S.avery (Servitus)—CoLonizaTIoN (Colonatus). 26. Liberty (débertas); and, for opposite idea, slavery, ser- vitude (servitus): thence the first division of men into free (liberi) and slaves (servi ; mancipia, taken with the hand). During the period of primitive right, when it flourished in its pristine severity, the notion of servitude existed in its sternest form. ’ For the last expression, see Inst., 1, 16, § 4. 2M. de Savigny, in a special disser- tation (Appendix 6, 2nd vol., of his treatise on Roman law), attacks certain rather too scholastic theories which have been formed in Germany on the status, which, by-the-by, we are not very well acquainted with. The lan- guage of the law, constantly mixed up with acts and objects of ordinary life, is, by its very nature, indefinite ; the same words, especially when they are ordinary words, appear in varied acceptations, such as that of status in Roman law. Comprehensive and flexible as it is, he who would restrain it within limits, and give it the stiff- ness of a technical expression, runs the risk of the charge of pedantry. But the criticism of M. de Savigny, cor- rect from this point of view, could not get over this fact, that Roman jurists, while frequently employing the word status in a general and common sense, as we see for instance in the Digest, book 1, art. 5, De statu hominum, have used it also more particularly in order to designate the condition of man from the point of view of these three ele- ments—liberty, Roman citizenship, family. 570 GENERALIZATION OF ROMAN LAW. ~- Later on, when, under the influence of stoicism, law: had passed into the condition of a philosophical system, Roman jurists recognized and proclaimed, in the very definition which they gave of it, that liberty was the condition of nature, and Servitude an institution against nature; but which was esta- blished by human law, by the general custom of nations.!. The law, however, mitigated its severity, and brought it more into accordance with the dictates of humanity. 3 _ We shall find Christianity, subsequently coming in with its holy doctrine of equality of all men, further modifying the rigour of the institution, and gradually accomplishing its abolition. The attention of the student should be fixed upon these three well-defined periods of Roman legislation. 2'7. In the early period of Roman law, this principle of liberty operated simply as a division of mankind into two classes,—the free and the slave. At the epoch marked by the decline of agriculture, and by the frequent abandonment of land for want of useful cultivation,—at the period especially when distant provinces were conquered and added to the empire, and hordes of barbarians permitted to settle on its territories, before Con- stantine’s time, we observe that a third and totally new legal term came into vogue: the colonists (agricole or coloni), whether tributary (censiti, adscriptii or tributarii) or free (in- quilini, coloni liberi); these were serfs not bound to a master individually but to an estate.? It is a gradation leading, as time goes on, from servitude to serfdom, and from serfdom to domes- ticity and to the condition of the proletarii of more modern times. 28. The problems which law at this point developes suggest the following questions :— How is a man born free, how is freedom acquired, how lost ? 1 « Libertas est naturalis facultas ejus quod cuique facere libet, nisi si quid vi aut jure prohibetur. § 1. Ser- vitus est constitutio juris gentium, quo quis dominio alieno contra naturam subjicitur.” Dig. 1, 5, 4, f. Florentin. 2 See above, § 435 et seq. See also amongst the fragments of the Theo- dosian Code, for which we are indebted to the discovery of M. Amédée Peyron, a constitution of Honorius, which pre- sents a similar establishment of Barba- rians on the domains of the empire, under the condition of colonists. Cod. Theod. 5, 4, De bonis militum, const. 4. GENERALIZATION OF ROMAN LAW. 571 How is a man born in servitude, how does he come into this condition, how is he freed from it ? How is a man born a colonist, how may he become one, how does he cease to be one ? —o>— Section VIII.—Enrrancuisement (Manumissio)—Fren Men (Ingenui)—anp EN¥RANCHISED Staves (Liberti, Libertini). 29. Here we come upon the theory of enfranchisement (ma- numissio), in which it is necessary to remark the change of character which is revealed even in the variations of the form under which it was effected. Under the primitive Roman law enfranchisement was a political act. The state must initervene as a party, for it was a question of making a citizen. Then, like so many other institutions originally political, enfranchise- ment became gradually to be a simple exercise of private right, when, on the one hand, the title of citizen, which it conferred, had lost its value, and, on the other hand, the spirit ef the legis- lature tended to multiply the number of enfranchisements, and to extend their effects. 80. As a result of manumissio, or enfranchisement, there followed another division of persons,—the free (ingenui), who were so from their birth, and the enfranchised, who only became free by their enfranchisement. The latter were called liberti, in relation to their patron, and lbertini, when their condition alone was designated. —~— Section IX.—SuccesstvE MopiFIcaTIONS IN THE CONDITION OF THE ENFRANCHISED. 81. The condition of the enfranchised, especially in early Roman law, was very different from that of the free man, both in relation to the jus publicum and the jus privatum. On the one hand, in the primitive law one class only of enfranchised was recognized,—they were all Roman citizens, though of an inferior order. Under Augustus and Tiberius two new classes,, 572 GENERALIZATION OF ROMAN LAW. not having the right of citizenship under the former, and one under the latter, were introduced, that of the Latini juniani, enfranchised Latins, and that of the dedititii. Finally, Jus- tinian raised all to the same rank; all became citizens. It is the primitive law in its simplicity, but extended to private enfranchisements under the jus privatum, which the former system would not have recognized. On the other hand, the condition of enfranchised citizens had steadily tended to assimi- late itself with that of the ingenuz, and to place itself on a level with it. Under the empire, and the operation of the later Novelle of Justinian, it only differed from it by the tie of, and the right derived from, patronage. « —~>—. § Il. CITIZENSHIP (Civitas). Section X.—Crvis, Perecrinus, Hostis, BARBARUS. 82. The word “city” recalls to us the Civis sum Romanus, which in itself signified so much. Nowhere has the idea of the “citizen” been so thoroughly and forcibly developed as in the primitive law of the Romans. So clear and vigorous a con- ception of what the rights of citizenship really are, never existed elsewhere. The expression has lost much of its force in modern times. The expression Jus Quiritium, in its ancient and character- istic designation, that of optimum jus civium Romanorum, after- wards jus civitatis, jus civile, describe this right,—a privilege exclusively confined to the city as regards territory, to citizens as regards their status.! This title of citizen had impressed on family ties, on marriages, on property, on inheritances, on testaments, on alienations, on engagements, in short, on all Roman institutions, a character of force and vigour which regarded neither the voice of nature nor the ties of blood, nor the ordinary instincts nor principles of equity, and was one to which a stranger might in vain aspire. 1 This synonym between Jus Quiri- §§ 1, 2, et seq., and in Gaius, 3, §§ 72 tium, the ancient designation, and Jus and 73, and also in the passage of Livy civitatis, the more modern term, can be which we have before quoted. seen in the Regule of Ulpian, tit. 3, GENERALIZATION OF ROMAN LAW. 573 The title was indelible in the pure law of the Romans, when once acquired: for the sentence of the people could deprive a citizen of life, but never of the rights of citizenship without his consent.} The exercise of all civil rights, both as regards the jus pub- licum and the jus privatum, depended on this title. If it were not there, there was no status. 33. The opposite of czvis, citizen, is peregrinus, the alien— hostis, the stranger or enemy—for to republican Rome, till she had completed the conquest of the known world, these two words were synonymous? —darbarus, the barbarian. Peregrinus, hostis, barbarus, as far as civil rights went, were upon the same footing. Such persons were strangers; none of them had any participation in the rights of citizenship, but each word implied the idea of a different relation towards Rome. Peregrinus was, in its most limited sense, the foreigner at Rome, whom curiosity, love of travel or of study, business, or the absorbing power of the great city, had brought there, or who had settled there. Their affluence might increase day by day, their number might equal, if not surpass, that of the citizens, still they continued strangers to the institutions and rights of citizenship. A special preetor, the foreigners’ praetor (pretor. peregrinus), was appointed to administer justice for them, not according to the forms and principles of the jus czvile, but according to the jus gentium, rights common to all men. More generally the expression peregrini designated all who were subject to the government of Rome, without belonging to the republic. Hostis was the foreigner whom Roman power had not yet subjugated ; till that subjugation, he remained an enemy. Barbarus was he who was still outside the limits of civiliza- tion and of the Roman world. The circumference widened every day. From the Cisalpine Gauls, this title passed to the Gauls on the further side of the Alps, from the borders of the 1“ Civitatem vero nemo wunguam subtleties and subterfuges, so common ullo populi jussu amittet invitus.’ in Roman jurisprudence. Cic., Pro dom., c. 29, 30. In order to 2 See the law of the Twelve Table: inflict this loss, they had recourse to Adversus hostem eterna auctoritas, 574 GENERALIZATION OF ROMAN LAW. ocean to the islands of Great Britain, to the forests of Germany, and to the unknown hordes of the North and of Asia, which were destined to overthrow the empire. But the condition of all, as to the enjoyment of civil rights, was the same—they were strangers. So, in law, the expression peregrinus sufficed to describe that condition. In time, it came to have a more general sense, especially when Rome had conquered nearly all the known world, and it ended in being alone employed by jurists, in the most modern legal language, to express the opposite of ezvis. 34. How was a man born with the character of citizen? How was it acquired? How was it lost ? Two remarkable changes should be noted here in the histori- cal progress of Roman law. Section XI.—SuccrssivE COMMUNICATION OF THE Jus CIVITATIS TO PERSONS WITHOUT THE PRECINCTS OF RoME. 35. In the first place we have to remark the subdivision, the partial or total communication of the jus civitatis, and its gradual extension. Under the primitive law, a person was a citizen or a foreigner; there was no intermediate status. Subsequently particular concessions, whether of grace, whether wrested by arms, or conferred under treaties, were made to the inhabitants of certain territories. Some privileges of this jus Quiritium, or jus civitatis, were distributed more or less extensively by the sovereign state, and in after times by the emperors alone, to nations, or even to individuals, and in some cases to kings who solicited them.! This grant took effect in two ways, it being made either with reference to the soil or to the person. We confine ourselves here to the latter. 86. Thus persons might be admitted to a greater or less participation in the jus Quiritium, sometimes in their public 1 Gai. 1, §§ 93 and 94. GENERALIZATION OF ROMAN LAW. 575 and private relations, at once including eligibility to the offices of the republic and the right of suffrage—jus honorum, jus suffragii—sometimes in private relations only. In the concession of this privilege as regards the jus priva- tum, the different rights of the jus civitatis were occasionally distinguished in a remarkable manner: thus the connubium gave the grantees the capacity to contract amongst themselves, or even with Roman citizens, juste nuptie, or marriages, fol- lowed by the effects of the jus civile;! the commercium carry- ing with it the capacity of forming contracts, making acquisi- tions or alienations according to the jus civile;? the factio tes- tamenti, or the capacity of receiving from citizens, or of dispos- ing in their favour by testament according to the Roman law, which would appear to follow, not indeed necessarily, but ordinarily, from the commercium, since the testament was clothed in the factitious guise of a solemn sale, a mancipatio.* These dismembered elements of the jus civitatis were granted together or separately ; thus the citizens of a town might enjoy, for instance, the commercium without the connubium; all de- pended upon the form of grant. Thence arose an irregularity in the extent to which the jus civitatis was conferred, whether in the matter of jus publicum or privatum. A person might be no longer absolutely, as under the strict and primitive legal system, either purely a citizen or purely a stranger; there came to be more than one intermediate position. 37. The towns of Latium, of Italy, and of the distant pro- vinces, successively obtained their share in these concessions ; and the question of the origin, of the interior organization of each city, and of the nature of its relations with Rome, is closely bound up with this subject. Here, confining ourselves to the status of the inhabitants, as persons, without any reference to the soil, we find the follow- ing classes: 1st, Roman colonists (Romani colont, or simply 1 Gai. 1, § 56. (Ibid. § 5). Connubium, de nubere 2 Ulp., Reg.,19,§ 4. “Commercium eum; commerciwm, de mercari cum. est emendi vendendique invicem jus” 3 Ulp., eg., 20, §§ 8 and 22, § 3, 576 GENERALIZATION OF ROMAN LAW. colont); 2nd, Latin allies (socii Latini, or simply Latinz) ; 3rd, Latini colonarii, or Latin colonists; 4th, Latini junzant, or those belonging to an inferior class, enfranchised and assimi- lated in nearly everything to the Latini colonarii;: 5th and lastly, The dedititiz, and the enfranchised who were assimilated to them. Optimum jus is the jus civitatis in all its plenitude. 38. But under Antoninus Caracalla all these shades of distinc- tion as to persons disappeared, and all subjects of the empire were pronounced Roman citizens. The only vestiges of the ancient distinction that then remained were the two inferior classes of enfranchised—the Latini juniani,and the dedititii,who continued if not in reality, at least by legal conception, to be distinct down to the time of Justinian, who ended by suppressing the distinc- tion. Thenceforward the peregrini were simply enemies and barbarians, the sense of the word being distorted. — Section XII.—GrapuaL ALTERATION OF THE Crv1L Law. 39. The second class of facts to which the attention of the student should be directed, and which runs parallel to the pre- ceding, is, that just as the title of ctvis was communicated and propagated, the real civil law underwent a progressive approxi- mation to the jus gentium by means of subtleties and legal fictions, imperial or preetorian institutions, till, finally, under Justinian, its primitive character almost totally disappeared. —~>—. § Ill. FAMILIA. Section XIIJ.—GeEnerar Ipea or'a Roman Famity. 40. The familia, in the aristocratic and theocratic constitu- tion of the Roman state, was the particular aggregation of ' Gal. 3,§56. Fragment, Demanu- 19,§4. See also Gaius, 1, §§ 66 et seq. missionibus, preserved by Dositheus, But not the Connubiwm, Ulp., Reg., 5, § 6, and following another division, § 8. 4 They had the Commerciwm, Ulp., Reg., ' GENERALIZATION OF ROMAN LAW. 577 persons which formed the unit, if it may be so expressed, of the jus publicum, the jus sacrum and the jus privatum. 41. The jus publicum. The patrician families were pre- dominant. Each of them comprised within its sphere the plebeian families attached to it by the political and religious tie of clientage. Those plebeian families which remained unat- tached by this tie of clientage were isolated, without importance in the state and without support, but they formed the nucleus around which plebeian influence centred in its contest with the patrician. The alteration of families was an affair which concerned the whole community ; it was consequently effected in the comitia ; the formalities by which it was effected continued in use down to a late period as mere forms, but, as such, indications of the ancient system. 42. The jus sacrum. The familia was connected by the union of a worship peculiar to itself; by the bond of sacrifices to be made at certain times and in certain places (sacra familia; sacra gentis). Apart from the lares or household gods, it might be bound to the especial cultus of a particular deity, such as Hercules, Minerva, or any other.1. The religious character of the aggregation also necessitated the intervention of pontifical law and power, when there was a question of altering the family. 43. The jus privatum. The family, considered with refer- ence to the jus privatum, was the aggregation in which pro- perty, the effects of obligations, the right of inheritance, and of succession, that is to say, the right of taking and of continuing in the state the persona of the deceased, all centred. To transfer this right to another the intervention of the entire community, that is, of the comitia, became necessary. 1 Such, for instance, are the expiatory are those by the Fabii to Hercules on sacrifices of the Horatii for the murder _ the Quirinal Mount (Livy, 5, 46), and of their sister, “ Sacrificia piacularia those of Nantius to Minerva (Dion. gentis Horatie” (Livy, 1,26). Such 6,69). PrP 578 GENERALIZATION OF ROMAN LAW. 44. These primitive characteristics gradually died out. The political aggregation disappeared with the modifications which the constitution underwent. Religious aggregation went out with paganism. The jus privatum superseded the jus publi- cum; but it is only by a reference to antiquity that we can explain certain traces that remained permanently in the law. —~— Srctron XIV.—Tnue Basis or THE Roman Fairy. 45. The foundation of the family, in human law, in the general law of society, is marriage. Among the Romans the civil marriage was certainly an important element in it; but its root and origin are to be sought elsewhere. The Roman family, even as regards the jus privatum, was not a natural family ; it was a creation of the jus civile, the jus civitatis. "Woman, as a wife to her husband, or as a mother to her children, was not comprised in it by the single fact of marriage: she gave it children, but she was not of their family. The children themselves, their descendents, could be foreign to it; and, inversely, persons foreign by blood could form a part of it. And, nevertheless, on the fact of existence in the same family depended all civil rights which the members were entitled to enjoy with regard to one another. Whoever was in it partici- pated in these rights. Whoever was not in it, whether son, father, mother, brother, sister, no matter in what relation he stood, had no participation whatever. The tie of family was not the tie of blood; it was not the tie produced by marriage and by generation, but a bond created by civil law—a bond of power. The exposition, therefore, of the law which concerns marriage must commence with the theory of power. ——— Secrion XV.—Powrr—Tae Cuier or THE Famity (Pater- Jfamilias)—Prrsons Sui Juris on Alieni Juris. 46. This idea of power as the basis of the Roman family must be taken in its most absolute, most despotic sense. A GENERALIZATION OF ROMAN LAW. 579 single individual, the head, was the master, the proprietor of all the others, of all the patrimony; the property concentrated in each family was at his free and entire disposal; body and estate, all were his. As for himself he was independent. 4'7. Thence arises, with regard to the family, a new division of persons. 1. Persons sui juris, having their own rights, also called paterfamilias when men, mater familias when women. Married or unmarried, with children or without, even in infancy, from very birth, if not subject to any power, the Roman citizen was paterfamilias—the father—the head of the family. 2. Contrasted with the sui juris is one who is alient juris, an accessory of another, alieno juri subjectus, that is to say, under the power of another. 48. The first alone could have, could acquire, could exercise civil rights, and hold other persons under his power. The second, strictly speaking, could hold, acquire or exercise no right for himself; he was only the representative, the instrument of the one on whom he depended, he could have no one in his power; in a word, he had no persona of his own, but bore that of the chief. His individuality was extinguished under this mask, or persona. If he was reputed to be a part, so to say, of the family, it was only by identifying himself, by making one person with the head, that he could be considered to be so. All this had reference to the status of the individual in his private relations only, for carry him into public life and we see him in the forum, the comitia, in the ranks of the magistrates, the man alieni juris; if he was free and a citizen he there enjoyed his independence, and exercised the rights and public duties of a citizen.} ! There is no doubt, however, espe- cially under the primitive constitution of Rome, that the principle of the all- absorbing personality of the head exer- cised its influence even with regard to political relations; and the incon- testable proof of it is in the comitia centuriata, where the citizens were ranked according to wealth. Now the sons of the family had absolutely nothing, unless it was their participa- tion in the common property of family, as uniting in the person of their chief. Up to what point did the son of the family, in his political relations and in the discharge of his duties as citizen, PP2 580 GENERALIZATION OF ROMAN LAW. Srorion XVI.—Divers Kinps or Power (Potestas, Manus, Mancipium). 49. The power of the individual who was sui juris, pater- familias, head of the family over persons alient juris, was ot three kinds :— 1. Potestas—power properly so called which designates at the same time, in the language of Roman law, the power of the master over the slave (potestas dominorum), and the paternal power of the father over the children (patria potestas). 2. Manus—the hand; a symbolical expression sometimes, and probably always originally so, employed to designate all power,! but especially applied to the power of the husband over his wife in cases where the latter was subject to him, which did not always happen, and which was not the result of marriage alone. 3. Mancipium—the power over the free man of whom Roman ownership had been acquired by the solemn alienation or civil sale, named mancipation (mancipatio). Thus the persons under the power of the head of the family were slaves, children, the wife when she had been placed or had fallen in manu, and the free men he had acquired by manci- pation; this did not prevent their remaining free in other respects. 50. In respect of each of these powers, the law had to regu- late the following points: the way in which it was produced or acquired, its effects and extent, and the way in which it was dissolved. 51. As to power over slaves. The theory of its acquisition is the same as that of the acquisition of things, because slaves, in this relation, are things. The extent of this power, and its effects, are matters especially of historical study; and the mode in which the dissolution of this power was effected, by enfran- continue to wear the legal mask, the jus privatum. persona of thechief? Itisan intricate ' For instance, in manumissio, man- question, but out of the pale of this cipatio, and mancipiwm itself. ; work, which is specially devoted to the GENERALIZATION OF ROMAN LAW. 581 chisement, manumissio, is closely bound up with the theories of libertas, of civitas, and of the familia. And connected with it is the theory of patronage and of the ties thereby produced between the enfranchised and the enfranchising family. 52. Patria potestas.—This power rested upon the theory of juste nuptie, and involved that of arrogation, which belonged to the jus publicum, inasmuch as it affected the status of all citizens and required the intervention of pontifical power, since it involved an alteration in the composition of the family. With the patria potestas was also connected adoption, which was an innovation on the jus publicum by the jus privatum, by the aid of a fiction. As in the former case, the extent and effect of this power, both in relation to persons and things, was materially altered by the influence of time. Its extent was not limited to the immediate family, but it passed through the male line from generation to generation, and was alone terminated by the death of the head of the family, that is to say, except in cases where it was brought to an end by any special circumstance. Amongst those special circumstances were the mancipatio, which was not provided for by primitive law, nor even by the law of the Twelve Tables,' and which was in fact arrived at by means of fictions. It is remarkable that Roman law, which was essentially aristocratic, recognized no right of primogeniture, nor preference of sex. The equality of children was recognized from the earliest times, and both sons and daughters directly under the control of the chief became, by his death, both free and sui juris. 58. Manus.—The theory of manus involved the notion of juste nuptie, not indeed as an efficient cause but as an essen- tial condition, because it was necessary to this power that it should be generated by the confarreatio or farreum, a sacer- dotal solemnity of Etruscan origin, and a privilege confined to the patricians; or by coemptio, which was the civil sale of the woman by mancipatio, a solemnity practised by the plebeians ; 1 See however Gaius, 4, § 79. 582 GENERALIZATION OF ROMAN LAW. or finally by wsus, which was the acquisition, as a result of use, which followed from the uninterrupted possession of the woman for the space of one year. The effects of this power were chiefly to place the woman in the family of her husband, to give her the rank of daughter of her own husband and sister of her own children. 54. Mancipium.—This involved the notion of the sale and of the civil alienation (mancipatio), which could be made by the head of a family either of the children, or of a female under his power, when transferred for the purposes of marriage (noxali causa mancipatio). The effects of this power were in general to assimilate the condition of the person emancipated to that of a slave in the family (servorum loco constituuntur), leaving the person at the same time free as to the jus publicum. In this were involved manumissio, by which an end was put to this condition of subjection, and the relationship, analogous to that of patronage, which resulted from it. As in the preceding cases, this power also gradually decreased, and mancipium ulti- mately became nothing but a fictitious means of completing the emancipations which did not comport with the civil law.! Notice must also be taken of a singular rule connected with this subject. Every fifth year at each census all who were in mancipio, rather as a fiction than in fact, necessarily recovered their liberty.? 55. To this power (which is designated by Gaius manci- pium) the condition of the person styled in primitive times nexus, nexu vinctus, corresponded, that is to say, the condition of the head of a family who, being a debtor, in order to secure his debt gave himself in pledge to his creditor by the civil sale nexum, mancipatio, alienatio per es et libram, which involved, not only his own person, but that of all the members of his family and his entire patrimony.? Emancipation in such a 1 For example, to emancipate the 2 Nexwm was a primitive and generic sons from paternal power; to liberate expression: it designated all civil. acts women from the guardianship of their which were accomplished by the real agnates. or fictitious employment of alienation ; 2 Gaius, 1, § 140. per @s et libram, by the bronze piece GENERALIZATION OF ROMAN LAW. 583 case as this was not considered, and probably was not in fact (as a certain restriction was placed upon the terms implied in the transaction), an irrevocable alienation, but was regarded rather in the light of a guarantee or as an alienation which would ipso facto cease by the payment of the debt. Debtors thus liberated from this subjection by payment were in the language of ancient Roman law called soluti.2 Nexi, soluti! These explanations recall to mind the miserable condition of the plebeian, oppressed by the usurious patrician, the cause of constant revolts ; and the lex Petillia Papiria, B.c. 326, which prohibited this practice. 56. It is also to the power which could be enjoyed by the head of a family over free men, and acquired by means of the civil law, that we must refer the condition of those who were styled addictus, that is to say, of those who by declaration of the magistrate were declared to be under the power or control of another, whether of a creditor from default of payment or of an injured person, as the result of an offence committed against him; for example, a case of furtum manifestum.3 Notwith- standing the similarity between the condition of the next and the addicti, the real difference was considerable; the nezxz were really assimilated to slaves, both in fact and in law, in relation to the person to whom they had been sold, though they remained free as to the state; whereas the addicti were slaves in fact but not in law, both in regard to the creditor to whom they had been addicted and to the state. vo Deminutus. and the balance (“‘ Wexwm est, ut ait Gallus Zilius, quodcumque per @s et libram geritur, etc.” Festus, vo Vex- um; Cicero, Top., 5, 28, and Boetius ad Cicer.; Cicero, De orat., 3, 40; Varro, De lingua latina, 6, 5). The expressions mancipium, and later still mancipatio, were more recent and more comprehensive. 1 « Tiber qui suas operas in servi- tutem, pro pecunia quam debebat, dabat dum solveret, nexus vocaba- tur.” Varro, De lingua latina, 6, 5. «“ Propter domesticam ruinam et grave @s alienum, C. Plotio nexum se dare coactum.” Valer. Maxim.6,9. Festus, It was thus possible, by the formality of the nexum, to give a pledge as guarantee of the debt in property instead of the person. 2 « Nexo solutoque . . idem jus esto.” Festus, Sanates. That isto say, that the nexus, during his engagement and so long as the term of payment had not arrived, was entitled to the same rights as one who was free from this engagement. Livy, 2, 23. 3 Aul. Gell., oct. attic., 20, 1, wherein is found the text of the law of the Twelve Tables. Quintil., Znstit. orat., 3,6; 5,10; 7,5. Livy, 6, 36. 584 GENERALIZATION OF ROMAN LAW. The expressions adjudicatus, judicatus,! which signified the result, not of a magistrate’s declaring the law, but of a judge’s delivering judgment,? referred to the status preceding the addictio; they designated one who had been condemned (judi- catus) by the sentence of a judge, and who was still proceeded against by his creditor in order to have him made addictus; in the interval, therefore, between judicatus and addictus he was subject to a certain species of power which his creditor pos- sessed over him. 57. These three kinds of subjection, resulting from manci- patio, the necum and the addictio, applied to free men, and though varying as to their extent and to their details, they were the same in this important particular, that there was in each a power of appropriation, which, in the two former, conferred the actual Quiritarian dominium. The last two disappeared,—first the nexum and then the addictio. Gaius scarcely alludes to them, but he speaks in detail concerning the mancipium, which however in his time had commenced to be nothing but a fiction, and which, even when it existed in fact, was greatly modified in its effects.3 —~— Section XVII.—Marriace (Juste Nuptie) AND THE VARIOUS UNIONS BETWEEN THE SEXES (Concubinatus, Stuprum, Contu- bernium). 58. The theory of marriage, as a constituent element of the Roman family, was only an accessory of the potestas. Roman marriage, according to the civil law, was styled juste nuptie, justum matrimonium ; the husband was called vir, the wife uzor. This institution was exclusively confined to citizens, or to those to whom the connubium had been ceded. It was the only marriage which conferred the patria potestas; it did not of itself however produce the marital power (manus) as to the wife; in order to secure this, there must have been, in addi- tion, the farreum, the coemptio, or the usus. ' Gai. 3, §§ 189, 199; Dig. 42, 1, 2 See post, § 247, 34, f. L. Ruf. 8 Gai. 1, § 141. GENERALIZATION OF ROMAN LAW. 585 59. Here must be noted the division of the populace into two radically distinct castes, between the members of which a Roman marriage could never take place, because, as between them the connudium being non-existent, the familia could not be formed, nor could the blood of the two intermingle. In the course of time this distinction gave way; the Ler Canuleia conferred the connubium on the plebeians in B.c. 445,! and the Lex Papia Poppea, A.D. 9, permitted the union of ingenui and the enfranchised :? the constitution of Justinian, in the spirit of Christianity, permitted the union of the senatorial order with the enfranchished and lower grades ;3 and this emperor, in his own person, set the example to his subjects by raising a woman who had played a conspicuous part in the circus and in the embolum to share his throne and bed. We have thus before us the point of departure and the condition at which affairs arrived under the empire when distinctions had been obliterated. It was then no longer a question of the intermingling of the blood of a Roman citizen with that of a foreigner, for at that epoch it was impossible to say who was a foreigner, who a citizen, or who a Roman. 60. The form of marriage was purely a matter of private law; it did not require any public solemnity, but ranked with all ordinary real contracts; the only necessary conditions being consent and the tradition or transfer of the woman to her hus- band. This plain and simple theory of marriage was however supplemented, in accordance with the tastes and manners of the times, by forms and ceremonies, some symbolical, others orna- mental, but neither having any legal effect. But with the pa- tricians the case was different. Marriage with them was not allowed to remain an unceremonious and simple contract, but was attended with the Etruscan sacerdotal solemnity of the farreum or confarreatio; this, however, did not in itself con- stitute the marriage, but it had the effect of placing the woman in manu, that is to say, it made her, so to speak, a chattel in the hands of the head of the family, and it conferred upon the ' Livy, 4, 6. 4 Cod. 5, 4, 23; Novel. 89, c. 15; 2 Livy, 29, 19. Novel. 117, ¢. 6. 586 GENERALIZATION OF ROMAN LAW. issue the right to participate in pontifical functions. Asto the plebeian, if he wished to place his wife ix manu, he could ac- complish this by means of the civil sale per @s et libram, or in default of this, by the uninterrupted possession of her body for the space of one year: that is to say, if she had not slept away from his house for three consecutive nights during that period (usurpatum ire trinoctio). With the theory of marriage is closely connected that of betrothal (sponsalia), which preceded it, and that of repudia- tion by divorce, which dissolved it (repudium, divorcium). 61. The other kinds of union between the sexes, not affect- ing the civil family, were concubinatus, stuprum and contu- burnium. Concubinatus, or concubinage, was a licit intercourse with- out marriage. This union was permitted; but was not con- sidered honourable, especially in respect of the woman. The issue of such a union, termed naturales liberi, had a recognized father; but they were not under the patria potestas. To this institution was attached that of legitimation, by means of which the patria potestas might be acquired over the issue. Stuprum was a general expression, designating all illicit inter- course, the issue of which were termed spurii, vulgo quesiti, and had no recognized father. As distinctive forms of this union, we may specify incest (incestus), adultery (adulterium), which made the issue incestuost, ex damnato coitu, or adul- terint. Contubernium was the union of slaves, or of a slave with a free person, and produced no civil effects.1 Section XVIII.—Coenatio, Acnatio—Gens, ADFINITAS. 62. The Roman word parens is derived from parere, to generate. 1 This however does not prevent our with regard to the status of children finding a few provisions of the jus civile born from the intermixture of slaves upon this kind of intercourse, especially and free. Gai. 1, §§ 84, 85, _ GENERALIZATION OF ROMAN LAW. 587 The most comprehensive term indicating this relationship is cognatio. 63. Cognatio was the bond existing between persons united by the same blood, or who were reputedly so united. In the first instance the relationship was natural, in the second it was purely legal and was the result of adoption; persons so connected were, as between themselves, termed cognati, quasi una communiter nati. Cognatio admitted of different degrees. The linea recta, or direct line, comprehended the whole series of persons who were derived directly the one from the other: and it was divided into the superior and the inferior; the former comprehending ancestors, the latter descendants. The collateral line, or the linea transversa, obliqua, ex transverso, a latere, included persons who were descended, not from one another, but from the same common stock. Each generation was a degree, the position of the degree determining the measure of cognation. Mere cognation, whether the result of juste nuptie or of any other form of union, did not place the individual in the family, nor did it confer any right of family; it had indeed scarcely any civil effects, unless it was the prohibition of marriage between certain parties. 64. The civil parentage, which produced civil effects and which conferred the rights of family, was agnatio; it was the bond which united the cognate members of the same family, qui ex eddem familia sunt, and the active principle of this union of ad-gnatio was the patria potestas, or the marital power which united, or which would unite, all under the common chief, supposing the original head of a family still to be in existence.? He who was subject to this power was an agnate and a member of the family; whoever was without its pale was no longer so, and this applied equally to male and female. 1 According to another opinion, which 2, § 1, the agnates were only those has been discussed more in detail and who had really lived in subjection to- refuted by M. Ortolan in vol. iii, gether to the power of the same chief. Lzplic. hist. des Instituts, lib. iii. tit. Qui sub unius potestate fuerunt. 588 GENERALIZATION OF ROMAN LAW. 65. In addition to this family aggregation of all the agnates, there was originally another kind of civil union, that of the gentilitas, or, in other words, the generation or genealogy—a union the exact nature and origin of which are somewhat uncertain, though an immense number of ingenious but doubt- ful theories have been floated concerning it. In our opinion a right conception of clientage and of enfran- chisement is necessary in order fully to understand this relation- ship, which was peculiar to Quiritarian civil law. Citizens who were derived from a common source, whose lineage was free from all taint of servitude or subjection, and who conse- quently had a generation or genealogy of their own, and who were at the same time united by the bond of civil parentage, constituted a gens, and were, as to each other, both agnati and gentiles. Viewed in this light, it is not clear wherein gentilitas differed from agnatio, unless it was in the essential constituent element of gentilitas, the freedom of the lineage from all taint of vassalage, which would have confined gentilitas to the patri- clans, whereas agnatio might be common to patricians and plebeians. In this way, and in primitive times, gentilitas would be the agnatio of patricians, the gens being the patrician family. But, in addition to this, the patricians, at the same time agnati and gentiles as between themselves, were also the gentiles of all the families of their clients or enfranchised, who were civilly derived from their gens, who had taken their name and adopted their sacra, and to whom their gens served as a civil genealogy. These decendants of clients or enfranchised, though having gentiles, were not themselves the gentiles to others, and there- fore, in relation to them, agnatio was altogether different from gentilitas. Their agnatio was founded upon the common bond of the parental or marital power, however ancient the origin of that power might be. The gentilitas depended upon the bond of power or the influence of patronage, whether as clients or as enfranchised, however remote may have been the origin of this power. In this way the title and the rights of gentiles would, accord- ing to our view, belong to the civil members of every race, in GENERALIZATION OF ROMAN LAW. 589 its origin and during its existence strictly ingenuus or free from any taint of vassalage, first as between themselves, and secondly as to the race of clients or enfranchised throughout their various ramifications: all of whom bore a common name. The ex- pressions gentilhomme, gentiluomo, gentilhombre and gentleman have been retained in the modern languages of Europe, and have been used to indicate what is commonly termed a good extraction, a noble genealogy, a pure blood. The law, in default of agnates, gave the inheritance and tutelages to the gentiles. This right and this bond of union, though existing at the time of Cicero, had entirely fallen into disuse in the time of Gaius. 66. In brief, the civil or natural ties of the Romans were expressed by the three characteristic terms familia, gens, cog- natio. In the first we have agnatio and the agnati; in the second the gentiles ; and in the last the cognati. The first two were Quiritarian, and depended either upon the existence of the patria potestas between the parties, or upon the relationship of patron and client, actual or enfranchised. The third rested solely upon the ties of blood, and consequently produced no legal effects. 67. Affinitas was the tie resulting from juste nuptie, which affected both the contracting parties and their cognati. Pro- perly speaking it had no degrees; it was, however, measured like cognation and by cognation.1_ Every relation of one of the married couple was related in the same degree to the other. Affinity, like mere blood relationship, could not place one in the family, nor confer any right. —~>—- Section XIX.—-DirFreERENT ACCEPTATIONS OF THE WorD Familia. 68. From the preceding observations, we are in a position to understand the principal acceptations of the word familia in the language of Roman law. ' Dig. 38, 10, 4, § 5, £. Modest. 590 GENERALIZATION OF ROMAN LAW. 1st. In its most limited sense, familia designated the chief, and the women and children under his power. 2nd. Familia, in a more extended sense, designated the con- nection of the agnates, all the members of the different families which would all be under the power of a common head, were he still living. This is the real family of the civil law. 3rd. The word familia also included the slaves, and those who were in mancipio of the chief, though they were only in the family as chattels, without any tie of relationship. 4th and lastly. Familia sometimes meant all the goods, all the patrimony of the chief. —~ Section XX.—SuccessivE MopiricaTIons OF THE LAW RELATING TO THE Famity. 69. The course of the gradation of the Roman civil family towards the natural family, or the family of consanguinity, is worthy of remark. Gentilitas fell gradually into disuse and ended in becoming a mystery. Then the nexum and the addictio of the free man disappeared. The manus and the mancipium followed—at least so far that they remained only as legal fictions to evade the severity of the ancient law. Under Justinian we find no longer any mention of it, and until the discovery of the Insti- tutes of Gaius we had only an erroneous notion concerning it. The patria potestas underwent all kinds of restrictions, both in relation to property and persons. The son was accorded first of all certain rights and then property as his own; he became a persona. Meantime the pretorian system leaned towards blood relationship, and tended more and more to impart family rights to cognates. Senatis-consulta, imperial constitu- tions, the legislation of Justinian, all tended to the same result, till by the Novelle of this emperor the traces of the Roman family and its ancient effects were nearly obliterated. Thus ' Such was the sense of this wordin habeto—gentilis familiam nancitor. the law of succession of the Twelve See Ulpian, on these different accepta- Tables: adgnatus proximus familiam tions, Dig. 50, 16, 195 et seq. GENERALIZATION OF ROMAN LAW. 591 the political familia first disappeared, afterwards the religious familia, then the familia of the jus civile privatum, and there only remained the natural family. —~—. §IV. ON THE LOSS OR CHANGE OF STATUS. (Capitis Deminutio.) Section XXI.—Maxima, Mepia, Minima (Capitis Deminutio). 70. The three elements which comprised the status of the citizen under the Roman civil law (status, caput) might be lost in various ways. The loss of liberty involved that of the two other elements. The loss of citizenship (civitas) entailed that of the familia, but did not affect the personal liberty. Finally, the loss of familia neither affected liberty nor citizen- ship. 71. In the first two cases the civil status was entirely lost (status amittitur). In the third, the status was maintained (salvo statu), but it was modified, since a person came out of one family to enter into another, or to commence another (status mutatur). It must not be forgotten, that whoever underwent this modification of status, in any shape, always changed family, property and person. Family, since he passed from one to another; property, since in each family a distinct co-ownership was centred; finally person, since there was in each family in law no other persona but that of the chief, and by changing his status he quitted this persona to identify him- self with another, or to invest himself with a new one. All these events were called capitis deminutio, of which there were three degrees,—maxima, media, minima. 1 The literal translation of these words, capitis deminutio, by the French expression diminution de téte, is cer- tainly not French, as M. Pellat has judiciously remarked in his treatise On property and usufruct, p. 96. It is, however, retained as a technical expres- sion, having a special signification. The same remark applies to many other expressions, such as usucapion, usuca- per, vindication, condition, etc., etc. It would disfigure the language of Ro- man law to turn it everywhere into French: the language of science in many instances is technical, and it is thus it should be taken. 592 GENERALIZATION OF ROMAN LAW. 72. The word deminutio, which expresses a fall or degrada- tion in the status of the person, is clear and intelligible when applied to the maxima deminutio capitis, and to the media deminutio capitis ; but in connection with the minima deminutio capitis, its use has given rise to the theory that in this case it is not a question of loss of family, but of the degradation ex- perienced by the person who suffered it, when as the result of adrogation he passed from the condition of head of a family to that of a son; or when in order to be emancipated, that he might be given by his father to another in adoption, he passed by a fiction, according to primitive forms, into the inferior condition of a man in mancipio. That there is truth in this last obser- vation, and that the fact it exposes may have produced a certain influence, historically considered, in the adoption of the expression capitis deminutio, we will not deny; but it is not merely in the explanation of the term, but in the practical con- sequences of the minima capitis deminutio, that the two systems disagree. Notwithstanding the high authority! who has sub- scribed to this view, we utterly repudiate it as ignoring the characteristic feature of the old Roman family, and as over- looking the all important part that this institution took, whether in the jus sacrum, the jus publicum or the jus privatum, and so placing in the background that which should be made prominent in an exposition of Roman law and the condition of persons. Cuapter III. OTHER CONDITIONS AFFECTING PERSONS BESIDES STATUS (Status). Section XXII.— GENERALLY. 73. Besides the status of man, considered in its three essentia elements, we find that other distinctions were recognized which, without altering the status, nevertheless modified the law re- ! Savigny, Treatise on Roman Law, vol. ii. app. 6. GENERALIZATION OF ROMAN LAW. 593 garding it. These distinctions may be considered in connec- tion with a man’s political and his physical relations. And, first, as to his political relations. Section XXIII.—Existimatio. 74, Evxistimatio is thus defined by Callistratus: dignitatis illese status, legibus ac moribus comprobatus.1 It was the honour of the Roman citizen, founded both on the laws and on custom, and which must remain intact to entitle to full enjoyment of civil rights, both as regards the jus publicum and the jus privatum. This existimatio could be totally lost (aut consumitur), which happened whenever the status of a free man was destroyed, or only diminished (aut minuitur).? 75. The modifications the existimatio could undergo were three :— lst. Infamy (infamia), which proceeded from two sources: either it attached to the person by reason of the practice of certain professions, or certain shameful acts specially denounced by the law or by the edict of the pretor, and by the mere practice of these professions or the commission of these acts; or else it was the consequence of a condemnation incurred either for public misdemeanor or in certain private suits. Such persons were called infamous (famosi: gui notantur infamia), or simply notati (a term derived from the note or mark of the censor), and suffered many disabilities. The Digest of Justinian has a special article, entitled De his qui notantur infamia, where the text of the edict of the praetor, enumerating the cases of infamia, has been preserved.’ It is curious as a study of Roman society. In this class were ranked, in all probability, those whose goods had been sold in bulk by creditors by reason of insolvency. This affixed the stigma of ignominy, which was followed by ' Dig. 50, 13, 5, § 1, £. Callistrat. * Dig. 3, 2, De his qui notantur * Dig. 50, 13, 5, §§ 2 and 3. infamia. QQ 594 GENERALIZATION OF ROMAN LAW. loss of reputation and legal disabilities,! as it is with us in the case of bankruptcy. Hence we see why the Roman citizen dying insolvent was so desirous of instituting one of his slaves an involuntary heir, in order that, even after his death, the sale should take effect not on his memory but upon the slave. 2nd. Turpitude (turpitudo), which took effect in cases where, though neither the law nor the pretor proclaimed the man in- famous, public opinion, more sensitive than written law, affixed to the existimatio a stigma on account of the turpitude of the life (vite turpitudo) or of the profession.2 The legal disabilities resulting from this are nearly the same as in the former cases. 3rd. The levis nota, with which were branded the enfranchised and the children of those who got their living on the stage (qui artem ludicram faciunt), which rendered them incapable of marriage with senators or children of senators. This prohibi- tion was suppressed by Justinian. The levis nota also, in the case of any one having been appointed heir, rendered the appointment open to attack by the brother or sister who had been prejudiced by it.3 A fragment of a constitution of Constantine clearly defines these three degrees of modification of the eristimatio. How- ever, the expressions persone turpes, viles persone, were very often indiscriminately applied. 76. Infamia, turpitudo, and the levis nota, could be effaced, in certain cases, either by the senate, by the prince, by the ma- gistrate, or sometimes by time, according to circumstances.® 1 Gaius, 2, § 154. 4 “Si scripti heredes. infamia, vel 2 Cod. 12, 1, 2, const. Constant. turpitudinis, vel levis note macula Dig. 22, 5, 3, pr. f. Callistr.; 37, 15, 2, adspergantur.” Cod. 3, 28, 27, const. f, Julian. ; 50, 2, 12, f.Callistr. Inst. Constant. 2,18, De inoff. testam., § 1. > Dig. 3, 1, 1, §§ 9 and 10, f£. Ulp. > Ulp., Reg., tit. 13, and tit. 16,§ 2. See, however, Cod. 9, 48, 3, const. Dig. 28, 2, 44, pr. and § 5, f. Paul; 40, Valent., Valens and Gratian; Cod. 9, 11, 5f£. Modestin. Cod. 3,28, 27,const. 51, 7, const. Philipp. Constant. GENERALIZATION OF ROMAN LAW. 595 Section XXIV.—Ranx—Dieniry. 77. The history and the legislation of Rome, where society was essentially aristocratic, at least in its origin and in its earlier phases, everywhere exhibit the consequences of the dis- tinction which existed between different castes and ranks, as well as the characteristic distinctions which accompanied official position ; and we find these effects, not only in political, but even in private relations, a system which differs in many respects from our own. It will be as well to trace the historical develop- ments of this peculiarity. Section XXV.—THE PROFESSION. 78. The profession also, in many cases, had its influence even on the jus privatum. Certain professions enjoyed certain privi- leges: such, for instance, as those which the Romans called liberal professions (liberalia studia), for it is from the Romans that we derive this expression.! Others, on the contrary, involved loss or injury to the ezis- timatio, and consequent disabilities: such were the callings which were attended with infamia or turpitudo. Among those who were the most favoured in consideration of their profes- sion were the military (milites), in opposition to those who were not so ( pagan). —~— Secrion XX VI.—REtiGIon. 79. Differences in civil rights, as the effect of religious belief, began with Christianity. While it was proscribed and perse- cuted, the disabilities were directed against the Christians ; when it became the religion of the empire, they were directed against their opponents. Then came distinctions even in the application of the jus privatum: the faithful or orthodox Christians, or catholics (orthodoxi, catholici), were so called if they acknowledged the dogmas of the cecumenical councils ; i Dig. 50, 13, De extr. cogn., 1, pr. £. Ulp. QQ2 596 GENERALIZATION OF ROMAN LAW. and on the other side were the heretics (heretici), amongst whom were ranked in distinct orders the apostates (apostate) and the Jews (Judai). To each of these classes there were cor- responding legal distinctions attached: the orthodox Christians alone enjoyed the full privileges of their favoured position; the worst condition was that of the Jews, who only had commer- cium with Christians, and were excluded from the connubium ; they were unable to bear witness against them or to fill any magistracy. The Codes of Theodosius and of Justinian contain several articles on these religious classifications and their results.’ It is too much the practice in our schools of jurisprudence to over- look these points of Roman law, which are most important to the efficient study of the history of these times. ——— Section XXVII.—Txe Domicttze (Domicilium: where one is Incola); tHE Loca City (where one is Civis, Municeps). 80. The domicile (domicilium) is simply, in a legal sense, the residence of every person *—the locality where he is supposed 1 Code of Theodosius, all the 16th book, articles 1 to 11; especially 1, De fide catholica; 5, De hereticis; 7, De apostatis; 8, De jud@is celicolis et Samaritanis; 10, De paganis sacri- Jiciis et templis. Code of Justinian, lib. i, the two first books, especially 1, De summa Trinitate et fide catho- lica; 5, De hereticis et manicheis et Samaritanis; 7, De apostatis; 9, De jud@is et calicolis; 10, Ne christi- anum mancipium hereticus, vel ju- deus, vel paganus habeat, etc.; 11, De paganis sacrificiis et templis. 2 I certainly do not admit the defini- tion, that the domicile is the place where a person has his principal esta- blishment; the domicile is not the place, it is at the place, as our civil code plainly says—art. 102. But I do not admit any more the definition, pretty generally substituted, of domi- cile as the legal relation which exists between a person and the place where that person exercises his rights. In order to test this definition, suppose we say, “to leave a summons at the domi- cile,” é.¢@., “to leave a summons at the legal relation of etc., to appear before the tribunal or the municipality of his domicile ;” or suppose, instead of say- ing, “ having left his domicile,” we sub- stitute, “having left the legal rela- tion, ete.”’ The truth is, that this definition, being too absolute, defines nothing. All right consists in a relation, either from person to person, or—if we like to say so—from person to thing. Pos- session, property, are certain relations between a person anda thing; the place of residence, the domicile, are also spe- cial relations between a person and a place; relation of fact in the one case, of right in the other. It is therefore not defining these facts, or these rights, to say they are relations. What is there peculiar in the one which consti- tutes the domicile ? In the same manner that law, as we shall see, creates persons and things which do not materially exist, so it GENERALIZATION OF ROMAN LAW. 597 to be, in the eye of the law, for certain applications of the law, whether he is corporeally to be found there or not. It is to Roman legislation that we are indebted for the following de- scription of the conditions which constitute the domicile :— “Ubi quis larem rerumque et fortunarum suarum summam constituit; unde non discessurus, si nihil avocet; unde cum profectus est peregrinari videtur; quod si rediit, peregrinari jam destitit.1 The domicile gives to persons, not the qualifica- tion of civis, but that of incola, in the town where they are established.? It is closely connected with the obligation to undertake public duties, magistracies, &c.3 81. In Roman law the question of domicile was immediately connected with that of local citizenship. The question to be determined was the civis, municeps, whether resulting from creates facts which it considers as ex- isting, whether they do or not. Domi- cile is one of these facts. Law, from certain premises, supposes, for the ex- ercise or for the application of certain rights, that a person is in a certain place. Whether he is or not, matters little, for the exercise or for the appli- cation of the law in question; he is always supposed to be there, and pro- ceedings may take place in accordance with that supposition. This legal sup- position may be applied to the same person in different places, according to whether this or that law is in question; for example, civil or political rights in general, or a certain particular civil right, such as those which refer to the celebration of marriage, to the execu- tion of a certain contract, to the prose- cution of an obligation, of a certain real right, or to the defence against such prosecutions; or when it is a question of certain special political rights, like that of parliamentary elec- tion or eligibility, or of municipal elec- tion or eligibility. So that the same person is always supposed to be in one place for the exercise of a certain right, and in a certain other place for the exercising of some other right. As to the premises on which the law founds this supposition, they are liable to vary, not only in different systems of legisla- tion, but also in the same legislation, ac- cording to the different rights to which it is applied. These premises may be, for instance, either the origin of birth, or the principal establishment, or a cer- tain length of residence, or the con- vention of the parties, or the payment of taxes, or even simple declarations made beforehand. To sum up, it is seen that domicile is in law, what residence is in fact. The domicile in its simple and essential meaning is “the legal seat, the judi- cial seat of a person for the exercise or for the application of certain rights ;” or it may be expressed thus, “ the seat, the dwelling which a person is always supposed to have in the eye of the law for the exercise and application of cer- tain rights.” The derivation of the word domiciliwm is sufficient to show the force of this explanation, as exact as it is simple. 1 Cod. 10, 39, De incol., 7, const. . Dioclet. et Maxim. 2“ Cives quidem origo, manumissio, allectio vel adoptio; incolas vero (sicut et divus Hadrianus edicto suo manifestissime declaravit) domicilium Ffacit.” Ibid. 3 Dig. 50, 1, 29, f. Gai.; Cod. 10, 39, 5 and 6, const. Dioclet. et Maxim. 598 GENERALIZATION OF ROMAN LAW. origin, adoption, manumission or otherwise. This second ques- tion was of the greatest importance, and was treated in much detail at the time when all the towns of the empire had not all the same legal condition, and where rights of citizenship and pri- vileges were enjoyed in different degrees in different towns; for there was then more advantage in being a member of one city than of another. But after the constitution of Caracalla, which made all the subjects of the Roman empire citizens, no matter where the domicile, Rome was the common country. “Roma communis nostra patria est,” as Modestinus said.+ 82. But why should the question be asked, whether a man belonged, as citizen, to one town or another? It was, in the first place, on account of the public offices, and the municipal duties to which a man was always liable to be called in his own city, independently of those duties required of him at the place of his domicile—municipal duties which recall to mind the miserable condition into which the curiales and the decurions, the principal inhabitants of the city, had fallen during the last period of the empire. It was, in the second place, because the constitution of Caracalla, granting equality of rights to all the inhabitants, did not grant it to all territories. We have seen that it was only under Justinian that the difference as to the soil was obliterated. In fact, it was necessary to ascertain the domicile in order to determine who was liable to the burdens and obligations of each separate municipality, to undertake the functions of magistrates; and, in many cases, it was the domicile and not the residence of the defendant which determined the place of litigation. 83. There are, therefore, these three points to be distin- guished: 1st, Rome, the common country; 2nd, the local city, where a man was civis, municeps; and 3rd, the place where he had fixed his domicile, the legal habitation, where he was incola. ' Dig. 50, 1, Ad munic., 33, £. Modest. GENERALIZATION OF ROMAN LAW. 599 The Digest and the Code of Justinian each contain a special article on these points.! It is important to distinguish between domicile and residence —there might be domicile without residence, or residence with- out domicile. Residence is preserved by the act, domicile by the intention.? ‘Secondly, as regards physical conditions. —~—- Section XXVIII.—Tue Sex. 84. The distinction of sex was attended with many impor- tant consequences in Roman law: as to the jus publicum, from the rights of which women in ancient as in modern times were entirely excluded ; as to the jus privatum, within the scope of which their condition became ameliorated by the development of social civilization. Women, in the primitive law of the Romans, were under the power of their father, or under the hand of their husband; they were the property of another, and when circumstances had made them sui juris, matres familias, they were placed under a perpetual guardianship, the supervi- sion of their agnates, never having any power over their children. The woman was, in short, as is elegantly and concisely expressed by Ulpian, “ The beginning and the end of her family.” Mulier autem familie sue et caput et finis est.3 The subterfuges and the fictions which the law placed at the disposal of the Roman ladies to shield them from the severity of civil law must be studied. The perpetual guardianship to which they were subjected began to give way under the republic: * Our ancestors,” says Cicero, “ wished all women to be in the power of the tutors; the jurists invented a kind of tutors who were in the power of the women,”* this tutelage finally fell into disuse. ' Dig. 50, 1, Ad municipalem et de incolis. Cod. 10, 39, De incolis, et ubi quis domicilium habere videtur, et de his qui studiorum causa in aliena ciwwitate degunt. 2 See Dig. 4, 6, La quibus causis majores in integrum restituantur ; 50, 16, 173, f. Ulp.: “ Qui extra con- tinentia urbis est, abest.’”? Ibid. 199, f. Ulp.: “ Absentem accipere debemus eum, qui non est eo loco, in quo loco petitur ;” 50, 17, 124, f. Paul. Cod. 7, 33, 12, const. Justin. 3 Dig. 50, 16, De verb. signif., 195, § 5, £. Ulp. 4 Cicero, Pro Murena, 12, 27. 600 GENERALIZATION OF ROMAN LAW. Under the legislation of Justinian the character of the ancient system was lost; but there nevertheless existed several legal distinctions between men and women: the age of puberty for women was earlier than for men, and the law was in some cases more and in others less favourable to them. 85. The jurists discuss, under this head, the hermaphrodites (hermaphroditus), that is to say, those whose sex was doubtful, but who were formerly considered as uniting in themselves both sexes. They decided that such persons were to be regarded as belonging to the sex which predominated in them.! SecTIon XXIX.—AGE. 86. Roman law, following the analogy of nature, arranged age, capacity and protection on a graduated scale. But in the early stage of its history, when the rudeness of primitive society and materialism were predominant, it confined its distinctions to two phenomena of physical nature, the faculty of speech and the power of generation. The former, because the acts of the Quiritarian law were accomplished by means of established for- mulas and symbolic terms which the parties had themselves to pronounce, and therefore anyone who was unable to speak was. materially incapable of such acts, and no one could perform them for him. The latter, because it is the essential and sole physical condition of marriage. The tendency of jurisprudence, of the pretorian system, and, finally, of imperial law, was to substitute for, or at least place on equal footing with, these entirely material considerations, a distinction more intellectual, derived not from corporeal but from moral development. The different periods were thus categorized. 87. First, infancy, an indeterminate period, but very short, the limit of which was defined by a material fact—speech. This period hardly comprehended more than the first two years, ' Dig. 1, 5, 10, £ Ulp.; 22, 5, 15, § 1, £. Paul. GENERALIZATION OF ROMAN LAW. 601 during which a child was infans, gui fari non potest,! because the infans could not utter the sacramental words, the esta- blished formulas required by civil law; and no other citizen could utter them in his stead. At a later period of legal his- tory a more intellectual distinction was adopted, the child being considered by law as having no intelligence (nudlum intel- lectum. 88. The second period was the age above that of childhood ; from the moment when the faculty of speech accrued up to the age of puberty. In this period there is power to give expres- sion to the judicial formulas. Still there did not exist the per- sona necessary for the accomplishment of the acts of civil law, viz. adult status, that is, citizenship and puberty. To supple- ment himself, he being sui juris, but not having puberty, it was necessary that another having both qualities, his tutor, should be added to him; this addition completed his persona (aucto- ritatem prestare; auctor fieri: words which have received different significations and various applications, but whose com- mon root is augere, to augment). The infant then could utter the necessary words and the tutor be the auctor, and so between them they were able to accomplish the act required by civil law. The later and more philosophical system substituted for this material distinction was founded-more on the principle of moral development and divided the period into two parts; 1st, the age nearer infancy than puberty, when the man was infanti prozimus ; and, 2nd, in an inverse sense, the age when he was nearer puberty than infancy, or pubertati proximus. The exact age or turning-point was thus left undetermined, but the tendency of jurists was to fix it at seven years. This system proceeding on the basis of intellectual analysis assimilated the infanti proximus to the infans; while it regarded the puber- tati proximus, or the child who had reached the age of about seven years, as having by that time acquired a certain degree of intelligence (aliqguem intellectum habet), but not judgment 1 Dig. 26, 7, De adm. tut., 1, § 2, f. Ulp. 602 GENERALIZATION OF ROMAN LAW. (animi judicium). On account of this deficiency the law attached certain incapacities to this age, less important however than that of uttering the necessary formulas. Under the Lower Empire, a constitution of Theodosius re- specting the acceptance of maternal inheritances appears to assimilate the minor of seven years to the infans, without reference to the time at which he acquires the power of speech (sive maturius, sive tardius, filius fandi sumat auspicia).' And it was in consequence of this constitution that the inter- preter of Roman law applied the term infans, not to one who does not yet speak, but to the minor of seven years of age. 89. Thirdly, puberty: the period the beginning of which is equally indefinite as regards the physical development of the individual, and yet depends upon a physical fact, the generating faculty. The jurists, from motives of decency, decided to fix the first period for women at a precise age, that of twelve years. Their tendency was also to fix it for men at fourteen years, the term which Justinian adopts and establishes by a legisla- tive act. Man is called impubes before this period, and pubes as soon as he has reached it. Puberty carried with it both the capacity of forming juste nuptie and, in the case of males, the termination of the guardianship, because the citizen of the age of puberty possessed the persona requisite to empower him to perform the acts demanded by .civil law; he enjoyed, according to the theory of jurisprudence, intelligence and judgment. 90. Fourthly, majority—fixed at the age of twenty-five years; this limit was laid down by a law of the sixth century of Rome, the lex PLmTor14, but it derived its authority especially from the preetorian law, as resting on the basis of full moral development. Under that age, the pretor granted to the youth of the age of puberty a special protection, with pretorian remedies, in order to protect him against the prejudicial conse- quences of the capacity attributed to him by the civil law at puberty ; but when the age of five and twenty years had been 1 Cod. Theodos. 8, 18, De maternis bonis . . . et cretione sudlata, 8, const. Arcad., Honor. et Theodos. GENERALIZATION OF ROMAN LAW. 603 attained, the man was regarded in the eye of pratorian law as having acquired full maturity of judgment, and could no longer be protected against the consequences of his own acts by the intervention of the praetor, at least under ordinary circum- stances. 91. Finally, old age (senectus), to which Roman law had fixed no general or precise term, but which, as far as regards exemption from public duties, began at the age of seventy,! on the principle recognized by the jurists, “ semper in civitate nostra senectus venerabilis fuit.”* ° 92. The expressions major and minor had not in Roman law the same signification as with us; they were frequently used as comparative merely, and in such case required the complement— minor by so many years, major by so many years. However, sometimes, though rarely when standing alone, they expressed the fact of the person being more or less than twenty-five years of age. Section XXX.—Puysicat og Menta DEFEctTs. 93. There were many cases in which the law was affected by physical defects, which might give rise to legal incapacity and exemptions; as, for instance, in the case of the spadones and castrati, of the deaf (surdi), the mute (mut), or deaf and dumb (surdi et muti), as well as of those who were afflicted with some perpetual disease (qui perpetuo morbo laborant). 94. And so also in the case of mental afflictions. The Roman law seems to have made distinctions, though not very clearly marked, between persons thus affected: thus, the dangerous ( furiosi) were those who had lost their intellectual faculties; the demented (mente capti), those in whom they were wanting; also the imbecile (dementes), and the prodigal ( prodigus). The 1 Dig. 27, 1, 2, pr. f. Modest.; 50,6, Maxim. 8, f. Ulp. Cod. 5, 68, 1, const. Sever. ? Dig. 50, 6, De jure imm., 5, pr. f. et Anton.; 10, 31, 10, const. Dioclet.et Callistr. 604 GENERALIZATION OF ROMAN LAW. system of curatorship was connected with these cases of mental defect. CuHapTer IV. OF THE CAPACITY OF PERSONS. Section XXXI. 95. From what has gone before we may see how the legal capacity of persons to enjoy and exercise rights depended on a great number of conditions, and how it varied in its degrees. This idea of the legal capacity of individuals has been taken by M. Blondeau as a basis for a particular classification of persons, and also by M. Savigny for an exposition of the law concerning persons; but such a basis was too abstract an idea for the Romans. Section XXXII.—TureLra—Cora. 96. In cases where the law recognized or established an incapacity for the exercise of rights, it was necessary that it should provide some legal protection. This was clear, on the ground of humanity; but the Roman civil law was not grounded on the basis of humanity. Property and ownership were centred in the family, and it was necessary to guard against the loss of it. It was to the members of it that the duty was entrusted, as much for the defence of their rights as for the protection of the incapable ones. At a later period, however, when law passed into the condition of a philosophical system, the idea of a protective power became predominant. Thus the theories of tutela and cura were closely connected with the question of sex and age, and the absence or failure, or mutation of intellectual faculties, only of course as regards per- sons sui juris; for those who were alieni juris, being in the power of another and regarded as property belonging to the head of the family, required no other protector. GENERALIZATION OF ROMAN LAW. 605 97. The ¢utela and the cura had distinct characteristics. The ¢utela was made use of in cases of incapacity to complete the persona required by civil law for the accomplishment of legal acts. Such incapacity arose from the party not having arrived at the age of puberty, and in early times attached to all females. The cura, on the contrary, was made use of in cases of accidental incapacity which might affect one person and not another, and which might affect a person in a particular in- stance, who was, although in other respects fully qualified under the civil law to transact other acts,in want of some one to look after his interests. There was thus a radical distinction between the functions of the tutor charged with completing the incomplete persona (auctor fiert), and those of the curator charged with looking after business matters (ewrare). Thence also this rule: The tutor was given to the person, the curator to the goods. 98. The functions of the tutor differed according to the age of the ward, varying according as the latter was too young to exercise the faculty of speech, or was of an age when it was pos- sible for him to utter the solemn words of the judicial formulas. CHAPTER V. LEGAL PERSONNE. Section XX XIII.—Porutus—Cur12—Maaistratui—H#Rre- DITAS—PECULIUM—UNIVERSITAS. 99. The people (populus), the republic (respublica), the emperor, not in an individual but in a public character,’ were abstract persons which only existed by the creation of the law, but which might, as much as an individual, be the active or passive subject of the law. So also were the magistrates,’ the municipia, the curie of the different towns, the @rarium or ' Dig. 4, 2,9, § 1, £ Ulp. 9 Dig. 33, 1, 20, § 1, £ Scevol. 606 GENERALIZATION OF ROMAN LAW. exchequer of the people, to which was afterwards added that of the prince, the fiseus, which ended by absorbing the erarium ; the hereditas jacens, that is,the vacant inheritance before it had been entered on by the heir, and which, among the Romans up to the time when it was realized, sustained the persona of the deceased (personam defuncti sustinet);: the peculium, which, according to the expression of Papirius Fronto, resembled a man ;* the temples and the different colleges of pagan pontiffs ; the churches and various orders of the Christian clergy which supplanted them ; the convents, the hospitals, and the religious endowments ;? in a word, all the communities, universities, colleges, corporations (universitas, corpus, collegium), formed so many abstract persone, whose existence was purely legal, but who, like physical persons, might be the active or passive sub- jects of rights. 100. The foundation of universities, colleges and corpora- tions in Roman law was strictly confined to the jus publicum ; no such body could be formed or dissolved at the mere will of the parties constituting it. No corporation could of its own free will establish itself and acquire a persona in the state. Every corporation had to be specially authorized by a lex, by a senatis-consultum, or by an imperial constitution. They re- quired besides the conjoint action of three persons at least for their institution,* but not for their continuation.s The members were called. sodales. 101. The legal status of -the jfiseus was a subject to which the jurists devoted much.attention.® 1 Dig. 41,1, 34, £. Ulp. 2 « Pecnlinm nascitur, crescit, decre- scit, moritur; et ideo, eleganter et Papirius Fronto dicebat, peculiwm si- mile esse homini.” Dig. 15, 1, 40, pr. f. Marcian. 3 Cod. 1,2, De sacrosanctis ecclesiis, 22, const. Justinian; 1, 3, De episcop. et cleric., 28, const. Leon. 4 Dig. 3, 4, Quod cujuscumgue uni- versitatis nomine vel contra eam aga- tur, 1, pr. f. Gai.; 47, 22, De collegiis et corporibus. 5 Dig. 50, 16, 85, f£. Marcell.; 3, 4, Quod cuj. univ., 7, § 2, £. Ulp. § Paul., Rec. Sent., lib. v. tit. 12; Fragmentum vet. juriscons., De jure Jisct; Cod. Theod. 10,1; Dig. 49, 14; Cod. Just. 10, 1. — a GENERALIZATION OF ROMAN LAW. 607 Cuartrer VI. Tue ExrincTIon oF PERSONm. SEcTION XXXIV. 102. The persona of an individual became extinct either by death or by a deminutio capitis involving the loss of liberty; for in Roman law no slave had a persona, at least in early Roman law and in respect of the proprietary right enjoyed by the master as to his slave. It was always important to fix the precise moment when this event took place. The law had to determine on this point on whom should fall the duty of proof, and, in cases of doubt, what were the presumptions to be adopted.1 108. But here we must draw attention to a very remarkable legal phenomenon. Although the individual might die, the persona which was in him did not necessarily become extinct. As a creation of civil law it could not become extinct by a material death. As the soul which leaves the body goes, as some philosophers say, to animate other beings, so (but more certainly in the case of Roman legislation) did the legal persona free itself with the last breath of the dying to go and perpetuate its existence in other individuals. 104. The destiny of persone of purelegal conception, created by law, was somewhat similar. The existence of universities and of corporations is always in the power of the law, which can pronounce their dissolution. They also.end with the aim for which they have been formed, or with the extinction of the mem- bers of which they were composed. 1 See especially, on this last subject, Dig. 34, 5, 9, f. Tryphon, 608 GENERALIZATION OF ROMAN LAW. ARTICLE SECOND. —— II. OF THINGS. CuaptTer I. Or FUNDAMENTAL PRINCIPLES. Section XXX V.—GeneERaL Ivea or THINGS. 105. The word “thing” (res) even in law is a flexible word, which lends itself, with marvellous facility, to the wants and whims of language. The question for us is its real legal sense. In the same manner as the word persona designates in law every being considered as capable of becoming the active or passive subject of right, so the word res designates everything which is considered susceptible of forming the object of rights; and in this category is included everything which man, the universal dominator, has been able to regard as subject, or at least destined, to minister to his wants and his pleasures ; for, in reality, the‘end which a man proposes to effect by the exercise of rights is the satisfaction of his wants and the enjoyment of reasonable pleasures, either in his moral or physical percep- tions.! 106. We say everything,—for physical and material objects are not alone comprised in it. In fact,just as there are persons of purely legal creation, so are there things which do not exist in nature, and which law alone has created. Law, by its power of abstraction, creates things as well as persons. Finally, if law sometimes raises purely material objects to the rank of persons, it sometimes inversely lowers man to the rank of things; such, for instance, are slaves, when they are con- 1 This does not mean to imply that we ought to adopt as a maxim the false proposition, that the aim of our life is happiness. Happiness is not an aim, it is a consequence. A man’s aim is to fulfil the mission which has been given him here below, in the economy of creation, where every thing and every being has been accorded its own aim. We are part of a great whole, and our destiny is involved in the destiny of the whole. GENERALIZATION OF ROMAN LAW. 609 sidered as subjected or as devoted to the purpose of satisfying the wants of other men, incapable of being, in the relation of slave to master, the subject, but the object, of rights. If what we have just said about things is compared with what we have already said about persons, it will be seen at once that the two cases are parallel. 107. Roman jurists indeed have not laid down the definition of things in the same wide and philosophical terms that we have adopted, which include everything which can be the object of a right, not only corporeal things, but also acts, the status of persons in different conditions, and in general all rights. Their ideas were at first directed to regarding things (res) as cor- poreal objects, which, being of some use or other to man, could form in relation to him the object of a right; but they after- wards extended the use of the word so as to make it include abstract ideas—objects of purely legal conception. —— CHarPrer II. CLASSIFICATION OF THINGS. SEcTION XX XVI.—RELATIONS UNDER WHICH MAY BE RANGED THE Principat Divisions oF THINGS. 108. Things were classified in various ways. A special chapter is devoted to this subject, both in the Digest and in the Institutes... These various divisions do not, however, embrace all things. Without altering the Roman system, we will endea- vour to complete it. The notion upon which each classification is based must be clearly realized in order to avoid confusion. Origin — religion — civitas—proprietas—physical or legal nature—composition and combination must all be considered. 1 .Gai., Inst., 1, §§ 1 to 17; Dig. 1, 8, De divisione rerum et qualitate; Inst. 2,1, De rerwm divisione. 610 GENERALIZATION OF ROMAN LAW. § I. IN RELATION TO THEIR CREATION. Section XXX VIL—Tuines CorporeaL AND INCORPOREAL. 109. Things are either of natural creation or of legal creation. The division made by Roman law on this basis is that of res corporales or res incorporales. The first are those which really exist; they are physical objects which influence our physical senses, at least so far as the power of our organs, aided by art, can reach (que tangi possunt).) Amongst corporeal things ranks the man-slave, considered in the relation of the power of the master over him, though he is only a chattel by the creation of the law. The second are only abstractions, which do not affect our senses (que tangi non possunt), and are only conceived by the mind. Such are those which consist ina right (que in jure con- sistunt). Such are the rights of inheritance, of servitude, of usufruct, of obligation.? They are ranked as things, inasmuch as they are capable of being acquired and disposed of by per- sons, and are recognized as legal objects, attached to which are rights. If, however, we were to comprehend in this general theory every incorporeal entity, all rights would be included, for all rights are incorporeal ; but this would be to confound incorporeal things with rights. 110. The distinction of corporeal and incorporeal things is not that with which Roman jurists commenced their classifi- cation, but, according to all rules of logic, the creation of things ought to come first. —~— §IL IN RELATION TO RELIGION. Section XXX VIII.—Res Divini Juris anp Res Humanti JourRIs. 111. First, religion. To feel the importance of what Gaius calls the summa ' Gai. 2, 12 to 14; Dig. 1, 8, De ? Ibid. div. rer., 1, § 1, £. Gai. GENERALIZATION OF ROMAN LAW. 611 rerum divisio, into things of divine and of human right, we must realize the close union that existed between religion and the civil law among the Romans, as well as the sacerdotal character of their primitive law in its public as well as in its private institutions. 112. Among res divini juris are ranked :— 1, The sacred things (res sacre), that is to say, things con- secrated with religious rites, and under legal authority, to the superior gods. 2. The religious things (res religiose), abandoned to the in- ferior gods, to the manes ; such as the tombs or the earth in which a dead body is buried. 3. Holy things (res sancte), which were only of divine right by assimilation (qguodammodo divini juris sunt), the essential characteristic of which was, that they were protected against insult by a public and penal sanction :1 such were the walls or the gates of the city. The sepulchre of the enemy was not religiosum,? that of the slave was.? A res divini juris, which had fallen into the hand of the enemy, was desecrated ; its sacred character departed, and could only be restored by reconquest.* We must mention, in this place, the sacra familie, sacra gentis, things sacred to each family and gens, with the obliga- tion to perform sacrifices, and private or domestic worship, which formed the religious bond uniting the family, and which were transmitted from generation to generation. On this sub- ject we have little written evidence. Finally, we must trace the changes which resulted from the decline of Paganism, its fall, and the establishment of Chris- tianity in its place. 1 From the verb sancire, sanctum, * Dig. 11, De relig., 7, 2, pr. f. Ulp. to sanction, to guarantee. 4 Dig. 11, 7, 36, f. Pompon. 2 Dig. 47, 12, De sep. viol., 4, f. Paul. 612 GENERALIZATION OF ROMAN LAW. § III. ZN RELATION TO THE STATE. Section XXXIX.—Rieurts or Citizensoip—Tue IpEA OF THE CoMMERCIUM APPLICABLE TO THINGS AS WELL AS TO PERSONS. 118. The exclusive privilege of Roman citizenship which was so jealously guarded was not limited to persons: it was shared by things. As there were persons who were foreigners, so there were foreign things. There was a capacity for civil rights in things as in persons; a capacity in the former case for being objects of the civil law, as in the latter for being its subject. 114. The element of the jus civitatis, which was commu- nicated to things as well as to persons, in relation to the jus privatum and not the jus publicum, was the commercium in its most comprehensive sense, because to carry on commerce there must be both persons and things. As regards persons, there was a civil capacity to effect transactions, acquisitions, alienations under Roman civil law; as regards things, there was the civil capacity of being the object of these transactions. Section XL.—Roman Som (Ager Romanus); Itattan Sort, or THAT WHICH ENJOYED Roman Pariviteces (Italicum Solum); AND PROVINCIAL OR Forzien Sort (Solum Provinciale). 115. The distinction between the different kinds of soil and the peculiar privileges attached to each, though apparent throughout the whole of Roman history and legislation, is com- monly greatly neglected by the modern student of Roman in- stitutions. This distinction must, however, be realized, and a sharp line drawn between soil to which all civil rights were attached in which the Roman proprietas could exist, and which must be dealt with according to all the formalities of the ancient law, and that soil which was beyond the influence of Quiritarian ' “Sintne ista pradia censni cen- habeant jus civile, sint necne sint senda (says Cicero, Pro Flacco, § 32), mancipi?” GENERALIZATION OF ROMAN LAW. 613 dominium, if we would avoid obscurity concerning many insti- tutions of which we constantly encounter the vestiges. 116. The same train of ideas as to the jus civitatis must be applied equally to persons and to things, care being taken to distinguish between rights which were personal and those which were territorial. In the first place there was the ager Romanus,‘ the field, the soil, the Roman territory, the only soil amenable to the operation of the jus civile, as the children of Rome alone were citizens of the empire. In spite of Roman conquests, and the constant extension of the empire, the ager Romanus remained the same as in the early days of Rome. And although the old dis- tinction has long passed away, yet tradition, which survives the superposition of races, the progress of civilization, and the change of time, still points to what is called, in the language of the day, the agro Romano. Only just as the inhabitants of other towns were accorded, as an act of favour, the privileges of Roman citizenship, so the privileges of the ager Romanus were conceded to other lands. Thus gradually, sometimes as the result of free gift, at others of the force of arms, the rights and privileges attaching to the commercium and the ager Romanus were conceded, either in whole or in part, to the colonies, to Latium, to the whole of Italy, and even to municipia erected beyond its limits. 117. The most comprehensive, and that which ultimately be- came the general term to describe soil enjoying civil rights, was Ttalicum solum, assimilated, so far as regards the application of the jus civile, to the ager Romanus. Whence the jus Italicum, principally a territorial privilege, both in relation to the jus publicum and jus privatum. When they wanted to extend this privilege beyond the limits of Italy, and to grant a similar favour to territories or to towns beyond it, they assimilated their soil to the solum JItalicum; they granted them in fact, more or less completely, the jus Italicum. 1 Varro, De lingua latina, 5, 33 2 Ulp., Reg., 19, § 1; Inst. 2, 6, pr.; and 35. 2, 8, pr. 614 GENERALIZATION OF ROMAN LAW. 118. The solum provinciale held an inferior place both in relation to the jus publicum and to the jus privatum, as it was soil in whose favour no exceptional concession had been made, and which was totally without the pale of Roman civil law. Law, in its progress towards a more general and philosophical but less Quiritarian system, invented indirect methods of obviating the results of these distinctions, instead of en- deavouring to efface them. 119. The constitution of Caracalla, which gave to all sub- jects of the empire the title of citizen, did not confer on all territories the enjoyment of the jus civile. While it elevated persons, it did not elevate the soil to the same civic privileges. Justinian was the first to abolish all such distinctions between the soil of Italy and that of the provinces.® 120. This distinction of things is a distinction entirely territorial; it applies to immovables only and not to movables. The civil rights attached to movables follow them from place to place, and are not confined to locality. Section XLI.—Res Mancir1 anp Res nec MANCIPI. 121. The distinction of things into mancipi and nee mancipi is an ancient distinction, which, in our opinion, already existed at the time of the Twelve Tables.* 1 Gai. 2, §§ 7, 27, 31, 46, ete. 2 Cod. 7, 25, De nudo jure Quiritum tollendo, const. Justinian; 7, 31, De usucapione transformanda, et de sub- lata differentia rerwm mancipi et nec mancipt. 3 In addition to other grounds, this opinion appears supported by a frag- ment of Gaius, and it is inconceivable how it could have been neglected in this controversy: “ Mulieris, que in agnatorum tutela erat, RES MANCIPI usucapi non poterant, preterquam si ab ipsa, tutore (auctore), tradite es- sent: ID ITA LEGE XII TABULARUM CAUTUM.” (Gai. 2,§ 47.) We must remember that Gaius is, of all jurists, the one who deserves most credence when he treats of the law of the Twelve Tables and of its provisions, for he published a commentary upon it, of which some fragments have remained to us in the Digest. See also Gai. 1, § 192; 2, § 80; Ulp., Reg., 11, § 273 Inst. de Just. 2, § 41; Vat. J. R. Frag. § 259; and §§ 293, 311, 313, for the existence of the things mancipi at the time of the lex Cincia, B.c. 204, GENERALIZATION OF ROMAN LAW. 615 This distinction is unquestionably one of the civil law. Not indeed in the sense that everything enjoying the rights of Roman civil law was res mancipi, and that this expression was synony- mous with jus civile. Such a notion we wholly reject. But in the sense that a thing to be res mancipi must necessarily have the jus civile, and consequently that all things not possessing the jus civile were necessarily res nee mancipi. But besides this, among the very things which came within the sphere of Roman civil law, some were mancipi, the others nec mancipt. The res mancipi were consequently one branch of the res enjoying the jus civile. The proprietas among the Romans, as regards them, had a character not different, but somewhat more indelible: it was acquired and lost with more difficulty. 122. Thus, in the first place, the consent of the parties and _ tradition alone were powerless to transfer from one citizen to another the dominium of the things mancipi. To accomplish this it was necessary to have recourse to a judicial and sacra- mental act, the mancipation (mancipium, afterwards mancipatio) with a symbol, established formulas, and the public assistance of a great number of citizens. Things nec mancipi, on the contrary, were not susceptible of these judicial acts; simple tradition sufficed to transfer the dominium over them.1 128. In the second place, the alienation of things mancipi was not allowed in all cases where it was allowed in the case of things nec mancipi. Thus the law itself of the XII Tables forbids a woman, placed under the guardianship of her agnates, to alienate anything mancipi without the authority of her tutor; certain things could only go out of the family by the consent of the agnates, while the alienation of things nec mancipi was allowed to the woman.’ : This rule was so important that, even at the epoch when the guardianship of women was no longer anything but a fiction, — when the authority of the tutor only intervened as a matter of 1 Ulp., Reg., 19, §§ 3 and 7. 2 Gai. 2, § 80; Ulp., Aeg., 11, § 27. 616 GENERALIZATION OF ROMAN LAW. form,—when, if he refused it, the praetor was in the habit of forcing him to give it,—it was not even then possible to force certain tutors to authorize against their will the three most important’ and solemn acts of woman: her will or testament, her incurring obligations, and the alienation of things mancipi.' And if, in the face of these prohibitions, the thing mancipi had been alienated by the woman, the possessor was unable to acquire it by usucapio, unless the tradition had been made with the authority of the guardian; it is the law of the XII Tables itself which thus speaks, id ita lege XII Tabularum cautum, as Gaius says.* 124. Moreover, with the exception of the act of mancipatio, all the other means which civil law recognized for the acquisi- tion of the Roman dominium were common both to things mancipi and to things nec mancipi2 The res nec mancipi participated, therefore, in the jus civile, and were capable of Roman proprietary right; provided, of course, they were not stamped with the character of peregrinitas. The only one of these acts regarding which there is a distinc- tion between these two classes of things is mancipatio. And this is the reason, therefore, why some are called res mancipi or mancipit, things of mancipation; and the others res nec man- cipi or nec mancipii, things not susceptible of mancipation.* 125. The jurists gave the precise enumeration of the things 1 Gai. 1,§ 192. “The most valuable aliwm transferuntur; unde. . . man- of all” (alienatis pretiosioribus rebus), adds the jurist. . 2 Gai. 2, § 47. * For instance, usucapio, which cer- tainly was a means of acquiring the dominium; also the in jure cessio, the formula of which exactly expresses the idea, “ Hunc ego hominem ex jure Quiritium meum esse aio,” also the adjudication, the legacy, and the in- heritance. See Ulp., Reg., 19, §§ 8, 9, 16 and 17, where this is repeated posi- tively each time. 4 Everything proves this, and Gaius asserts it directly: ‘‘ Mancipi vero res (sunt) que per mancipationem ad cipiressuntdicta.” Mancipium,from one or the other of the two etymologies given to this word, whether, as we think, “to take with the hand,” or “to put the hand on the head to signify the act of purchase,” mancipiwm is in- variably, and above all, the judicial act itself, the mancipatio. It is only by figure of speech, and consequently an addition of later times, that the same word came to be employed to signify the effect produced by that act—pro- prietas. Thus res mancipi is a thing of mancipation, not a thing of Roman dominium, GENERALIZATION OF ROMAN LAW. 617 which were mancipi, and we find it still in the fragments of Ulpian. At that epoch this classification included : 1°. Hereditaments in the solum Italicum, plots of land or houses ; 2°. Rural servitudes (but not urban), of course as to the same class of land ; 3°. Slaves and those animals gue dorso collove domantur ; that’is to say, beasts of burden and draught.! 126. Thus, as to the soil and the buildings upon it, there was no distinction; all soil participating in the jus civile was res mancipi. 'This characteristic kept even pace, in its growth and extension, with the jus civile and the commercium. At first confined to the ager Romanus or Roman soil, it was gradually extended to the soil of the colonies, to that of Latium, and to that of all Italy. Beyond that limit it did not pass except to countries to which it was granted by particular con- cession, in the shape of the jus Italicum. As to incorporeal things, they were all res nec mancipi; for a creation of the law, a legal abstraction, cannot be grasped by the hand. However, an exception was admitted in favour of rural servitudes, which were identified with the land, to the enjoyment of which they were subservient, and the origin of which is very ancient; the isolated position of Roman houses (insul@) having necessarily made urban servitudes more rare, and their origin of later date. The wish to escape from the rigour of the civil law caused also the expectant patrimony, in its entirety (familia pecuniaque), to be considered susceptible of a fictitious mancipation.? Finally, as to movables, but only those with which the ‘primitive Romans were acquainted, the character of res mancipi followed them wherever they went. The wife, the children and the freemen under the power of the chief on the one hand, the slaves or beasts of burden and draught on the other, alone bore this character. As civilization progressed, elephants and camels were brought to Rome, but bearing in their very aspect an alien character, they remained under the category of res nee mancipi. 1 Ulp., Reg., 19, § 1. Compare Gai. 2 Gai. 2, §§ 102 and 104, 2, §§ 25 et seq. 618 GENERALIZATION OF ROMAN LAW. 127. To sum up,—for a thing to be res mancipi it must be susceptible of civil rights and their corresponding obligations ; such was not the case with either foreign soil or things. It must be capable of being grasped by the hand, for it is the essential element of mancipation manu capere. And this ex- cluded all incorporeal things, except the- most ancient servi- tudes: the rural, which were identified with the land, and the patrimony (familia), which by a fiction was also treated as a res mancipt. Finally, it must have a peculiar and distinct individuality in order that the citizens who took part in the legal act, and who were taken to witness the acquisition of the Roman dominium of the thing, might be able to attest its identity. This character of individuality is only recognized to an ex- tent sufficient to admit of mancipation in two classes of objects : in the soil, and in animated beings, freemen, slaves or animals ; and even among the latter only in those tamed by man and associated with him in his labours, for they alone, in fact, have, as regards man, a real individuality capable of identification. In a state of nature their identity is less distinctly marked. 128. The soil, men, and animals broken in for purposes of human labour, were res mancipi—all of them things which had received their existence from God. None of them are created by man,! for man cannot impress individuality on the work of his hands, nor impart existence itself to the things he fabricates. This philosophical idea of the nature of things was derived from nature herself by the primitive Romans, who were not a manu- facturing people, and amongst whom, consequently, the me- chanical products of human genius and art did not come into rivalry with the works of God. Of the head of the Roman family, the soil with the house upon it,? the wife, children, the men under his power, and the ' For buildings are mancipi only because they make one body with the soil, because they are an adhesive part of it; once detached from the soil they lost this character. 2 The working instruments of the farm, which the Romans called the instrumenta of the field, as long as they were incorporated with it by a perpetual use became immovables like the soil to which they belonged. In such a condition, attached to the soil, they were res mancipi, but separated, they were ves nec mancipi, GENERALIZATION OF ROMAN LAW. 619 animals broken in for his work, were the res mancipi ; things whose individuality was merged in the chief, and which were at the same time, under ordinary circumstances, things he most valued, which could not be alienated by simple tradition, and to which was exclusively applied the symbolic act of mancipatio. In spite of the progress of civilization, the cultivation of the arts, and the acquisition of ever fresh means of wealth and luxury, the res mancipi never increased in number. Stamped with their peculiar characteristics by the old Roman law, they underwent no change. 129. But to assert that every other thing, everything nec mancipt, was without the pale of the jus civile and not suscep- tible of Roman dominium, is irreconcilable with the whole theory of the law and the social status of the Romans. This opinion is refuted on all sides.1 Res nee mancipi, pro- vided that they are Roman and not without its jurisdiction, enjoy all the privileges of the jus civile except mancipation. 130. The importance of the distinction between res mancipi and res nec mancipi varies with the period. As the old jus civile disappeared, as the characteristic features of Quiritarian dominium became effaced, as mancipatio fell into disuse, the distinction between things mancipi and nec mancipi also died out. Under Justinian it was nothing but a meaningless phrase. Disuse had abrogated it in fact; the emperor abrogated it formally. 1 See above, § 124, note 4, where are given the legal means of acquiring Roman dominium in things nec man- cipi as well as things mancipi. Vide Gai. 2, § 196, and Ulp. 24, § 7, who both agree in alluding to things nec mancipt as subject to the dominiun ex jure Quiritium. This opinion can only be supported by admitting the hypothesis that, from the origin of the distinction between things mancipi or nec mancipi, there had been two kinds of proprietas, one Roman and the other not. But Gaius has distinctly over- thrown this hypothesis, by telling us that originally there was but one do- minium,—that one was proprietor ac- cording to the Roman law, or not at all. 620 GENERALIZATION OF ROMAN LAW. § IV. IN RELATION TO THE PROPRIETOR. Section XLII.—Res omnium, Pusrica, UNIVERSITATIS, SINGU- Lorum, NULLivs. 131. First. Common things (res communes omnium), such as air, running water, the sea and its coasts, which may be used by everyone, but which are susceptible of being bought by no one, except in fragments: Second. Public things (res publice), of which the property is in the people, but of which the condition is of two sorts according, lst, As the use is common to all members of the people, like that of public thoroughfares, of rivers, of ports; or, 2ndly, As they are worked and employed by public authority for the profit of the State in general, as fields, revenues, public slaves. In this last case, these things are said to be in pecunid, in bonis, in patrimonio populi: Third. Res universitatis belonged to communities, colleges or corporations; with regard to these we must make a distinc- tion analogous to that of the preceding case : Fourth. Res singulorum, which were the property of par- ticular persons : Fifth. Res nullius, or things which belong to no one. This expression in the most restricted sense designates things which have no proprietor; either because man has not yet taken pos- session of them, as wild animals, their products, shells, sea wrack, grass, islands rising in the sea, &c.; or because man has abandoned them (res pro derelicto habite); or because his ownership has ended without that of any other having suc- ceeded to it, which is the case, in the Roman law, of inheritance so long as the heir has not yet acquired it. But this class does not stop here; it is capable of being generalized, and is considered by jurists to comprise: Ist, Things of divine right, which are outside and independent of men’s dealings; 2nd, Common things, which are nobody’s pro- perty; and 3rd, Public things and things of the commonalty, as they belong to no private individual, they are supposed, as the Roman jurists say, to belong to no one. GENERALIZATION OF ROMAN LAW. 621 Section XLIII.—Tuines 1n our Parrimony (Bona), on out oF ouR PaTRIMONY. 182. Thence arises that general division under which all the distinctions we have just mentioned can be arranged, as subdivisions : Things which belong to nobody, res nullius ; and inversely things which belong to somebody, res alicujus ; Or, what amounts to the same, things in our patrimony (cn nostro patrimonio) and things out of our patrimony (eztra nostrum patrimonium). The first expression is from the Institutes of Gaius;! the second from the Institutes of Justinian.? The things (res) considered as being in our patrimony take the special name of goods (bona, pecunia). Section XLIV.—Pusiic Lanp, Property or THE StaTE (Ager Publicus); Private Lanp, Property or Inprvipuats (Ager Privatus). 183. To this theory we must refer, in the historical study of Roman law, what concerns :— le. The ager publicus, and, inversely, the ager privatus; a distinction separating the soil or territory into two parts,—the one reserved to the people or to the republic, the other given up to ownership and to the dealings of priyate individuals. The ager publicus, that is to say, the territorial property of the state (which we must take great care not to confound with the ager Romanus or original Quiritarian soil), increased in extent in proportion to the conquests of Rome. ‘The lance was the in- strument, the type and symbol of acquisition ; the expropriation of the territory of conquered nations was the law of war; all the soil which was not conceded to them by the supreme power on better conditions became in principle ager publicus, which, in course of time, came to comprise the whole known world. ' Gai. 2, § 9; Dig. 1, 8, De divis. ? Inst. 2, 1, pr. rer., 1, pr. f. Gai. 622 GENERALIZATION OF ROMAN LAW. 2°. The distribution, the enjoyment, the management of the ager publicus, in the name of the republic, whether the con- quered territory was sold in lots by auction, or gratuitously dis- tributed by lots to the people, and, in later times, exclusively to the soldiers and veterans, led to the establishment of colonies. In either case, the transfer conferred proprietary rights and passed the land into the category of ager privatus, to which civil rights at once attached: whether it remained open and free to any citizen who might choose to occupy, clear and culti- vate it, either paying a rent or not; or whether finally the land was farmed by emphyteuticarii, or even held on sufferance; or whether it had been seized by the powerful patrician families, who were in the habit of thus possessing themselves of large tracts, which they enjoyed as inheritances, but for which they paid no species of tax. Thence came the distinction of the lands, as into agri questorii, in the first case; assignati, in the second; occupatorii, in the third; vectigales, in that where a rent was due to the public treasury; and, in general, subcistvi, in those cases where it remained in the dominium of the state after the distribution of the conquered territory. The frequent disputes which occurred about the division, the manage- ment or the possession of lands, and about the successive en- croachments which the patricians made on them, about the agrarian laws, and the Jaws of the Gracchi and of subsequent times, had reference to the ager publicus. 3°. The condition of the soil in the provinces, where the land, unless there had been-a privileged concession of the right of property or a communication of the civil right, was in principle that of ager publicus, the property of the Roman people, even when it had been left de facto to the disposal of private persons. Those particular holders, according to the strict letter of the law, were not proprietors; they were considered as having in some sort only the possession and the usufruct of it, subject to the revenue charged upon the land.’ And therefore the land in the provinces was called possessiones, and not property. The only proprietor was the Roman people. Therefore neither the ' «Nos autem possessionem tantum et usum fructum habere videmur.” Gai. 2, § 7. stetig GENERALIZATION OF ROMAN LAW: 623 Roman dominium, nor the operation of civil law which sprung from it, could have any application to that soil. 4°, At a later period the provinces were divided into pro- vincie populi Romani or predia stipendiaria, also called senatorial provinces, and the provincie Cesaris or predia tributoria.1 In like manner the treasury was divided into the erarium, or treasury of the people or senate; and the fiscus, or treasury of Cesar. In proportion as imperial power increased, that of the people and the senate declined, till ultimately the emperor was all in all. § V. THINGS CONSIDERED PHYSICALLY AND LEGALLY. 134. The physical nature of things must to a certain extent be considered by the legislator. The Roman law did not accu- rately classify things in this respect ; it did not, however, alto- gether overlook natural characteristics. — Section XLV.—Movasie Tunes (Res mobiles, seu moventes) or Immovas_e (Res Soli, Immobiles). 135. Although this distinction of things into movable and immovable did not form in Roman law, as it does in the French, the fundamental basis of the twofold division of things, it was, nevertheless, not without importance. It arises as much from the provisions of the law as from the expressions used by jurists; and we find the distinction indicated by Ulpian, with the technical forms of Roman law which are to be found also in the fragments of several other writers. Res mobiles, or res se moventes, or simply moventes, signify movable things, according as they are inanimate or animate objects.? ' Gai. 2, § 7, and 2, § 21. f. Ulp.; 48, 17, 5, § 1, f. Modestin.; ? Dig. 21,1, 1, pr. f. Ulp. See also 50, 16, 93, f. Cels.; Cod. 1, 3, 49, § 2, Vat. J. R. Frag., §§ 293 and 311; Dig. const. Justinian, ete. 33, 10, 2, f. Florentin.; 42, 1, 15, § 2, i 624 GENERALIZATION OF ROMAN LAW. Res que soli sunt, or res soli, signify immovable things ;' or, as Ulpian in several places has it, res immobiles ;? and Justinian, in one of his constitutions, says, gue immobiles sunt, vel esse in- telligantur ;3 but the same objects are described more frequently by the particular designations of predia, fundi, edes. Lastly. There are also things which, although movable by their nature, are considered, in legal estimation, as immovable, because, either on account of their adherence to an immovable thing (vineta, fixa), or on account of their being destined to its perpetual use (perpetui usus causa), they make a single body with it, and so they are considered as making a part of it and sharing its nature.* 136. Incorporeal things, being mere legal abstractions, were neither movable nor immovable; nor did Roman law, as have certain modern systems, ascribe to them either of these attri- butes. However they might at times be so attached to an im- movable, as in a certain sense to form a part of it: such was, for example, the case with servitudes.® 187. The distinction’ between movables and immovables, although less important in Roman legislation than among the moderns, was nevertheless, from the very earliest times, followed by effects in the relations of both public and private life.® fi Dig. 21, 1, De edil. edict., 1, pr. £. Ip. 2 Ulp., Reg., 19, §§ 6 and 8. 3 Cod. 7, 81, De usue. transf., const. Just. 4 Dig. 19, 1, 13, § 31, £. Ulp.; 18, f. Ulp.; 17 pr. and §§ 7 to 11, f. Ulp., et Cc. 5 Dig. 18, 1, De contrah. empt., 47, f. Ulp. 6 Thefollowing enumeration, towhich something could still be added, will show that it is erroneous to suppose that the distinction between movables and im- movables did not exist in Roman legis- lation. We find this distinction clearly recognized :— 1st. In the political constitution and the communication of civil rights to soil. 2nd. In the regulations on booty: the soldier may acquire individually the movable booty he takes, but not the soil, which becomes public. 3rd. In the time fixed for usucapio,. according to the XII Tables themselves. (Ulp., Feg., 19, § 8; Gai. 2, § 42.) 4th. In mancipatio, whether as to the presence or as to the quantity or num- ber of things that could be mancipated. (Ulp., Reg., 19, § 6.) 5th. In the ancient actio sacramenti, in the case where immovables and things incapable of transportation, in jus, re- quired the additional solemnity of the deductio. It is true that this was not confined to the fact that the thing was absolutely immovable, but extended to cases where the transport would be at- tended with difficulty. Gth. In dower, according as movable or immovable dower was in question GENERALIZATION OF ROMAN LAW. 625 Section XLVI.—THINGS DIVISIBLE OR INDIVISIBLE— PRINCIPAL or ACCESSORY. 188. I shall merely point out those two divisions which are not considered by Roman jurists in the light of a methodical classification, but which are nevertheless often followed with important effects in law. 1°. Divisible things, which can be separated into several parts, either physically and corporeally (partes certe—pro diviso); or parts in a sense purely juridical, mathematical and intellectual fractions, as one-half, one-third ( partes incerte— pro indiviso);1 and indivisible things, which do not admit, in law, the idea of any division or of any part being distinct from the whole.* 2°, Principal things (res principales) and accessory things, that is to say, things forming a dependent and subordinate part of the principal thing, called by the Romans simply accesstones, and with regard to which Ulpian laconically lays down the fol- lowing rule, which, however, requires some discernment in its application: accessio cedat principals (predium dotale). (Paul, Sent., 2, tit. 21; Gai. 2, § 63.) 7th. In the theory of theft, which the jurists declare cannot be applied to im- movables. (Gai. 2, § 51; Dig. 47, 2, 25, pr. £. Ulp.) 8th. In the interdict wdrwdi, for movables, being quite different from the interdict uti possidetis, for the im- movables. (Gai. 4, §§ 149 and 150; Paul, Sent., 5, 6, § 1; Instit. 4, 15, 4.) 9th. In real servitudes, which, from the very nature of things, apply to immovables, and cannot exist in refer- ence to movables. 10th. In several cases in which the law prescribes the sale of movables be- fore that of immovables; for instance, in the case of pledges. (Dig. 42, 1, 15, § 2, f. Ulp.; 48, 17, 5, § 1, £. Modestin.) 11th. In sales and in legacies, when the question is to determine what fol- lows the immovables sold or bequeathed, as being a part of them whether by ad- herence or destination. (See the title De actionibus empti et venditi (Dig. 19, 1), and the various titles De legatis (Dig. book 30, 31, 32), in which a great number of fragments have a reference to that question.) 12th. In legacies, when the testator has bequeathed his movables, and when the question is to determine what is comprised in such a legacy. (Dig. 50, 16, 93, f. Cels.) 1 Dig. 50, 16, 25, § 1, £. Paul; 7, 4, 25, f. Pomp.; 8, 2, 36, f. Papin.; 45, 3, 5, £. Ulp.; 6, 1, 8, f. Paul; 8, 4, 6, § 1, f. Ulp. 2 Dig. 8, 1, 17, f. Pomp., Predial servitudes; 21, 2,65,f. Papin., Pledge. See 45, 1, 2, §§ 1 et seq., f. Paul. 3 Dig. 34, 2, 19, § 13, f. Ulp. V. Dig. 22, 1, De usuris et fructibus et causis et omnibus accessionibus. ss 626 GENERALIZATION OF ROMAN LAW. Section XLVII.—Genus anp Spsecies—THINGS WHICH ARE DETERMINED BY WEIGHT, BY NuMBER OR BY MEASURE (que pondere, numero, mensurdve constant)—OF sO CALLED Res Sungibiles—THines que ipso usu consumuntur; que in abusu continentur. 189. It is an important distinction, and one which often recurs among Roman jurists, whether a thing is described in law generically, as a slave, a horse, some wine, some oil of a certain quality, or by its very individuality, as such a horse, such a slave, the wine, the oil contained in such a vase. In the former case, the Romans called the thing genus, a kind, in the latter species, a species; that is to say, an individual thing, an ascertained object. This distinction is attended with im- portant consequences as to the nature, the extent and the loss of the rights relative to the object.? It can be applied even to coined money, as a certain sum of money, or the money enclosed in a certain box ;? and, inversely, even to the soil, as being so many measures of land in a certain territory or a certain spot. 140. It is evident, in the first place, that a thing considered in genere is only determined by number, -by weight or by measure of the fixed kind and quality; whilst that which is considered in specie is appreciated by its kind, by its very individuality. There are things which, by their very nature, are commonly appreciated in the first manner ; such as wine, oil, wheat, money, metals. The Romans designated them by these expressions: que pondere, numero, mensurdve constant.* There are others, on the contrary, which are generally appreciated by their indi- viduality as being certain things of their kind; such are slaves, horses, movable instruments, fields, &c. But it is a very frequent error to confound custom with right. We have just seen that both these classes of objects can, according to the intention of the parties, be considered either one way or the other, either in conformity with or in exception to their ordi- ' Dig. 45, 1, De verd. oblig., 54, pr. 5° Dig. 80, 1, De legat., 30, § 6, f. f. Julian. Ul p. 2 For example, Dig. 45, 1, 87, f. * Inst. 3, 14, pr.; Dig. 12, 1, De red. Paul. ered., 2, § 1, £. Paul. GENERALIZATION OF ROMAN LAW. 627 nary nature, provided that nature is not absolutely repugnant to it. 141. It is evident, in the second place, that things considered in genere may be used and interchanged one for the other. It does not matter which is given, provided it is of the same quality and quantity (in eadem qualitate et quantitate), since it is to be appreciated only by number, weight or measure. Whilst the thing, considered as species (species), is to be used and to be given individually ; any other is neither the same nor the equivalent. Paul has said, speaking of things of this kind, “In genere suo magis recipiunt functionem per solutionem, quam specie.” Hence has sprung the distinction between res fungi- biles and res non fungibiles, a barbarism which belongs neither to the law nor to the language of the Romans.? It is clear that the distinction agrees completely with that between genus and species. 142. Lastly, there is a class of things which the Romans described as que ipso usu consumuntur,? which are consumed in using, or, as Cicero and Ulpian say, gue in abusu conti- nentur,* in opposition to those, guarum salva substantia utendi fruendi potest esse facultas,> from which it is possible to derive service though preserving their substance. The former class is ordinarily considered in genere, and it is in the nature of objects of this class to be capable of being sub- stituted for one another, since they are generally utilized only by their destruction. The owners, however, might have consi- dered them otherwise, as ascertained objects for every purpose for which they might be used without their being destroyed,—a rare occurrence, it is true, nevertheless it is a possible case.® So, on the other hand, things which are not consumed by use might be treated by the parties, for some exceptional purpose, 1 Dig. 12, 1, 2, § 1, f. Paul. Abusus from abutor, to consume by 2 Res fungibiles ave defined as things _ the using, exhaust. which can be used by substitution, that 5 Ulp., Reg., 24, § 26. is, one for another, guarum una vice 5 Nig. 13, 6, 4, f. Gai.; 16, 3, 24, f. alterius fungitur. Papin. ; 30, 1, 30, §§ 6 and 34, § 4, f. 3 Instit. 2, 4, § 2. Ulp.; 45, 1, 37, f. Paul. ‘ Cic., Lop., 50; Ulp., Reg., 24, § 27. 882 628 GENERALIZATION OF ROMAN LAW. as things that are. The question therefore is, was the object in question regarded in genere or in specie ? —~— § VI. IN RELATION TO THEIR COMPOSITION OR AGGREGATION. Section XLVIII.—A particurar Tune (Res singularis)— (Rerum universitas). 143. This distinction is given to us with some details by Pomponius. “There are three classes of things,” he says; “one which is self-contained, as in a single being (uno spiritu), which the Greeks name fywpuévov, that is to say, unique (wnitum), such as a man, a tree, a stone and other similar objects.” Those objects are generally called, in Roman law, by all the jurists, res singulares, individual, particular things. * The other, which is formed of various adherent bodies, connected together (ex contingentibus), and which are called curyppévoy, that is to say, connected (connerum): such are an edifice, a ship, a cupboard, composed of stones or of planks connected together.” We sometimes find these different objects called in the text-books universitas.1 The third class consists of various distinct objects, separated from one another (ex distantibus), but united together under the same name (uni nomini subjecta), as composing a single whole.? Such are a flock (gre), either of oxen (armentum), or of horses (eguitium), or of slaves, comedians or a chorus, which comic poets, in their prologue, always speak of as our flock (grex noster): such are, again, a shop furnished with its goods (taberna); a cellar with its barrels, its bottles and its amphore; a farm with its working instruments (fundus instructus ; cum instrumento). This class of things is always expressed in Roman law as rerum universitas, or simply universitas. It is, definitively, a quantity, an aggregation of distinct things, united under the same name. 1 Dig. 10, 2, 80, f. Modest.; 41, 2, of Pomponius which we have partially 30, pr. f. Paul. quoted in the text. 2 Dig. 41, 3, 30. It is the fragment 3 Dig. 7, 1, 70, § 3, f. Ulp.; 21, 1, 34, £. Afr. GENERALIZATION OF ROMAN LAW. 629 Among these aggregations, there are some which exist, not physically and in fact, but in law; which can embrace in their entirety, not only material objects, but incorporeal things, active or passive rights: such are the peculium, either of the slave, or of the son of the family; the dos, and, above all, the inheritance which comprises the entire corpus of the goods and of the rights left by the deceased. These things are essentially uni- versitas.+ 144, In short, we distinguish between individual or par- ticular things (res singulares), and the universality of things (rerum universitas, or simply universitas), an expression which in law is open to latitude or may be restricted. The legal effects resulting from these different classes of things are important. ARTICLE THIRD. — Hil. OF FACTS. 145. Here the method of the Roman jurists almost com- pletely fails us. We are now coming to a third element, which their system has not realized or at least properly classified, although it is everywhere to be found in law. We have had the subject and the object of rights; let us now consider the cause, the generating element. eg §I. COMPONENT IDEAS. Section XLIX.—Ipea or Fact. 146. The word factum, fact or act, from facere, to make, might, by its etymology, appear to be confined to human acts ; ' Dig. 5, 3, 20, § 10, f. Ulp.; 87,1, wniversitas facti, and the latter uni- 8, pr. f. Ulp.; Dig. 43, 2,1,§1,f.Ulp.; versitas juris. We know that inheri-’ 50, 16, 208, f. Afr.; Inst. 2, 9, § 6; tance is, besides, in certain cases, per- Dig. 15, 1, De pecul., 32, pr. f. Ulp. sonified. It is the same with the pecu- Commentators have called the former lium. Dig. 15,1,40 .Marcian. 630 GENERALIZATION OF ROMAN LAW. it is, however, accepted in legal as well as ordinary language, with the Romans as with us, in its widest sense, as designating any event whatever which has occurred within the scope of our perceptions.? An act (factum) may be entirely independent of a man, such that he could neither produce nor aid in producing, nor prevent; or it may be the result of the direct or indirect co- operation of man, or, lastly, the immediate result of his will. The idea and the word factum are even applied to the very negation of the fact, as in the case in which a certain event will not occur; or the omission or the refusal on the part of a man to act or do.* That is what is commonly called a negative fact. Lastly, in the same way as law, by its power of abstraction, creates persons and things which do not exist in nature, so it sometimes goes so far as to create imaginary facts which have no reality, and to act as if they had. —~— Secticn L.—Tue SuBJEcT or THE AcT. 147. The person himself may be the subject of the act: for instance, his birth,—from which arises a fact of filiation for one, of paternity or of common origin as to others; his mar- riage, the legal or illegal union of one sex with the other; the stages of a man’s age; his illness, changes in his corporeal or moral organization, produced by nature, by accident or by violence ; finally, his decease : Or these changes may affect things, for instance, their creation or composition; their embellishments, ameliorations, deteriora- tions, transformation, subtraction, loss or destruction : Or, lastly, they may bear on both combined, as in the rela- tions of man to things; for instance, the occupation, the taking or the loss of possession of a thing by man. All those acts, positive or negative, produced by one cause or by another, bearing on one object or on another, all intervene 1 Tt can be scen thus used by the juris et facti ignorantia. Dig. 22, 6. Roman jurists in the whole title De ? For instance, Dig. 45, 1, 7, £. Ulp. GENERALIZATION OF ROMAN LAW. 631 in law, no doubt, with different results, according to circum- stances, but always in the same direction in the same function. Section LI.—Acts create Rieuts. 148. This principle is an active principle. If rights arise, if rights are modified, if they are transferred from one person to the other, if they are extinguished, it is always in consequence or by means of an act. There is not a single right that does not proceed from an act, and it is precisely from the variety of acts that arises the variety of nights. 149. Thus the labours of the jurist belong not to the region of speculation but to the world of fact. All facts, whether they have relation to nature or to dealings between man and man in political or private life, are the especial province of the jurist, they are the causes whose effects he traces in the development of rights and the elaboration of the good and the equitable, which act and react on the basis of facts, subserving while they con- trol their course and character. It is therefore indispensable to a logical consideration of every legal question accurately to determine, either in hypothesis or reality, the notion of fact. § Il. LEGAL FACTS OR ACTS. Section LIU.—Ipea or THE LEGAL Fact or Act. 150. There are certain acts whose special aim is to establish legal relations between persons,—to create, to modify, to transfer or to annihilate rights. The law, theréfore, has by the exercise, so to speak, of a certain faculty of prescience regulated and classified them, in-. dividually in some cases, generically in others, according to their nature, their form and their effects. Such are, for instance, the manumission of slaves, the eman- 632 GENERALIZATION OF ROMAN LAW. cipation of the sons of a family, marriage, adoption, wills and testamentary acts, the various kinds of contract and many others, which can only be properly appreciated by the knowledge of the rights to which they refer. These are the acts that we designate by the general but not Roman qualification of legal acts. ° —~—- Section LIII.—Tue Form or Lecat Acts. 151. The number and the quality of the auxiliary persons who are to concur in the legal act, the time and the place where it is to occur, the words which must be pronounced in it, the gestures and exterior actions which must accompany it, the writings or the suitable means to preserve the remembrance of it, are the elements which are comprised in the idea of the form. 152. Certain legal acts have a strictly-defined necessary form, from which they derive their validity, and without which they do not exist; and this prescription may be confined to one or more of the constituent elements of the form, or may extend to the whole. Other acts require no specially prescribed form. Provided they take place, and are authenticated, it is sufficient. 1538. With respect to the former, to those which have a form rigorously prescribed, there are some in which the state itself must intervene either indirectly, through the co-operation of some magistrate, or directly, in the comitia, réplaced at a later date by the imperial power; there are others, on the contrary, the accomplishment of which is left to simple individuals, who oaly ask the intervention of citizens. ——~— Section LIV.—SreciaL CHARACTER OF THE Roman Law WITH RESPECT TO LEGAL AcTs. 154. Civilization as it advances has a spiritualizing influence on institutions as well as on the whole domain of human life: it GENERALIZATION OF ROMAN LAW. 633 disengages them from the material and carries them more and more into the region of the immaterial, and endows them with a soul, with intelligence. This is especially the case with legal acts: they become, through the influence of civilization, ani- mated with a mind, a will, intention; while all that is required from the material are the means of demonstrating and guarantee- ing what the will demands. In the early stage of civilization human nature is more closely wedded to the material. The dominion of the senses, of the body, of physical impressions, is more powerfully exercised than the intellect. In legal acts the predominant force is not there- fore the mind or the intention, it is the form; for the form is the material, the visible manifestation of the will, the corporeal element by which thought is expressed. 155. In early stages of civilization, therefore, men do not adopt the simple and easy method of recording and transmitting the recollection of an event, viz. by writing: the transmission must be effected direct through other means. Even if the art of writing were known, it would not possess the confidence of those who could not appreciate its value. Under such a con- dition, therefore, it becomes above all most necessary that a profound impression should be made on the mind through the medium of the senses. The will, like every immaterial element, is not to be discerned except by its effects. It crosses thought, it comes, it disappears; it is modified by an instantaneous process. If we would enchain it, we must clothe it with a physical, a corporeal existence; and when once the material has been affected, the act accomplished, the immaterial will, so far as regards that individual act, cannot be recalled to its original immaterial condition. 156. But it is clear that the material which is to give to legal acts a sensible form will be influenced by the prevalent and predominant idea of the age or condition to which they belong. This idea will be that of analogy, the predominant idea of. infancy, whether in a people or an individual. The material element, then, or, in other words, the external actions 634 GENERALIZATION OF ROMAN LAW. or gestures which are to give expression and form to legal acts will be framed on the principle of analogy, in accordance with the end to be attained, with the right which it is wished to create, to modify, to transfer or to annihilate, or with something having reference to it in popular belief. Thence the transition to symbol is easy, for symbol is nothing but analogy clothed in corporeal form and expressed by action.1 But, besides this, these acts, these symbolical objects have often been in themselves a real element in the act, and have only become fictitious and purely symbolical through the lapse of time. Thus, among the Romans, the scales and the piece of brass (es et libra), vestiges of the primitive times when, for want of public money, metal was measured by weight,? became symbols in the solemn sales of the Romans (nexum, mancipium, mancipatio, alienatio per es et libram), and were used, though mere fictions, in a multitude of cases where the real purpose was no longer that of sale. Thus in suits for claiming property, rei vindicatio, the manuum consertio would be the symbol of a battle between the two disputants, perhaps the real process originally ;* the lance, hasta, would remain the symbol of Roman ownership among a warlike people, with whom war was eminently the means of acquisition; a rod (vindicta, festuca) would become, in its turn, the symbol of the lance,’ and this 1 In M. Ortolan’s course of lectures from that custom of weighing metal of the years 1839-1840, on “ A Histo- rical Introduction to the Science of comparative Penal Legislation,” he has shown what prodigious influence has been exercised on the penal institutions of European nations by the idea of ana- logy which is materialized in symbol. 2 « Populus romanus ne argento qui- dem signato, ante Pyrrhum regem de- victum usus est. Librales (unde etiam nunc libella dicitur et dupondius) ap- pendebantur asses. Quare eris gravis pena dicta. Et adhue expensa in rati- onibus dicuntur; item impendia et de- pendere. Quin et militum stipendia, hoc est stipis pondera; dispensatores libripendes dicuntur. Qua consuetu- dine, in his emptionibus, ques mancipii sunt, etiam nunc libra interponitur.” Pliny, Hist. natur., 33, 3. See below, as to mancipation, tit. ii., Inst., lib. ii. introd. How many words are derived (pendere), and even in our own times, to expend, expense, stipend. 3 Thus, from mancipation symboli- cally used are deduced: the emancipa- tion of children; the acquisition of marital power over women; the will; the enfranchisement of women from the guardianship of their agnates or of their patron (Gai. 1, § 195); the ex- tinction of certain obligations (Gai. 3, §§ 173 et seq.); the pledging of the goods and formerly even of the person, as «a guarantee for a debt (nexum, in its most special acceptation). 4 Aul. Gell. 20, 10. 5 «Festuca autem utebantur quasi haste loco, signo quodam justi dominii; maxime enim sua esse credebant, que ex hostibus cepissent: unde in centum- viralibus judiciis hasta praponitur.” Gai. 4, § 16. GENERALIZATION OF ROMAN LAW. 635 form continued to be used as a mere fiction in a great number of cases where the real object to be attained was quite different from that of having a contest decided. Thus the glebe of the field (gleba), the tile detached from the edifice (tegula), we see were taken to the praetor to accomplish, by these symbols of the immovable property which was the subject of litigation, the formalities which in former times were transacted on the spot itself. Thus when the thirty curies no longer met, thirty lictors were the symbol representing them, and certain legal acts which ought to have been done by the comitia were done before the axe of the lictors instead. Early Roman law was full of these gestures and symbols, which were necessary to give effect to legal acts. 157. The acts, the exterior gestures, were accompanied by words, and here we find the same spirit prevailed. These words were consecrated formulas, the national language alone being used : one expression substituted for another would often change the effect of the act, or would annihilate it. Solemn interro- gations were addressed to the parties, to the witnesses, and to all who took part in the transaction. Solemn answers had to be given by them, and all these forms, with the words of the questions and answers spoken aloud, were calculated to make an indelible impression on the minds of those who took part in and witnessed them.1 158. In the early period of the civil law writings were never used ; everything was done verbally, and the terms-made use of were words consecrated and set apart for that particular pur- pose. When in after times writing came to be used, it was, with one solitary exception, introduced as a mere precautionary measure, the better to fix the act in the memory, but not as essential to its validity. Some time elapsed before the preetorian law and imperial constitutions required parchments, tablets, signatures, seals for wills, or insertion in the public registers. ' We have retained the practice of one of our own most important rites,—~ solemn interrogation and answer in marriage. 636 GENERALIZATION OF ROMAN LAW. 159. It is curious to note the transformation which these legal acts underwent in the course of time. The symbol ceased to be understood and appeared only a ridiculous hindrance ; its application in judicial procedure was already, in the sixth century of Rome, an object of public hatred (in odium venerunt), says Gaius.t The lex Avbutia and the leges Julie (of Julius Cesar and of Augustus) suppressed them almost entirely. Cicero turned them into ridicule,? and modified ceremonies and formulas for wills became popular in the time of Augustus (quod populare erat), when fideicommissa and codicils were introduced. The system of pretorian administration successively mitigated the harsh consequences of subjection to forms. Constantine II., Constans and Constantius, while admitting the necessity of questions and answers and of words, and permitting their use to remain, denuded these words of the sacred character with which they had been invested, and denounced them as verbal snares laid to entrap people.+ The Greek language rose to a level with the Roman, and the old system was finally effaced by Justinian, and legal acts were reduced to their plain and simple character. 160. This description, however, is by no means exclusively confined to the history of Roman civilization. The same phe- nomena are to be observed in the history of more than one nation. We may trace the same character in the institutions of several European states; and if we study the times which Vico calls the return of the barbarous age we shall discover the same features there. This is the principle upon which the Nea- politan philosopher conceived the idea of that never-ending cycle to which he condemned all human affairs (él ricorso delle cose umane). Happily it is but a dream, for human nature, except under an occasional impulse which turns it out of the direct path, pursues an onward course towards improvement. Its progress is straight forward, and not, as the dream of the philosopher would tell us, in an ever-recurring cycle. 1 Gai. 4, § 30. 4“ Juris formule, aucupatione syl- 2 Cic., Pro Murena, 12. labarum insidiantes cunctorum actibus, ? Instit. Just. 2, 23, 1. radicitus imputentur.” Cod, 2, 58, 1. GENERALIZATION OF ROMAN LAW. 637 Section LV.—— § Ill. ACTS OTHER THAN LEGAL ACTS. Section LVIII.—Tue Conception or ACTS OTHER THAN LEGAL Acts; THE PRINCIPLES WHICH REGULATED THEIR CONSE- QUENCES IN Law. 167. A multitude of events which have arisen or have come to pass in the world of sense, without being designed to create, modify or extinguish any right, have, nevertheless, consequences which often produce that effect, and which it is important to regulate. All the events in which human agency takes no part are comprised in this category. Other events may happen in which human agency participates, but without any operation of the will; and others, again, through the will. Some are licit, the others illicit. 168. No one should enrich himself to the detriment of the rights of others.1 «« Every one is bound to repair the wrongs occasioned through his fault.”? 1 « Jure nature equum est, neminem cum alterius detrimento et injuria fieri locupletiorem.” Dig. 50, 17, 206, f. Pomp.; 12, 6, 14,£. Pomp. “Bono et sequo non convenit, aut lucrari aliqnem cum damno alterius, aut damnum sen- tire per alterius lucrum.” Dig. 23, 3, 6, § 2, £. Pomp. “Nemo ex sno delicto meliorem suam conditionem facere po- test.” Dig. 50, 17, De reg. jur., 134, § 1, £. Ulp. 2“ Non debet alteri per alterum ini- qua conditio inferri.” Dig. 50, 17, 74, f. Papin. “Nemo potest mutare con- silium suum in alterius injuriam.” Ib, 76, f. Pap. “Naturalis simul et civilis ratio suasit, alienam conditionem meli- orem quidem (etiam) ignorantis et in- viti nos facere posse, deteriorem non eed Dig. 3, 5, De negot. gest., 39, . Gai. 640 GENERALIZATION OF ROMAN LAW. Those two maxims, which the Roman jurists give as a for- mula on every occasion, and in so many different ways, and which Ulpian laconically sums up in these terms, alterum non ledere, suum cuique tribuere, are the sovereign rule by which most of the legal consequences from like events are regulated. To these must be added a third rule, which appears also under various forms in jurisprudence, viz. that each individual, when not affected by either of the two preceding maxims, incurs the consequences, good or bad, of the things or rights belonging to him? —~—— § IV. ELEMENTS INSEPARABLE FROM ACTS. Section LIX.—Tue Tie (Dies); THE Prace (Locus). 169. The conception of fact essentially and inseparably com- prises two others: that of time, a fraction of eternity; and that of place, a fraction of immensity. The place which an act occupies in duration, that which it holds in space, each has its influence in the law. 170. Time is generally designated in the language of Roman law by the expression dies; for in most cases it is the day which is the legal measure of time. The time in which the event has been accomplished, the relation of position anterior or posterior of one act with a cer- tain other act ; “—the time of its duration ; 3—time in connexion with the life of persons, from the birth to the death, which con- stitutes the various degrees of age ;—the time from which rights begin to exist or to be exerciseable (dies a quo; a die; ex die), that in which they are to expire (dies ad quem; ad diem), which constitutes the term (called also in the Roman law dies) ;—the time within which the suit for the recovery of rights can or ought to take place ;—time in the sense of negligence in that 1 « Secundum naturam est, commoda ? For instance, the birth or the de- cujusque rei eum sequi quem sequuntur _cease of persons, or to the right of in- incommoda.” Dig. 50, 17,10, f. Paul. heritance. “Tnjuriam que tibi facta est, penes 3 For instance, for acquiring by pre- te manere quam ad alium transferri scription. sequius est.” Dig. 46, 1, 67, f. Paul. GENERALIZATION OF ROMAN LAW. 641 respect: all these are so many aspects under which the influence of time is brought to bear on rights. With this, too, are connected the old distinction of days into fasti and nefasti, the system of calculating by working days, that is to say, reckoning only those during which no physical nor legal objection prevented people from acting; and the sys- tem of calculating by consecutive days, that is to say, by days in their successive course, without interruption (tempus utile, dies utiles ; tempus continuum, dies continuz); lastly, the various other methods of reckoning time, for the mode of calculation was not always the same in the different phases of law. 171. The place (locus) appears also, although with less im- portance than time, as an element of law: thus, for instance, the place of birth,—the place of the legal seat or domicile,—-the place of the corporeal presence of persons,—the place of the situation of things,—the place where certain rights can be exer- cised or engagements accomplished,—the place where the pro- cess of suing for them is to be carried through. § V. AUTHENTICATION OF FACTS. Section LX.—Proors (De Probationibus). 172. It is not sufficient that the acts should have been done in order that the law may be deduced from them: it is neces- sary that the existence of the fact should be authenticated; and in case of dispute or denial by interested parties, that the proof should be established. The proof (probatio) always consists, without any exception, in an operation of the reason, in a logical deduction, which, from certain known facts, causes us to conclude the existence of the unknown. The declarations of witnesses (testes); the monuments (monumenta ; from monere, to warn) ; the writings ; the marks, signs or vestiges of all kinds; avowals (confessio) ; the oath (jusjurandum), are so many facts which may serve to TT 642 GENERALIZATION OF ROMAN LAW. effect this purpose, with more or less certainty in the deduction, or, as they say, more or less conclusively. 178. To all these methods of proof, the expression instru- menta, in its most general acceptation, is applied in Roman law.1. They are either public (instrumenta publica), or private (privata), or even domestic (domestica). However, in a more restricted sense, instrumenta designates more especially the writings made to record the accomplishment of the act,—writings to which a multitude of other names are also given: those of seripta, scriptura, so called from the hand- writing itself; those of tabule, codex, and its diminutive codi- eilli ; cere (tablets covered with wax); membrane (parchments) charte (papers), taken from the material which bears the writing ; chirographum (from yelp, hand, and ypégw, write) for the writing emanating from the party to the suit ;* syngraphe (from ctv, written, and ypagw, write) for the writings signed by various parties and delivered in different copies to each of them ; apocha, a receipt (from aréym, to receive), and its correspond- ing expression, antapocha (from 47, in exchange of, and apocha), a declaration that the receipt has been delivered ;* lastly, sometimes the very general name of cautio (from cavere, to take or give a security), because the writing, as supplying a means of proof, is a security.* 174. Often, when a legal act has been accomplished, or even when an event other than a legal event has happened, the par- ties interested introduce various elements of proof which will assist them in authenticating the existence of the fact which has generated certain rights. It is important not to confound, in the performance of legal acts, the formalities which thus in- 1 Instrumentorum nomine ea omnia accipienda sunt, quibus causa instrut potest. Dig. 22, 4, De fid. instr., 1, f. Paul. 2 Dig. 2, 14, 47, § 1, f. Scavol.; 22, 1, 41, § 2, £. Modest. 3 Cod. 4, 21, De fide instr., 19, const. Justinian. “4 Dig, 2, 14, 2, § 1, f£. Paul; 47, § 1, £. Sceevol.; 22, 3, 25, § 4, £ Paul. We must take care not to give in Roman law to the word cautio the special sense which we give to it in French law. It is a very general expression, which applies to every security, to every ria given by one party to the other. GENERALIZATION OF ROMAN LAW. 643 tervene for the sake of precaution, for the proof only (ad pro- bationem), without their being necessary for the existence of the act (save and except the difficulty of proving the existence of it), with the essential solemnities, the performance of which is indispensable to the validity of the legal act, and without which that act would not take effect. 175. The question of determining on whom, in case of un- certainty or of denial of a fact, the burden of proof lies, is one of the most important, and often of the most delicate, in law. It is governed by this general principle, that it is for him who asserts that a fact has created, modified or extinguished some right, to prove the existence of that fact. For a fact is in reality nothing but a change in the state of: the world of our perceptions. It is therefore for him who pretends that there has been a change, that something new has occurred, and conse- quently that the status quo ante of rights has been interfered with, to prove it; otherwise matters remain as they were. —~— Section LXI.—Presumptions (De Presumptionibus). 176. Presumption (pre-sumere, to take beforehand) is the adoption of a conclusion from certain facts known as hypothe- tical before the conclusion is positively proved or shown to be true. In an act of reasoning of this kind, it is evident that law cannot ground its conclusion on the basis of particular facts which have not yet happened; but it grounds it on general facts, or on those which generally occur or almost always occur. It is an act of reasoning from general to particulars, or in- duction. 17%. In certain cases, law establishes that induction so firmly that it will not allow it to be affected by any individual fact. Such, for instance, as the maxim, Res judicata pro veritate accipitur'—or the rule which expels from the family, as not belonging to the husband, the child born more than ten 1 Dig. 50, 17, De reg. jur., 207, f. Ulp. TT2 644 GENERALIZATION OF ROMAN LAW. months after the death of the latter.1 There are also other cases.® It is this presumption which the commentators have called, in barbarous Latin which never belonged to Roman law, Presumptio juris et de jure. In other cases, where law makes its induction, it allows more or less latitude, that is to say, it permits the parties concerned to question the soundness of the induction on grounds peculiar to the particular fact, so as to show that the conclusion in the case in question is not correct.? It is this presumption that the commentators have called, again on their own sole authority, Presumptio juris tantum. It throws the burden of the proof on him against whom the presumption exists. 178. We can now see that presumption consists in a mental operation of the same kind as proof: it is always the conclusion drawn from known facts to an unknown fact. Only, in the presumption, the conclusion is adopted before actual and positive proof, and by way of induction from the general to the par- ticular, independently of any examination of the details of those particular facts which are in question. We can also see how erroneous it would be, yielding to ideas conveyed by expres- sions commonly in use, to imagine presumption, in the lan- guage of law, as inferior to proof, and as having less force or less certainty than proof: it is indeed superior to it, and some- times prevails against it. 1'79. Presumptions—that is to say, those conclusions or deductions which are drawn by a process of probable reasoning, as the result of experience, from something which is taken for granted—were not classified by the Roman jurists, nor were they treated differently from other forms of proof. ' Dig. 38, 16, De suis et legit., 3, § 11, f. Ulp. 2 For instance, Inst. 3, 21, and Cod. 4, 30, 14, const. Just., for the exception non numerat@e pecunia. 3 For instance, the various presump- tions relativé to filiation: “ Pater is est quem nuptie demonstrant” (Dig. 2,4,5,f. Paul). “ Credendum est eum qui ex justis nuptiis septimo mense natus est, justum esse” (Dig. 1, 5, 12, f. Paul and 38, 16, 3, § 12,f. Ulp.). And for the case of the absence of the hus- band (Dig. 1, 6, 6, £. Ulp.); for the delivery of the title to the debtor (Dig. 2, 14, 2, § 1, f. Paul); for the title being erased (Dig. 22, 3, 24, f. Modest.); for the presumed intention of com- prising his heirs in his acts (22, 3, 9, £. Cels.). GENERALIZATION OF ROMAN LAW. 645 180. The whole of this subject, that is to say, all that has reference to the authentication of facts, has occupied the closest attention of jurists. —>— Szction LXTI.—Dovstrut Facts (De Rebus dubiis). 181. Lastly, there are cases in which facts are surrounded with doubts difficult of solution. Doubts may arise with regard to the intention or to the expres- sions, especially in cases where parties are not bound by precise formulas, and there is some uncertainty as to the interpreta- tion. They may also arise with regard to events. And sometimes the circumstances may render it necessary to settle the matter one way or another, however great the uncertainty. In such cases, the law itself may provide a solution; and this it will do, not so much because the solution it offers is probably the correct one, as because it is indispensably necessary that a solu- tion should be found, and humanity or benevolence or expediency demands it.? Roman jurists have exercised their ingenuity on a vast number of cases of this kind.? —~~— § VI. FICTIONS (Fictiones Juris). Section LXIII.—Fictions or THE Civil AND OF PR&TORIAN Law. 182. As law creates persons and things which do not other- wise exist, so it creates abstractions, or facts purely imaginary, and deduces from them rights just as if those facts really 1 Dig. 22, 3, De probationibus et presumptionibus; 4, De fide instru- mentorum; 5, De testibus; 42, 2, De confessis; 12,2, De jurejurando sive voluntario, sive necessario, sive judi- eiali. And the corresponding titles in the Code of Justinian. 2 Such are, with minor distinctions, the cases of persons having relative rights dependent on the decease of one or the other, where they both die with- out its being possible to determine which of the two died first. Dig. 34, 5, 9, § 4, Tryph.; 16, pr. f. Marcian ; 22, f. Javol.; 23, £. Gai. 3 Dig. 34, 5, De rebus dubiis. 646 GENERALIZATION OF ROMAN LAW. existed. These are what the law calls fictions, and the Roman system of jurisprudence is full of them, some belonging to civil law itself,’ but most of them purely imaginary conceptions of the pretorian law. And the commentators, outvying both, have set up hypothetical fictions, which had no existence in fact.? 183. The use of these fictions generally was to bridge over the interval between the harshness and severity of the jus civile and the more equitable and philosophical system of preetorian law, or to extend the operation of the civil law to cases which were beyond the reach of its provisions, or to cancel the opera- tion of the law when its results were deemed to be too harsh. The inventive faculty was called in and facts were imagined and then acted on as if they really existed. It was the pretor especially, whose efforts were incessantly directed to reconciling the requirements of civilization with the system of primitive law, who had resort to this expedient. 184. In brief, and independently of this peculiar usage which forms a characteristic trait of Roman law, fictions, or the legal supposition of facts, are nothing but a laconic method of assign- ing certain qualities or properties to given situations; the law saying,— such are your rights, we assume certain facts.* The domicile, or the legal dwellingplace of a person for the exercise or for the application of certain rights, is nothing else, especially in our legislation, than a fact of this nature; that is to say, a fact of pure legal creation. 1 Such are those mentioned in a pas- sage of the Institutes of Gaius, of which however there is a whole page of the MS. missing, leaving nothing but two paragraphs. 2 Thus neither the postliminiwn, nor even the provisions of the lex Cornelia, which the commentators generally call fictiones legis Cornelia, were ever mentioned as fictions in Roman law. 3 For instance, he at times assumed the necessary qualifications in the heir (Gai. 4, § 84), the uswcapio complete (Gai. 4, § 36), or incomplete (Inst. 4, 6, § &), the status of citizen or pere- grinus (Gai. 4, § 37), a deminutio capitis as non-existing, whereas in fact it did exist (Gai. 4, § 38)—whence those actions styled fictitie actiones. 4 For instance, the postliminiwm and the lew Cornelia. GENERALIZATION OF ROMAN LAW. 647 CONCLUSION OF THE FIRST PART. Section LXIV.—Creation or Ricuts. 185. We have thus all the elements indispensable to the creation of rights. We have the active and passive subject, in the persons; the object, in the things; the efficient cause, in the act. To every situation, to any combination of those three elements, let us apply either the idea, the good and equitable (jus, ars boni et equi), or the positive notion of what is ordained by law (jus, lex, quod jussum est), and we shall have, as consequences, immediate, and varying in each case according to the circum- stances, rights (jura); that is to say, the conditions and advan- tages conferred by law. 186. Thus it is law (jus), taken in its first acceptation, according to the consciousness of what is good and equitable, or the authority of what is ordained, which, applied to the combination of those three elements, the persons, the things, the acts, gives, as a consequence, the rights (jura); taken in the second acceptation of the word, as effects, as results. PART II. RIGHTS AND ACTIONS. —_~<_— ARTICLE FIRST.—RIGHTS. Cuapter I. GENERAL CLASSIFICATION OF RIGHTS. Section LX V.—Personay Ricuts; Rear Rieuts (a Crassirica- TION NOT ADOPTED IN THE Roman Law). 187. Right is any faculty that. a person has to do, to omit, or to exact something. 648 GENERALIZATION OF ROMAN LAW. Roman jurisprudence did not recognize any general division of rights. That which is now commonly received, however, though not belonging to, was derived from Roman law. Rights are divided into personal and real rights. We accept this division, because it is exact, provided it is well defined. Section LX VI.—InEa or PERSONAL AND OF REAL RiGuts. 188. Leaving, for a moment, Roman traditions, if we con- fine ourselves to pure reason, the following notions appear to be forced upon us. No right exists except from one person to another: every right has, therefore, necessarily one active subject, and one or more passive subjects; which, whether active or passive, can only be persons. In that respect, all rights are therefore personal, Every right, besides the active and passive subject, has, more- over, and necessarily, an object, which, in its widest sense, is designated a thing. Every right has, therefore, a thing for its object; and, in that respect, every right is real. Therefore, every right, without any exception, is at once personal as to its active as well as passive subject, and real as to its object. 189. But the mode in which persons as subject, active or passive, or things as object, can appear and act in the night, assumes two very distinct phases. Every right, if we go to principles, is summed up in the faculty which the active subject has to exact something from the passive subject; now, the only thing which it is possible immediately to exact from a person is, that that person should do or abstain from doing something, that is to say, action or inaction. It is to this that every right isreduced. This neces- sity for the passive subject to do or to abstain from doing some- thing is what is called, in legal language, an obligation. Every right, therefore, without exception, if we go to principles, con- sists in obligation. GENERALIZATION OF ROMAN LAW. 649 190. But these obligations are of two sorts: the one general, which affects the community, and which consists in the neces- sity of leaving the active subject of a right alone, to let him derive the advantages to which his right entitles him, without let or hindrance. It is a general obligation to abstain from interference. This obligation exists in every case of right. No one has any business to interfere with another’s enjoyment of a right. It may be said, that in every right there is always, on one side, the active subject, to which the right belongs, and, on the other side, the community at large, which is bound to ab- stain from interference and to allow him to whom the right belongs to act and enjoy it and to draw from it all the advantage he can. 191. But though this general obligation exists in the case of every right, there are some cases where it is the only obliga- tion, that is, that the right confers on the active subject of it the faculty of deriving all the advantage he can from it directly, without any other obligation than that which exists in the com- munity to abstain from interference. There are cases, on the contrary, in which, besides this general obligation, the right confers on the active subject of it the faculty of making another person do some act, as to give, to supply, to do something; or to abstain from doing, or to suffer or to let a certain thing be done. In this case the passive subject of right is, so to speak, double ; there is the community under an obligation to abstain from interference, and the indi- vidual under an obligation to do or to abstain from doing some- thing. Either because this truth has not been clearly perceived, or because as it existed in the two cases of the community and the individual, men have not been at the pains to note the dif- ference, we have adopted the habit of looking on the obligation as a single one, binding the whole community; and so the difference which exists between the two cases has been explained as follows. In the former case, that of the community, there exists no person who is individually the passive subject of a right; so that in analyzing this right, only one person is to be found 650 GENERALIZATION OF ROMAN LAW. (apart from the community in general bound to non-inter- ference), and the thing which is the object of the right. This is the right which has been denominated “ real.” In the latter case, there exists, besides, a person individually the passive subject of a right, that is to say, the man against whom the right is personally exercised. Here we have (again setting aside the community in general, bound to non-inter- ference) a person the active subject, another person the passive subject, and, thirdly, a thing the object of the right. This is the right which has been called “ personal.” 192. To sum up, a personal right is that in which a person is individually the passive subject of it. A real right is that in which no person is individually the passive subject of the right. Or, in other terms :— A personal right is that which gives the faculty of individu- ally obliging another to do or to abstain from doing something. A real right is that which gives the faculty of deriving ad- vantage from a thing. In both cases we may leave out of the question the commu- nity in general, bound to non-interference. 193. The definition thus given is wide: all rights, without any exception, in whatever manner they may be acquired, exercised or sued for at law,' and whatever may be the corpo- real or incorporeal thing which is the object of them,? come under one category or the other. It is not an arbitrary definition, but one which necessarily emanates from the nature of things; it is subject to no change, and reproduces itself inevitably in every legislation. 194. It is an error to imagine, however, that personal rights do not exist in a community, in relation to all men, as well as real rights. If another man owes me money, the thing is true, ‘ For example, both those who had are connected with the condition of an actio and those who were protected man, with his moral or corporeal indi- by an eaceptio. : viduality. 2 As, for instance, the rights which GENERALIZATION OF ROMAN LAW. 651 not only as regards the debtor, but as regards all other men. My right as a creditor has an existence, and is a part of my fortune as such in relation to other men:? it will be protected, if necessary, should a third party attempt to deprive me of it.? But, besides the general community, my debtor is individually the passive subject of that right. In the case of real rights, on the contrary, no person, except the general community, is indi- vidually passive. —~+>— Section LX VII.— Various DENOMINATIONS OF REAL RIGHTS AND OF PERSONAL RIGuHtTs. 195. Jus in re, the expression for real rights, and jus ad rem, for personal rights, are barbarous expressions introduced in the middle ages, and which have never belonged to the language of Roman law. The former already appears in the Brachylogus, the summary of the law of Justinian, compiled in Lombardy in the twelfth century.* Both are to be met with in the thirteenth century opposed to each other in the papal constitutions ;> and it is from the canon law that they seem to have passed ' To my own creditors, for instance, who may profit by it. 2 Suppose a third party destroys my title as a creditor ; suppose he prevents my debtor from fulfilling his obliga- tions either by fraud or violence, or by possessing himself of the securities, con- trives to get himself paid instead of me —let him in any way invade my right as a creditor, I shall have an action against him. It is the same as with real rights, only in the latter case the invasion by third parties is much more easily accomplished, and the modes in which that invasion may be attempted more numerous. 3 We sometimes find, in the frag- ments of the jurists in the Digest and in the Code of Justinian, the expressions jus in re or jus in rem, but indifferently applied, either for personal rights or for real rights. Thus they can be seen: Dig. 9, 4, 30, f£. Gai.; 32 (3°), 20, £. Ulp.; 47, 8, 2, § 22, f. Ulp., where debts are in question as fideicommissa, deposit, commodata, or hiring. See also Dig. 20 (1°), 71, § 5, £. Ulp.; Cod. 7, 39, 8, § 1, const. Just. 4 We find them with respect to real actions, “cum in rem quam (adversa- rius) possidet, aliqguod me jus dico habere.” BrachyL., lib. iv. tit. 19, in fin. And with relation to usufruct,“Jus in re consequitur quis actione in rem propo- sita de usufructu.” Lib. iv. tit. 23, § 8. 5 «. | . Quis eorum jus habeat in prebenda.” “Habere jus decernimus in eadem.” “Jus vero quod secundo ad prebendam, non in prebenda... . competebat.” Sexti Decret., 3, 4, 40, Boniface VII., 18th century. “... Vel alioram quorumcumque beneficiorum in quibus jus non esset quesitum in re, licet ad rem.” Sexti Decret., 3, 7, 8, Boniface VIII., 13th century. “A jure, si quod in hujusmodi beneficio, vel ad ipsum forsitan competebat.” Clementi. 2, 6, Clement V., 14th cen- tury. “. . Jusad rem expectanti- bus dicta bencficia.” Extravag. Johan. XXIL, 4, 1, 14th century. 652 GENERALIZATION OF ROMAN LAW. into secular jurisprudence. We must rid our judicial language of it. The expressions jus in rem for real rights, and jus in per- sonam for personal rights, framed after the model of some analogous expressions of Roman law, do not, any more than the preceding, belong really to it.? Absolute and relative rights. This is a philosophic divi- sion altogether foreign to Roman jurisprudence. It is certainly more rational than the last; but it is equally objectionable, be- cause it seems to imply the idea that absolute right exists with regard to everybody, whilst the personal or relative right only exists with regard to persons the passive subjects of this right. Every right, from the moment it exists, exists with respect to all, and must be protected, if needs be, against all.2 Only in the case of real rights no person whatever is individually the passive subject of them; whilst, in the case of personal rights, @ person is individually the passive subject of them. The common expressions, “real rights,” “ personal rights,” have been accepted by general consent and use, and we adopt them as conventional phrases, though they do not completely express the idea, and are not altogether correct, because every right, without exception, is personal as to the subject to which it appertains and real as to the object. 1 These are the actions which Roman jurists divided into actions in rem and actions in personam. So also in the case of exceptions and contracts. We shall see, when noticing these matters, and especially the system of formulas, how these expressions were correct and in harmony with formulary practice. But they must not be carried elsewhere. 2 No one right is more absolute than another. The whole community is surety for every right, and is bound to _abstain from interference with the exer- cise of it. The error chiefly arises from an idea that when a man institutes a suit against another in order to inter- fere with a real right (for example, a suit claiming property), he exercises that right. He exercises it when he uses the thing, when he enjoys the ad- vantage of it, or when he disposes of it in any way. There is never, in the exercise of a real right, any intermediate individual passive subject between me and the thing. This is the distinctive character of this right. But when I institute a real action against any pos- sessor, I do not exercise my right; I defend it, I wish to have it recognized. It is as if a third party, whoever he might be, obtained possession of my title deeds, substituted himself for me, and wanted to receive payments in my stead. I should have the right to de- fend and to have my right recognized. In short, rights, both real and personal, exist with regard to all. The com- munity is always the guarantor of all rights: but no person is individually a passive subject of the first; as to the second, a person is individually the passive subject of it. GENERALIZATION OF ROMAN LAW. 653 But, in conclusion, we desire to point out that these expres- sions are both equally foreign to the law of the Romans, and that in this law no such general division was ever made, nor had it any place in their system. —~—. Cyarter IT. PeErRsonaL RIGHTs. § I. OBLIGATIONS. Section LXVII.—GeEnerat IDEA OF THE OBLIGATION OR PERSONAL RIGHT. 196. In rights of this kind there is always a person who is the active subject, and another person who is individually the passive subject, of the right. The latter is, so to speak, in a relation of dependence with regard to the other. He is, ina manner, tied to the former for the execution of the right of which he is the passive subject. And so the terms used are all derived from the same figure of speech. Obligare (from 0b and ligare, to tie); obligatio, vinculum juris; adstringere (to attach to); contrahere (to draw together), contractus,—are the words used to designate this right, or its effects, or certain modes of its operation. Solvere(to untie) and solutio are the terms used to signify its annihilation. Apart from all figure of speech, obligatio is nothing but the legal necessity, imposed on one person towards another, to make a payment. It is a personal right in the passive point of view. In the active point of view, that is to say, considered in relation to the subject enjoying it, a personal right is the faculty of constrain- ing a person to make a payment; in the passive point of view, that is to say, in relation to the subject who suffers from it, it is the necessity of making this payment. Under the first point of view a personal right is called with us “debt;” among the Romans zomen, less generally creditum; and the active subject, to whom the right belongs, “ creditor” (from eredere, to have confidence, to give credit, which is not 654 GENERALIZATION OF ROMAN LAW. always exact, for many debts arise involuntarily without there being any exercise of confidence from one person towards an- other). In the second point of view, a personal right is called obligatio, and the passive subject, against whom the right exists individually, debtor, debitor. 197. The immediate object of every obligation is always an act; it requires a person (taking the word “act” in its most general acceptation) to give, supply, or do something, or to abstain. The thing to be given or supplied is not the object of the obligation, except in a subordinate or ultimate sense: the coercion, the juris vinculum, is the primary object. This was realized by the Roman jurists, and is expressed by Paul in the following terms:— Obligationum substantia non in eo consistit, ut aliquod corpus nostrum, aut servitutem nostram faciat; sed ut alium nobis adstringat ad dandum aliquid, vel faciendum, vel prestandum.” 4 Dare, facere, prestare, were three symbolic words used in the formulas of Roman law to signify generally the possible object of all obligation. Dare, to transfer Roman property ; facere, to accomplish a fact or even to suffer, to abstain; pre- stare, to supply, to provide an advantage of some kind or other. These two last terms have the widest signification: facere might, in its scope, include them all; and prestare also, since it embraces all kinds of advantages, corporeal things, rights positive or negative, acts, &c.; whence the general term “ acts” (prestation). 198. With the idea of personal rights are connected—1st. The notion of the obligatio, properly so called among the Romans; 2nd. The rules regulating the formation, the trans- mission and the extinction of obligationes; and 3rd. The idea of certain personal rights which in Roman legislation and juris- prudence are not, properly speaking, obligationes. 1 Dig. 44, 7, De oblig. et action., 3, pr. £. Paul. GENERALIZATION OF ROMAN LAW. 655 Section LXIX.—Obligatio, PROPERLY 80 CALLED AMONGST THE Romans. 199. The obligation is defined in the Institutes of Justinian, “Juris vinculum quo necessitate adstringimur alicujus solvende rei, secundum nostre civitatis jura.”1 This definition only applies to the odligatio under the jus civile. There was, in fact, the obligation, properly so called, of the Roman law, the civil obligation (ctvilis obligatio). The pretorian law, how- ever, introduced odligationes which did not exist in civil law, and supplied preetorian means for putting them into execution ; they were called pretorian or honorary obligations (pretorie vel honorarie@ obligationes). Finally, jurisprudence caused to be recognized, on the unique foundation of the rights of persons and of natural reason, certain obligations which were binding neither by the jus civile nor by pretorian law, and which were called natural obligations (natu- rales obligationes). 200. The principal effect of the civilis obligatio consisted in the necessity of the debtor making the payment to which he was bound, and consequently in the right which the creditor had to compel him by law to do so. That is what is meant when it is said that the civilis obligatio gave the creditor a civil action against the debtor. The pretorian obligation also produced an action, but only a pretorian action. As to the naturalis obli- gatio, it did not give the creditor the right to force the debtor by law to fulfil the object of the obligation. The necessity imposed on the debtor by the naturalis obligatio was less effec- tive, and it was only occasionally, and by indirect means, that the creditor could put it in force. The naturalis obligatio had not, properly speaking, either civil or praetorian obdligatio, there being no juris vinculum quo necessitate adstringimur. 1 Instit, 3, 13, pr. 656 GENERALIZATION OF ROMAN LAW. Secrion LX X.—CREATION OF OBLIGATIONS. 201. Every right is engendered by an act, consequently there can be no obligation which does not proceed from an act. Reason teaches us that the acts which are capable of pro- ducing obligations can be reduced to the four following :— 1°. Consent of the parties ; 2°. Acts by which a person may wilfully have injured another, according to the maxim of natural reason that a man is bound to repair an injury wrongfully caused ; 3°. Acts by which, either voluntarily or involuntarily, a person may find himself enriched by the wealth of another, ac- cording to the maxim that no man has a right to derive an advantage from and to the prejudice of another ; 4°, Certain relations between persons in the constitution of the family or of society. But the civil law of the Romans had a more restricted opera- tion; it recognized no obligation as a vineulum juris except in a, few cases strictly prescribed by itself. It was only gradually, by the preetorian edict, by the science of jurisprudence, by im- perial constitutions, and under the influence of the jus gentium, that these limits were extended. 202. With regard to those obligations which have their origin in the mutual consent of parties, the most general ex- pression for them is that of “ conventio,” or pactum, conventum, which signify the concurrence of one or more wills in the crea- tion of some right, its modification or its extinction; but the word contractus, which signifies the actual convention that pro- duces obligation, is applied exclusively to conventions specially recognized as obligatory and which conferred an action by the ancient jus civile. Roman law, in this creation of contracts, seems to have followed the historical gradation here set down. 208. First, the nexum, the ancient and generic title designat- ing every operation accomplished by means of the bar of metal GENERALIZATION OF ROMAN LAW. 657 and of the balance, “ Quodcumque per es et libram geritur,”1 with the scale-bearer (libripens), the five citizen witnesses, the prescribed gestures and words. These ceremonial forms,—ves- tiges of the ancient times when, in the absence of money, metal was measured by weight,—retained their symbolic use and were employed for the creation, for the transmission and for the ex- tinction of various kinds of rights; both of Quiritarian property and obligations. In order to create the obligation, the metal was supposed to be weighed and given by the creditor to the person he accepted for debtor; or else a thing was either really, or by fiction, alienated ex jure Quiritium, the solemn words uttered. between the parties constituting the legal transfer,? by which the vinculum juris was established. The contracts of loan (mutuum), of guarantee (pignus), of deposit (depositum), were originally formed in this way. Afterwards the simple tra- dition of the thing sufficed to create the civil obligation, and thus contracts came to be recognized, which the Romans called contracts made, re. 204. The progress of Roman civil law, in the civil form of contracts, tended to simplify this solemnity per es et libram; the symbolical weighing was taken as accomplished, and the bar of metal as weighed and given. Thence came the second Qui- ritarian form of entering into an obligation, the first derivation from the ancient nexum; the symbolic words were detached from the solemnity per es et libram, which was held to be accomplished, and reduced to a solemn interrogation (stipulatio) and answer (responsio, promissio) between the parties. The Quiritarian terms prescribed for this interrogation and answer were SPONDES? Sponpio, whence this ceremony came to be called sponsio. In course of time means were adopted to admit the peregrini to this form of entering into obligations, by using other kinds of interrogations: Promirtis? Promirro; Dasrs? Dazo, &c. And later still, the stereotyped features of the sys- 1 “Nexum est, ut ait Gallus Zlius, Tables. ‘“ Quum nexum faciet manci- quodcumque per xs et libram geritur, piumque, uti lingua nuncupassit, ita’ idque necti dicitur.” Festus, on the jusesto.” Festus, on the word Vun-: word Wexum. cupata. 2 Such are the terms of the XII UU 658 GENERALIZATION OF ROMAN LAW. tem disappeared, and Greek even came to be admitted into the stipulation; one of the parties might interrogate in Latin, the other answer in Greek, or vice versd. As long as the inter- rogation and the response were in accord, whatever form the expressions took it was sufficient to establish the contract.1 Such was the contract which the Romans called verbis. It was a very general form of entering into an obligation, in the sense that it could be applied to every kind of obligation which the contracting parties could create. 205. Afterwards came the third Quiritarian form of entering into obligations, the second derivation from the ancient nexum. This form, which was only applicable to obligations t6 pay a sum of money, consisted in considering the operation per @s et libram as accomplished, and consequently the sum, the object of the obligation, as weighed and given on the one hand, and as received on the other, and in writing it down in the established formule in the domestic register (¢abule or codex accepti et expensi). Hence this contract came to be styled expensilatio (the writing down of the sum weighed and given); and the sum which formed the object of the contract was called pecunia expensa lata, or sum held as weighed and given, with regard to the creditor; pecunia aeccepta relata, or sum held as received, with regard to the debtor. And from this form of obligation came the generic expression nomen, as designating a debt, be- cause the debt was inscribed on the domestic register in the name of the debtor. Hence also nomen transcriptitium, either because the entry was written first in a current waste book (adversaria), and then carried every month to the fair copy register, or rather because, by the act of committing to writing, a merger of the pre-existing credit was effected. This contract was said to be formed Mitteris. Like stipula- tion, it was in theory exclusively confined to citizens. In the course of time, however, it was extended, but in a different 1 Inst. 3, 15,1. The stipulator was to stipulate about a thing, or for one’s the interrogator, and consequently the benefit, meaning that one person makes one towards whom the promisor entered another enter into obligations towards into obligation. Thence cametheform him. of expression still in use with us, GENERALIZATION OF ROMAN LAW. 659 form, to foreigners, in the shape of syngraphe and chirographa. After that the use of the codex, or domestic register, and with it the original contract Uitter7s, fell into disuse. The syngraphe of the jus gentium shared the same fate, and the chirographum, which survived the others, was itself considerably modified before the time of Justinian, at which period the latter was little more than mere evidence in writing of a contract. 206. Finally, the jus civile recognized four kinds of con- tracts only, as capable of being formed by consent alone, with- out the operation per es et libram, without the solemn inter- rogation and entry in domestic registers, or any other formality : lst, sale (emptio-venditio); 2nd, hiring (locatio-conductio); 3rd, partnership (societas) ; and 4th, mandate (mandatum). A fifth, the contract of emphyteusis, was added in the later times of the Lower Empire; but it is not reckoned in the same category as the others, because it was considered in Roman jurisprudence as a sale by some and a hiring by others. These contracts were called by the Romans consensu; they rested on the jus gentium, the form of entering into them being reduced to its simplest expression. They were characterized by this distinctive mark, that they produced obligations on both sides (ultro citroque), and that their effects were defined by equity (ex equo et bono). 207. Hence, in the progressive development of Roman law, there arose four kinds of contracts—re, verbis, litteris and con- sensu. A contract made without any of these essentials was called pactio, pactum, conventio, and, under the jus civile, created no obligation. The imperial or preetorian law, however, did attach to some of them an obligatory force, and particular circumstances might also modify the application of the strict letter of the law, and impart to pacta certain legal effects. 208. With regard to acts which are not the result of mutual consent of the parties, the primitive civil law gave them the name of noxa, afterwards maleficium, delictum, and also pro- vided an action in a great number of cases, in which the obli- uuvu2 660 GENERALIZATION OF ROMAN LAW. gation resulted from the prejudice wrongly done to another, and the preetorian law made a few additions. 209. Every obligation springs either ex contractu or ex delicto—* Omnis enim obligatio vel ex contractu nascitur, vel ex delicto.” Those: obligations recognized by Roman Juris- prudence, which had not a pure origin either ex contractu or ex delicto, but which nevertheless bore the characteristics of one or other of them (varie causarum figure), were classified according to their resemblance under the head of quasi ex con- tractu or quasi ex delicto. Whence the general division of contracts into ex contractu, quasi ex contractu, ex delicto, quasi ex delicto. > Section LXXI.—TRANSFER OF OBLIGATIONS. 210. Roman law is logical. A personal right could not be transferred from one person to another. It is a bond between the active subject and the passive subject; and if you change one of these elements you have no longer the same right. There is not therefore, strictly speaking, a transfer of the credit from one to the other, but an analogous result is produced by means of procuration. —— Section LXXII.—Extinction oF OBLIGATIONS. 211. The cancelling of the bond of the obligation, and con- sequently the liberation of the debtor, however it may happen, is termed by the Romans solutio (an unfastening) in its most general acceptation. 212. The obligation, that is, the civil bond, could only be dissolved conformably to rules of civil law itself (¢pso jure). In numerous cases, however, where the obligation, according to strict law, continued to exist, the preetorian law adopted cir- cuitous means of furnishing the debtor with the power of de- fending himself against the demands of the creditor (exceptionis ope). GENERALIZATION OF ROMAN LAW. 661 2138. At the head of all legal methods for extinguishing obligations is that which accomplishes the end and object of the obligation, that is to say, the payment of what is due. The word solutio, taken in a more restricted sense, applies particu- larly to this mode of extinction. 214. But, besides this, civil law enabled a person to dissolve an obligation by replacing it with a new one contracted in its stead. That is what is termed a novation (novatio). All ob- ligations whatsoever may be novated; but all the methods of entering into an obligation cannot be employed to effect this transformation. It must be accomplished either by the con- tract verbis or the contract ltteris. Of these two the more convenient, the one the more commonly used, was the contract verbis or the stipulation. 215. If, by mutual consent, the parties wished to dissolve the obligation without payment or novation, so that the debtor might be set entirely free, in other words, if the creditor wished to remit the debt to the debtor, the Roman civil law required a symbolic act, which is well worthy of notice. It required a kind of imaginary payment (imaginaria solutio); and this fic- titious payment might be accomplished either by the material and tangible forms, the scales, the witnesses, the established words and the bar of metal taken as weighed and given in pay ment by the debtor to the creditor (solutio per es et libram)} or by the use only of the symbolic words, by the help of which the creditor, on the interrogation of the debtor, might declare the payment accomplished: “ Quod ego tibi promisi, Habesne acceptum ? Habeo.” This is what is called the acceptilatio (declaration that the thing is held as having been received), or solutio verbis ; or by an inscription on the domestic register, in a formula stating that the sum due was considered as received (solutio litteris). Lastly, and as a last resort, in certain cases civil jurisprudence recognized the simple concurrence of the parties as sufficient to extinguish the obligation. ' Gai. 8, § 174, 662 GENERALIZATION OF ROMAN LAW. So that we find the method of annulling obligations by means of a surrender by the creditor went through the same gradations as the mode of creating them. As they were contracted so they were dissolved, per es et libram, verbis, litteris, consensu. But these methods of liberation by surrender by the creditor were confined respectively to the modes of creating the obliga- tion, that is to say, the liberation per @s et libram answered to the obligations created per es et libram; the acceptilatio, or liberation verdis, to obligations contracted verbis; the liberation litteris to those created by entry in the domestic register; and, lastly, liberation by mutual consent alone to those which mutual consent alone had made. But jurisprudence found the means of generalizing the use of the acceptilatio or solutio verbis, and made it a method of surrender applicable to all kinds of obliga- tions by the aid of a preliminary novation, by which all obliga- tions could be transformed into a verbal obligation. Thus the verbal form of stipulatio came to be the means of making a novatio or of annulling an obligatio. —~+— § IL PERSONAL RIGHTS, OTHER THAN OBLIGA- TION PROPERLY SO CALLED. Section LXXIII. 216. Under this title we rank certain personal rights existing in Roman law, in which, though there was a person individually the passive subject of the right, still there was no properly so-called obligation on the part of this person, in this sense, that this right does not confer on the active subject the faculty of taking the initiative and of attacking the passive subject in order to constrain him to give, to procure, or to do something ; but only the faculty of refusing, of compelling him to withdraw his demand, if attacked by him.t It is a right of defence and not of attack. The obligation entitled by Roman law “ natu- ralis obligatio,” besides some other effects of which it was susceptible, was a right of this kind. ' Tt is a question of those personal rights which are only protected by ex- ceptions, GENERALIZATION OF ROMAN LAW. 663 Cuarter III. Reau Rieuts. Section LX XIV.—IprEa common To ALL Rear Ricuts. 217. In real rights, in addition to the general community, bound to abstain from interference, there exists but the person, the active subject, and the thing, the object of the right. Thus, there is no actual relation between two persons, no link nor tie uniting one to the other.1 Thence arises a radical difference in the manner in which real rights and personal rights are exercised. In the case of personal rights, he to whom the right belongs attacks the person who is individually the passive subject, to obtain from him the thing, the object of the right; in the case of a real right, there exists no intermediate passive subject; the right is therefore exercised immediately by the person, the active subject, on the thing which is the object of it. That is to say, that every real right necessarily gives to its possessor the faculty of disposing of the thing. It is precisely in the possible variety of the methods of thus disposing of it, that the variety of real rights consists. 218. The consideration of real rights involves the legal theories concerning dominium and proprietas, which import the most extensive powers of alienation: those upon possessio, which are intimately connected with dominium; those con- cerning real rights which are mere offshoots of proprietas ; and, finally, those concerning rights which are not strictly off- shoots or fractions of proprietas. —~— Section LXXV.—Mancir1um—DominiuM—PROPRIETAS. 219. The most perfect alienation, that which confers a real right, is, in the language of the text, plenam in re potestatem.® 1 Thus some writers define realrights describing but by characterizing them simply to be those which belong tous as a something in which the notion of without any obligation from any one obligatio is wanting. towards us. This is to define, not by 2 Instit. 2, 4, § 4. 664 GENERALIZATION OF ROMAN LAW. This comprises the right of taking: the use or the services of the thing (usus); the fruit, that is to say, the products which it is destined to give (fructus); the right of profiting by all which belongs to it; the right of modifying it, of parcelling it, of con- ferring to another real rights over it; finally, that of destroy- ing and consuming it, which the Roman jurists called abusus, because it was a kind of using which causes the right to dis- appear. 220. Mancipium, dominium, proprietas, were the terms by which the right of possession was successively described by Roman jurists, and in these three words alone we can trace the progress of civilization and the development of law through each of the great epochs. Mancipium, the most ancient expression, belonged to the rude and primitive times of Roman law, when violence (hasta, manu, capere) was the ordinary mode of acqui- sition.1 Dominium belonged to a later age: it indicates the social condition of the family. It was in each house (domus) that property was concentrated; though considered as belong- ing to the family in common, it belonged to the head of the family alone, no other could be proprietor; and all individu- alities were absorbed in his person. Proprietas, the latest term, belongs to the language of a more recent epoch, to that of the time of Neratius.? It was the age which we call the philo- sophical, the period marked by the invasion of the jus gentium on the jus civile, when the personality of the sons of the family was recognized; when not only the chief but the children too could be proprietors; when the right of property was an indi- vidual right; and accordingly we find it designated by a word which expresses its effects, proprietas, because it attaches the thing to each individual. 1 Thus mancipium designates,in its act, and sometimes the thing subjected literal acceptation, the judicial act of to that right. mancipation; by figure of speech, the 2 Dominium, id est proprietas, says right of possession produced by that this jurist. Dig. 41, 1, De adg. rer. dom., 13, f, Nerat, GENERALIZATION OF ROMAN LAW. 665 Section LX XVI.—Posszssto. 221. The idea of possession consists of two elements—a physical, material act, the act of having a thing in our power, and an intention, that is to say, the will of having a certain thing in our power as proprietor, whether we are really so or not, whether we think we are or whether we know we are not. Thus, in cases where there is only one of these elementary principles, the first and not the second, for example, in the case of a bailee, of a tenant, who, though having the thing materially in his power, has no intention of ownership, there is nothing but a physical detention, nuda detentio, corporalis possessio, naturalis possessio; the bailee, the hirer, being considered and considering themselves as mere detainers from another who, for the time being, is dispossessed, but who, in fact, holds mediately through them. But from the moment that the two elements are united, there is real possession (possessio civilis). The predominating ele- ment is that of physical power over a thing, whence the name of possessio, synonym of power (from posse, to be able).1 Civil law takes this thing into consideration and attaches to it im- portant effects, whence possessio civilis. 222. It is a debatable question whether or not possession may be considered as a right. Roman jurists, according to the point of view from which they regarded it in one case, con- sidered it as a mere question of fact; in the other, as a question of law.? In reality possession essentially consists in an act; but when we consider the effects and the protection of right attached to this act, we think it is correct to say that there is a right of possession. 228. Possession and property are two very distinct things. 1 According to Labeo: “A sedibus quasi positio: quia naturaliter tene- tur ab co qui et insistit”’ (Dig. 41, 21,1,pr. f. Paul.) We prefer the other derivation. 2“Fam enim rem facti, non juris esse” (Dig. 41, 2, 1, § 8, f. Panl). “Possessio autem plurimum facti ha- bet” (Dig. 4, 6, 19, f. Papin.). See also, in the same sense: Dig. 41, 2, 1, § 4, f. Paul, and 29, f. Ulp.; Dig. 49, 15, 12, § 2, £ Tryphon. In a contrary sense: “Cum. . plurimum ex jure possessio mutuetur” (Dig. 41, 2, 49, pr. f. Papin.) “ Possessio non tantum corporis, sed juris est” (Ibid. § 1). 666 GENERALIZATION OF ROMAN LAW. Generally they are united, and it is in the regular course of things they should be so. A man is a proprietor, and it is in the ordinary course of things that he should have the property in his power and at his disposal. But they may be separate; and whenever they are, there must be either error, ignor- ance, cozenage or misdemeanor,—something, in short, that is irregular. It follows from this that possession, till proof given to the contrary, gives presumption of property; that it is the external indication of it; that it plays an important part, in Roman law especially, in the means of acquiring or losing property. 224. Here we come to the legal rules: 1st, on the acqui- sition of possession, in which we find occupation, which is the taking possession of a thing not yet belonging to any one, dis- tinguished from tradition, which is the transference of possession from one person to another; 2nd, on the different effects of possession, considered either as an act or as a right, effects which vary according to different circumstances; and 3rd, on the cessation of the act, or the loss of the right of possession. 225. There is an important distinction which will throw much light on this subject, viz., that some of the advantages which appertain to possessio can, like those of proprietas, be parcelled out, separated and alienated in the same thing to different persons. —~—- Section LXXVI.—Dirrerent Kinps or Dominium—SuccrsstvE ALTERATIONS OF CrviL Law. 226. Under the primitive jus civile, there was one kind of dominium, the Roman, the dominium ex jure Quiritium; a man was a proprietor according to the jus Quiritium or not at all.1_ The citizen alone could enjoy this dominium; the things, the soil participating in the commercium, could alone be the object of it; the modus operandi recognized by the jus civile ’ Gai. 2, § 40. We sometimes use is not technical. They always said in the phrase Quiritarian dominiwm ; the Roman law, Dominium ex jure Quiri- expression, though conveying the idea, — tium. GENERALIZATION OF ROMAN LAW. 667 could alone confer it. Foreign persons and soil were strictly excluded, and the occupants of soil which did not enjoy the jus Italicum had merely the possessio, and not the proprietas ; nor could they acquire it by prescription. 227. Ata later date, Roman jurisprudence lost its conserva- tive Quiritarian exclusiveness, and, admitting the jus gentium as an active principle, recognized the form of dominium, which was expressed by the phrase in bonis habere (to have amongst one’s property). This dominium is styled by Theophilus in his paraphrase decndrys Bovirdépios, whence the commentators have called it dominium bonitarium, aterm altogether unknown to Roman jurisprudence. This dominium or proprietory right, this possessio in bonis, did not exist as a Quiritarian institution, but was suffered to exist side by side with the dominium ex jure Quiritium. The pretors recognized and protected it, juris- prudence developed its principles and rules, gave to it all the beneficial effects of its Quiritarian rival, and so equalized the two, that the difference ultimately became one of name rather than of fact. 228. By the time Justinian ascended the throne, dominium ex jure Quiritium had ceased to exist as a fact. As in the earliest period, so now, there was but one dominium, but this was the pretorian dominium in bonis. The emperor therefore abolished the only remnant of the Quiritarian—its name. —~>— Section LXXVIII.—AcquisiTIon—TRANSMISsION—Loss OF EstaTE OR PROPERTY. 229. The method in which the estate was acquired, trans- mitted or lost is an important branch of legal study. As regards acquisition, it is necessary to notice the predominant principle of Roman law, which is, that the contracts between persons, even when clothed in the technical forms of the jus civile, were not sufficient to transfer the property from one person to another. Contracts: had the effect of binding parties among themselves; they created a personal right, they could 668 GENERALIZATION OF ROMAN LAW. even compel the transfer of property (DARE, in the language of Roman law), but they did not transfer it; they did not create the real right of property. To constitute proprietas, a definite act of quite a different nature was necessary, for example :— 1. Occupation, that is, taking possession of a thing which belongs as yet to no one, or else of a thing which belongs to the enemy, for conquest was the means, par excellence, of acquiring dominium according to Quiritarian law, and the lance was always the symbol of this domintum. 2. Tradition (traditio), that is to say, transfer of the possessio,! as long as it referred to a thing nee mancipi, for applied to a thing mancip?, tradition, under strict civil law, would produce no effect whatever of ownership; and under the intermediary law would place the thing simply in bonis : Or else the solemn alienation under the jus civile called the nexum :* or, The mancipium, later mancipatio, and accomplished by the symbolical form of the ancient sale, by means of the piece of brass and the scales (per es et libram), with the scale-bearer (libripens), the citizen witnesses, the prescribed actions and words, hune ego hominem ex jure Quiritium meum esse aio, isque mihi emptus est hoc ere eneaque libra, and even when it was not a question of a sale.3 3. Usucapio, acquisition by use, acquisition of Roman pro- prietas by possession for a certain period: one year for movables, two years for immovables. 4, The in jure cessio, another fiction, a symbol represent- ing a judicial act in which the magistrate, addicens, uttered the addictio, and declared the thing the property, ex jure Quiritium, of the person to whom it was to be made over. tions. But the more especial significa- * It will be seen that the jus civile tion of newum came to be the engage- recognized two means of the jus gen- tium, occupation and tradition, as conferring the dominium ex jure Quiritium. 2 The expression nexwm is still more general than mancipiwm or manci- patio. It was applied to all phases whatsoever of the sale per es et Libram, and operated, as we have seen, to create as well as extinguish obliga- ment of a person or application of a thing, by means of the alienation per @s et libram to guarantee a debt. § Mancipation did not effect by itself the tradition, that is to say, the transla- tion of the possessio, Vide Gains, 2, § 204; 4, § 131; Vat. J. R. Fragm. § 313, GENERALIZATION OF ROMAN LAW. 669 5. The adjudicatio, by which the judge in a particular suit was authorized to adjudge the thing (adjudicare), that is to say, to transfer, by judgment, the proprietas from one person to another: this took place when it was necessary to determine the boundaries of adjoining estates (jintum regundorum), or to divide an inheritance (familie erciscunde), or to divide common property (communi dividundo). 6. The public sale of prisoners of war or of spoil, made in the name of the republic by the guestores erarii, under the symbol of conquest and of Roman dominium sub hasta, or finally, some few other cases comprised by jurists under the general designation of lex, law.? 230. All these methods of acquiring dominium ex jure Quiritium relate to the acquisition of particular objects (singularum rerum). We shall speak in another place of the acquisition per universitatem. 231. Under Justinian the mancipatio, the in jure cessio, the distinction of things mancipi and nec mancipi, ceased to exist, and traditio applied with the same results to all corporeal things. But the principle, that contracts produce obligations—personal rights and not real rights—was preserved throughout. 232. To follow up the study of the subject it is necessary to trace the relations of the proprietas to the political constitution, the constitution of the family, the successive additions to the empire of different territories, and the social condition of the people at the different epochs in the history of Rome. 1 Varro, De re rust., 2,10, Sie preda sub corona emit. 2 See for the development of these different modes of acquiring property, Ortolan, Heplicat. Hist., vol. 1i. book 2, article 1. The Romans desired that the acquisition of property should be manifested by a public act. At the point which our civilization has reached, when the economical condi- tions of society have undergone a revolution, when credit is so powerful an element in the production of wealth, when personal rights form so large a portion of individual wealth, the ne- cessity for this publicity is felt in personal as well as in realrights, And yet French legislation has retrograded; it has suppressed the public token in one case as well as in the other. The law of the 23rd March, 1855, Sur la transcription en matiere hypothécaire was intended to remedy some of the greatest inconveniences that result to third parties from this system. 670 GENERALIZATION OF ROMAN LAW. Section LX XIX.—Reat Rieuts OTHER THAN Proprietas anv Possessio. 233. Among these other real rights there were some which were, in the strict sense of the term, dismemberments, or fractions of the proprietas. In fact, they conferred on him who enjoyed them the power of alienation within certain limits. For example, the faculty of alienating a thing, in the sense of disposing of it, use of fruits or produce, or even parts of it; the servitudes (servitutes) both predial (rerum, prediorum) and. personal (personarum, personales), and especially, among the latter, the usufruct (usufructus) and the use (usus); the emphyteusis and the right of superficies,—are among these real rights. The Roman jurists have failed to point out to what extent real rights attach to the position of hirer or bailee with the right of user (commodatum), and have confined their attention respecting them to the consideration of the personal rights they create as contracts. 234. There were also other real rights, the conferring of which was not considered as diminishing the dominium of the grantor; such are pledge ( pignus), where the delivery of the pledge temporally changes the right of possession,' and hypothe- cation (hypotheca): to which is attached this peculiarity, that this species of real right might be created by mere consent.? 1 The guaranteed creditor had the added: there are real rights, as we possessio ad interdicta, Dig. 41, 3,16, have already seen in the case of per- f. Javol.; 41, 2, 36, f. Jul. sonal rights, which are only guaranteed 2? This final observation may be by exceptions and not by actions. GENERALIZATION OF ROMAN LAW. 671 Cuarrer LV. CONSIDERATIONS APPLICABLE TO PERSONAL RiGUTS AND TO Rea Rieuts. Section LXXX.— RIGHTS RELATING TO THE STATE, TO THE FamI.y, TO THE MorAtL or Puysicat INDIVIDUALITY oF Man. 235. Man considered from this point of view is susceptible of both real and personal rights. On the one hand, the relations resulting from the status of an individual, and the necessary elements of such status, particularly familia, give rise to numerous obligations. And on the other hand, we find therein a union of real rights, whose object is not corporeal things, but immaterial abstractions, and which are nearly all of the highest value toman. Thus, the character of father, of son, of free, of enfranchised, of patron, of citizen; the liberty and individual safety of the physical person, the honour, the reputation and the whole of the intellectual faculties of the moral person, all these form the object of so many rights, which belong to us directly and immediately, and that without the intervention of an individually passive subject, and independently of all obligations towards us. These are real rights. — Section LX XXI.—AcgquIsITIoNs oR SUCCESSIONS per Universitatem—INHERITANCE. 286. There are means of acquisition which apply both to real rights and personal rights. The persona of an individual who is deceased (and sometimes even before decease) is detached as it were from that individual and implanted in another, who continues the existence of the persona, and through him are transmitted all real and personal rights, with the exception of those whose nature it is to die out with the individual. 237. This substitution of one persona for another was not a matter of the mere volition of the parties. The State, either by 672 GENERALIZATION OF ROMAN LAW. the general law common to all, or by a special law passed in the comitia, or else by the magistrate, always intervened, at least until the necessity for the intervention was done away with, by means of fictions and other indirect methods of evading the strictness of the ancient régime, changes which were brought about as the jus privatum grew up and overshadowed the jus publicum. 238. Hereditas, whether ex testamento or ab intestato, bonorum possessiones, fideicommissaria hereditas, legatum, legacies in certain cases, and especially at the time of Justinian ; adrogatio and some other legal conditions, rights, actions and events which Justinian for the most part suppressed,—were so many methods of succeeding to the goods and rights of a person when dead, or even during his lifetime. ARTICLE SECOND. OF ACTIONS. § I. PRELIMINARY NOTIONS. Section LXXXII.—Ricuts—J uRISDICTION—PROCEDURE. 239. Rights are engendered and their effects defined; but rights are abstract, they are purely creations of the social world, they are immaterial, they are in themselves inert and powerless: to give them life and action there must be power and procedure. And what this power and procedure are, are questions that arise in connection with every form of society, and every species of right. 240. The law, the jurisdiction and the procedure are the neces- sary components of every legislative system. The last two are equally worthy of study with the first, for in them we realize the living and active principle. The study of the law familiarizes, GENERALIZATION OF ROMAN LAW. 673 us with the abstract; a visit to a court of justice places the living citizen before us and exhibits the reality of law. —~—. Section LXXXII.—Generat Ipea or THE Acrio. 241. The word action (actio, from agere, to act) in its etymological signification designates the putting into action of the law, or the act or series of acts by which we have recourse to judicial power to enforce a right, either in defending our-. selves or in attacking another. By figure of speech, action signifies, in a second sense, the right itself of exercising’ this recourse to authority; and, in a third sense, the prescribed. means of exercising it. 242. But to assign to this word any one distinct technical meaning would be in effect to confound the various systems of judicial and legal procedure which succeeded one another in the history and constitution of Rome. For the technical meaning of the word actio has changed with each of these systems. -—~>— Section LXXXIV.—Turez Epocus anp Turee Systems OF JUDICIAL PROCEDURE IN Roman Law. 243. These systems were three in number :— 1. That of the legis actiones. 2. That of formule or ordinaria judicia. 3. That of extraordinaria judicia. 244, The first extended, if not in fact, at least in theory, from the foundation of Rome till the lex butia, B.c. 177, or B.C. 171. This period may be termed the Quiritarian era; its peculiarities have been already impressed upon the reader. 245. The second form, the ordinaria judicia or formuia system, was in vogue from the decline of its predecessor till the zx 674 GENERALIZATION OF ROMAN LAW. time of Diocletian, a.p. 294. This period is characterized by the philosophic development of jurisprudence as the science of justice and equity. 246. The ertraordinaria judicia, which commenced with Diocletian, mark the period when res publica had lost its original signification, and when the imperial will had become the source and fountain of all legislation and administration. Concerning each of these periods the student of Roman law should keep prominently in his mind the answer to the two questions: What is the governing principle? What is the form of procedure ? Srction LXXXV.—DIsTINncTION BETWEEN JUS AND JUDICIUM, MAGIsTRATUS AND JUDEX. 247. The distinction is a most important one, and strikes at the root of the system. Jus is the right, the law, or will: judicium the tribunal, or proceeding where or by which the right is contested and declared. 248. Jurisdictio is the function of declaring the law, and of conferring the public power (imperium) upon the person charged with its execution. This power was lodged in the hand of the magistrate, who might also assume the functions of _judex. 249. The two functions were perfectly distinct, and were usually entrusted to different hands, the magistratus and the judex. By a figure of speech, to be in jure was to be before the magistrate charged to speak the law; to be in judicio was to be before the judge charged to examine the merits of the case.+ To the magistrate belonged the functions expressed by the words edicere, jus dicere; to the judge those expressed by the word judicare. So, also, the jurisdictio of the magistrate * In certain texts judiciwm is substituted for jus, but it is an inaccuracy. GENERALIZATION OF ROMAN LAW. 675 which declared the law, answered to the sententia of the judge which settled the debate between the litigants. The addicere of the magistrate, to assign the property to any one in the name of the law, answered to the adjudicare of the judge, and hence also addictio, answering to adjudicatio.t 250. This distinction between jus and judicitum seems to correspond, in some respects, with our modern idea of the distinction between a question to be decided on fact, and on law. However, it would be an error to look upon the office of judge as limited to the decision of a simple question of fact. He had, it is true, to ascertain the facts, but he had, in addition, to determine their legal bearing. His function was therefore mixed, the extent of the judicial element depending upon the nature of the powers conferred upon him for the given occa- sion.* 251. We thus trace the progress of the separation between the jus and judicium under the three systems. Under the first system, the distinction existed ;3 but was not always observed. Under the second, the separation was complete: and the magistrate only in extraordinary cases himself acted as judge. Under the third system, the extraordinary became the ordinary and the two functions were united. —— Section LXXXVI.—THE STaTE APPOINTS THE MAGISTRATE, THE Parties THE JUDEX. 252. The functionary who had the jurisdictio, that is, the magistrate, was clothed with state power, which he exercised 1 The pretor, in declaring the law, assigns (addicit) not only property, but other things as well, for example: a judge to litigants; the right of free- dom, sovship, &c.; whilst the adju- dicatio of the judge is never applied to anything but property or some servi- tude. 2 Amongst ourselves, in criminal matters, it is not correct to say that the jury has only to resolve a question of fact; for even the question of culpa- bility is one of the most delicate of penal law. 3 Thus in the law of the Twelve Tables: Si in jus vocat atque eat. (Cic., De legib., 2, 4; 3,75; Aul. Gell. 20, 1.) Thus the action of the law, judicis postulatio, which had for its special object to obtain from the ma- gistrate a judge for the suit. xx2 676 GENERALIZATION OF ROMAN LAW. during the whole period of office, but the judge was a simple citizen appointed to each particular case to decide the matter at issue. The authority which the magistrate exercised was the public power, imperium ; the matters confided to the judge were private. 258. Nevertheless, as he had to fulfil a public office he was selected from the class of citizens qualified under the consti- tution to exercise that function, and his powers were imparted to him by the magistrate. One characteristic of this institution is the fact, that, be the nature of the proceeding what it might, no judge could be forced upon the parties without their consent.1 The parties agreed between them in the choice of their judge, which was called judicem sumere. If he was proposed by the magistrate to them, they either agreed to, or excepted to him, without having to give any reason, which was called judicem ejerare or ejurare, rejicere, recusare ; if they could not agree, it was decided by lot.? And the judge thus fixed upon was appointed by the magis- trate to hear the suit, which was called judicem addicere2 It was a public duty which he could not refuse.* 254. There was for each jurisdiction only one magistrate, and for each suit, as a general rule, only one judge (unus judex); but in either case assistance might be rendered by assessors, or by jurists for the purpose of consultation. —~— ‘Section LXXXVII.—TueE Pusiic ADMINISTRATION OF JUSTICE. 255. This principle of the public administration of justice is coeval with the very foundation of Rome, and survived through- out the three systems of procedure. 1 “Neminem voluerunt majores nos- em, 2, 12; 3, §§ 3, 11,13 et 41. Plin., tri, non modo de existimatione cujus- Hist. natur. proem. Dig. 10, 2, 47, quam, sed ne pecuniaria quidem de re f. Pomp. minima esse judicem, nisi qui inter 5 Dig. 5, 1, 39, f. Papin.; 46, f. Paul, adversarios convenisset.” (Cicer, Pro 80, f. Pomp. Cluent., 43.) ‘Dig. 50, 6, 18, § 2, f. Ulp.; 5, 1, 2 Cicer, Pro Flacco, 21; In Ver- 78, f. Paul, GENERALIZATION OF ROMAN LAW. 677 It was in the forum, in view of all the people, that the magistrate seated on his tribunal exercised his jurisdiction. It was also in the forum, under the eyes of every one, that the judge on his subsellium proceeded to the examination, and to the decision of the suit (judicium); to him the evidence was sub- mitted, before him the witnesses were examined, and the patrons or the advocates pleaded. The magistrate had the power, in case of necessity, of holding his court, called tribunal ponere,! elsewhere than in the forum. And the judge might try the case in any other place pointed out by the magistrate who appointed him,’ or he might hear the suit in the place where the cause of action arose, but it must be in public. In later times pretor’ums were constructed, which were buildings for the administration of justice; but the principle of publicity was observed in their arrangement. The only interference with this: was the practice which pre- vailed of drawing a curtain (velum) before the magistrate while he deliberated with the assessors or counsel in the secretum, or semicircular seat. § Il. LEGIS ACTIONES. Srotion LXXXVII.—Tue Functions oF THE MAGISTRATE AND THE JUDEX UNDER THIS SYSTEM. 256. The functionaries connected with the system of the legis actiones were as magistrates—at Rome, at first, the kings, then the consuls, then the pretor, and, for a certain class of cases, the sdiles;—in the municipia the decemvirs (consuls on a small scale)—in the provinces (which only began to be part of the empire towards the end of the epoch of the legis actiones), the propreetors or proconsuls.— As judges, the judex, appointed for each case, and only eligible from the order of the senators; the recuperatores, for which the choice was less restricted, and who were always several in number * Livy, 23, 32. : 2 Dig. 5, 1, 59, £. Ulp. See also 4, 8, 21, § 10, and following, f£. Ulp. 678 GENERALIZATION OF ROMAN LAW. (either three or five) for each suit,! whilst the judge was generally alone (unus judex); lastly, the centumvirs, elected annually by the comitia of each tribe, organized into a kind of permanent college, and charged with judicial functions—an eminently Quiritarian tribunal, in front of which a lance (hasta) was planted as a sign of its character and duties,’ and which was divided into several sections. In certain cases, under the legis actiones it was the magistrate himself who adjudicated, in others the case was sent before a judge; but what the principle was by which a case was sent to a judex, or before recuperatores, or before the college of the centumvirs, is uncertain. The principle of the recuperatores, although they were introduced under the system of the legis actiones, was nevertheless foreign to it; for the recuperatores, in reality, had no connection with cases in which there were no foreigners or aliens concerned: it was an institution belonging to the jus gentium. —_~— Srcrion LX XXIX.—Forms or Procepuret, oR ACTIONS OF THE Law (Legis Actiones). 257. There were five legis actiones. Three were forms of procedure to obtain a decision in the suit. Two were more particularly adapted to carry into execution the sentence. 258. Of the three first, the actio sacramenti was the most ancient, which applied with variations of form to suits either for obligations, or for right of ownership: but the same character was common to all cases, viz., the sacramentum, or sum of money which each litigant was obliged to leave in the hands of the pontiff, and which was lost to the defeated party and devoted to purposes of public worship (ad sacra publica).3 This is the action with which we are most acquainted. The judicis pos- tulatio was the demand made to the magistrate for the appoint- ment of a judge, and which appears to have taken place, ! Tit. Liv. 26, 48; 438, 2; Cicer., Zn 3 Festus, on the word Sacra- Verr., 3,13; Gai. 1, § 20, mentum, 2 Gains, 4, § 13, and following. GENERALIZATION OF ROMAN LAW. 679 whatever might be the nature of the claim. Finally, the condictio, a much more recent legis actio, and one purely con- fined to the prosecution of obligations. 259. The two of the last kind were the manus injectio, or bodily seizure of the person of the debtor condemned, or con- victed on his own admission, which constituted him addictus ; and the pignoris capio, or seizure of the goods of the debtor.! The legis actio called per manus injectionem, though more particularly a means of execution, was also sometimes employed as a method of entering into certain suits which the magistrate decided by his own authority. 260. These legis actiones, except the last,? were accom- plished in jure, before the magistrate, even in the cases where it was necessary for him to appoint a judge or recuperators, or to send the matter to the college of centumvirs. They were the formule or judicial preliminaries. 261. The characteristics of the legis actiones were mate- rialism and superstition: they were attended by wild gesticula- tion and a close adherence to technicalities which breathed throughout the spirit of patrician supremacy, Quiritarian power, and subjection to the repressive influence of sacerdotal au- thority.’ Section XC.—SIGNIFICATION OF THE WorD ACTIO UNDER THE Lecis ACTIONES. 262. Thus we see that under the system of the legis actiones the word actio designated neither the prosecution of each right in particular, nor the power of instituting such prosecution : there was no separate actio for each right. Gaius‘ says the legis actiones were so called either because 1 On all these legis actiones, see * Gaius, 4, § 29. specially Gaius, 4, § 11, et seg. Un- 3 Gaius, 4, §§ 11 and 30; 4, § 28. fortunately there is an omission here of 4 Gaius, 4, § 11. two pages. 680 GENERALIZATION OF ROMAN LAW. they were of legal and not of pretorian origin ; or because they derived their names from the legal terms (legum verbis accommo- date) to which they rigorously adhered. Srction XCI.—Ficrrrious APPLICATION oF THE Legis Actiones To CAsES WHERE THERE WAS NO REAL SUIT (in Jure Cessio). 2638. It not unfrequently happened that, in order to transfer a thing ora real right, the judgment of a magistrate became necessary or advisable. In such cases the party to whom the transfer was to be made brought a collusive action against the other, who, not disputing the claim of the plaintiff when sum- moned in judicio, the magistrate adjudged (addicebat) in favour of the claim. 264, This was called in jure cessio, and by it the transfer of the proprietas in things corporeal and incorporeal, the transfer of tutorship, the enfranchisement of slaves (manumissio), of children, the adoptio of sons by means of feigned mancipatio, were effected. Hence, the occasional application of the term legis actiones to these acts, Idque legis actio vocatur.t Section XCII.—Dectine or tHe Legis Actiones. 265. We have pointed out how these legis actiones underwent the vicissitudes through which all Roman legislation passed, and even in the sixth century of the city we find, as Gaius declares, that they had become the object of popular hatred.? They were first of all abandoned by common use when the legal forms, designed originally for aliens, came to be used by citizens; they were formally abolished by the lex butia and the two leges Julie, one of which is attributed to Julius Cesar, B.c. 46, 1 Gai. 2,§ 24; Dig. 1,20, Of. jur.,1, De his gui non a dom. 1. £. Ulp.; 1, 7, De adopt., 4, f. Modest.; Justin. 8, 48, De adepe.1, pei 1, 16, Offic. procons., 3, ‘. Ulp. Paul, 2 Gai. "4, § 30. Sent., 2, 25, § 4. Cod. Theod. 4, 10, GENERALIZATION OF ROMAN LAW. 681 the other, or perhaps even both, to Augustus, B.c. 25; and they were never again used except in two instances, one of which was the case where the suit should come before the college of the centumvirs. Finally, in later times, they were limited to the in jure cessio. § Ill. FORMULA OR ORDINARIA JUDICIA. Section XCIII.—TuHeE MaGIstRATE AND THE JUDGE UNDER THE FormMvuLa System. 266. The public functions were exercised during the formu- lary periéd by magistrates who were,—at Rome, the pretors, the number of which had been successively augmented till it reached eighteen, the ediles, the prefect of the city, and the pretorian preefects;—in the provinces, the governor of each province, under the several titles of proconsuls, propretors, lieutenants (Cesaris legati), presidents (presides) or preefects, who repaired at certain periods to the principal towns of their provinces to hold assizes (conventus); and above them all, constituting the last court of appeal, was the Emperor. As judges there were the judex or arbiter named for each cause, the recuperators, and the college of the centumvirs, which survived, though in decay, to the end of the formulary period. 267. A radical change, which among many others was in itself alone the sign of a complete social revolution, was the extension among citizens of the eligibility of being appointed judges. The privilege had originally belonged exclusively to the senators, but came, after a prolonged dispute that lasted up- wards of half a century, to be shared between the senators and the knights, and was subsequently extended to other citizens. Five decurie, or lists of citizens nominated for the office, were every year drawn up by the pretor, and suspended in the forum ( judices selecti), and publicly posted (in albo; judices in albo relati).? 1 Senec,, De benef., 8,7; Cic., Pro Cluent., 43, 682 GENERALIZATION OF ROMAN LAW. The first decuria was composed of senators, the second of knights, the third of soldiers, the fourth and fifth (added one by Augustus, the other by Caligula) of citizens.! From these lists the judges were selected for each case. The monopoly of the patrician order in the administration of Justice was thus broken up, and the citizen was, a8 we should say in modern times, judged by his peers. Similar lists were prepared in the provinces by the governor. 268. The functions of the magistrate were limited to his especial jurisdiction, as those of the judge were to the particular case. But the practice of obtaining the assistance of able lawyers as assessors became very general during this feriod. —~— Section XCIV.—Tue FormuLe. 269. The symbols, with the consecrated terms and gestures of the primitive times, had disappeared, and were replaced, during this period of the formulary system, by the science of law. The magistrates charged with the organization of the judicium, after the argument before him in jure, delivered to the parties a formula, which became the rule of the case. By this formula, the elements of which were doubtless suggested by the parties concerned, the magistrate invested the judge with his authority;—he first announced the question in dispute, and the fact alleged by the plaintiff as the basis of his claim ;—then, and here begins the vital portion of the formula, he defined the plaintiff’s claim, of which the magistrate required the verification: in certain cases he also stated the grounds of defence, and the answers which it would be incumbent on the plaintiff to give to make good his case; then followed the order to condemn or acquit the defendant, according to the nature of the proof adduced, in some cases indicating exactly the sentence that was to be pronounced, in others allowing more or ‘less latitude to the judge, and in particular cases adding to the 1 Suet., Octav.,32; Caligula, 16; Galba, 14. GENERALIZATION OF ROMAN LAW. 683 power of condemning or acquitting, that of adjudging, that is to say, of vesting the proprietas in the given thing in either party by his judicial sentence. 270. It was necessary that the judge should be simply a citizen, deriving all his authority from the magistrate, and exercising no functions except by virtue of his formula. The preparation of the formula was, therefore, of the greatest moment in this form of procedure, and the full force of legal science was brought to bear upon it; the most renowned jurists were consulted alike by the litigants and the magistrates. The power of logical analysis and connection, the accuracy of ex- pression, and the way in which every right and every shadow of right is provided for in this legal instrument, is wonderful. They were prepared beforehand, inscribed on the album, and exposed to the public inspection.1. The plaintiff went before the . magistrate in jure, indicated the formula he required; its clauses were then discussed by the parties; the formula was adapted to the particular case, and finally delivered by the praetor (postulatio, impetratio formule, vel actionis, vel judicit).? 2'71. The study of the parts of which the formule were composed, and of their various conceptions, is the key to this system. At the head we always find the institution or appoint- ment of the judge, “ Judex esto.” In addition to this, the formula contained four chief parts ( partes). lst. The announcement in general terms of the object of the suit, and the facts alleged by the plaintiff as the basis of his claim, and which to a certain extent set forth the nature of the case, for example: “ Quod Aulus Agerius Numerio Negidio hominem vendidit ;” this was therefore called the demonstratio. This, however, was not necessarily inserted, because as it was rather by way of preamble it might be sufficiently contained in the second part. 2nd. The second part was the definite and accurately stated 1 Gai. 4, § 47; Cic., Pro Rose., 8. 3; De invent., 19; In Verr., 4, 66; ® Cic., Part. orat., 28; Pro Cecin., Asconius, In Verr., 3. 684, GENERALIZATION OF ROMAN LAW. case of the plaintiff which must be verified by the judge, and which consequently involved the question of legal right —juris contentio according to the expression of Gaius: “ Si paret,” &c., “Tf it appears that.” This part was called the intentio, from in and tendere, whence we have the words intention and pretension. This was the vital part of the formula and could in no case be dispensed with. 3rd. The third part was that which gave the judge the order to condemn or to acquit according to the weight of the evidence brought before him, and fixed with more or less latitude the judgment that he had to pronounce: “ Condemnato; si non paret, absolvito.” This portion is termed the condemnatio. 4th. The fourth part, which only appears in three formule, was styled the adjudicatio, by which the magistrate conferred upon the judge, in addition to his power of finding for the plaintiff or the defendant, the right to ascribe to or vest in either party, according as he should find for the plaintiff or the defendant, the property in the thing which is the object of the suit: “Quantum adjudicari oportet, judex Titio adjudicato.” 2'72. Every condemnatio in the formula system was pecuniary: whatever was the nature of the suit the judge had only the power to condemn either party to pay a given sum of money; this is an important and characteristic feature of the system which must not be lost sight of. The methods resorted to, for the purpose of avoiding the effects of this principle, especially in cases where the object of the action or suit was to determine some real right, are most ingenious and worthy of attention.1 273. In addition to these four principal parts, the formula might also contain certain accessory parts which were termed -adjectiones. ! See Gai. 4, § 32 et seq. ‘GENERALIZATION OF ROMAN LAW. 685 Section XCV.—SIGNIFICATION OF THE TERM Actio UNDER THE . FormMoLa System. 274. The word actio here signifies the right conferred by the magistrate upon the plaintiff to.enforce a claim before a judge; it is thus expressed by Celsus: “ Nihil aliud est actio, quam jus quod sibi debeatur judicio (before a judge) perse- quendi.”! The word. actio also designated the formula which was de- livered to the litigant, and by which this right was conferred upon him. And frequently, by a figure of speech in which the effect is taken for the cause, the term judicium was applied to the for- mula and consequently to the action, that is, to the act instituting the suit. In this way the three terms actio, formula, and judicium, are frequently in connection with the formula system used as synonymous, and as a result gave rise to expressions like the following: actionem, formulam; or judicium postulare, impetrare, accipere, suscipere, dare, accommodare, denegare ; actionem, judicium dabo ;. non dabo.” —~—- Section XCVI.—Actions In REM AND IN PERSONAM. 275. Actions are divided in Roman jurisprudence into various distinct categories; a great number of these distinctions flowing from the conception of the formula. The intentio is that which chiefly influences and determines the nature of the action. 276. The principal division erected upon this basis is that into real and personal actions, or actions in personam and actions in rem. The intentio, inasmuch as it sets forth the claim of the plain- tiff, must necessarily contain all the essential elements indicating his legal rights. . 1 Dig. 44, 7, De oblig. et act., 51, f, Cela 686 GENERALIZATION OF ROMAN LAW. If it is a question of an obligation, the component elements, in addition to the active subject of the right, are the person, indi- vidually the passive subject; and the thing which is the object of the right. The intentio must therefore set forth these three. The person of the obligee appears in it as a passive subject: “Sz paret Numerium Negidium Aulo Agerio dare, facere, prestare, oportere.” Hence it is said that the intentio, or the formula, the action (the part being taken for the whole), is in personam. When, however, it is a question of real right there is no indi- vidual passive subject; the component elements of the right are, a person the active subject, and a thing which is the object of the right. The intentio only sets forth these elements: “ Si paret hominem ex jure Quiritium Auli Agerii esse.” There is no individual passive subject. In addition to the plaintiff there is only the thing which is the object of the right: in this case it is said that the intentio, or the formula, the action, is in rem. 277. The action is 7m personam, when a person appears in the intentio as the individual passive subject of the right. This is the case whenever the contention is that another is bound to give to us, to do for us, or to furnish us with something (dare, facere, prestare, oportere). The action is in rem, when there being no individual passive subject of the right, the zntentio merely contains the claimant and the thing which is the object of theright. This takes place whenever we maintain that a thing or a right independent of obligation belongs to ourselves (aut corporalem rem intendimus nostram esse, aut jus aliguod nobis competere). The formula system has disappeared, but the division of actions into in personam and in rem has survived. 278. We thus see that mixed actions, that is, actions partly in rem and partly in personam could not exist under the formula system, and for their appearance we have to wait for a time when the true signification of these terms, as explained, has been lost; that is, to a period subsequent to the abandonment of the formula system. GENERALIZATION OF ROMAN LAW. 687 2'79. Actions in rem bear the generic title of vindicationes, and actions in personam that of actiones, properly so called; or at other times that of condictiones, an expression, however, which in the beginning, and in a technical sense, was confined to a certain species of personal actions. ee Section XCVII.—Excerrio— Repricatio—DuPiicatio— TRIPLICATIO—PR&XSCRIPTIO, 280. These words express the accessory parts of the formula which bear the generic name of adjectiones. Let us endeavour to realize the exceptio. It is possible that the action demanded by the plaintiff ought to be given to him, because, assuming the facts that he alleges, the action exists according to the principle of the civil law. It is possible these facts being found by the judge, the verdict according to strict law should be given in his favour; and yet that the defendant may be able to allege certain circumstances, which, if recognized as true, would render this verdict inequitable, for example, if he states that the promise that he made was obtained from him by surprise, by fraud, or by violence.? Under such circum- stance, the pretors, in order to give to the judge the power of investigating these facts and of taking them into his consider- ation when pronouncing his judgment, announced them in the formula under the form of an exceptio, that is to say, in except- ing or excluding that which had been stated in the intentio—in the case, for instance, where there was fraud, violence, or any similar allegation by the defendant. “ Si paret N. Negidium Aulo Agerio sestertium X. millia dare oportere,” would be the form of the intentio, which would be followed by the exceptio thus: “Si in ea re nihil dolo malo Auli Agertt factum sit neque fiat (if there has not been, and if there is not, any fraud on the part of Aulus Agerius) . . ~. condemnato, etc.” Sometimes, though more rarely, the exceptio was placed in the condemnatio in order to restrain it, as in the following example: “ Duntaxat in id quod facere potest condemnato.” The exceptio is thus, speaking with etymological propriety, a restric- 1 See upon this Gai. 4, § 1 et seq. 2 Vide supra, No, 166, 688 GENERALIZATION OF ROMAN LAW. tion, an exception placed by the pretor, either upon the claim set forth in the intentio or upon the condemnatio.} 281. The magistrate on the one hand, therefore, adapted. the actio to the case of the plaintiff, and on the other hand adapted the exceptio to that of the defendant, so that in fact the judge, by the formula, was instructed on the one hand to verify the case of the plaintiff, and on the other hand that of the defendant ; it was, therefore, the magistrate who decided, whether the plaintiff on the one hand was entitled in law to his actio, and on the other hand the defendant to his exceptio, without in any way prejudging the merits of the case set up by either party. Thus the magistrate regulated the matter as a form of law, the judge ascertained and determined the facts. If the exceptio was upheld it was a defence, and once and for ever determined the case in favour of the defendant. 282. The replicatio was no more than an exceptio raised on the part of the plaintiff to that of the defendant, and so on, the duplicatio, the triplicatio, &c. 283. The exceptio was, in the hands of the preetor, a powerful means of mitigating the rigour of the civil law. In fact this method of moulding the ancient institutions became a portion of written law; for we find laws, senatés-consulta, and imperial constitutiones, upon the forms of the exceptio. It is, therefore, clear that the true Roman exceptio has nothing in common with that now understood by the term exception. 284. The prescriptio was an accessory part placed at the head of the formula; its object being analogous to that of the exceptio, it in the course of time altogether disappeared, the exceptio in all cases answering the purpose for which it was intended. 1 Dig. 44, 1, 2, pr. £. Ulp. —~—. GENERALIZATION OF ROMAN LAW. 689 Section XCVIII.—Interpriora,. 285. The interdict was a decree, an edict delivered, at the request of an individual, by a magistrate imperatively ordering or prohibiting a given thing: “ Vim jfieri veto.—Exhibeas.— Restituas.” Such are the imperative words with which the in- terdict ordinarily terminated. It was chiefly employed in connection with those matters more directly under the surveillance and protection of the public authority, in connection with religious matters, such as temples and tombs; or matters connected with common or public right, such as watercourses and highways. It was also employed in connection with private rights (rei familiaris causa), incases where matters were urgent,—as, for instance, where immediate intervention of authority was neces- sary to prevent a breach of the peace. Ifthe party against whom the interdict was pronounced sub- mitted, the matter wasat an end; if on the contrary, for any reason whatsoever he refused, the case then became a regular trial, the magistrate sending the parties either to a judge or to recuperatores. 286. The interdict in this procedure became the law of the case and of the parties. Thus we see the distinction between it and the actio: the interdict emanated from the magistrate as an act springing from his right to publish edicts; the actio on the other hand, as set forth in the formula, emanated from his judicial power. The one was an imperative command addressed to the parties, in order to prevent an actio should the interdicted submit, and to be the law determining the case should an action be commenced. The interdict did not replace the action; on the contrary, it gave birth to it, and formed its basis, if, notwithstanding the fact of the interdict, there should be a suit. Whenever the cause was regulated by law, or by general edicts constituting law for all, the pretor framed an actio. If the cause was such that it was deemed necessary to secure the inter- vention, at each step, of the imperative authority of the praetor, so that each might be governed by a special edict, which formed yY 690 GENERALIZATION OF ROMAN LAW. the rule for that particular case, the praetor gave an interdict. The interdict was thus a special edict, an edict between two parties: inter duos edictum.' Inter dicere, that is, in a certain sense, inter duos edicere. Jus dicere, addicere, edicere, inter- dicere, all these belong to the same family of words. 287. The interdict de libero homine exhibendo, which was a guarantee of individual liberty, ordered that whoever detained a free man should immediately produce him, “‘ Quem liberum dolo malo retines, exhibeas.”* This strongly resembles the English writ of habeas corpus. —— Section XCIX.—ExtTrRA OrRDINEM COGNITIO —EXTRAORDINARIA JUDICIA. 288. When the magistrate, instead of adopting the formulary procedure, undertook himself to determine the case, this mode of procedure was termed extra ordinem cognoscere; extra ordi- nem cognitio; extraordinaria judicia; actiones extraordinaria. The decision of the magistrate in this case was called a decre- tum.? In certain matters this method was universally adopted, for instance, in the restitutio in integrum, by which the pretor relieved in an extraordinary manner citizens, on account of par- ticular circumstances, from the consequences of a certain act or acts which had been prejudicial to them, and re-established them in the position in which they would have been had not these acts taken place; the other examples ofthis interference are the cases of missio in possessionem bonorum;—or the placing in posses- sion of goods, and the acts of the pretor fideicommissarius, who was a special praetor appointed for the consideration of disputes concerning jidetcommissa. ; 289. Side by side with these trials by the formula system, whether those which took their origin in the formula, or those 1 Gaius calls it the Hdictum pre- 1 et seq. toris, 4, § 166. 3 Dig. 1, 18, De offic. presid., 8 f. * Die 46,20; De Bom, Hb. aeksh, Titian, al 9 i Calle GENERALIZATION OF ROMAN LAW. 691 which were extraordinaria, we find vestiges of the actiones legis in cases where the matter was referred to the centumvirs, and in another special case, viz., the actio damni infect, or threatened injury. —— Section C.—TuHr DEcLinE or THE ForMULA System. 290. The decline of this system commenced with the exten- sive adoption of the cognitio extraordinaria, and was completed under Diocletian. A constitution of this prince, dated a.p. 294, made that which had hitherto been extraordinary, the ordinary procedure throughout the provinces.1 At a later date this was extended to the whole empire, and the formula system thus gave way to the judicia extraordinaria. —~ § IV. JUDICIA EXTRAORDINARIA. Section CI.—Jus anp JupDIcIuM—THE OFFICE OF THE MAGISTRATE AND THAT OF THE JUDGE BECAME IDENTICAL. 291. The government at length became imperial (imperium, from imperare, military command). The old constitution of Rome at this period had ceased to exist. The aristocratic pride and exclusiveness of the ancient patrician order, and the restless ambition of the plebeian, had sunk to sleep, or lived only in the memory of the past. The class distinctions of early times were buried under the superincumbent mass of diverse populations compressed within the limits of the Empire. From the time of Constantine, Rome and the Tiber had given place to Constantinople and the Bosphorus. The Empire was in fact no longer Roman, but Asiatic. It was divided into four great preefectures,—the East, Ilyria, Italy, and the Gauls; each prefecture being divided into dioceses, each diocese into provinces; Italy was a prefecturate. The entire hierarchy of civil or military authority emanated from the supreme head, from the sacred will. The magistrates 1 Cod. 3, 3, De pedan. judic., 2, const, Diocl. YyY2 692 GENERALIZATION OF ROMAN LAW. were no longer functionaries of the republic, they were imperial officers. Christianity was the state religion, and its clergy an official body. This mighty revolution effected corresponding changes in the judicial power and the form of procedure. 292. The rector or president of each province; the vicarius or other delegates of the prefect; the praetorian prefect, as a judge of appeal representing the emperor (vice sacra), and the ultimate appeal to the emperor himself, were the channels of justice. In minor matters the local magistrates of each city had a subordinate jurisdiction limited to a certain sum of money. Rome, Constantinople and Alexandria had each its distinct organization, and a fiscal jurisdiction entrusted by the emperor to special agents; military jurisdiction was distinctly separated from the civil, and the ecclesiastical jurisdiction of bishops was binding on the clergy, but voluntary as to other citizens. 293. All distinction between jus and judicitum had ceased ; the institution of the judge and the construction of the formula for each case had consequently disappeared. The plaintiff denounced his adversary directly to the clerk or registrar of the competent authority (apud acta denuntiare ; actionis denuntiatio). The magistrate by his bailiff acquainted the defendant of the charge brought against him,! and in due course he himself tried the case. 294. The presidents of the provinces were, however, in the event of great press of business, authorized to remit cases of minor importance to the judices pedanei; “‘hoc est,” said the Emperor Julian, “qui negotia humiliora disceptant.”* These judices pedanei were inferior judges, with whose exact functions we are not well acquainted; they appear, however, to have been nominated by the Emperor, and a certain number of them to 1 Cod. Theod, 2,4, De denuntiatione, Honor. vel editione rescripti; especially 2 ? Cod. 3, 3, De pedaneis judicibus, const. Constantin.; 4,13, 1, § 1, const. 2 const. Dioclet. et Maxim.; 5 const. Theod.; 15, 14, 9, const. Arcad. et Julian. GENERALIZATION OF ROMAN LAW. 693 have been attached to each pretoriate; their jurisdiction was limited by Justinian to 300 solidi.t 295. The exception had now become the rule, and all pro- cedure was extraordinary. Section CII.—Tue Caance oF TRE CHARACTER OF THE Actio, THE Exceptio, AND THE INTERDICT, UNDER THE EXTRAORDI- NARY PROCEDURE AND ESPECIALLY UNDER JUSTINIAN. 296. The actio was no longer either as under the legis actiones a fixed and symbolic procedure, nor as under the formula system the right conferred by the magistrate to enforce one’s right before a judge, nor the formula conferring and regu- lating this right ; it was simply the right resulting from legislation itself to address one’s self to the competent judicial authority in order to obtain justice, or it was the act itself of obtaining justice. The exceptio had no longer any technical signification ; it was no longer a restriction, an exception placed by the magistrate on the power conferred upon the judge of passing sentence. But it was a means of defence which could be employed by the defendant at the hearing of the case; it had, in fact, totally changed its effect; it did not necessarily import the defendant’s complete success; it might only act by way of delay, and the same might be said concerning the replicatio, the duplicatio, and the triplicatio, which were merely reciprocal means of defence. Interdicts no longer existed in those cases where they were granted by the pretor, as there was now a direct action before the competent judicial authority. The various names remained in use indeed, but were no longer consonant with the institutions which had radically changed. 1 Novell. 82, ¢. 5. 694 GENERALIZATION OF ROMAN LAW. Section CIII.—TuE various SIGNIFICATIONS OF THE WoRD Actio. 297. From all that has been said it is clear that it would be a great error to limit the word actio to any one meaning, seeing that it has changed its signification with each change of the mode of procedure. Under the system of legis actiones it signified a fixed and symbolic form of procedure not specifically applied to each class of right. Under the formula system a right granted by the magistrate in each individual case to prosecute before the judge, or else the formula itself, or else the trial itself which was organized by the formula. Actio, formula, judicium, are here synonymous. Each right, however slight the difference, had its distinct formula, its actio provided beforehand, drawn up in a general manner and settled by legal science, and which was publicly exhibited. Each cause had its own formula, its actio specially drawn up and reduced to writing after discussion. The great importance of correctly discriminating between these several phases which the word underwent, in the study of Roman law, cannot be overrated. Under the extraordinary procedure the actio was nothing more than the right which every person derived directly from the law to enforce his claim before the competent judicial authority ; or if we take the word in its natural and etymological acceptation, it was the act itself of enforcing this claim, or the means of enforcing it. The word, even under the formula system, in its widest signification, included every claim and every defence given by the law, whether actions properly so called, exceptions, inter- dicts or restitutiones in integro.1 It is in this general sense that the jurists used the term when they adopted the classifica- tion of jurisprudence, of law as applied to persons, things and actions. And, finally, the word actio may be applied to the conduct ’ Dig. 44, 1,1; 44, 7, 87 and 61; Paul., Sent., 1,7, § 1. GENERALIZATION OF ROMAN LAW. 695 itself of the case, the arguments of the advocates at the hearing.! —_— CONCLUSION. 298. When the student has acquired correct general notions of law as the science of the good and the equitable, as the rule of human action and of legislation, as the result or immediate consequence of the science,—when he has familiarized himself with the elements, persons whether active or passive subjects, things the objects of right, facts, &c., and can accurately dis- tinguish the various species of rights and the modes of enforcing them,—he will then, and not till then, be in a position to pass to the intelligent study of the details of legislation and juris- prudence. ! Cic., Pro Flacco, 20; Pro Tull.,6; Pro Cacin., 2, 3, 33. INDEX. A. Absolvo, condemno, non liquet, 237. Accensi, 59, et seq. Acceptilatio, $61. Accursius, 542, Actio, 141, et seg., 273, 673, 693. Actio sacramenti, 142, Actionem causa cognita dabo, 245. Actiones honorarie, 274. Actium, battle of, 257. “Acts, legal, 632. Addictus, 92, 193, 583, 584. Adjectiones, 684. Adjudicatio, 218, 583, 584. Adlecti, 39. Adoption, 581. Adrian, emp., new epoch in legal history, 319. his character, 322. his rescript, 323. Adscripticii, 59, n. Adscriptii—adscriptitii, 402, 570. Adversaria, 658. Advocati, 371. Affinitas, 589. Africa, wars in, 199, 249. reconquered from Vandals, 473. Age, legal division of, 600. Agere permittam, 245. Ager publicus, 84, 227, 621. Romanus, 84, 612, 621. Agnatio, 130, 194, 586. wherein differs from gentilitas, 588. Agonius or Agonus, Sabine name of Mons Quirinalis, 13. Agri questorii, 622. assignati, 622. occupatorii, 622. vectigales, 622. Agri subcisivi, 622. Agricole under the lower empire, 402. coloni, 570. Agricultural servitudes, 404, et seg. Alaric invades the West, 429. defeated by Stilico, 429. assaults Rome, sudden death, 430. II. killed by Clovis, 437. Album, The, 240. Alciat, André, 546, et seq. Alienatio per as et libram, 81, 138, 194, 634, 657. applied to plebeian marriages, 586. Alient juris,—alieno juri subjectus, 192, 579. Alterum non ledere, suum cuique tribuerc, 640. Amalphi, 514, 516. Anmbitus, 112. Ampére, M., the work of, 8. Anastasius, a jurist of the lower empire, 498, Anatolius, law commissioner under Justi- nian, 454. Ancus Martius, 49, 50. Anianus, Chancellor, 434. Aniensis (tribe), 69, n. Animadvertam, 245, Annales Maximi, 78, 192. Antapocha, 642. Antecessores, 440, 482. Antiochus, president of law commission, 417. Antiqui, Greek jurists, 499. Apparatus, the work of glossators, 533. Appeal, origin of, 191. Appius Claudius Cecus, 207. Arbiters, 157, 681. Arniensis (tribe), 69. 698 Assem duere—dare, 59. Assidui, 59. Ataulf, King of Visigoths, marries Placidia, daughter of Theodosius, 433. Ateius Capito (jurist), 303. Athanasius, a jurist of Antioch, 498. Attila attacks Constantinople—is bribed to retire, 430. attacks Rome—sudden death, 431. Auctoritas—auctor fieri, 36, 66, 76, 601. Auctoritas of Senate, 66, 184, 281. required by law to be given in ad- vance, 66. Auctoritatem prestare, 110, n., 601. Auditorium, 300, 370. Augurs, college of, 78, duties of, 36. Ausones, the, 10, fi. ZEdiles plebeii, 96. curules, 154. majores, 154, cereales, 254, 266. ZEdilitium edictum, 248. Erarium, 280. 4s militare, 268. hordiarium, 268. equestre, 67. B. Ballads, ancient, 3. Ballot, vote by, Cicero on, 263, u. Barbarians, first appearance of, at Rome, 152. effects of irruption of, 359. Barbarus defined, 182, 572. Bartolus, 537, 543. Basilice, the, 501, 502, 506. Basil the Macedonian, 501. Belisarius, 473. Bernard denounces study of Roman law, 532. Berytus, school of law at, 440, 486, 488. Bishops, 389. Bologna. school of law at, 516, 527, 531. Bona, 621, Bonorum possessio, 272. INDEX. Brachylogus, the, 534, 651. Breviarium Alaricianum or Aniani, 432, 523, et seq. Brocarda, rules of law, 533. Brutus and Cassius, 254, Budeus, Guil., 546. Bulgarus, a glossator, 530. Byzantine, law publications of, from sixth century, 512. sovereignty in Italy, 515. C. Caduca, 311, et seq. claims upon, of the fiscus, 346, e¢ seq. Ceres, first municipal town, 178. Cesar, Julius, conquests of, 254, Calendar, the, 46. -Calocyrus Sextus, 507. Camels, 137. and elephants, why res nec man- cipi, 617. Canuleium plebiscitum, 146. Capital sentences on citizens (confined to Comitia centuriata), 234. Capite censi, 60. classification of Livy, 63. Capitis deminutio, 591. Capito (jurist), 302. Capture of Constantinople by Turks, effect of, on laws and literature, 511, et seq. Caraealla, famous constitution of, 340, 576. Carmen necessarium, 99. Cassians, school of, 302. Cassiodorus, law professor at Berytus, 488. Castrense peculium, 374—375. Castrensiani, 392. Cause conjectio, 103, n. Cautio, 642. Celeres, the, 67. Celibaris hasta, 81, n. Celsus, 301. Censitarii, the, 59. Censiti, 570. Censors, 149. Census first taken, 56, et seq. Centumvirs, 158. Centuries, origin of name, 60. INDEX. Charlemagne, 515. Children, equality of, 581. become sui juris on death of chief, 581. Chirographum, 642, Christianity, propagation of, in Rome, 357, et seq. protected by state, 378. religion of Empire, effect, 387, 491. Cicero, his character, 255. Cimbri, the, 9. and Teutons, 249. Cives, coloni, &c., 180. Latini, peregrini, 336. Civil wars of Marius and Sylla, 251. Civis, 572. Civitates liberse, 173. feederatzx, 173. Classes, 57. qualification of, 58, et seq. Clergy, influence of, on study of law, 517. Clientage, origin of, 21. Cloaca maxima, 56. Code, pénal, of 1791. .550. des délits, 550. Codex accepti et expensi, 658, Theodosianus, 416, et seq. legis Visigothorum, 437. Justinianeus, 443, 499. Gregorian and Hermogenian, 382, et seq. repetite prelectionis, new edition of Justinian’s Code, 459. Codicils, 314. Ceelibes, 309. penalties against, abrogated, 393. Coemptio, 129—132, 581—584. Cognatio, 130, 270, 587. Cognationes extraordinaria, 234—267. Collateral lines, 587. . Collegam appellare, 191. Coloni, 180, 402—404. liberi, 570—575. Colonix, 172, 257, 260, 402. under early emperors, 338. militaria, 258. Comites consistoriani, 391. 699 Comitia curiata, 32, 85, 68, et seq. centuriata, 32, 35, 65, 234, tributa, 94, 234, Commercium, 79, 180, 575. Commission, law, of Theodosius, 417. Commodatum, 272, 670. Commonitorium, or notice to the counts to enforce the law, 434. - Compitalia, 43, infants sacrificed at, 43. Concilia semestria, 299. Concubinatus, 584, Condemnatio, 218, Condemno, absolvo, non liquet, 237. Condictio, 213. Confarreatio, 129, 581. Connubium, 79, 147, 575. Jews excluded from, 596. Conquests of Rome up to B.c. 266—168.. 196. Conscripti, 39. Consilium, 300. Consistorium, 800. Constitutiones imp., 287, 289. Constitutio de infirmandis peenis celibatus et orbitatis, 394. de caducis tollendis, 396, 399, et seq. de formulis et impetrationibus actionum sublatis, 407. de responsis prudentum, 413. de conceptione Digestorum, 447. de confirmatione Digestorum, 453. de emendatione cod. Just., 459, Constitution generale of Clothair, 548. Constantine Palezologus, the last of the emperors, 510. Copronymus, 501. Porphyrogenitus, 501. of Nice, scholiast, 507. Constantinople founded, 388. Contracts. See Obligations. Contubernium, 584, Conventio—conventum—contractus, 656. Corporations, 606. Corpus Theodosianum, 436, 700 Corpus authenticorum, 461, et seq. juris civilis, 471. canonici, 518. Corruption in Rome, 255, n. Crusade the second, 510. Cubicularii, 392. Cubidius, 498. Cujas, 547. Curatorship, 604. Curia, 31, et seq. curiales, or curiae subjecti, 371. Curialis origo, 371. Dz. Damian, Saint, 519—527. Decemvirs, 98. Decreta imp., 287. of St. Ives of Chartres, 524. Decretum Gratiani, 519. Decuria judicum, 240. Decuries, 32. Decuriones, 372. Dedititii, 74, 874, 572—576. Defensores civitatum, 411. Deities of Rome incessantly multiplied, 269. Delicta privata, 235. Dementes, 603. Demonstratio, 218. Depositum, 273. Dictator, 90. Dies comitiales, 47. utiles, 641. fasti, nefasti, 48, 641. publication of, 165. Digest of Justinian, 447, e¢ seq., 449, Digestum vetus, novum, 536, 539. Diocletian divides the empire, 366. Dirksen, M., his works, 72. Diwi fratres, the, 328. Divinus, a title of imp., 372. Do, dico, addico, 48, 674. Dolus bonus, malus, 638. Domicile, definition of, 596. not the same as residence, 599. Dominiwm bonitariwm, 271, 667. Dominium ex jure Quiritium, 135, 271. proprietas, mancipium, 663, e¢ seq. : INDEX. Dorotheus, law commissioner under Justi- nian, 454. Duplicia judicia, 160. Dupondii, 484. Duumvirs, 177, 372. E, Eclipse, June, B.c. 399. .192. Ecloga legum, 501. Edictales, 484. Edicta of emperors, 287. Edictum novum, 249. perpetuum, 244. of Salvius Julianus, 819. repentinum, 244, 248. Theodorici, 432. tralatitium, 244, 249. Editio, 491. Editions of Greco-Roman law from A.D. 1575 to 1836. .512. Education, legal, sketch of, 479. course laid down by Justinian, 482. Egregii, 393. Elementa or Institutiones of Justinian, 459. Elephants, 137. res nec mancipi, 617. Emblemata, 450. Emphyteusis, 659—670. Empire, the, finally divided into two, 411. Emptio venditio, 273, 659. Enchiridium, the, 501. Enfranchisement, 73, 571. Epanagoge, the, 501. Epistola principis, 286. Epochs of Roman law, as adopted by Mackeldey, Giraud, Holtius, and others, 554. Equilibrium preserved in Roman magis- tracies, 190. Equites, the, 63, 66, e¢ seq. Erciscundi, or Miscelliones, school of, 307. Etruscan source of Roman religious insti- tutions, 44, Exarchate of Ravenna, 474, 514, Exceptio, 274, 363, 687. Existimatio, 593. Expensilatio, 138, 273, 658. INDEX. Extraordinaria judicia, 217, 225, 673— 690. introduced generally, 361. Extraordinarie cognationes, 217, 361. F. Factio testamenti, 171, 575. Facts, legal, 629. Familia, 128. idea of, 576. position of women in, 578. different acceptations of word, 589. gradual extinction of, 590. Familie erciscunda, 134. Familiaris, 28. Farreum, 581—584. Fastorum libri, 48. Feciales, college, 50, 78. Fictions, legal, 645. Fidenz conquered, 151. Finium regundorum, 135, 669. Foreigners at Rome, 181. Fossa Quiritium, 53. Fragmenta Vaticana, 422. Frank empire founded at Constantinople, 510. Franks, Burgundians and Visigoths divide the West, 430. resist Attila, 430. French law, history of, 548, et seg. Fructus, 664. Furiosi, 603. Furtum nec manifestum, 117. G. ‘Gains Cornelius Scipio, 206. Gaius, 328, e¢ seq. Gauls repulsed by Manlius, 152. Generalization of Roman law, its utility, 558. Geneva, capital of Burgundian kings, 433. Genseric, King of Vandals, plunders Rome, 431. Gens, gentes, 25, 130, 586, et seq. Gentes majores, minores, 55. Gentilitas, 588. Gentilitas, wherein differs from agnatio, 588, 701 German school of law, 560, 566, Germanic laws, 482. Gibbon, his division of epochs of Roman law, 558, et seq. Glossators, the, 505, 527. Glosses, the, 529. Glycerius, emperor, 431. Gondobald, emperor, 431. Goths driven from Rome by Belisarius, 473. Gracchi, seditions of, 226. Gracchus, Caius, 231. Greco-Roman law, works on, scattered after capture of Constantinople, 511. Grecian poetry, influence of, 406. Greek language at Constantinople, 462. literature, revival of, 546. language and literature introduced into the West, 511. Gregorian Code, 382, et seq. Gregory Doxapater, scholiast, 507. Hagiotheodoritus, scholiast, 507. H. Haste cogere, 160. preesse, 160. due, 159. Heereditas jacens, 606. Heeretici, 596. Hermodorus, 97. Hermogenian Code, 382, et seq. Hernici, the, 11. Hexabiblon, the, 509. published at Paris, 512. Hostis, 180, 572. Humanists, school of, 545. Huns, first appearance of, 429, I. Tberians, the, 11. Ignorantia, 638. Tllustres, the, 393. Images, ancestral, 183. Impubes, 602. Imperator, origin of title, 278, n. Imperium, 50, 75. In aucilium plebis, 98. Infamia, 593. 702 Infans, definition of, 601. Infortiatum, the, 536. Ingenuus, 27, 571, 572. In integrum restitutio, 245, In jure cessio, 135, 680. Tanocentius, 298, Inquilini, the, 402, 570. Institutes, Justinian’s, 458, 499. Instrumenta, when res mancipi and res nec mancipi, 618, u. publica, privata, 642. Intentio, 218, 684, et seg. Intercedere—cessio, 93, 187, 191. Intercessio college, 98. Interdictum, 244, et seg., 689. disused, 363. Interpretatio, 185. Invocatio in jus, 100. Irnerius, 467, 528. Isidorus, 498. Ives of Chartres, 524, J. Jacobus, a glossator, 530. Jews, status of, 596. John Nomophylax, 507. of Antioch, 464, 498. Judex, office of, 155. monopoly destroyed, 239, 240. Judicatus, 584, Judicem sumere—ejerare, 676. Judices, annual list of, by praetor urb., 240. selecti, in albo relati, 240, 681. majores, 363. pedanei, 361, 364. JSudicis postulatio, 142. Judicium dabo—in duplum, 245, Juges jurés, 237, 267. when disused, 362. Julian, emp., his character and policy, 408. professor of law, 465. Juliani novellarum epitome, 465. Juris epitome, 423. interpretatio, 209. veteres auctores, 326, Jurisdiction of judex, centumviri, recupera- tores, 163, 681. Jurisprudence, decline of, 379, INDEX. Jurists, Roman, of different periods, 522, et séq. list of works quoted in Pandects, 555, et seq. two schools of, 302. Jus, as distinguished from lex, in collec- tion of Alaric, 435. _and judicium, 363, 371, 674. definition of, 565. civitatis, 575. Ablianum, 212. Aidilium, 249. capiendi ex testamento, 311. Flavianum, 165. gentium, 50, et seg, 572, 639. honorarium, 244. honorum, 171, 178. Italicum, 175, 257, 334, 613. Latii, Latinitatis, 174, 178, 257, 334. optimum, 171—178, 572—576. Papirianum, 207. pretorium, 249. Quiritium, 171—179. suffragii, 171—178. condere, fundere, 325, respondendi, 325, et seq. liberorum, 375, 396, e¢ seq. civitatis, conceded to all, 389. in re, ad rem, distinction not found in Roman law proper, 651. dicit, addicit, 189, 245. principale, 417. civile privatum, original elements of, 41, et seq. civile Papirianum, 70. Latii and Italicum under the emperors, 334, et seq, 613. veteris Latii, 335. Juste nuptie, 128—134, 575—584. Justinian, emperor, 439, his character and reign, 474. law of, after fall of Byzantine empire, 614, its position at Papal court, 519. K. Kelis, the, 9. King, the, 41. INDEX. King, not hereditary, 75. powers of, 76, Koran, The, introduced by the Turks, 510. Labeo, 302. Lance, symbol of Quiritarian power, 42, 80. Lance licioque conceptum, 117. Land or colonies, 179. Lanfranc, a professor of law, 528. Lanzi, 4. Lascari, John, 546. Latini, 260, 336, 576. juniani, 173, n., 336, 572, 576. veteres, 173. colonarii, 180, 576. Law, idea of, 561. definition of, by Panl, Celsus, Ulpian, &e., 562. by Ortolan, 562, n. consequence of, 565. elements, three, of, 565. state of, in Justinian’s time, 441. Lawyers, Roman, their influence, 299, Legati Cesaris, 280. Leges applied in Justinian’s time to writ- ings of authorized jurists, 457. agrariz, 226. curiatz, 70. frumentariz, 233. jJudiciaria, 239. Julia et Papia, 308, 346, 393. Regiz, 70. Sacre, 93. tabellariz, 263, n. Valerie, 88. XII Tabularum, 96. plebiscita, senatis-consulta, defined, 184. Legis actiones, 140, 677, et seq. replaced by formule, 217, 267, 273, 673. Legislation under French consulate, 551. Legislatores, 296, 326, 457. Leo the Isaurian, 501. Levis nota, 594. Lex Africani, 327. annua, 247, 264, n. 703 Lex Apuleia, 232, majestatis (treason), 238, Atinia, 265, Aurelia jud., 240, Ebutia, 215, et seq., 273, 680. 4ilia Sentia, 315. , Calpurnia, 216. de repet., 238. Cassia tabellaria, 268, n. Canuleia de connudio patrum et plebis, 147, 585. Cornelia jud., 240—259. de edictis, 244, de falsis, 252. de sicariis, 252, curiata, 50, 75, 291, decemviralis, 96, Dei, 426. de imperio Vespasiani, 299. de responsis prudentum, 330, Fabia de plagio, 238. Flavia, 232. Faria Caninia, 315. testamentaria, 216. Gabinia tabellaria, 263. Gondobada, 437, Gallia Cisalpina, 259, Hortensia de plediscitis, 166, 241. imperii, 292, Julia, 250. judiciaria, 216, 240. agraria, 233. municipalis, 259, de maritandis ordinibus, 308. Juliz, 216, 273, Junia Norbana, 317, 336. Licinia de modo, 228, de ere alieno, 229. Mucia de civitate, 238. Livia, 232. jud., 240, Luctatia de vi, 238. Maria de ambitu, 238. Papiria, 71. Papia Poppea, 308, 585. Petillia Papiria, de newis, 164. Plautia, 250, Pletoria, 602. 704 Lex Pompeia jud., 240. Publilia, 166. Regia, 49, et seq., 71, 290. Romana in Gaul ante-Justinian law, 549. Visigothorum, 432. Burgundiorum, 432. or Breviary of Alaric, 436. Silia, 213. Sempronia agraria, 231. frumentaria, 233. judiciaria, 239. Servilia jud., 239. secunda jud., 239. Titia, 232, Thoria agraria, 232. Theodosiana, or Breviary of Alaric, 436. Tribunicia, 72. Valeria Horatia, De plebiscitis, 147. Liberalia studia, 595. Liber legum, 436. authenticarum, 467. Libertini—liberti, 571. Liberty, 569, 570, u. Libripens, 81. Licentiates of law, 485. Lictors, 188. Ligures, the, 9. Linea recta, transversa, obliqua, ex trans- verso, a latere, 587. Littera Bononiensis, 528, Litteris contr., 138, 272, 658. Locatio conductio, 273, 659. Lombards, conquests of, 514. Longinus, G. Cassius, 307. Luceres, the, 14. Lucumon, the, 14, 21. M. Mecia (tribe), 69. Magister populi, 90. equitum, 90. under Constantine, 392. militum, 392. Mamertine prison, 53. Mancipium, mancipatio, 81, 193, 582, 615. Mandata principis, 287. INDEX. Mandatum, 273, 659. Manlius, defence of Rome, 152. Manual of Byzantine emperors, 501. Manu capere, 80. Manumissio, 571, 581, Manus, 80, 580. Manus consertio, 143. injectio, 142, 679. Marcellus, 301. Marius, conquests of, 249. Marriage, theory of, 129. reform in law of, 585. plebeian mode of, 586. Marsi, the, 11. Martinus, Gosia, glossator, 530. Masurius Sabinus, school of, 296, 317. Mater familias, 579. Matthew Blastares, work of, 509. Maximus comitiatus, 65. Mente capti, 603. Micali, 4, 5. Michael Attaliota, 508. Palzologus, 510. Micron, or Synopsis minor, Basilice, 508. Military divisions, 61. Ministeriani, 392. Mithridates conquered, 253. Modestinus (jurist), 302. Meecianus (jurist), 301. Mons Ceelius, 13. Quirinalis, 13, 16. Sacer, 94. Morals, decline of, 226. Mosaicarum et Romanarum legum collatio, 422, Mucius Sceevola (jurist), 208. Municipia, 176, 177, 257—260. Mutuum contract, 272, 657. N. Names, prenomen, nomen, cognomen, &c., 275, n. Narses, 473. Neratius Priscus, 301. Nerva, 306, 317. Newi, soluti, 583. Nexum, 272, 582, n., 656, 668, n, INDEX. Nexus, 92, 582. Niebuhr, character of his work, 5, 15, et seg. Nomen transcriptitium, 658. Nomocanons, 509. of John of Antioch, 464. authorship disputed, 500, n. of Photius, 510. Non liquet, 237. Novae leges, 308, 317. Novatio, 661. Novell, name first used, 420, 461, 499, 505, 514, 540. Nuda detentio, 665. Numa, 43. law of, in time of Cicero, 71. religious institutions ascribed to, 42. Nuncupatio, 138. Nuptix, 128, 584. 0. Obligatio ex contractu, quasi ex contractu, 660. ex maleficio, quasi ex maleficio, ib. the basis of all rights, 648. nature of, 653. properly so called, 655. definition of, by Justinian, 655. creation of, 656, Obligationes pretoriz, honorarie, natu- rales, civiles, 655. Obligations and contracts, 137, 272, et seq. Octavius Cesar, master of Rome, 257. Odoacer seizes Italy, 431. expelled by Ostrogoths, 432. Odofredus, 516, 537. Offices under the empire, 279, et seqg., 369. of empire under Constantine, 389. Onus probandi, rule of, 643. Optimum jus, 572, 576. Opusculum de parentele gradibus, St. Damian, 519. de jure, by Michael Attaliota, 508. Oratio principis, 286. Orbi, the, 310. penalties against, abrogated, 393. Ordinaria judicia, 217—225, 673—681. 705 Origines (Cato), 3. Orleans, school of law at, 532, Orthodox, catholici, 596. Ostia founded, 53, 74, Ostrogoths established in Italy, 433. Ovilia, voting barriers, 263. Oxford school of law founded by Vacarius, 530. P. Pacta, 273, 656. Pagani, as distinct from milites, 595. Palatini, 392. Pandectz Florentine, 536. Pandects of Justinian, 447, Pannormia, the, 524, Papal court, influence of, on Roman law, 518. Papian, the, law of Burgundians, 522. Papiani responsa, 432, Papinian, 301, 333. Papinianists, 485, Papirius, 70. Parricidium, 89. Pasquier, Estienne, 545, et seq. Paterfamilias, 578. power of, 42, Patres majorum et minorum gentium, 39, 75. et conscripti, 39. Patricians, 19, 29, 80. Patricii, 390. Patrons and clients, 19, et seg. Paul the Deacon, 463, n., 517. Paulus, Julius, 302, 354. notes of, on Papinian invalidated by constitutions, 379, et seq. Pays de loi Romaine, 649. droit écrit, 549. coutumiers, 549, 550. Peculium, 403, 606. quasi castrans, 394, adventitium, 394. Pecunia, 81, 621. expensa lata, 658. accepta relata, ib. Pegasians, school of, 302. ZZ 706 INDEX. Pelasgi, the, 9. Per es et libram, 81. Perduelles, 182. Peregrini, 198, 572. after Caracalla, 576. Perfectissimi, 393. Perizonius, 3. Persona, idea of, 567. extinction of, 607. Personality of the law, 521. Petri exceptiones, 534. Philosophy, its influence on law, 225. Philoxenes, a jurist, 498. Phocas, a jurist, 498, Piceni, the, 11. Pig used in sacrifice, 51. Pignoris capio, 142, 679. Pignus, 273, 657, 670. Pisa, 515, 516. Placentinus, glossator, 530. Plebeians, 19, e¢ seg. name, 80. admitted to consulate, 148-152. college of pontiffs, 192. Plebiscita, 94. Plebiscitum de Thermensibus, 258. Pompey, conquests of, 253. Pomponius, 328. Pomptina (tribe), 69, n. Pons Sublicius, 53. Pontifex maximus, 78, 188. Populi scita, 95. Populum lustrare, 67, Populus, 30. Possessio, 665, et seq. corporalis, naturalis, civilis, 4b. distinct from proprietas, 13. Possessiones, 227, 622. Postulatio, 220, Potestas patria, 270, 580. over slave, 270, 580. marital, 270, 580. Practice of law at Rome, 297. Preceptores, 304, Preedia stipendiaria or tributoria, 623. Prefecture, 179, 202. Prefectus urbi, 281, 392. established at Constantinople, 408. Prefectus preetorius, 282. annonarum, 282, 392. vigilum, 282, 392. Prerogativa, 64. Prescriptio, 688. Preeses provinciz, 280. Preetor, 153, 202. peregrinus, 198, 246, 572. urbanus, 246. Pragmatic sanction of Justinian, 488. Presumptions, 643. Primogeniture not recognized in Roman law, 581. Priscus, Tarquin, name derived, 54, n, Probatio, 641. Prochiron, 501—508. auctum, 509. Proconsuls, 208. Proculeians, school of, 302, et seq. Procuratores Cexsaris, 281. Professions at Rome, 595. of Roman law prohibited by Councils, 532. - Professores juris civilis, 304. Proletarii, 59, et seq. Prolytz, 486. Promptuarium or Hexabiblon, 509. Propreetor, 204, Proprietas—dominium—mancipium, 663. Provinces, establishment of, 201, © Provincie populi, 279. Cesaris, 280. Provocatio ad populum, 88, 90, 191. Pubertas, 601, 602. Publicani, 204. Publice respondere, 211. Publilius Philo, 166. Punic wars, 199, u. Questio, 236. de veneficiis, 236. de homicidiis, 236. de clandestinis conjurationibus, 236. peculatus, 238. de vi, 238, INDEX. Queestiones perpetum; 234, e¢ seq., 266. Questores parricidii, 88, 189. of revenue, 89. candidati, 282. sacri palatii, 391. ~ Quatuorviri, 177, 266. Querquetulanus, Mons, 13. Q. Publilius Philo, 66. Quinquaginta decisiones, 444. Quinqueviri, 172, 266. Quirini (tribe), 69, n. Quirites, origin of name, 12. Quoting the Digest, mode of, 472. R. Races, early Italian, 9, e¢ seg. Radagaisns invades Italy, 430. defeated by Stilico, 430. Ratum non habcbo, 245. Ravenna made capital of Ostrogoths, 433, Reciperatio, 158, n. Rector provinciz, 392. Recuperatores, 155. proy., 204. Reditus (rent), 403. Regium concilium, 40. Religion, effects on civil rights, 595. Repetite prelectiones, 460. Repurgatio veterum legum, by Leo, 502. Res, general idea of, 608. mancipi, nec mancipi, 135, 614, et seq. fungibiles, 272, 611. corporales, incorporales, 610, 624. divini juris, humani juris, 610, 624. sacre, 611. religiose, 611. sacra familie, 611. omuium, publics, universitatis, singu- lorum, nullius, 620, e¢ seq. in nostro patrimonio, extra nostrum patrimonium, 621. mobiles, immobiles, 623. soli, 624. principales, 625. que pondere, &c. constant, 626. in genere, 627. Rescriptz imp., 287. Respondere publice, 294, poputo, 295. 707 Responsa prudentum, 208, 293. signata, 294, Revenue, 56. Right of way, 137. Rights, creation of, 647. classification of, 647. all, consist in obligations, 648. absolute and relative, distinction foreign to Roman law, 652. Rogatio Marcia, 232. Servilia Rulli, 232. Roman law, most flourishing epoch of, 27 J, Rome, name of, held sacred, 7. origin of, 2, e¢ seq. Romulus, what institutions ascribed to, 19. - law ascribed to, 41. Rostrum, 126. 8. Sabatina (tribe), 69, n. Sabini, the, 11. Sabinians, school of, 302. Sacer esto, 43. Sacra, 131. familia, 577. .privata, 35, 48. publica, 43, 45. gentilitia, 27, 577. Sacramentum, 223, 678. Sacred law, 77. Sacrifices, human, disused, 43. occasionally offered in late times, 44. Salvius Valens, 301. Julianus, 301, 319, 327. Savigny, character of his works, 522. Scaptia (tribe), 69, n. Schole, 304. Scholia, scholiasts, 505. Schools of law established at Rome, 411, 480. at Constantinople and Berytus, 440. Sella curulis, 183. Senate, 28. origin of name, 28. under emperors, 368. Senators, number of, 39. Senatis-consultum, force of, 241, et seg. Z2Z2 708 Senatis-consultum, de usufr. ear, rer. que usu consumuntur, 243, Silanianum, 285. Macedonianum, 285. Velleianum, 285. Trebellianum, 285. Neronianum, 285. Tertullianum, 376, n., 398, Orphitianum, 376, n. encroachment of, on jus privatum, 285. the last, 369, n. Sententizx, 220. et opiniones jurisconsultorum, 322. Septa, voting barriers, 263. Servi censiti, 402. Servius Tullius, 55. Sex, in relation to Roman law, 599. " preference of, not recognized in Roman law, 581. Sex centurix, 61. suffragia, 61. Sextus Atlius, 207. Cecilius Africanus, 327. Sicani, the, 9, et seq. Siculi, the, 9, et seq. Silentiarii, 392. Slavery, 569, 570. Slaves, status of, 567, n. Societas, 273, 659. Socii, 260. Latini, 180, 576. Sodales, 119. Solum provinciale, 172, et seg., 612, et seq. Italicum, 7d. Soluti, 583, Solutio imaginaria, 661. verbis, ib. litteris, ib. per es et libram, id. Spadones, 603. . Species, 627. Spectabiles, the, 393, Sponsalia, 586. Sponsio-stipulatio, 138, 273, 657. Stationes jus docentium, 480, Status, idea of, 568. elements of, 568, law of, 591. amittitur, 591, INDEX. Status, mutatur, 591. of individuals, 579. Stellatina (tribe), 69, u. Stephen of Berytus, 498. Stipendium, 151. Stipulatio, 273. St. Louis, ordinance of, 549. Stoics, schools of, at Rome, 225. Studiosi, the, 304. Stuprum, 584. Subjecti, 261. Succession, law of, according to Twelve Tables, 133. Suicide, prevalence of, at Rome, 277. Sui juris, 192, 578. Surdi et muti, 603. Sylla, criminal jurisdiction under, 218. Symbatius, 498. Syngraphe, 642. Synopsis Basilicorum, 508. Legum of Michael Constantine Psellus, 509. T. Tabelle, voting, 263, n. Tables, Twelve, the, 102, e¢ seq. of Lyons, 186, n. of Malaga, 259— 338. Tabula Heracleensis, 258. Tabule accepti et expensi, 658. Tages, 21. Tarquinius Priscus, 49, 54. Taxation, 57, et seq. citizens freed from direct, 268. Terentina (tribe), 69, n. Testamenti factio, 311—317. Testamentum calatis comitiis, 193. per es et libram, 193. per mancipationem, 193. inofficiosum, 272, Thalleleo, 498. Theodoric, king of Ostrogoths, expels Odoacer, 432. Theodorus of Hermopolis, 498.. Theodosius, his code, 416. projects extended code, 421. Theophilus, law commissioner under Jus- tinian, 454, 476. INDEX. Tiberius Coruncanius, 207. ‘ imp., 816. Time and place, elements of legal acts, 640, Toga preetexta et virilis, 57, 195. Toulouse, capital of Visigoth kings in south of France, 433, school of law at, 532. Traditio, 668. Tres libri, the, 540. Tribes, ex locis, 68, et seq. rural, 68. seniores, juniores, 262. the three great, 31. Tribonian, 445—478, Tribonianisms, 450. Tribules, 33, 69. Tribuni plebis, 98, 185. eerarii, 266. monitales, 266. capitales, 266. militum, 148. Tribunum appellare, 191. Tribus, 34. Tributarii, 402, 570. Tributum, 280. Tripertita, 207— 212. Trinmvirate of Pompey, Crassus and Cesar, 253. Antony, Lepidus, Octavius, 255. Triumyirs, 142. Tromentina (tribe), 69, n. Tullus Hostilius, 49, 50. Turin Gloss, the, 446. Turpitudo, 594. Tutelage, 604. Tyrrhenians, the, 9. U. Ufentina (tribe), 69, n. Ugo, glossator, 530. Ulpian, 301, 354. notes of, on Papinian invalidated, 379. Umbrians, 9, et seq. Usucapio, 668. Usurpatum ire trinoctio, 586. Dsus, 664, 670. as to women, 582, 584. auctoritas, 110, n. 709 Vv. Vacarius, glossator, 530, Valentinian III. publishes Theodosian Code, 418. Valerius Soranus, 7. Vandals in Africa reconquered, 473. Varro, his division of historic period, 15. Vectigal, 180, 201. Veii, siege of, 151. Velati, 59. Velina (tribe), 69, n. Verbis, contracts, 138, 657, et seq. Vibenna, 13. Vico, character of his work, 3, 16. Victories of Belisarius and Narses, 473. Villici, 404. Vindicta, 148. Vindius Varus, 301. Viritim, votes taken, 37, Vis, its legal effects, 638. Visigoths, with Franks and Burgundians, divide the West, 430. establish themselves in Gaul, 433. driven out by the Franks, 437. Volsci, the, 10. Voting, mode of, 263. Vulgate—versio vulgata, 538. Ww. War, ceremony observed in declaring, 51. civil, Marius and Sylla, 251. with Cimbri and Teutons, 250. with Gauls, 152, 249. with Jugurtha, 249. with Mithridates, 253. Punic, 199, n. social, 250. servile, 252. with Veii, 151. Western empire broken up by barbarians, 429, Wills of soldiers, 376. Women, position of, under Roman law, 599. Z. Zacharie, his work on Byzantine law, 512, et seq. Zazius, Johannes, 546. LONDONS PRINTED BY C. ROWORTH AND SONS, NEWTON STREET, W.C. Coy 3 WORKS ON THE PAST AND PRESENT SOCIAL CONDITION & HISTORY OF BRITISH INDIA. By ILTUDUS T. PRICHARD, Esq, F.S.S., BARRISTER-AT-LAW, The Mutinies in Rajpootana. 1 vol. 8vo. A PERSONAL NARRATIVE OF THE MUTINY AT NUSSEERABAD, with subsequent Residence at Ji odhpore, and Journey across the Desert into Sind, together with an Account of the Outbreak at Neemuch and Attack on Mount Aboo. (Parker & Son, West Strand. 1860.) How to Manage It. 3 vols. 8vo0. A HISTORICAL NOVEL, DESCRIPTIVE OF THE INDIAN MUTINY. (Bentley. 1865.) “An extremely interesting book. It gives a better idea of the state of things in Hindostan, both among natives and Europeans, at the outbreak of that awful revolt than any light book we have ever yet read. 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The author’s sketches of the character and opinions of the natives, his delineation of their superstitions, fanaticism and capa~- city for intrigue, are remarkable and interesting.” — Morning Post. “ Mr. Prichard’s story stands out prominently from among the general herd of novels,”—London Review, 712) Works by Iltudus T. Prichard, Esq., F.S.S. The History of the Administration of India From 1859 to 1868. (Macmillan § Co.) 2 vols. 8vo. « A very able work. Mr. Prichard’s style is clear and forcible, and he has evi- dently an intimate knowledge of the country with which he deals.”—Law Times. “Mr. Prichard has accumulated an immense amount of information. respecting India in the two volumes before us. The whole course of its administration since it came into the hands of the Crown is detailed and considered. 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Prichard’s history of the late decade as a con- venient book of reference, thoroughly trustworthy as to its facts and figures, though the opinions hazarded and the conclusions arrived at are not always unassailable.” — Calcutta Englishman. “ A period which includes the great famines of 1861 and 1866, the Umbeyla and Bhotan campaigns, the growth and collapse of the Bombay cotton mania, the progress of tea culture in Bengal and Upper India, the indigo disturbances, the spread of rail- ways and canals, the introduction of the penal code, the great impulse given by the new order of things political to the mental, social and material life of all Hindustan —all these subjects are handled by Mr. Prichard with the pen of a well-informed critic and an informing writer. * * * To all who would know what India has been doing in the last ten years, these volumes will be found to present a detailed and. generally sufficient answer.”—Allen’s Indian Mail. “ These volumes are manifestly the work of a shrewd observer who has passed ‘many years in India, and who gives us a non-official view of the history of the last ‘ten years. 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It is no small praise then, when we sa; Mr. Prichard has left few topics untouched, and is ee clear, always eaten and deserving attention, even in places where his information could not possibly be complete. He has written a book which will assist the student of Indian affairs and save him the trouble of innumerable references.” —Athenewn. “ A work which, while it forms no mean addition to eneral historical literat will be to the student of Indian Administration a cuent book of asfenice oe Overland Mail. : The Chronicles of Budgepore. 2 vols. 8vo. (W. H. Allen & Co.) “It is seldom that 2 book is to be found which so entirely carries out its purpose as this. It professes to be intended to illustrate some characteristics of social and official life in Upper India, both in European and native society, and to show the quaint results which an indiscriminate and often injudicious engrafting of habits and ideas of Western civilization upon Oriental stock is calculated to produce * * * and it is meant, while seeking to amuse, to draw attention, under the guise of fiction, to serious abuses and defects, patent to all who have studied British India from an impartial or independent point of view. It can be assuredly said that every atom of this purpose is literally fulfilled. * * * The craft and subtle diplomacy of the natives, and the extraordinary influences over the government officials which many of them succeed in obtaining, are most significantly exhibited. * * * One of the peculiarities, and, indeed, one of the merits of this book, is that its range extends over so long a period that it embraces chronicles of the state of things which existed in the comparatively early time of the rule of the East India Company, as early as Warren Hastings, as well as that which is now in being. * * * It would be almost vain to set down within a reasonable space any but a vague idea of the infinite variety of the contents of this book. In two small volumes are concentrated an immense amount of entertaining matter, as well as of suggestive illustrations of the working, adminis- trative and social, of that great anomaly,—the rule of India by England. 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The Chronometrical Chart of the History of England. Price 21. 2s, This Chart is as essential to the study of History as is a Map to the study of Geography. By localizing each event, it entirely removes the difficulty of Chronology. The opinions of Lords Cairns, Brougham, Palmerston, Shaftesbury, Prince Louis Bonaparte, Thiers, Guizot, Mignet, Carlyle, Hook, Froude, Laurie, &c., will be forwarded on application to GzorGE Puitip, 32, Fleet Street. Extract from ‘‘THE TIMES,” February 10th, 1863. “An attempt to teach history by what geographers call ‘projection’ is certainly a novelty even among the phenomena of modern education. This, however, is the object of the ‘Chart’ above mentioned. It is a map, not of a country, but of a period. Mr. Nasmith’s fundamental idea is that the abstract symbolism of numerals by which we express what we call ‘ dates’ fails to yield any sufficient notion of chro- nology to the minds of the young or uninstructed. A child may be taught to repeat that Richard III. was killed in 1485, and Charles II. restored in 1660, withont acquiring any accurate impression of the chronological relation of the two facts. This is not the way in which we learn that Durham is in the north of England, and Hampshire in the south. We get that knowledge from a map by the aid of locality, and Mr. Nasmith conceives that chronological knowledge may be imparted in like manner. With this purpose in view he takes a certain period of time, being that which coincides with the ascertainable history of this country, and frames it, as it were, in a plane five feet square. This quadrangular surface is to represent 1,860 years, or the interval between the beginning of the Christian era and the time up to which the chart is brought. That is the postulate. It remains only to treat this space as any representation of territory would be treated in an ordinary map, and to divide it into shires or shares. For symmetry’s sake the chart is supposed to contain around 2,000 years, the odd 140 years required to complete the 20 centuries being left, as we may say, unsurveyed. There is no difficulty now in dividing the surface of the chart into parts or squares, nor in subdividing these again, until we get certain measured spaces representing centuries, and certain smaller ones representing years. Time thus becomes expressed by locality. Early times are in the north of the map, late times in the south, and a square of time to the west is earlier than a square on the same line to the east. We read the chart, in short, as we should read any other page, beginning at the top and going from left to right. “The next aid, and a very important one, is that of colour. We have all been taught that the first inhabitauts of England were independent Britons. Then came the Romans, then the Saxons, then the Danes, then the Normans, and with these and after these a succession of dynasties enduring to the present day. Let the times of the Britons, then, be coloured green, those of the Romans brown, those of the Saxons blue, those of the Danes orange, those of the Normans drab, those of the Plantagenets yellow, those of the Lancastrians and Yorkists shaded pink, those of the Tudors green, Works by David Nasmith, LL.B., F.S.S. 715 those of the Stuarts pink, and those of the House of Hanover red. Here are very plain distinctions, and we can tell one division of history from another by the colour as easily as we can distinguish a pink Kentucky from a blue Tennessee on a map of the old United States. Now, let us suppose this chart hung up against a wall, and showing clearly and visibly certain great divisions representing centuries, certain smaller divisions representing decades, and certain still smaller divisions representing years. First there will be the teaching of the colours. We observe, for instance, that the great square which by its place in the map must represent the 12th century, is coloured irregularly, half drab and half yellow, and that the yellow colour is then continued over the next two great squares, representing the 13th and 14th centuries, This tells us plainly enough that the Normans began the 12th century for us, that they were succeeded in about the middle of it by the Plantagenets, and that the Plan- tagenets reigned all through the 13th and 14th centuries. Similarly the green colour, covering the whole of the great square or century shown by its position to be the 16th, identifies that shire of time with the Tudors, while a certain white enclave, or district, in the very middle of the Stuarts’ pink division, gives us an unmistakable notion of the Commonwealth. By going nearer to the map we shall discover speci- fications corresponding to those villages, hamlets, or twmadé on the map of a country; viz., the principal events of successive years, laid down duly in their successive small ae 3 and so, in short, we have our ‘Chronometrical Chart of the History of mngland.’ To the question, how will this teaching answer? experience must furnish a reply; but we think the more the eye is thus used the better. A pupil or student, however careless or however dull, could never fail to carry away with him the general appear- ance of a large coloured surface always before him. He would recollect it as he would recollect the pattern of the paper-hangings or the position of the clock in the school- room. He would remember that in the chart of ‘history yellow came before green, green before pink, and pink before red. -He would probably be able to say that blue was at the top and red at the bottom, with the other principal colours between them. Yet, if he do all this, and simply connect these half-a-dozen colours with half-a-dozen names, he would have got an elementary notion of English chronology. If he could go further, and recollect in which small subdivision of each great square he used to find a certain event characteristically denoted, he would know all the dates of import- ance in the history of England, and be able to take a survey of the whole period besides. How much of this can really be done teachers would soon discover, and, as the chart is published in the form of an atlas as well as in the form of a map, ordi- nary readers can make the discovery also.” The Practical Linguist. Just published, by the same Author, price 5s. 6d. Being a System, based entirely upon Natural Principles, of learning to Speak, Read and Write the GERMAN LANGUAGE. (David Nutt, 270, Strand.) ee itation in characterizing this as, in many respects, a remarkable — a ee considering the crowd of books professing to teach fengeiee that there could be little new to be discovered in that direction ; but Mr. Se ne not only brought out a work superior, as far as we know, to any ae ar be ¢ a preceded it, but he has hit upon an entirely new system, and, if he has not discover a royal road to learning, he has at least found out a path much shorter, simpler, and more natural than any we have hitherto seen.”— Lducational Times, October, 1870. i i i the most important “Tf Mr. Nasmith’s theory is correct, his work must produce t change that has been effected in the study of languages since the time that books were 716 Works by David Nasmith, LL.B., FSS. first introduced as a means to this end. It is difficult to confute any of his propo- sitions ; it is clear that his work is the result of great thought and proportionate labour. And so far as we are able to ascertain, no system exists which offers to the learner such small pains, or which exhibits so much labour undertaken on the part of the author, in order to spare the time and energy of his pupil. Our own experience, insignificant as it is, satisfies us that in most, if not in all, particulars, this work con- tains the true principles upon which the study of a language should be based. It isa scientific reduction of the practice by which the child acquires his native tongue, and by which the foreigner learns the language of the people among whom he may happen to be cast, when unable to attain: his end by means of books; and it is remarkable that, whereas both the child and the foreigner so situated acquire an idiomatic acquaintance with the language, this is rarely, if ever, the case with those who are dependent upon books. This fact alone, which is noted by Mr. Nasmith, furnishes the strongest argument in favour of his system, a fair trial of which must be desired by all interested in the study of German, and the other languages to which his system is to be applied.” — The Educational Review, January, 1871. “ It must suffice to say that the soundest principles are evinced through the two attractive volumes under notice, and that no more agreeable tutor, in one of the most desirable of living languages, can be consulted than our author, Mr. D. Nasmith.”— The Morning Advertiser, September 9th. “ Mr. Nasmith has spared no labour in the development of the ‘ practical’ system, which is exceedingly interesting, and will, we are convinced, be highly appreciated by any who may attempt to acquire German by its aid.”—Public Opinion, Sept. 10th. “ «The Practical Linguist’ evidences, not only large ability in the author, but that true conscientiousness of intent, which evidently takes it out of the category of mere book-making.” — Will-o’-the- Wisp, September 21st, 1870. “ It is easy, intelligible, and full of reward for the least industry. * * * With Mr. Nasmith’s assistance a man could read, write and speak German in ten months. We sincerely hope the plan will meet the recognition it deserves.”—The Freeman’s Journal, Dublin, September 22nd. “ This is really an original introduction to a language, working out in a systematic and thorough manner a good many principles which are now generally accepted as the right method of learning a language, but are not consistently acted upon greatly for want of a proper system. * * * The work is conscientiously executed and will be easily used ; and masters and pupils, with only ordinary diligence, will be able by its help to accomplish their object more speedily than is generally the case.”— Economist, December 10th, 1870. : “ Mr. Nasmith’s work is evidently the fruit of no small labour, and it will do much to lessen the time required for the acquisition of German, while, at the same time, the tedium of the process will be greatly lightened.”_—Dundee Advertiser, 10th October, 1870. “Tn accuracy of detail, perfection of arrangement and distinctness of type, the entire work is eminently deserving of praise, and we can with confidence recommend it to our readers.”—Zhe Civilian, 19th November, 1870. “ We cannot indicate the characteristics of the system, but can unbesitatingly say this much,—we have seen no better plan for teaching one of the most difficult of modern languages.” —Sunday Times, 16th October, 1870. “We cordially recommend the book. It is not only cleverly thought out, it is use- fully contrived. Without regarding the peculiarities of the new system which the work is said to embody, we unhesitatingly pronounce it to be a sound, useful grammar —an excellent key to the intricacies of what is said to be one of the finest, and what is certainly one of the most difficult, of all modern languages.”—Jewish Chronicle, 9th December, 1870. “Mr. Nasmith’s two volumes contain the essentials of the grammar clearly and fully stated, exercises, vocabularies, reading lessons and grammatical commentaries.” —Atheneum, 5th November, 1870. “ Clear, comprehensive, facile and correct, this work is decidedly the best of its kind that has yet been published for the use of English scholars."—Hwropean Mail, 7th October, 1870. 4 Gatalogue OF RECENT LAW WORKS PUBLISHED BY MEssrs. BUTTERWORTH, Law Booksellers und Publishers TO THE QUEEN’S MOST EXCELLENT MAJESTY _ AND TO H.R.H. THE PRINCE OF WALES. “ Now for the Laws of England (if I shall speak my opinion of them without “¢ partiality either to my profession or country), for the matter and nature of them, ‘°'T hold them wise, just and moderate laws: they give to God, they giwe to Cesar, “ they give to the subject what appertaineth. It is true they are as mixt as our “ Janguage, compounded of British, Saxon, Danish, Norman customs. And surely ‘Cas our language is thereby so much the richer, so our laws are likewise by that “ mixture the more complete.’’—Lorp Bacon. LONDON: 7, FLEET STREET, E.C. 1887. , PAGE Action at Law. Boyle ... ves Kerr... wai «a 28 Admiralty Practice. Coote... ee vas (22 Digest—Pritchard 7 Advowsons. Mirehouse . 8t Agricultural Holdings Acts. Bund ... + 25 Alabama Case. O’Dowd ». 28 Aliens. Cutler ... es + QT Appeal Practice. House of Lords. Denison & Scott . Arbitration and Award. Redman a . 16 Articled Clerks’ Handy Book. Mosely... 8 Attachment. Brandon ne ae Banlera psy P w. 16 Balley & Bund. +» 26 Banks an Banking. Grant ... wea LO Barbados, Pak of + 28 Bar Education. Smith . re o 27 Bar Biamination Journal. 24 Bills of Sale. Hunt ... 18 Macaskie « 27 Blockade. Deane ... .. 29 Boundaries. Hunt ... oi we 18 Burgesses’ Manuel. Gaches ... wee 26 Carriers. Powell .. a « 17 Chamber Prnctios, Common Law. Parkinson ... 28 Chancery. Olaims and Defences. Drewry 66 sac LL, Procedure. Underhill ... 9 Church and State. Hale ... es « OL Yudex ta Catalogue. PAGE Church Building Laws. Trower... Church Seats. Heales .. Circumstantial Evi- dence. +» 26 vee 26 Wills. a: ge aes 25 Claims and Defences. Chancery. Drewry... Commentaries. Stephen’s Blackstone 6 Phillimore’s,. Inter- national... 20 Commercial Law. . Chitty... we. 80 Common Law, Action. Boyle ... ee Common Law Pleading. Williams 25 Common Law Practice. Lush... “a6 vee 22 Companies. Shelford « 16 Compensation sd Land. ‘am we 15 Confession. Badeley » 81 Gonsletory Court, London. Rules and Regulations 31 ee (Criminal). oe ciaiccal History. Fulton .. a5 12 Contraband of War. Moseley eo 29 Contracts. Plumptre... ws 8 Contributories. Collier ... ve 23 Conpayaniing: Barry a ae 19 Crash. 22, 32 Lewis ... ve 19 Rouse ... ote , 19 Tudor . ate 6 Conveyancing and Pro- perty Acts, 1881 and 1882. | Clerke and Brett ... 11 Conveyancing Drafts- man. Kelly ... sa vee 19 Co-operative Societies. Brabrook . 26 Copyholds. Fa siredne ». 18 Costs. Gray wee 29 PAGE County Court Practice. Davis ... i . Criminal Law Cbs solidation Acts. Davis ... a - 22 Customs Laws. Hamel .. 4 25 Debtors’ Estates. Pye... a « 23 Designs. Lawson . 2h Dictionary. Mozley & Whiteley... 6 Digest. Pritchard 7 Domestic Servants. Baylis .. . 21 Drainage of Land. ‘Wilson Ecclesiastical Seurts, Coote ... ae ve BL Ecclesiastical Law we BL England, Laws of. Blackstone... 5 Stephen... 5 English Law. Francillon , . 28 Nasmith 23 Equity. Drewry 28 Hunter... 29 Roberts 18 Trower. 11 Underhill - in D Equity in relation to Law. Chute ... « 18 Evidence. Powell ... 12 ce ae » 18 Hishary Laws. Oke... ove » 14 Foreshores. Hunt ... » 18 O’Dowd - iis 28 Form of the Law. Holland + 26 Hrants. ‘unt 18 ‘ecedeen of Land. Underhill 21 Game Laws. Oke o 14 Gaming. ee . 80 Gas Su Michel ond Wil .. 1 Gave. Robinson +» 80 4 INDEX TO CATALOGUE. General Average cae aan R ea i eee ‘ 1P Grump... 1 we 17 | Magisterial Formobats Ta ee 6 Gorham Case. ei Magisterial Synopsis. Real Ene ‘Act, Rca a ats ak ok ane oe 81. Cees : Marine Insurance. Clerke and Brett ... 11 eColyar .. ... 22 Crump... Referees’ Court Cases. Ruane aes a Maree Women’s ae & OT gee a Ow saa roperty Acts. liffor phen ... House of Lords. Eitwards & Hamilton 20 aor 21,32 A 1s. ozley. rf 17 1tuaiism. ‘{Penisonand Scott... 10 Masters and Servants. Hamel... 31 Husband and Wife. Baylis... . . 21 | Roman Law. Edwards & Hamilton 20 | Master and Workmen. Gaius. ue 28 Ortolan was ane, 12 Income Tax Laws. Davis. «. 15 i Dowell. oe 25 Lovesy... 0. 0 29 Pi i. Bile, : see one DB Mercantile Accounts. ale, oO Indian Ovi Servieo. A "Pall ee . sea a oT Indian Penal Code. Mines and Minerals. 2. a amma ‘Gatien... Bainbridge ... ... 18 und ... 15 International Law a ca ix, 7 Settled Land Acts,1882-4 e Puilanore “130 Municipal Registration. Sheriff. Davis ... ea 13 ewell ... wie «a. 30 dereeg Tee cena 29 Naturalization. Shorthand. Joint Stock Companies. Cutler . ae) ero, Gurney ve owe 1B Shelford pa 16 Negligence. Slander. cre Saunders “as . 15 Folkard ie ao 12 J neenare Acts. es ParliamentaryPractice, Solicitors’ Bpdkeksoping, Bedford Hee i. 23 May § Coombs ee 19 Labour Laws. Parliamentary Regis- Statutes (Lending). Davis ... a 15 5 ns Davis ... aia we 13 Landed Property. Saint .. ow. ow 5 Stock Exchange. 30 Ohart of. Partition. wie Fearne... 30 Tawreniea Succession Duty. ian ei, 2B Shelford Landlord and Tenant. Partnership. elfor a 27 Faweett .. 0 17 Dicon se wee IT Bury Convictions. Tudor... .«. «80 CY ee . 18 Land (evedont of) 91 | Patents. Testators. Pp Higgins ante tae: AE Flood ... ais wee 15 Land Settlement of fawecn ae ge 2h | Ipppebs orman ove os 29 a rr’) Wageett ., on 18 Undorall, ee eee Laer Distiona: Peerage Case. Town Councillors’ aw Dictionary. Le Marchant... ... 28 Manual. Mozley & Whiteley... 6 | Pews, Gachea 98 Law Exam. Journal. Heales... ... 26 | Trade Marks. Mozley... Pitfalls of Testators. ‘Kaame an Law Student’s Maga pice Guide. +15 Lawson... 2 zine. Anstey ... ... 80 | Lteaties. Mosley... oe aoe 24 Pleading. Hertslet 20, 82 Leading Cases. 95 | Treaties and Tariffs. Tudor . Ae ttn 6 ee Examina- Hertslet oo .. a, 20 Legacy Duites: tion Journal ,, 24 | Trusts and Trustees. Shelford .. ... 27 Ene au Legislation. Underhill... 9 i 5 | Vendors & Pi 12 Probate aii Divorce. oes chasers 7 Li L She my Bedford aia vee 23 Water S 1: roa aws. i Probate Bonds. Mighact iil * nies iste Chadwick .. vee 10 : wet Lord Lyndhurst. Probate Duties. Wife and Husband. Gibson... oe 29 Shelford 2. sues 27 Edwards & Hamilton 20 Lord Mayor’ s Court. Probate Practice. Wills. Brandon cen at OT Coote .. .. «10 Flood . een wae 15 Tristram aa ie 10) Wigram. ae ew, 18 Lords Chancellors. Railways. Wrongs. Hardy... 0 ww » 80 Shelford as wes AG Underhill .. 9 MESSRS. BUTTERWORTH, 7, FLEET STREET, E.0. Stephen’s New Commentaries.—10th Edition. In 4 vols. 8vo. 41, 4s. cloth. Mr. SERJEANT STEPHEN’S NEW COMMENTARIES on the LAWS OF ENGLAND, partly founded on Blackstone. Judge Stzpnzen. The Tenth Edition. By His Honour 1886 *4* The Work selected for the Intermediate Examinations for Solicitors for 1887. “Our old familiar friend, Stephen’s Commentaries on the Laws of England, comes to us in a handsome blue binding, in its tenth edition. The Editor is Mr. Archibald Brown, and, when we remember the amount of excellent work this gentleman has done in the literature of the law, his name is a guarantee that nothing has been omitted which was necessary to insert to bring Stephen down to the date of publication. e should have to repeat Mr. Brown’s preface if we detailed the additions and amendments which he has made. Allthat we need do is to assure the Profession that, having examined these volumes, we find them all that could be desired, without any appre- ciable increase in bulk—a really great consideration, having regard to the enor- mous growth of statute and case law.””— Law Times. “This well-known work being just now the established subject for study for the Solicitors’ Intermediate Exami- nation, tends, of course, to its more speedy sale. Besides, it is indeed in many senses a wonderful and a useful book, containing, as it does, something on nearly everything. The preparation of this edition has, we are informed in the preface, been entrusted to that laborious compiler and editor of law books, Mr. Archibald Brown, though, for some rea- son, his name does not appear on the title-page. Mr. Brown has had great experience in this way, and we are in- clined to believe his statement that he has paid sedulous attention to the wants both of the profession and of students.’’ —Law Student's Journal. “In the edition now before us, we are very glad to find that much more atten- tion has been paid to recent statute law, rules of court, &c.; indeed, the work is now well up to date, and no better book can be placed in the hands of a student at an early stage of his legal career. A new chapter is added in Vol. I. treatin entirely of the Conveyancing Acts an Settled Land Acts. In Vol. II., in the chapter on Title by Invention, new para- graphs are added dealing with trade marks, trade names, and designs. Among other recent statutes, we find the Bank- ruptcy Acts and Patent Acts duly incor- porated in their proper places; and in the chapter on Practice the Rules of Court, 1883 and 1885, appear. Indeed, the edition before us has far more the character of a new work than its imme- diate predecessors have had. In Book IV. we find the Representation of the People Act, 1885, and the Redistribution of Seats Act, 1885, duly noticed, as well as the Corrupt and Illegal Practices Act, 1883. In Book VI. not much alteration appears, but all important recent statutes bearing on the subjectof crimes, including the Criminal Law Amendment Act, 1889,- are properly noticed. On the whole, we think great thanks are due to the learned editor, the publishers, and printer for the production of a book covering a great deal of ground, well up to date, beauti- fully printed and bound.’’—Law Notes. Clifford’s Private Bill Legislation. In 2 vols. 8vo0. 21. 15s. cloth. A HISTORY OF PRIVATE BILL LEGISLATION. By Feeperick Crirrorp, of the Middle Temple, Barrister-at-Law. 1885-1887 *,* May be had separately, Vol. I. 20s.; Vol. IL, 35s, cloth. Saint on Registration. In 1 vol. Post 8vo. 10s. 6d. cloth. AND THEIR REGISTRATION: comprising the ae of the People Act, 1884; and the Registration, Redistribution of Seats, and Medical Relief Disqualification Removal Acts, 1885. With Notes and Index. By J. J. Huars Sarr, Esq., B.A., of the Inner Temple, Ea rister-at-Law. 6 LAW WORKS PUBLISHED BY Tudor’s Leading Cases on Real Property, &¢.—3rd Ed. In one thick volume, royal 8vo. 27. 12s. 6d. cloth. A SELECTION OF LEADING CASES ON THE LAW RELATING TO REAL PROPERTY, Conveyancing, and the Construction of Wills and Deeds; with Notes. Third Edition. By Owen Davies Tupor, Esq., of the Middle Temple, Barrister-at-Law, Author of ‘A Selection of Leading Cases in Equity.’? “The second edition is now before us, and we are able to say that the same ex- tensive knowledge and the same laborious industry as have been exhibited by Mr. Tudor on former occasions characterize this later production of his legal author- ship; and it is enough at this moment to reiterate an opinion that Mr. Tudor has well maintained the high legal reputation which his standard works have achieved in all countries where the English lan- age is spoken, and the decisions of our ourts are quoted.””—Law Magazine and Review on 2nd edit. “To Mr. Tudor’s treatment of all these subjects, so complicated and so varied, we accord our entire commendation. There are no omissions of any important cases relative to the various branches of the law comprised in the work, nor are there 1879 any omissions or defects in his statement of the law itself applicable to the cases discussed by him. We cordially recom- mend the work to the practitioner and the student alike, but especially to the former.””—Solicitors’ Journal on 2nd edit. “This and the other volumes of Mr. Tudor are almost a law library in them- selves, and weare satisfied thatthestudent would learn more law from the careful reading of them than he would acquire from double the time given to the elabo- rate treatises which learned professors _ recommend the student to peruse, with entire forgetfulness that time and brains are limited, and that to do what they advise would be the work of a life. No law library should be without this most useful book.”—Law Times on 2nd edit. May’s Parliamentary Practice.—9th Edition. In 1 vol., demy 8vo., 22. 8s. cloth. A TREATISE on the LAW, PRIVILEGES, PROCEEDINGS and USAGE OF PARLIAMENT. By Sir Tuomas Ersxrne May, K.C.B., D.C.L., Clerk of the House of Commons, and Bencher of the Middle Temple. Ninth Edition, Revised and Enlarged. ContTENTS: Practice and Proceedin, 1883 Book I. Constitution, Powers and Privileges of Parliament. Book II. in Parliament. Book ITI. The Manner of Passing Private Bills, with the Standing Orders in both Houses, and the most recent Precedents. “A work, which has risen from the position of a text-book into that of an authority, would seem to a considerable extent to have passed out of the range of criticism. It is quite unnecessary to point out the excellent arrangement, ac- curacy and completeness which long ago rendered Sir T. E. May’s treatise the standard work on the law of Parliament. Not only are points of Parliamentary law discussed or decided since the publi- cation of the last edition duly noticed in their places, but the matter thus added is well digested, tersely presented and carefully interwoven with the text.”— Solicitors’ Journal. “Fifty pages of new matter have been added by i Thomas May in his seventh edition, thus comprising every alteration in the law and practice of Parliament, and all material precedents relating to public and private business since the publication of the sixth edition. We need make no comment upon the value of the work. It is an accepted authority and is undeniably the law of Parliament. It has been brought up to the latest date, and should be in the hands of every one engaged in Parliamentary life, whether asalawyer or asasenator.”’—Law Times. Mozley and Whiteley’s Concise Law Dictionary. In 1 vol. 8vo. 20s. cloth, 25s. brown calf. A CONCISE LAW DICTIONARY, containing Short and Simple Definitions of the Terms used inthe Law. By Herpert Newman Mozzey, M.A., Fellow of King’s College, Cambridge, and of Lincoln’s Inn, Esq., and Gzorer Crisps WuiteLEy, M.A.Cantab., of the Middle Temple, Esq., Barristers-at-Law. 1876 MESSRS. BUTTERWORTH, 7, FLEET STREET, E.O. 7 Pritchard’s Admiralty Digest.—8rd Edition. Now ready, in 2 thick vols., royal 8vo., 5. cloth. PRITCHARD’S DIGEST OF ADMIRALTY AND MARITIME LAW. Third Edition, by Jawzs C. Hanwen, of the Inner Temple, Barrister- at-Law, and W. Tarn Prircuarp; including Cases on Average, Carriage of Goods, and Marine Insurance, by J. P. Asprvatn and Gorpon Surru, Barristers- at-Law, and W. Brnnine Prircarp, Solicitor; with Notes of Cases on French and other Foreign Law, by ALGERNON Jones, French Advocate, and other Foreign Jurists. 1887 Fisher’s Law of Mortgage.—4th Edition. 1 vol. royal 8vo. 27. 12s. 6d. cloth. THE LAW OF MORTGAGE AND OTHER SECURITIES UPON PROPERTY. By Wit Ricuarp Fisusr, of Lincoln’s Inn, Esq., Barrister-at-Law. Fourth Edition. “This work has built up for itself, in the experienced opinion of the profession, a very high reputation for carefulness, accuracy and lucidity. This reputation is fully maintained in the present edition. The law of securities upon property is confessedly intricate, and probably, as the author justly observes, embraces a greater variety of learning than any other single branch of the Englishlaw. Atthe same time an accurate knowledge of itis essentialto every practising barrister, and 1884 of daily requirement among solicitors. Toallsuch we can confidently recommend Mr. Fisher’s work, which will, moreover, pave most usefulreading for the student, oth as a storehouse of information and an intellectual exercise.’ Law Magazine. “His work has long been known as the standard work on the law of mortgages, and he has now published his third edition. The object and scope of his work is probably familiar to most of our readers.””—Law Journal. Boyle’s Précis of an Action at Common Law. In 8vo., 5s. cloth. PRECIS of an ACTION at COMMON LAW, showing at a Glance the Procedure under the Judicature Acts and Rules in an Action in the Queen’s Bench, Common Pleas and Exchequer Divisions of the High Court of By Hersert E. Bovzs, Solicitor. : Justice. 1881 Seaborne’s Law of Vendors & Purchasers.—8rd Ed. In 1 vol. post 8vo., 12s. 64. cloth. A CONCISE MANUAL OF THE LAW OF VENDORS AND PURCHASERS OF REAL PROPERTY. By Hewry Szazonnz, Solicitor. Third Edition. 1884 ed to furnish Practitioners with an easy means of reference to i ign y ict isi he transfer of the Statutor: Enaiventa and Judicial Decisions regulating t Real Peel and also to bring these authorities in a compendious shape under the attention of Students. “The value of Mr. Seaborne’s work consists in its being the most concise summary yet published of one of the most important branches of the law. The student will find this book a useful introduction to a dry and difficult sub- ject.”—Law Examination Journal. “The book before us contains a good deal, especially of practical information, as to the course of conveyancing matters in solicitors’ offices which may be useful to students.”—Solicitors’ Journal. “We will do Mr. Seaborne the justice to say that we believe his work will be of some use to articled clerks and others in solicitors’ offices, who have not the opportunity or inclination to refer to the standard works from which his is com- piled.”,—Law Journal. LAW WORKS PUBLISHED BY Plumptre on Contracts. Post 8vo., 8s. cloth. A SUMMARY of the PRINCIPLES of the LAW of SIMPLE CONTRACTS. By CraupEe CO. M. Prumprre, of the Middle Temple, Esq., Barrister-at-Law. Term, 1877.) “In our last volume we had occasion to mention with approbation two works by Mr. Arthur Underhill, ‘A Summary of the Law of Torts,’ and ‘ A Concise Manual of the Law relating to Trusts and Trustees ;’ the first of these had reached a second edition, and in its pre- paration the author of the present work was associated with Mr. Underhill. In the preparation of this book Mr. Plumptre has adopted the lines laid down by Mr. Underhill; by means of short rules and sub-rules he presents a summary of the leading principles relating to the law of simple contracts, with the decisions of the Courts by which they are illustrated. Part I. deals with the parties to a simple contract, and treats of those persons ex- empted from the performance of their contracts by reason of incapacity, such as infants, married women, lunatics, drunkards, convicts and bankrupts. Chapter 4 is devoted to contracts by cor- porations and by agents, and the follow- ing chapter to partners and partnerships (Middle Temple Common Law Scholar, a generally. - “In Part II. we have the constituent parts of a simple contract, the consent of the -parties, the consideration, the pro- mise, contracts illegal at common law and by statute, and fraudulent con- tracts. “Part III. gives rules for making a simple contract, and treats of contracts within the 4th and 17th sections of the Statute of Frauds; Statutes of Limita- tion; the discharge of the obligation im- posed by the contract by performance ; by mutual agreement; by accord and satisfaction ; and by operation of law; oral evidence and written contracts ; damages; and contracts made abroad. “The book contains upwards of one hundred rules, all ably illustrated by cases, and a very full and well-compiled index facilitates reference. It is more particularly addressed to students, but practitioners of both branches of the legal profession will find it a useful and trust- worthy guide.’’—Justice of the Peace. Mosely’s Articled Clerks’ Handy-Book. By Bedford. 1 vol. post 8vo., 8s. 6d. cloth. MOSELY’S PRACTICAL HANDY-BOOK OF ELEMENTARY LAW, designed for the Use of Articled Clerks, with a Course of Study, and Hints on Reading for the Intermediate and Final Examinations. By Epwarp Henstowz BEpFokrD, Solicitor. Edition. “This book cannot be too strongly recommended to every one who contem- plates becoming a solicitor.”—Law Ex- amination Journal. “Mr. E. H. Bedford, indefatigable in his labours on behalf of the articled clerk, has supervised a new edition of Mosely’s Handy Book of Elementary Law. It will Second. 1878 certainly not be the fault of either Author or Editor if the years spent under articles are not well spent, and if the work re- quired to lay a sound foundation of legal knowledge is not done with that ‘know- ledge’ of which they so emphatically de- clare the necessity.” —Law Magazine. Underhill’s Settled Land Acts.—2nd Edition. In 1 vol., post 8vo., 8s. cloth. THE SETTLED LAND ACTS, 1882 & 1884, and the Rules of 1882, with an Introduction and Notes, and Concise Precedents of Conyey- ancing and Chancery Documents. By A. UNDERHILL, M.A., LL.D., of Lincoln’s Inn, Barrister-at-Law. Assisted by R. H. Duans, B.A., of Lincoln’s Inn, Barrister-at-Law. 2nd Edition. “Tt is hardly necessary for us to say that the present publication is marked by the careful treatment and general ex- cellence which have distinguished Mr. Underhill’s work on Torts, and his other works which we have from time to time reviewed in the pages of this Journal.””— Law Examination Journal. “Mr. Underhill’s treatment of the Act, therefore, is, as might have been expected, clear and perspicuous. The notes to the d 1884 various sections of the statute are sup- ported, where necessary, by references to decided cases and standard authorities ; but we are glad to see that he has not encumbered them with a profusion of technical details and collateral points which may sometimes serve as a guide to the practitioner, but rarely obviate the necessity of further search at the fountain head. ‘The type is especially good, and there is an excellent index.” —The Field. MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. Underhill’s Guide to Equity. eeenmEE In 1 Vol., post 8vo., 9s. cloth, GUIDE TO MODERN. EQUITY. i of Nine Lectures delivered at the Incorporated ae cae ee oe 1885; Revised and Enlarged. By A. Unprrntut, M.A. L i : Inn, Esq., Barrister-at-Law. ii : al AR AR ARAR ARN Underhill’s Chancery Procedure. In 1 vol. post 8vo., 10s. 6d. cloth. A PRAOTICAL and CONCISE MANUAL of the PROCEDURE of the CHANCERY DIVISION of the HIGH COURT of J USTICE, both in Actions and Matters. Barrister-at-Law, ‘‘This work, coming from the pen of the author of the well-known works on Torts and Trusts, will be found to be at once concise and readable. We would advise its perusal by all students and By Arrgur Unperrar, LL.D., of Lincoln’s Inn, author of ‘‘ A Concise Treatise on the Law of Private and Trustees,” ‘A Summary of the Law of Torts,’’ &e. Trusts 1881 young practitioners.”—Justice of the Peace. “Mr. Underhill has produced within small compassaveryuseful work on Chan- cery Practice.”—Law Students’ Journal. Underhill’s Law of Trusts and Trustees.—2nd edit. 1 vol. post 8vo., 12s. 6d. cloth. A CONCISE MANUAL of the LAW relating to PRIVATE TRUSTS AND TRUSTEES. “From our perusal of this text book, we may say that it is a very complete and very concise study of this important branch of law... . .. The articles con- taining the propositions of law are cor- rectly stator, and the illustrations are carefully collected and noted.’’—Times. “His task was indeed one of great difficulty, dealing, as he has done, witha subject so complex; but he has achieved it with ability and success. To those who are themselves destined to expe- rience what a famous law reformer called ‘the pleasures derived from the condi- tion of trustee,’ this clearly written manual will be no slight boon.””—Irish Law Times. By Arraur Unperuitt, M.A., of Lincoln’s Inn, Esq., Barrister-at-Law. Second edition. 1884 “Mr. Underhill has, in the above- named volume, performed a similar task in relation to the ‘Law of Trusts.’ In seventy-six articles he has summarized the principles of the ‘ Law of Trusts’ as distinctly and accurately as the subject will admit, and has supplemented the articles with illustrations. He has chosen a branch of the law which appears one of the most difficult to deal with in this way.’’—Law Journal. “ The work is intended for those who cannot study larger tomes, and Mr. Un- derhill is sanguine that the student will be able to learn and remember all that he has written. We believe this to be quite possible, and commend the work to the attention of students.”’—Law Times. Underhill’s Law of Torts.—4th edition. 1 vol. post 8vo., 9s. cloth. A SUMMARY OF THE LAW OF TORTS, on WRONGS INDEPENDENT OF CONTRACT. Fourth Edition. By A. Unvzrumt, M.A., LL.D., of Lincoln’s Inn, Esq., Barrister-at-Law. ‘« He has set forth the elements of the law with clearness and accuracy. The little work of Mr. Underhill is inexpen- sive, and may be generally relied on.”’— Law Times. ; “This work appears fairly to deserve the success which it has attained. The plan of itis to arrange the law under a series of ‘‘rules’’ in large type, and to print beneath each ‘‘rule’’ such cases 1884 and comments as are necessary in ex- planation. In the present edition, the first chapter—which treats of ones purely ex delicto—has been completely re-written, and new chapters upon in- junctions, negligence and fraud have been added, and the whole has been care- fully corrected and revised. We can confidently recommend the book to stu- dents.””—Law Journad. 9 10 LAW WORKS PUBLISHED BY Coote’s Probate Practice.—9th Edition. In 1 vol. 8vo. 26s. cloth. THE COMMON FORM PRACTICE OF THE HIGH COURT OF JUSTICE IN GRANTING PROBATES AND ADMINISTRATIONS. Ninth Edition. By Henry Cuartes Coors, F.S.A., late Proctor in Doctors’ Commons, Author of ‘‘The Practice of the Ecclesiastical Courts,’’ &c. &c. 9th Edition. “The above is another name for what is commonly known to the profession as Coote’s Probate Practice, a work about as indispensable in a solicitor’s office as any book of practice that is known to us. The seventh edition is chiefly dis- tinguishable from the sixth edition in this, that certain important modifications and alterations are effected which have 1883 useful forms; and the author has not only attempted, but has in the main suc- ceeded, in adopting the forms and direc- tions under the old probate practice, as embodied in previous editions of the work, to the new procedure under the Judicature Acts. Solicitors know that the difficulties in the way of satisfying the different clerks at Somerset House been rendered necessary by the Judi- cature Acts. Judicial decisions subsequent to the last edition have been carefully noted up. We notice several new and are frequently great, and there is nothing so likely to teats simplicity of practice as Mr. Coote’s book.”,—Law Times. Tristram’s Contentious Probate Practice. Demy 8vo. 21s. cloth. THE CONTENTIOUS PRACTICE OF THE HIGH COURT OF JUSTICE, in respect of Grants of Probates and Administrations, with the Practice as to Motions and Summonsesin Non-contentious Business. By THomas Horcuuwson Trisrram, Q.C., D.C.L., Advocate of Doctors’ Commons, of the Inner Temple, Chancellor of the Diocese of London. 1881 Chadwick’s Probate Court Manual, corrected to 1876. Royal 8vo. 12s. cloth. EXAMPLES OF ADMINISTRATION BONDS FOR THE COURT OF PROBATE; exhibiting the Principle of various Grants of Admi- nistration and the correct, Mode of preparing the Bonds in respect thereof; also Directions for preparing the Oaths, arranged for practical utility. With Extracts from the Statutes; also various Forms of Affirmation prescribed by Acts of Parliament, and a Prefatory as well as a Supplemental Notice, bringing the work down to 1876. By Samurn Cuapwicx, of Her Majesty’s Court of Probate. Denison and Scott’s House of Lords Practice. 8vo. 16s. cloth. APPEALS TO THE HOUSE OF LORDS: Procedure and Practice relative to English, Scotch and Irish Appeals; with the Appellate Jurisdiction Act, 1876; the Standing Orders of the House; Directions to Agents; Forms, and Tables of Costs. Edited, with Notes, References, and a full Index, forming a complete Book of Practice under the new Appellate System, by Caartes Marsa Denison and Cuarnes Henperson Scort, of the Middle Temple, Esqs., Barristers-at-Law. 1879 “The most important portion of the work, viz., that concerning the Procedure and Practice on Appeal to the House of Lords, contains information of the most important kind to those gentlemen who have business of this nature; it is well and ably compiled, and the practitioner will find no difficulty in following the various steps indicated. “The whole book is well and carefully prepared, and is unusually readable in its style.”’—Justice of the Peace. MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 11 Clerke & Brett’s abr y teite and Law of Property Act, 1881.—2nd Edit. In 1 Vol., post 8vo., 7s. 6d. cloth. THE CONVEYANCING AND LAW OF PROPERTY ACT, 1881, together with the Vendor and Purchaser Act, 1874, and the Solicitors’ Remuneration Act, 1881. With Notes and an Introduction. By Avsrzy 8, Joun Crerxe, B.A., late Scholar and Student of Trinity College, Dublin, and THomas Brett, LL.B. London University, B.A , late Scholar and Student of Trinity College, Dublin, Exhibitioner in Real Property and Equity, and Holder of the First Certificate of Honour, Michaelmas, 1869; both of the Middle Temple, Esquires, Barristers-at-Law. Second edition. ‘The introductory chapter deals with the effect of the Act in a masterly man- ner, and shows that the authors are in- timately acquainted with the subject in hand. Each section of this important Act is then dealt with fully, and its effect on the existing law explained, great pains being taken to call attention to the clauses which are, and those which are not, of retrospective operation ; and the work concludes with a consideration of the Vendor and Purchaser Act, 1874 (which is, of course, closely connected with the new Act), and the Solicitors’ Remuneration Act, 1881. The work is written, no doubt, mainly for the prac- 1882 titioner, but the student who is reading for examination next year will require an accurate knowledge of this Act, and it is very doubtful whether he will be able to meet with a better treatise on it than that contained in the pages being considered.’ —Gibson’s Final “Tt is not possible to exaggerate the utility of the work brought out by Messrs. Clerke and Brett. No student or practi- tioner who desires to be acquainted with the latest phase of real property legis- lation ought to be without it. ‘he authors are to be congratulated upon the speed with which they brought out the volume.’ —Law Examination Journal. In post 8vo., 2s. 6d. sewed. THE CONVEYANCING ACT, 1882, together with the General Order made in pursuance of the Solicitors’ Remuneration Act, 1881, with Notes, and Addenda containing the Rules of the Supreme Court and Order as to Court Fees of December, 1882, by Ausrey St. Jonw Crergs, B.A., and Tuomas Brert, LL.B., B.A., both of the Middle Temple, Esquires, Barristers-at-Law. *,* The Addenda may be had separately, price 6d. sewed. Baxter’s Judicature Acts.—5th Edition, with Supplement to 1884. 1 vol., crown 8vo., 15s. cloth. are BAXTER’S JUDICATURE ACTS AND RULES, containing all the Statutes, Rules, Forms, and Decisions to the Present Time. By WYNNE E. Baxter, Solicitor, Coroner for Sussex, and late Under Sheriff of London and Middlesex. Fifth Edition. With Supplement to 1884. *,* The Supplement may be had separately, 53. cloth. are Drewry’s Forms of Claims & Defences in Chancery. Post 8vo. 9s. cloth. FORMS OF CLAIMS AND D HAN Y DIVISION o: i assole oe Outline of the Law relating to each of the subjects £ Forms of Endorsement on the Writ of Summons. of the Inner Temple, Esq., Barrister-at-Law, Author Reports of Cases in Equity, temp. Kindersley, With Notes containing an treated, and an Appendix o By C. Srewart Dewey, of a Treatise on Injunctions and of V.-C., and other works. Trower’s EFENCES IN THE COURTS the HIGH COURT OF JUSTICE. 1876 Prevalence of Equity. 8vo. 5s. cloth. A MANUAL OF THE Section 25 of the Judicature Act, By Caarzes Francis Trower, Esq., “The Law of Debtor and Creditor, and Divisions of Parishes,”’ &c. EVALENCE OF EQUITY under ea 3, amended by the Judicature Act, 1875. M.A., late Fellow of Exeter College, and eo chika ‘bollline’ bb Ginechas f the Inner Temple, Barrister-at-Law, ‘ Law Scholar, Oxford; Author of 1876 12 LAW WORKS PUBLISHED BY Ortolan’s Roman Law, translated by Prichard & Nasmith. ‘ 8vo. 28s. cloth. THE HISTORY OF ROMAN LAW, from the Text of Ortolan’s Histoire de la Législation Romaine et Généralisation du Droit (Edition of 1870). Translated, with the Author’s permission, and Supplemented by a Chronome- trical Chart of Roman History. By Inrupus T. Pricnarp, Esq., F.S.8., and Davo Nasmira, LL.B., Barristers-at-Law. 1871 Fulton’s Manual of Constitutional History. Post 8vo. 7s. 6d. cloth. A MANUAL OF CONSTITUTIONAL HISTORY, founded upon the Works of Hallam, Creasy, May and Broom, comprising all the fundamental Principles and the leading cases in Constitutional Law. By Forrest Fuuron, LL.B., B.A., University of London, and of the Middle Temple, Esq., Barrister-at-Law. 1875 PRE RAR Folkard on Slander and Libel.—4th Edition. One thick volume, royal 8vo. 45s. cloth. THE LAW OF SLANDER AND LIBEL (founded on Starkie’s Treatise), including the Pleading and Evidence, Civil and Criminal, adapted to the present Procedure: also Malicious Prosecutions and Contempt of Court. By Heyny C. Forxarp, Esq., Barrister-at-Law. Fourth Edition. 1876 \ Powell on Evidence.—d5th Edit. By Cutler & Griffin. Just published, in 1 vol. post 8vo. 20s. cloth. POWELL’S PRINCIPLES AND PRACTICE OF THE LAW OF EVIDENCE. Fifth Edition. By J. Curmzr, B.A., Professor of English Law and Jurisprudence, and Professor of Indian Jurisprudence at King’s College, London, and E. F. Grirri, B.A., Barristers-at-Law. 1885 “The plan adopted is, we think, an admirable one for a concise, handy book on the subject. The Indian code of evidence given at the end of the book deserves to be read by every student, whether going to India or not. The Acts. The authors give in an appendix the Indian Evidence Acts, with some Indian decisions thereupon, and occa- sionally notice these acts in the text. On the whole we think this is a good edition resent form of Powell on Evidence is a andy, well-printed and carefully pre- pared edition of a book of deserved re- putation and authority.”’-—Law Journal. “The plan of the book is to give pretty frequently, and, as far as we can discover, in almost every chapter, a ‘rule’ of general application, and then to group the cases round it. These rules or axioms are printed in a distinctive e. The work has been pruned and remodelled by the light of the Judicature of a good book. It brings down the cases to the latest date, and is con- structed upon a model which we should like to see more generally adopted.’ —Solicitors’ waanel ‘“‘There is hardly any branch of the law of greater interest and importance, not only to the profession, but to the public at large, than the law of evidence. ‘We are, therefore, all the more inclined to welcome the appearance of the Fourth Edition of this valuable work.”—Law Examination Journal. MESSRS. BUTTERWORTH, 7, FLEET STREET, E.O. 13 Scriven on Copyholds.—6th Edition, by Brown. In 1 vol. roy. 8vo. 30s. cloth. A TREATISE on the LAW of COPYHOLDS and of the OTHER TENURES (Customary and Freehold) of LANDS within MANORS. with the LAW of MANORS and MANORIAL CUSTOMS generally, and the RULES of EVIDENCE applicable thereto, including the LAW of COMMONS or WASTE LANDS, and also the JURISDICTION of the various MANORIAL COURTS. By Joun Scriven. The Sixth Edition, thoroughly revised, re- arranged and brought down to the present time, by Ancuisatp Brown Esq. of the Middle Temple, Barrister-at-Law, B.C.L., &c., Editor of “ Bainbridge on the Law of Mines.” : 1882 Man Bainbridge’s Law of Mines and Minerals.—4th Edit. 1 vol. roy. 8vo. 45s. cloth. A TREATISE on the LAW OF MINES AND MINERALS. By Wirt1aM Barsrines, Esq., F.G.S., of the Inner Temple, Barrister-at-Law. ARAN Fourth Edition. By Axrcurpatp Brown, M.A., Edin. and Oxon, of the Middle Temple, Barrister-at-Law. This work has been wholly re-cast, and in the greater part re-written. ‘“Much of the old work has been re- written, and there is much in this edition that is entirely new. The whole of the law relating to mines and minerals is treated in an exhaustive manner. As coming more particularly within our own peculiar province, we may notice Chapter XII., which deals with criminal offences relating to mines; Chapter XIII., as to the statutory regulation and inspec- tion of mines; and Chapter XV., which contains the law relating to the rating of mines and quarries, comprising the liability of coal and other mines and quarries to the poor and other rates— The tenancy—Improvements to be in- cluded—Allowances and deductions to be made—Rateable value, and all other matters necessary to make this portion of the work most valuable to those con- cerned in the rating of such property. “The appendix contains a valuable collection of conveyancing forms—Local Customs—A Glossary of English Mining Terms, and a full and well arranged r . It contains, also, several chapters of entirely new matter, which have obtained. at the present day great mining importance. 1878 Index facilitates the reference to the con- tents of the volume. “The cases cited are brought down toa very recent date. The work undertaken by Mr. Brown was an arduous one, and he has: satisfactorily performed it.’’— Justice of Peace on 4th edit. “This work must be already familiar to all readers whose practice brings them in any manner in connection with mines or mining, and they well know its value. We can only say of this new edition that it is in all respects worthy of its pre- decessors.”’—Law Times on 3rd edit. “Tt would be entirely superfluous to attempt a general review of a work which has for so long a period occupied the position of the standard work on this important subject. Those only who, by the nature of their practice, have learned to lean upon Mr. Bainbridge as on a solid staff, can appreciate the deep re- search, the admirable method, and the aceful style of this model treatise.”’— aw Journal on 8rd edit. Paley’s Summary Convictions.—6th Edition. In 1 vol. 8vo. 24s. cloth. THE LAW and PRACTICE of SUMMARY CONVICTIONS under the SUMMARY JURISDICTION ACTS, 1848 and 1879, including proceedings preliminary and subsequent to Convictions, and the responsibility of Convicting Magistrates and their Officers: with Forms. WaLtER i. Macwasies, Esq., of the Inner Temple, Barrister-at-Law. Sixth Edition. By 1879 Davis on Registration—2nd Ed., with Supplement. 1 vol. post 8vo. 15s. cloth. THE LAW OF REGISTRATI MUNICIPAL, with all the Statutes and Cases. ON, PARLIAMENTARY AND With a Supplement including the Cases decided on Appeal on the Parliamentary and Municipal Registration Act, 1878. By Jamxs Epwarp Davis, Esq., Barrister-at-Law. *,* The Supplement may be had separately, price 2s. 6d. sewed. 1880 14 LAW WORKS PUBLISHED BY Oke’s Magisterial Synopsis.—18th Edition. In 2 thick vols. 8vo. 68s. cloth, 71s. half calf, 73s. calf. A PRACTICAL GUIDE for MAGISTRATES, their CLERKS, SOLICITORS and CONSTABLES; comprising Summary Convictions and Indictable Offences, with their Penalties, Punishments, Procedure, &c., alpha- betically and tabularly arranged. 13th Edit. By Tuomas W. Saunpers, Esq., late Recorder of Bath, and now one of the Metropolitan Police Magistrates. “The best criticism of a law book is that it is useful, and that the profession has made use of twelve editions of a work and requires a thirteenth is very high con aiecdatiens of a venture in legal literature. Mr. Oke’s work is too well known to require description; too much valued to require criticism. Indeed, a Synopsis like this cannot properly be re- viewed. Its value can be ascertained by those who have had frequent recourse to it in the course of practice. The plan of the book is familiar to most readers. It is, like the subject-matter of the juris- diction of magistrates, divided into two parts—one dealing with summary convic- tions, the other with indictable offences. 1881 The work is then for the most part arranged alphabetically and tabularly. Merely as a means of finding the nature of offences and of discovering under what statute they are punishable, the work is an invaluable one. But the Synopsis contains a good deal more information. In the same table the reader can at once see within what time the information must be laid, the number of justices to convict, the penalty, &c., and modes of enforcing obedience. The amount of independent research which is thus saved to practitioners and justices is immense, and the value of the work is in the direct ratio to the amount of labour thus ren- dered unnecessary .’’—Times. Oke’s Magisterial Formulist.—6th Kdition. 8vo. 38s. cloth; 42s. half calf; 48s. calf. BEING a complete COLLECTION of FORMS AND PRE- CEDENTS for practical use in all Cases out of Quarter Sessions, and in Parochial matters, by Magistrates, their Clerks, Solicitors and Constables. Sixth Edition. By Taomas W. Saunpers, Esq., late Recorder of Bath, and now one of the Metropolitan Police Magistrates. 1881 Oke’s Fishery Laws.—2nd Edit., with Supplement to 1884, by Bund. : Post 8vo. 6s. cloth. A HANDY BOOK of the FISHERY LAWS: containing the Law as to Fisheries, Private and Public, in the Inland Waters of England and Wales, and the Freshwater Fisheries Preservation Act, 1878, with the Acts, Decisions, Notes,and Forms. 2nd Edit. With Supplement containing the Act of 1884. By J.W. Was Bunn, M.A., LL.B., of Lincoln’s Inn, Barrister-at-Law. 1884 *,* The Supplement may be had separately, 1s. sewed. Oke’s Game Laws.—8rd Edition, by Bund. Post 8vo. 16s. cloth. A HANDY BOOK of the GAME LAWS: containing the whole Law as to Game Licences and Certificates, Gun Licences, Poaching Prevention, Trespass, Rabbits, Deer, Dogs, Birds and Poisoned Grain, Sea Birds, Wild Birds and Wild Fowl, and the Rating of Game throughout the United Kingdom, with the Acts, Decisions, Notes and Forms. 3rd Edit., with Supplement containing the Wild Birds Protection Act, 1880, and the Ground Game Act, 1880. By J. W. Wiius Bunn, M.A., LL.B., Barrister-at-Law. 1881 ** The Supplement may be had separately, 2s. 6d. sewed. Oke’s Licensing Laws.—2nd Edition. Post 8vo. 10s. cloth. THE LAWS as to LICENSING INNS, &c.: containing the Licensing Acts, 1872 and 1874, and the other Acts in force as to Alehouses, Beer-houses, Wine and Refreshment-houses, Shops, &c., where Intoxicating Liquors are sold, and Billiard and Occasional Licences, with Explanatory Notes, the authorized Forms of Licences, Tables of Offences, &c. Second Edition. By W. C. Guzn, Esq., Barrister-at-Law. 1874 MESSRS. BUTTERWORTH, 7, FLEET STREET, E.O. 15 Flood on Making Wills. In 1 vol. post 8vo. 5s. cloth, THE PITFALLS OF TESTATORS. A few Hints about the Making of Wills. By Joun C. H. Froop, of the Middle Temple, Esq., Barrister- at-Law. aE aed aAAW Bund’s Law of Salmon Fisheries, corrected to 1876. Post 8vo. 16s. cloth. THE LAW RELATING TO THE SALMON OF ENGLAND AND WALES, as amended by the Salmon ae ae incorporating the Bye-laws, Statutes and Cases to November, 1876. By JW. Wis Bunp, M.A., LL.B., of Lincoln’s Inn, Esq. ister-at- i Chairman Severn Fishery Board. en ers ae The Supplement, embodying the Legislation, Bye-laws and Cases to November. 1876, may be had separately. Price 1s. sewed. : Gurney’s Shorthand—18th Edition. In 1 vol. post 8vo. 3s. cloth. A TEXT BOOK of the GURNEY SYSTEM of SHORTHAND. Eighteenth Edition. Edited by W. B. Guanny & Sons, Shorthand Writers to the Houses of Parliament. 1884 Davis’s Practice of the County Courts.—6th Edit. Just published, in 1 thick vol., demy 8vo., price 45s. THE PRACTICE OF THE COUNTY COURTS.—By Jamzs Epwarp Davis, of the Middle Temple, Barrister-at-Law. The Sixth Edition (including the New County Court ‘Rules, and the New Consolidated Bank- ruptcy Rules) edited by S. M. Ruopzs, of the Inner Temple, Barrister-at-Law. Davis’s Labour Laws of 1875. 8vo. 12s. cloth. THE LABOUR LAWS OF 1875, with Introduction and Notes. By J. E. Davis, of the Middle Temple, Esq., Barrister-at-Law, and late Police Magistrate for Sheffield. 1875 Saunders’ Law of Negligence. One vol. post 8vo. 9s. cloth. A TREATISE on the LAW APPLICABLE to NEGLIGENCE. By Tuomas W. SAUNDERS, Esq., Barrister-at-Law, Recorder of Bath. 1871 Ingram’s Law of Compensation.—2nd Edit. by Elmes. Post 8vo. 12s. cloth. COMPENSATION TO LAND AND HOUSE OWNERS: he T : I f tl C . f I a J 6 emg a eatise on e Law 0 the ompensa’ ion for Interests ands, “C. payable by Railway and o her P ablic Companies ; with ap Appendix of Forms and Esq., Barrister at Law. Statutes. By Tuomas Dunbar Ineram, of Lincoln’s Inn, Second Edition. By J. J. Exumzs, of the Inner Temple, Esq., Barrister-at-Law. a 16 LAW WORKS PUBLISHED BY Brett’s Bankruptcy Act, 1883. In 1 vol. post 8vo. 14s. cloth. THE BANKRUPTCY ACT, 1883; with an Introductory Chapter, Notes, Index, &c. And SUPPLEMENT containing a Table showing the parts of the Act and Rules which are to be read together ; a Summary of the points of importance contained in the Rules, and the Table of Fees of the 28th December, 1883. By THomas Brett, LL.B., Lond. Univ., B.A., Exhibitioner in Real Property and Equity, and Holder of the First Certificate of Honour, Michaelmas, 1869, and Joint Editor of ‘‘Clerke and Brett’s Conveyancing Acts.”’ *,* Supplement only, 18. 6d. Shelford’s Companies.—2nd Edit. By Pitcairn & Latham. 8vo. 21s. cloth. SHELFORD’S LAW OF JOINT STOCK COMPANIES ; containing a Digest of the Case Law on that Subject; the Companies Acts, 1862, 1867, and other Acts relating to Joint Stock Companies; the Orders made under those Acts to regulate Proceedings in the Court of Chancery and County Courts, and Notes of all Cases interpreting the above Acts and Orders. Second Edition, much enlarged, and bringing the Statutes and Cases down to the date of publi- cation. By Davi Prroarrn, M.A., Fellow of Magdalen College, Oxford, and of Lincoln’s Inn, Barrister-at-Law; and Francis Law Laraam, B.A., Oxon, of the Inner Temple, Barrister-at-Law, Author of ‘‘ A Treatise on the Law of Window Lights.”’ 1870 Shelford’s Law of Railways.—4th Edition by Glen. In 2 thick vols. royal 8vo. 63s. cloth; 75s. calf. SHELFORD’S LAW OF RAILWAYS; containing the whole of the Statute Law for the Regulation of Railways in England, Scotland and Ireland: with copious Notes of Decided Cases upon the Statutes, Introduction to the Law of Railways, and Appendix of Official Documents. Fourth Edition. By Wim Cunnincnam GusEn, Barrister-at-Law, Author of the ‘‘ Law of Highways,’’ ‘‘ Law of Public Health and Local Government,’’ &c. 1869 Grant’s Bankers and Banking Companies.—4th Ed. In 1 vol. 8vo. 29s. cloth. GRANT’S TREATISE ON THE LAW RELATING TO BANKERS AND BANKING COMPANIES. With an Appendix containing the most important Statutes in force relating thereto. Fourth Edition. With Supplement containing the Bills of Exchange and Bills of Sales Acts, 1882. By C. OC. M. Prumepres, Esq., of the Middle Temple, Barrister-at-Law. *,* The Supplement may be had separately, price 38. sewed. Redman’s Law of Arbitrations and Awards. 2nd Edition. Just published, in 8vo. 18s. cloth. A CONCISE TREATISE on the LAW of ARBITRATIONS and AWARDS, with an Appendix of Precedents and Statutes. By Joszpn Hawortn Repman, of the Middle Temple, Esq., Barrister-at-Law. Second Edition. 1884 MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 17 Mozley’s Married Women’s Property Acts. In demy 8vo., 2s. 6d. sewed. THE MARRIED WOMEN’S PROPERTY ACTS,- with an Introduction and Notes on the Act of 1882. By Herszrr Newman Mozzey. M.A., of Lincoln’s Inn, Barrister-at-Law. e 1883 Crump’s Marine Insurance and General Average. Royal 8vo. 21s. cloth, 26s. calf. THE PRINCIPLES of the LAW RELATING TO MARINE INSURANCE and GENERAL AVERAGE in England and America, with occasional references to French and German Law. By Freperic Octavius Crump, of the Middle Temple, Esq., Barrister-at-Law. 1875 “en Powell’s Law of Inland Carriers.—2nd Edition. 8vo. 14s. cloth. THE LAW OF INLAND CARRIERS, especially as regulated by the Railway and Canal Traffic Act, 1854. By Epmonp Powstz, Esq., of Lincoln College, Oxon, M.A., and of the Western Circuit, Barrister-at-Law, Author of “Principles and Practice of the Law of Evidence.” Second Edition, almost re-written. 1861 Higgins’s Digest of Patent Cases. 8vo. 10s. cloth, net. A DIGEST OF THE REPORTED CASES relating to the Law and Practice of LETTERS PATENT FOR INVENTIONS, decided from the passing of the Statute of Monopolies to the present time. By Cremmnt Hiceins, M.A., F.C.S., of the Inner Temple, Barrister-at-Law. 1875 Michael and Will’s Gas and Water.—8rd Edition. Demy 8vo. price 30s. THE LAW RELATING TO GAS AND WATER: comprising the Rights and Duties as well of Local Authorities as of Private Companies in regard thereto, and including all Legislation to the close of the last Session of Parliament. By W. H. Micwast, Q.C., and J. SuiREss Wut, Q.C. Third Edition. By M. J. Micnazt, of the Middle Temple, Barrister-at-Law. 1884 eee Faweett’s Law of Landlord and Tenant. 8vo. 14s. cloth. 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NASMITH’S SKELETON CHRONOMETRICAL CHART OF ROMAN HISTORY. 578 588 589 597 598 678 688 689 697 698 699 575 585 586 594 595 675 685 686 694 695 696 572 582 583 591 592 672 682 683 691 692 693 570—184 580—174 548 558 559 567 568 648 658 659 667 668 669 545 555 556 564 565 645 655 | 656 664 665 666 542 552 553 561 562 642 652 653 661 662 663 540—214 550—204 640—114 650—104 518 528 529 537 538 618 628 629 637 638 639 515 525 526 534 535 615 625 626 634 635 636 512 522 523 531 532 612 622 623 631 632 633 520—234 530—224 620—134 630—124 504 | 505 | | 507 | 508 . 808 605-|—o00- | 607 | 608 | 609 277 278 279 287 288 289 297 298 388 389 397 398 399 274 275 276 284 285 286 294 295 885 386 394 395 396 271 272 273 281 282 283 291 292 382 383 391 392 393 270—484 280—474 290 —464 247 248 249 257 258 259 267 268 358 359 367 368 369 244 245 246 254 255 256 264 265 355 356 364 365 366 241 242 243 251 252 253 261 262 352 353 861 862 | 3863 250—504 217 218 219 227 | 228 229 237 238 § 328 329 337 338 339 214 215 216 224 225 226 234 235 325 826 334 335 336 Toa 213 221 222 | 223 231 232 322 | 328 331 332 | 3338 210— 220— p34 230—524 200 | 201 | 202 | 208 | 204 | 205 | 206 | 207 | 208 304 | 3805 | 306 | 307 | 308 | 309 38 47 48 49 57 58 59 67 88 89 97 98 35 44 45 46 54 55 56 64 85 86 94 95 382 42 43 61 52 53 61 83 91 92 A.D, or 753—4 53 61 62 56 64 65 59 67 68 [206 [207 | 208 [200 IV (00 J sO 12 13 14 1b 16 17 18 Ww GO—S1d | 10823 BU = Bad oo 67 68 so 6] oot «| ok | 3 6) om «| vo |e si | so | 83 ol 56 oi | 05 | a6 m4 | 7 | 76 si | a5 | 86 4 7 78 79 87 88 “aor | aoa | 00 | aot | 05 | 100 | 101 | 102 {| 103 | 104 | 105; | 106 | 107 | 108 | 109 200 | Ea goa | 203 | 208 | 200 | 206 | gor | 208 | 200 300 ae Bune see 120—875———|___——«da—8 Bd : Der ae OU 00e ~ 990—079. ~_900—088 = —_ 920—1078_ : wt | 199 | 193 y31 | 12 | os2 | 93 {ll || su | sia | ans sa | 399 | 98 331 id | 125 | 126 iat | 195 235 | 296 ad | 315 | si6 sad | 825 | 926 304 17 | 198 | 129 1s7 | 138 298 | 999 uz | ais | aio a7 | 998 | 820 Se |e TSS 580=1000 | soto 151 | 12 | 69 161 | | 162 oo | 203 | sat | aga | pas aot | 02. | 963 14 | 165 | 166 164 | | 165 205 | 266 aid | 945 | 946 aoa | 865 | 956 167 | 16a | 159 167 | | 168 {98 | 260 || |i) saz | sda | sao 367 | 358 | 959 = | ne 2001013 | Sha — | 0 1st | 182 | 188 11 | 192 apo | 203 1st | 185 | 186 104 | 196 a5 | 296 1s7 | 188 | 189 197 | 108 29a | 299 sl | ee 740—1103 Abd 407 458 720-1473 _ ~ 750—1508 450—1253 459 = ~_680—1288 | 6101800 «|= — 187 ~ 630—1883 | Pee | | —_ | — | : oo | ~660—1913 | 640—1808 ~_650—1408 660—1413 ~_ 690—1043 i [ | I | =a | 7a) 1485 [ie fees] ~ 820-1673 Pe a 830— 1583 : 860—1613 ~ 40—1693 950—1703 790—1543 ~ 890—1643 ~ 9701723 ~ 980—1733 Fa he ” | ” the Consular Period. the Decemvirate. the Empire. the existence of an Eastern and Western Empire. [ AML rights reserved. | 6801433 6901448 [o10—1003 «|S 1079 —___ 080—1683 “900—1718 SS The upper half represents the 1,000 years before Christ. The lower half the 1,000 years after Christ. Kvery year in the period from the foundation of Rome till the fall of the Western Empire is numbered. When two numbers appear in the same square, the first is the year B.C, or A.D., the second the year A.U,C, N.B.—The Western Empire was overthrown A.p, 476,—The Eastern Empire ap, 1453. P &: