Digitized by Microsoft® 
 
Cornell University Library 
 KJA 147.C59 1872 
 
 Early Roman law :the regal period /by E 
 
 3 1924 021 184 514 
 
 Digitized by Microsoft® 
 
This book was digitized by Microsoft Corporation in 
 
 cooperation with Corneii University Library, 2008. 
 
 You may use and print this copy in iimited quantity 
 
 for your personai purposes, but may not distribute or 
 
 provide access to it (or modified or partiai versions of it) 
 
 for revenue-generating or other commerciai purposes. 
 
 Digitized by Microsoft® 
 
The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021184514 
 
 Digitizeaby Microsoft® 
 
Digitized by Microsoft® 
 
EAELT EOMAN LAW. 
 
 THE REGAL PERIOD. 
 
 E. C. CLAEK, M.A. 
 
 or Lincoln's nw, baebister-at-law, 
 
 LECTUEER IN LAW 
 AND LATE FELLOW OF TBINITY COLLEGE, CAMBEIBGE. 
 
 UonJJon: 
 MACMILLAN AND CO. 
 
 1872. 
 
 [All Eights reserved.'] 
 Digitized by Microsoft® 
 
K 
 
 Cs3 
 
 Digitized by Microsoft® 
 
INTEODUCTION. 
 
 THE beginnings of Roman law are only noticed inci- 
 dentally by Gaius or his paraphrasers under lustinian. 
 They are, however, so important and at the same time so 
 difficult a subject that the attempt to set forth what is 
 known or may be inferred about them, in a continuous 
 form, needs no apology. With the execution of the task 
 I fear it may be different : and a crossfire from jurists 
 and historians might not unreasonably assail an encroacher 
 on the debateable ground between the two provinces. 
 Still, a careful collection of the best known original autho- 
 rities on early Roman law may not be without use, even 
 though the theory should prove erroneous upon which, as 
 framework, our scattered fragments of knowledge are put 
 together. From one source of error — the retailing of qtio- 
 tations — I trust this book will be found free. Most of 
 the passages cited have been arrived at by independent 
 reading of the original authority: the few others have 
 been carefully verified. 
 
 As regards scope, it was my intention to have in- 
 cluded the Twelve Tables : but I have found the subject 
 of the Regal Period, little as we know of it, to require so 
 much reading that I am obliged to postpone the Decem- 
 
 Digitized by Microsoft® 
 
iv Introduction. 
 
 viral legislation to a time of greater leisure. There must, 
 however, occur here, as a matter of course, many detached 
 references to a code which was in great part merely 
 a collection of previous laws or customs. 
 
 The method which I have adopted has been to 
 furnish, as far as possible, in the text of each section, a 
 tolerably continuous account of the subject in hand, re- 
 legating quotations and references to the notes. For 
 those readers who may wish to acquire any substantial 
 knowledge of the subject I need not mention that here, as 
 
 An Perse de Casanbon, 
 
 La sauce vant mieux que le poisson, 
 
 the fish being my own, the sauce that of Varro and Festns. 
 
 In the matter of orthography I must apologize for 
 certain inconsistencies. In all continuous Latin I have 
 adopted the principle of making no symbolic distinction 
 between the palatal vowel (I) and palatal spirant (some- 
 times written J), or between the labial vowel (TJ) and 
 labial spirant (often written V). Such a distinction I 
 believe to be not only destitute of good authority, but 
 misleading. I should have preferred to employ the same 
 symbol for the capital as for the small writing, both of 
 labial and palatal: but V capital and u small seem too 
 firmly established in good modern editions for me to dis- 
 turb them. 
 
 Where detached Latin words occur, particularly in 
 the text as distinguished from the notes, I have felt a 
 great difficulty and ultimately moved in a strange diagonal 
 which may possibly please no one. 
 
 With words docked of their terminations, which there- 
 fore may fairly be regarded as naturalized Englisb. 1 came 
 
 Digitized by Microsoft® 
 
Introduction. v 
 
 at once to the conclusion that it was best to spell them in 
 the usual English manner altogether. Vergil for Virgil 
 or Ouid for Ovid seem to me as bad as Livorn would be 
 for Leghorn or Firence for Florence. But where a word 
 has been taken unchanged, except in the symbol for 
 vowel or spirant, the matter is not so simple. I must here 
 plead guilty to the weakness of retaining our English 
 form of very familiar words such as Nerva, Juno, Servius, 
 Flavius, decemvir, &c. 
 
 The spelling is intended to be that of the Ciceronian 
 period. 
 
 The dates are those of the <nty (A.V.C.) according to 
 Zumpt's Annates. Where an event is not mentioned in 
 that chronology, its date is here fixed by reference to the 
 consulship under which it happened and the year given 
 by Zumpt for that consulship. 
 
 The only references which do not speak for them- 
 selves are those to Corssen's Aussprache,Vokalismus, und 
 Betohung, in which the pageing of the second edition, and 
 those to Ortolan's Explication Historique des Instituts, in 
 which the numbering by sections of the eighth edition, 
 is followed. To the interesting and valuable work last 
 mentioned I may here testify my very deep obligation. 
 
 Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
CONTENTS. 
 
 PAGE 
 
 Introduction . iii 
 
 § 1. Sources. Original Documents. lus Papirianum ... 1 
 
 § 2. Sources. Historians, Jurists, Antiquarians .... 4 
 
 § 3. Origin, Custom 11 
 
 § i. First customary rules mainly religious . . . . .12 
 
 § 5. Gentes. Sacra. Paterfamilias. Confarreatio. Arrogatio . 22 
 
 § 6. Ofiences witliin the family. First sanctions . . . .34 
 
 § 7. Kxtension of family law to offences without the family . . 41 
 
 § 8. Crimes and wrongs. Eemissible penalty .... 46 
 
 § 9. Crimes and wrongs. Few property offences . . . .51 
 
 § 10. Early legislature and judicature. Kings. Pontiffs . . .64 
 
 § 11. The Story of Horatius 60 
 
 § 12. The Duumviri 63 
 
 § 13. The right of appeal 66 
 
 § 14. The King's supreme judicial power 68 
 
 § 15. Eight of appeal imperfect 70 
 
 § 16. PerdueUio 72 
 
 § 17. The quaestores parricidi 75 
 
 § 18. Early civil procedure. Sacramentum 87 
 
 § 19. Early civil procedure. Vindicatio. In iure cessio . . .92 
 
 § 20. The Servian reform. Criminal and civil law . . . .96 
 
 § 21. ludioes. Legis actiones. Centumuiri 99 
 
 § 22. Manoipium. Nexum 108 
 
 §23. Testamenta calatis comitiis : testamenta per aes et libram .116 
 
 § 24. Testamenta in prooinctu 122 
 
 , § 25. Emancipatio. Noxae deditio. Adoptio .... 125 
 
 § 26. Original legal position of women, and its modifications . . 128 
 
 § 27. Commencement of the republic 136 
 
 Index 118 
 
 Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
EAULY ROMAN LAW. 
 
 EEGAL PERIOD. 
 
 §1. 
 SoxTECES. Original Documents. Ius Papieianum. 
 
 TT is scarcely necessary to say that no original documents 
 of legislation during the regal period at Kome have 
 come down to us. Assuming that the early laws were re- 
 duced to writing and were even engraved on oak, as we 
 are told by Dionysius of Halicamassus, we could not ex- 
 pect that much survived the destruction of Eome by the 
 Gauls. In fact, Livy expressly states that .the military 
 tribunes of the following year (v. c. 365) ordered all the 
 treaties and laws which were in existence to be sought out, 
 and that these last were the Twelve Tables and some laws 
 of the kings". 
 
 Nor are we more fortunate in the possession of copies, 
 at least in any regular and perfect form. What seems to 
 have been the only collection of regal law known to Ro- 
 mans of the literary period was mythical in its origin and 
 perhaps also limited in its scope. Sextus Pomponius 
 asserts all the laws introduced by the kings to have been 
 extant at the time when he wrote, in a collection made by 
 ^pirius, a contemporary of the last king*". Pomponius, 
 
 E. L. A 
 
 Digitized by Microsoft® 
 
2 Earl^ Roman Law. 
 
 whose Enchiridion is preserved in 4he first book of the 
 Digest (Tit, 2. 2.), appears to have written in the time 
 of Hadrian (870 — 891 v.c), whom he styles optimus, 
 but not, as he does Hadrian's near predecessor Nerva, 
 diuos". The book to which he refers was called, it seems, 
 ius ciuile Papirianum — tbe collection or body of law 
 edited by Papirius. It has been pointed ouf* that the 
 form, or ti;tle at any rate, of ius- — a body of law — is later 
 than the regal period. Individual laws were probably 
 enter.ed, as they were enacted, in those commentaries of 
 the pontiffs which appear to have been the first Roman 
 records: a code, for the times to which it is attributed, is 
 an anachronism both in a philosophical and literary point 
 of view. Some of the pontifical records may have escaped 
 the general conflagration, others would be re-written from 
 memory. Out of these, in later times, a collection was 
 probably made and dignified with the name of some le- 
 gendary celebrity — perhaps originating in a real personage 
 — whether the Gaius Papirius who collects Numa's laws 
 after the expulsion of the kings, the Manius 'vA^ becomes' 
 the first rex sacrorum^, Pomponius' Publius who collects 
 the royal laws, or the Sextus of the same authority who 
 contrives to exist in the times of ' Superbus the son of 
 Demaratus the Corinthian''. 
 
 The source here ascribed to the ius Papirianum tallies 
 with a brief indication of its contents given by Servius the 
 commentator on Virgil. 'The poet,' says he, 'in the ex- 
 pression morem ritusque sacrorum has used the very title 
 of the lex Papiria, which he knew was published on the 
 subject of ceremonial ritual^.' Against a lex Papiria of 
 early times there is not the same objection, in point of 
 anachronism, as against a ius Papirianum : though the 
 term would more naturally mean a statute carried under 
 Papirius' auspices (compare our 'Lord St Leonards' Act ' 
 Digitized by Microsoft® 
 
Regal Period. 3 
 
 ' Locke King's Act,' (>c.) than a statute edited Toy Papirius. 
 The ambiguous word puhlicatam adds to the difficulty. 
 Its most proper meaning is -divulged, of something before 
 kept secret. Now it is worth remark that Pomponius 
 makes Publius Papirius the instructor in law of Appius 
 Claudius the Decemvir, proceeding directly afterwards to 
 mention Appius Claudius the great reformer, who made 
 public the Potitian rites^ and, through his dependent 
 ' Flavins, the grand pontifical secret of the fasti'. May it 
 have been possible that the so-called Papirian law "was 
 the work either directly or indirectly of the latter of these 
 two early Claudii, whose true political chai-acter is conclu- 
 sively shewn' by Mommsen''? If there should be any 
 truth in this suggestion, it is quite conceivable that even 
 the aspiring Gn. Flavins, who dared to let the newer legis 
 actiones come forth under his own nanae, might yet think it 
 wise to seek an ancient title for the more revered though 
 less important relics of royal times'. Zumpt argues from 
 the term lex that there were several subdivisions of the 
 ius Papi^^um, to one only of which Servius here refers*. 
 Mackeldey considers lex to be used for ius, and the whole 
 work to have been confined to religious matters™. 
 
 The supposition of the former author is very probable, 
 that the Papirian collection, whatever its antecedents or 
 contents, was mainly known to our authorities by the 
 edition of Granius Flaccus, who wrote under Caesar's dic- 
 tatorship °. To this source we should refer the fragment 
 cited by Macrobius as part of the ius Papirianum"; and 
 from this, rather than from any remains of the original 
 pontifical books, is most probably derived all that we know 
 of regal legislation. 
 
 a. Livy, 6. 1. foedera et leges — erant autem eae xii tabulae et qnaedam 
 regiae leges — oonquiri quae compaierent iuBserunt. 
 
 Digitized by Microsoft® ^ 2 
 
Earby Roman Law. 
 
 b. Digest. 1. 2. 2. § 2. . 
 
 c. ib. §§ 32. 47. 
 
 d. Zumpt, Criminal-reolit, Absch. 1. e. 3 and Anmerkk, 
 
 e. Dionysius Antiqq. 3. 36: 5. 1. 
 /. Digest. 1. 2. 2. §§ 2. 36. 
 
 g. Servius on Virg. Aen. 12. 836. quod ait (Vergilius) morem ritusque 
 sacrorum ipso titulo legis Papiriae usus est quam sciebat de ritu 
 Bacrorum publicatam. The passage does not appear' in all editions, 
 e.g. tlie Basle YirgU of 1561. 
 
 h. Li-vy, 9. 29. 
 
 t. id. 9. 46. 
 
 k. See the masterly Appendix to Vol. 1 of his History. 
 
 I. Livy, 9. 46. Digest. 1. 2. 2. § 7. Cicero de Orat. 22. i. 41. 186. 
 
 m. Lehrbuch des Bomischen Beohts, § 21 Anmerk. f. 
 
 n. Paulus in Digest. 50. 16. 144. 
 
 0. Macrob. Satumn. 3. 11. See too Heineccius Amtiqq. Prooem. 2. not. 
 c. I scarcely understand Soholl's condemnation of Wessehng, 
 Dirksen and Schwegler, ■who, he says, attribute this fragment to 
 Granius Flaecus ' without any sufficient reason.' All that can be i 
 meant by them is that the passage in question (beginning ' ut in 
 templo' inquit 'lunonis Populoniae augusta mensa est') is no 
 original document, but the illustration of a comparatively recent 
 writer, who is perhaps more likely to have been Granius Flacona 
 than any one else. See, however, Schcill. Legis xii Tabb. Eehqq. 
 p. 51. n, 3. 
 
 §2. 
 
 SouECES. Historians, Jurists, Ajitiquabians. 
 
 Ik the absence either of original documents or full 
 copies, we must fall back in the iirst place upon such 
 quotations as bear evidence of at least high antiquity 
 and are reputed fragments of regal legislation. It need 
 scarcely be said that professed imitations, such as those 
 in Cicero's treatise de Legibus, must be entirely excluded 
 except as evidence of the views received in the imitator's 
 
 Digitized by Microsoft® 
 
jRegal Period. ^ 
 
 lime. Even reputed quotations must be looked on with 
 suspicion when they shew traces of comparatively modern 
 phraseology. The mere attribution, however, of a frag- 
 ment of legislation evidently old, to a fabulous or half- 
 fabulous author should not invahdate the fragment itself, 
 but is rather useful as giving us a traditional date, which 
 may be correct, if not absolutely* at least relatively to 
 other fragments. "We may, for instance, disbelieve the 
 very existence of Romulus, Numa or TuUus, but if we 
 find three fragments attributed respectively to these three 
 personages, we shall not, perhaps, be wrong in believing 
 that there was at least some real ground for the frag- 
 ments being placed at a very remote period and in a 
 certain order of time. 
 
 As a secondary source of our knowledge on the 
 present subject I regard the statements made by ancient 
 authors about the first beginnings of Roman law. This 
 latter source, though more plentiful, must be considered 
 far inferior in purity to the former. Had they even 
 possessed the means, writers of antiquity rarely possessed 
 the inclination for the close critical enquiry into early 
 history which has only reached its full developement 
 in very modern times. It may seem strange to place 
 our means so high in comparison with theirs, when so 
 many works on history and antiquities have totally 
 perished and others have only reached us in a muti- 
 lated condition. But, fragmentary as our authorities are, 
 it must be remembered that they extend over the whole 
 period of ancient intellectual activity, so that we have, 
 at least in this respect, an advantage over all but the 
 very latest ancient writers. In all points, too, connected 
 with words or phrases which were obsolete at the Greek 
 or Roman literary period, we are aided by the entirely 
 modern science of comparative - philology; while, with 
 
 Digitized by Microsoft® 
 
6 Early Roman Law. 
 
 the ancients, the false derivations and spurious antiques 
 which this knowledge enables us to detect, undoubtedly 
 led to much erroneous speculation and possibly to some 
 garbling of facts. 
 
 The inclination for critical enquiry seems generally to 
 have been stronger in Greek than in Eoman writers. ' 
 It is very evident in ' Herodotus, Thucydides and Poly- 
 bius, and more so, as it seems to me, in the -despised 
 Dionysius than in Livy. But in neither of the last 
 two writers — our principal authorities for early Roman 
 history — is it at all strong in comparison with a contrary 
 tendency from which neither historians nor jurists have 
 ever been free ; I mean that of unconsciously attributing 
 the principles and procedure of the writer's period to the 
 men of an earlier day: a tendency which, while at some 
 times it will merely produce anachronous detail in an 
 account mainly true, wiU at others give rise to stories of 
 institution and enactment entirely false. We have the 
 more harmless result in those picturesque touches which 
 make Livy so charming and those speeches and sermons 
 which make Dionysius so dull: the more dangerous one 
 is to be feared in constitutional history proper, to which 
 the latter author devotes much more attention than the 
 former. The above remarks of course apply not merely 
 to the regal period but mutatis Tnutandis to the whole 
 history of the Roman law. For the early republic, in fact, 
 while we have more information, we have also very evi- 
 dently a new source of error in the unfair and exaggerated 
 family, records from which our historians have probably, 
 in great part drawn their accounts". In this very respect, 
 however, any connected history stands higher than bio- 
 graphy proper, which is, beyond question, the least trust- 
 worthy of authorities. There is much less scruple in 
 attributing exploits of peace or war to the hero in hand 
 
 Digitized by Microsoft® 
 
Regal Period^ 7 
 
 wlien his life stands to a certain extent detached, than 
 when it has to be woven into a continuous account, the 
 parts of which must be respectably consistent. From 
 the classical jurists we should have expected fuller and 
 more trustworthy records of ancient legislation than we 
 ■actually find. They, however, wrote mainly for present 
 practice ; and, as the old law had been to a gi-eat extent 
 superseded by what we may roughly call equitable modi- 
 fications, the references to the former are occasional and 
 slight. Moreover the theory of a law of nature, which 
 entered so largely into their conception of a ius gentium, 
 was ,not perhaps entirely without influence upon their 
 treatment of the ius ciuile ; it being probably found more 
 agreeable and easy to connect even their old national law 
 with supposed original principles of morality than with 
 actual ancient customs or records. Still we owe a great 
 deal of valuable information upon the present subject to 
 Gains and the Digest, though more perhaps to other 
 sources. 
 
 It is on the antiquarians that our principal reliance 
 must be placed: a class of men with whom form is of 
 greater importance than matter, who quote rather than 
 paraphrase, Avho are more interested to preserve an an- 
 cient relic intact, than to make a picturesque story, to 
 develope a moral theory, or to glorify a noble family. In 
 the note to this section a brief account is given of our 
 principal authorities of this kind, as of the too little 
 known Dionysius*. Since the works of these authors, 
 though extremely interesting, do not seem to come much 
 in the way of ordinary readers, the necessary quotations 
 from them will generally be given, in the notes, somewhat 
 
 fully. 
 
 a. This fact has long heen recognised in the case of Livy. It is 
 ahnost equally clear with Dionysius. See, inter aha, his reference 
 
 Digitized by Microsoft® 
 
Eooi'ly Roman Law. 
 
 to certain TtfiriTtKd ivoix.vriii.aTa, which were evidently private 
 family histories. Antiqq. 1. 74.- 
 b. Dionysius of Halicarnassus. Wrote his Pa>/iaVW 'A.pxaio\oyia during 
 the 22 years following his arrival in Italy, which seems to have 
 heen shortly after the battle of Actium. See Antiqq. (Antiquitates 
 Eomanae, the Latin style of his work under which it will he here- 
 after referred to) 1. 7. xaraTrXeiJo-as els 'IraMav a/ia toS KaTaXvB^pai 
 Tbv ifi^6\iov irdXefiov vwo rod Xe^affTOV Kalaapos, k.t.\. 
 
 Zumpt (Criminal-recht der Eomisohen Bepublik, Einleitung, 
 p. 9) aEows this author much more credit than is usually given 
 him. Dionysius had, no doubt, as he tells us, read all the histo- 
 ries extant in his time, as well as accumulated much information 
 from private family records. Being a faithful reporter of legends, 
 many of which have some literary, though little historipal, value, 
 he is not, except in the article of speeches, quite such dteary read- 
 ing as has been represented by Lord Macaulay and others. He 
 does not impress one as often guilty of direct invention; but his 
 small critical power and consequent inability to sift his (materials 
 according to their value, and his inveterate tendency to moralize, 
 render him undoubtedly an untrustworthy authority. It, is in the 
 regal and first republican period that this tendency appears the 
 most : so much so that at times we might almost suppose ourselves 
 to be reading a Tflemaque of less inventive power than Penelon's 
 but about the same historical value. It was perhaps a similar 
 despair of a decayed society felt by pureminded and conscientious 
 men which disposed both authors to attribute so much to the 
 heroic worthies of half -fabulous times. 
 
 Of Livy of course I need say nothing but that he wrotd after 
 the triumph of Augustus, a.v.c. 725 (as appears from 1. 19. of his 
 history), and died according to Eusebius a.v.c. 770. ^ 
 
 Festus (Sextus Pompeius), the epitomizer, vn-iting in the, 2nd 
 or 3rd century after Christ, of a lost work 'on the signification of 
 words' by M. Terrius Flaocus, an author oE Augustus' time. Plao- 
 cus is mentioned by Varro (see below), quoted in Macrobius' Satur- 
 nalia, 1. 15. 21, as iuris pontifici peritissimum. This Epitome is 
 only known to us by the still briefer one of Paulus made in the 9th 
 century, which appears to have supplanted the original, and by a 
 fragmentary copy of the latter, now in the library at Naples. 
 There seems, however, no reason to think either of the editors of 
 Placous' work disposed (or perhaps qualified) to tamper with the 
 fragments of old Latin, which may therefore be regarded as 
 genuine antiques, or at least so considered in the time of Augus- 
 tus. Of our two sources, the Naples fragment is evidently the 
 
 Digitized by Microsoft® 
 
Regal Period: 9 
 
 inore valuable as far as it goes: Paulus occasionally substituting 
 the views of Festus for tho'se of Flacous -without remark. Thus, 
 "we read in the fragment, Sas Verrius putat signifieare eas..,cum 
 suas magis uideatur signifieare. Paulus, who quotes the same 
 authority for the meaning (a passage of Ennius), writes at once 
 sas suas. On the next word, sam, he retains the error ' philoso- 
 phiam,' though he omits the words ' sapientia quae perhibetur,' 
 which point to the right reading : — 
 
 neo quisquam sophiam sapientia quae perhibetur 
 in somnis uidit prius quam sam discere ooepit. 
 
 From these and similar instances one would conclude that 
 Paulus represents Festus pretty faithfully, and when he misrepre- 
 sents him does so only by way of omission. As to Festus himself, 
 the frequent 'Verrius putat' of the fragment certainly shews a 
 conscientious reproduction of the original even when the epito- 
 mizer does not agree with it. I have used the edition of Miiller. 
 
 Varro (M. Terentius) a Pompeian, after the battle of Pharsalas 
 taken into favour by Caesar, and devoting his life thenceforth to 
 laborious study. See Cicero, Ep. ad fam. 9. 6. ad Atticum, 13. 12. 
 His proscription and escape from it, under the second triumvirate, 
 as well as the voluminousness of his works, appear from a quota- 
 tion by Aulus Gellius, Noetes Atticae, 3. 10. in which Varro men- 
 tions his having attained a twelfth hebdomad of years and written 
 seventy hebdomads of books, many of which had disappeared on 
 the pillage of his library after he was proscribed. It is the extant 
 part of his treatise de lingua Latina, which is most cited in the 
 present work. Whether this treatise was sent (dedicated) to 
 Cicero, and therefore completed before 711 v.c, is not certain, 
 though Miiller apparently thinks it probable. See Praefatio cd. 
 1838. I have used his edition. 
 
 Aulus Gellius, the author of the well-known Attic Nights, was 
 when young m, pupil of Fronto (who was Consul Suffectus A. v.c. 
 896 in the reign of Antoninus Pius) N> A. 19. 8. He is supposed 
 to have died before 917 v. c. Many valuable records of legal 
 antiquity are to be found in his work, particularly in the last 
 (20th) book. 
 
 Servius Maurus Honoratus, the Commentator on Virgil, is 
 introduced by Macrobius (Sat. 1'. 2. 15) as an interlocutor with 
 Symmachus, Consul under Theodosius and Valentinian, a. v. 
 1144, and the well-known champion of the old religion against 
 Ambrose. In the gathering of Savans which forms the subject of 
 the Saturnalia, Vettius Praetextatus is the first host, who would 
 appear from an inscription to have died A. v.c. 1140. Servius 
 
 Digitized by Microsoft® 
 
lo Early RoTYtcin Law. 
 
 is represented in the above-cited passage of MacroHus to have , 
 recently come forth as a critic, when the supposed social gathering 
 took place; which statement, coupled with the 'charming modesty' 
 which is there attributed to him as well as ' wonderful learning,' 
 will perhaps justify us in considering him to have been a man of 
 middle age about the end of the 4th century of our era. Many 
 interpolations are supposed to have been made in his commentary, 
 but there is no mistaking the tone of the principal writer in it, by 
 which one may tell with some confidence whether a particular 
 note has the Servian ring or not : I mean the extraordinary talent 
 for finding obscure and mystical meanings in the plainest pas- 
 sages, to which a perfect modem parallel is furnished by Landino's 
 commentary on Dante. A specimen occurring early in the Ec- 
 logues is so exquisitely amusing that I may perhaps be pardoned 
 for adding it below. However, the desire of Servius to make every 
 incident and epithet in Virgil emblematic of some old Roman 
 custom or belief has preserved to us a most valuable and interest- 
 ing body of antiquities. 
 
 On Eel. 3. 96. 97 he writes : — Tityre pascentes a flumine rem 
 capellas, id est, Mantua, noU modo uelle aliquid agere de repe- 
 tendis agris, nam cum opportunum fuerit ego omnes lauabo id 
 est purgabo apud Caesarem cum de Actiaco proelio reuersus fuerit. 
 et bene in fonte, ipse enim per amioos Caesaris agrum meruerat 
 reoipere tanquam per riuolos quosdam, nunc autem Mantuanis 
 beneficium dicit se ab ipso Imperatore meriturum. 
 
 Of Macrobius Ambrosius Theodosius, if that was his name, the 
 author of the most interesting ancient work on antiquities extant, 
 we know little but that he must have lived at least not before ■ 
 Praetextatus and Symmachus, whom he introduces in Ms Satur- 
 nalia. He seems to have been Consularis, a title which in late 
 times did not necessarily imply the bearer to have been Consul, as 
 indeed Macrobius' name does not appear in the Fasti. This 
 honour, however, conferred upon a man who can scarcely have 
 embraced the new faith, is well urged by L. lahn (Prolegg. v.) as 
 a reason for not placmg Macrobius much later than the inter- 
 locutors in his supposed dialogue. 
 
 Digitized by Microsoft® 
 
Rdgal Period. ii 
 
 §3. 
 
 Origin, Custom. 
 
 The late Mr Austin, in his Province of Jurisprudence, 
 lays considerable stress upon the correct apprehension 
 of the term customary law in its strict sense : in the 
 sense, namely, of a rule which has at some time been 
 set, either directly or indirectly, by a political superior, 
 whatever be the anterior circumstances by which the rule 
 has been suggested or its enactment rendered possible*. 
 The soundness of this view is beyond question as far as 
 regards the law proper of an established and regularly 
 constituted state. It might, however, give rise to an error 
 (from which the writer in question is doubtless free) as 
 to the historical origin of the earliest laws in infant com- 
 munities. In many cases these laws, improperly so called 
 according to Mr Austin, appear to have existed as rules 
 of conduct dependent upon custom, long prior to any official 
 enactment''- Individual legislators have indeed been as- 
 sijmed or invented for the oldest rules which have de- 
 scended to us, whether they have actually remained in 
 the form of custom or been re-cast in the mould of law. 
 Thus Dionysius makes Romulus institute the patria po- 
 testas, the relation of patron and client, &c. " : and the 
 fragments which Verrius Flaccus has preserved are attri- 
 buted by him, or his compiler, to Romulus and Tatius, 
 to Numa, to Servius. But we have a surer guarantee 
 than these venerable names, for the antiquity of a custom, 
 in the evident deduction from it of historical constitu- 
 tional usages, and for that of a fragment, in its Own 
 language, viewed by the light of comparative philology. 
 For full information o» the latter head, reference must 
 
 Digitized by Microsoft® 
 
12 Ecurly Roman Law, 
 
 be made to the labours of Corssen and Mommsen ; but 
 a compendious and accessible collection of early Latin is 
 also contained in the late Dr Donaldson's interesting 
 Varronianus\ We are here concerned less with form, 
 except as evidence of antiquity, than with matter; 
 from a consideration of which it would appear that 
 the earliest Eoman 'laws' were embodiments of ctis- 
 tom, generally bearing a religious or quasi-religious 
 character, and often referring specially to that system of 
 . the family common to all infant states, yet nowhere 
 attaining such wide developement and lasting influence 
 as at Rome. 
 
 a. Austin's JurieprudeBoe, Lect. 1. pp. 103—5, ed. 1869. 
 
 b. See Maine's Ancient Law, ch. i. pp. 7, 8. 
 <;. Antiqq. 2. 10. 26, 27. 
 
 d. Specially Corssen'a Bei- und Nach-trage zur Lateiuischen Pormen- 
 lehre. Donaldson's Yarronianus, ch. 6. 
 
 §4. 
 
 First Customary Rules mainly Religious. 
 
 It may be urged with justice that our picture of the 
 earliest Roman law must be entirely colored by the 
 source from which our materials are derived — that is, in 
 all probability, the books of the pontiffs. These officers, 
 it may be said, would naturally only record what enact- 
 ments affected their own province, and the preponderance 
 of the quasi-religious element is therefore no proof that 
 legislation on that subject came first. In reply, the fol- 
 lowing points are to be considered. First, the priority of 
 rules of conduct (one can scarcely call them laws) upOn 
 ' religious matters is in analogy with all that we know of 
 
 Digitized by Microsoft® 
 
Regal Period. 13 
 
 the early history of other nations. Second, the college 
 of Pontiffs, having undoubtedly at a later period custody 
 of the forms of secular law", is not likely, at an earlier, 
 to have excluded this important subject from its books. 
 Third, some of the most important and lasting principles 
 of the Roman law of persons can be distinctly traced to 
 a religious origin, and were, to the last, under the guar- 
 dianship of religious officers. 
 
 Sacred law being, in the present point of view, only 
 considered as furnishing the source of secular law, matters 
 of mere ceremony and religious usage may be passed over 
 very briefly. The Litanies, for instance, of the Arval 
 and Salian religious guilds, interesting as they are from 
 being probably the oldest extant specimens of Latin, do 
 not here concern us. The imperatives addressed to human 
 beings which occur in these Litanies are merely rubrical 
 directions to the officiating brethren''. The 'law of the 
 spolia opima,' perhaps attributed to Numa and most pro- 
 bably taken from the pontifical books, merely states the 
 sacrifices to be made and the scale of reward to be given 
 on occasions so rare that but three are recorded". More, 
 no doubt, of that generality of scope which characterizes 
 a law, is found in the following fragments, also coming to 
 us under Numa's name. ' Let no one quench a funeral- 
 pyre with wine' \ ' Let not a pellex touch an altar of 
 Juno : if such a one shall touch such an altar, let her, 
 with loosened hair, sacrifice to Juno a she-lamb '°. 'If 
 the lightning of Jove has killed a man let no one raise 
 him above the knees {i.e. of those around ?).' Of which 
 the following is perhaps an explanation — ' if a man has 
 been killed by lightning no funeral rites ought to be 
 performed for him"'. 
 
 These and the like, extracted doubtless from the pon, 
 tifical books, are rather maxims than laws. They are 
 Digitized by Microsoft® 
 
14 Early Roman Law. 
 
 mere statements of the religious feeling and sentiment 
 current upon the matters to which they refer, and have 
 scarcely a more authoritative aspect than those curious 
 prohibitions which occur in the latter part of Hesiod's 
 Works and Bays^. Express sanction there is none: a 
 practical one probably operated partly in fear of divine 
 displeasure, partly in reluctance to incur the disapproval 
 and lose the religious fellowship of the society in which 
 one lives. It seems, however, not unlikely that some 
 of the prohibitions, originally dictated by a purely reli- 
 gious feeling, came in later times to do duty, by formal 
 enactment, some as sumptuary, some as sanitary laws, 
 some as minor regulations for public order and decency. 
 This certainly appears to be the case with much of the 
 burial law of the Twelve Tables, which may be noticed 
 here, as having but little bearing on the ordinary province 
 of law, and as being also, perhaps, the mere regulation 
 and reduction within due limits, of customs far older than 
 the time of that legislation. ' Let no one bury or bum 
 a dead man in the city'**. 'Let no one make more' {ado, or 
 perhaps, sacrifice, if facere be taken in its technical sense) 
 ' than this ' (doubtless some ceremonial previously speci- 
 fied): 'let no one smooth a funeral-pile •with the adzeV 
 * After cutting down,' says Cicero, 'all pomp to three 
 mourning-hoods and one stripe of purple and ten flute- 
 players, the law does away also with lamentation ' (formal 
 manifestation of female sorrow). ' Let not women tear 
 their cheeks nor make wailing for a funeral K' In another 
 passage from the same authoi", ' Let no one gather a dead 
 man's bones wherewith in after-time to make a funeral''. 
 In one from Pliny, an exception which has alone been 
 preserved shews us the rule— a sumptuary law, forbidding 
 decoration of the corpse. 'Whoso winneth a crown, he 
 or his chattel {i.e. a slave or horse), for merit, if such 
 
 Digitized by Microsoft® 
 
Megcd Period. 1 5 
 
 crown shall have been put on him or his father, let that 
 be without prejudice".' Closely connected with the last 
 passagfe is the following very curious testimony to the 
 advanced civilization of the Decemviral epoch. There is, 
 by the' way, some consolation in finding that the de- 
 generacy of the modern, or (what is the same thing) the 
 superiority of the ancient, in the article of teeth, .may not 
 be so certain as is often supposed. ' Neither let any one 
 put gold on (a corpse). Whoso shall have his teeth joined 
 with gold and one shall bury or burn him with it, let that 
 be without prejudice".' Last come two prohibitions, of 
 which Cicero has preserved us the matter but not the 
 exact words, one forbidding the erection of a new pile or 
 sepulchre within sixty feet of another's house, unless by 
 the owner's consent ; the other excepting the entrance to 
 a sepulchre or the sepulchre itself from usucapion". 
 
 Most of these directions and prohibitions refer to 
 matters in which the laity could take some part : a much 
 more extensive range was doubtless reserved by the reli- 
 gious colleges to themselves, and regulated by their own 
 bye-laws. The management of the Calendar, for instance, 
 we know to have been long kept in the hands of the 
 pontiffs, whose sole knowledge of court-days and days 
 proper for public business was a considerable source of 
 political power if not of emolument. The ancient treat- 
 ment of this particular subject is shewn, not merely by 
 traditional institutions of Numa or Komulus", but by 
 the formula of the Pontifex minor which Varro has pre- 
 served. ' For five days I call on thee,' or ' for seven days 
 I call on thee ' (as the Nones were on the fifth or seventh 
 day), 'luno Couella".' These words were said, on the 
 new moon being descried, by the Pontifex minor to the 
 people 'called' for the purpose to the 'Court of Calling.' 
 So that the first day of the month is said to have received 
 Digitized by Microsoft® 
 
1 6 Eaiiy Roman Law. 
 
 its name from this 'calling' of the Nones which settled 
 its main subdivisions and its duration : there being thence 
 eight days to the Ides and sixteen after'. The identifica- 
 tion is certain of 'luno Couella' with the 'hollow moon' 
 {koIXi] aeXijvT]), halfway between new and full. The time 
 must have been early in which the great Koman goddess 
 Juno was recognized, not by the speculations of philo- 
 sophers but by the simple expressions of national religion, 
 as an elemental deity. Without this clue, however, it 
 would not be so easy to connect the name of ' the shining 
 one' (Lucina)' with her province — the period namely of 
 gestation, reckoned in those divisions of time which are 
 marked by the planet. 
 
 c*. Pomponius, Digest. 1. 2. 2. 6. Livy, 9. 46. 
 
 b. See for the ArTalian Litany Donaldson Varronianus ch. 6. § 2, for 
 the fragments of the Sahan hymns, ib. § 4. . I do not bind myself 
 to the interpretations there given. 
 
 c. Festus. Opima spolia. 
 
 .... M. Tarro ait...testimonio esse libros pontifiomn in quibus sit 
 pro primis spoliis boue pro seoundis solitaiirilibus pro tertiis agno 
 publioe fieri debere; esse etiam Pompili regis (emendation for 
 compelli reges) legem opimonim spoUorum talem, &c. 
 
 d. Pliny, H. N. 14. 12. 
 
 Vino rogum ne respergito. See Festus Resparsum uinum, ■which, 
 according to Ursinus' probable emendations of the Farnese frag- 
 ment, means uinum rogo inspersum. A greater extravagance . 
 seems to have followed, in the murrata potio, the pouring of which 
 over the dead was subsequently forbidden by the Twelve Tables as 
 Festus (s.v.) tells us, quoting Varro's Antiquities. See below 
 (note o) for Cicero's sumptuosa respersio. 
 
 e. Festus Fellices .... antiqui proprie earn pellioem nominabaat 
 quae uxorem habenti nubebat. oui generi mulierum etiam poena 
 constituta est a Numa Pompilio hao lege, pellex aram lunonis ne 
 tangito, si tanget...Iwnoni crinibus demissis agnam feminam caedito. 
 I know no English word exactly rendering the old meaning of 
 pellex according to Flacous, ' quae uxorem habenti nubebat.' (See 
 too Digest. 50. 16. 144.) Though (like latro and scurra) clearly 
 holding a better position in early than in late times, a pelUx 
 
 Digitized by Microsoft® 
 
Regol Period. jj 
 
 would naturally, in either, be obnoxious to the matrona 
 luno. 
 
 Zumpt (Anmerkk. p. ^08) casts some doubt on the quotation 
 under pellices, in which he recognizes the developed Latiuity of a 
 later period. It is quite possible, however, that the phrase to 
 which I imagine his objection applies (crinibv^ deviissis) may have 
 been an interpolation, and the rest genuine. 
 /. Festus. Occis«m...in Numae PompiU regis legibus scriptum esse, 
 81 hominem fulmen louis (Soaliger for fulminibus) occisit ne supra 
 genua tollito. Et aUbi, homo si fulmine occisus est ei iusta nulla 
 fieri oportet. 
 
 Gifanius changes the words et alibi to id est. The latter pas- 
 sage is evidently of later date than the former. See Pliny H. N. 
 2. 54, 55, and generally the word bidental in lexicons and indices. 
 g. Opera et Dies. 695—762. 
 h. Cicero de Legibus 2. 23 § 58. Hominem mortuom, inquit lex in 
 
 XII, in urbe ne sepelito neue urito. 
 i. Cicero de Legibus 2. 23. § 59. 
 
 lam cetera in xii minuendi sumptus sunt lamentationisque 
 funebris translata de Solonis fere legibus. hoc plus, inquit, ne 
 fadto : rogum ascia ne polito : nostis quae secuntur : discebamus 
 enim pueri xii ut carmen necessarimn, quas iam nemo discit. ex- 
 tenuate igitur sumptu tribus riciniisf et uinolaf pnrpurae et de- 
 cern tibicinibus tollit etiam lamentationem : mulieres genas ne 
 radunto neue lessum funeris ergo habenlo. 
 
 The ablative tribus riciniis, &c., must be instrumental and 
 mean ' by (leaving) only three, &c.' I do not see the necessity for 
 SchoU's interpolation relictis. For the untranslateable et uincla 
 OreUi proposes et uinclis; Bubenius (de re uestiaria), cum clauis ; 
 Seholl, very ingeniously, etuno ciauo. Compare Pestus ' Becinium 
 omne uestimentum quadratum ii qui xii interpretati sunt esse 
 dixerunt fuir toga mulieres utebantur praetextumf clauo purpu- 
 reo.' The corrupt passage is admirably emended by Lipsius, u«r. 
 (i.e. Verrius) togam qua, and Ursinus, praetextam. 
 
 Varro (de Lingua Latina 5. 132) derives the same word thus: — 
 quod eo utebantur duplici ab eo quod dimidiam partem retroreum 
 iaoiebant ab reioiendo ricinium dictum. It was palliolum breue 
 according to Nonius. Corssen makes it ausgedehnte. Petit 
 (Leges Attica, elib. 6. tit. 8) takes these ricinia and the l/idna 
 mentioned in Plutarch's Solon (see next note) to have been for 
 the corpse, but this view scarcely suits the Latin context, and Plu- 
 tarch as probably means three flounces to the dress of each female 
 mourner. 
 T> jv Digitized by Microsoft® B 
 
i8 Early Roman Law. 
 
 k. See the quotation in note i. Among the interpretations given in 
 his time of the obsolete lessum Cicero prefers that of L. Aelius: 
 'lugnhrem eiulationem:...quod eo magis iudico uerum esse quia 
 lex Solonis id ipsum uetat.' His authority appears in § 64. postea 
 quam ut scribit Phalereus, snmptuosa fieri funera et lamentabilia 
 coepissent, Solonis lege suhlata sunt: quam legem eisdem prope 
 nerbis nostri decern uiri in decimam tabulam coniecernnt ; nam de 
 tribus ricioiis et pleraque ilia Solonis sunt, de lamentis uero 
 expressa uerbis sunt mulieres, &o. A better authority for the mean- 
 ing of lesmm is Plautus' line (True. 4. 2. 22), Thetis quoque etiam 
 lamentando lessum fecit filio. Fecit helps us to the meaning of 
 habere in the law, where it is doubtless used as in the expressions 
 habere iter, dialogum, &o. 
 
 To revert, however, to this alleged law of Solon, which is inter- 
 esting as forming almost the only liitk between what we know of 
 Athenian legislature and that of the Twelve Tables: — Demetrius 
 Phalereus left Athens, in the same year in which Appius Claudius 
 Caecus was consul, for Egypt. It was possibly during his compa- 
 rative leisure in the latter country that his works were written, 
 amongst others five books repl ttjs 'AB-f/ir^tri vo/ioffetrlas (Diogenes 
 Laertius 5. 5). He was himself, we are told by Cicero, the enactor 
 of a sumptuary law on funerals: 'sumptum minuit non solum 
 poena sed etiam tempore, ante lucem enim iussit effeiii.' His 
 treatise would no doubt contain recent as well as ancient legisla- 
 tion on the subject : nor is it to be supposed that he was more free 
 than others from the invariable tendency to attribute as much as 
 possible of extant law to some time-honored legislator. How much 
 of what is commonly attributed to him can be connected, on his- 
 torical grounds, with our own Alfred ? 
 
 Demetrius' work has not come down to us, but it must have 
 been in Cicero's hands, and it is clear that some sumptuary law 
 therein contained must have coincided, in matters of minute detail, 
 with the burial law of the Twelve Tables. The statement of Plu- 
 tarch on the subject of Solon's law is as foEows:— ^7r^imj<re U K<d 
 (6 SoXwi') TOLS i^6Sois twv yvvaiKwv Kol tocs trivdeffi Kai rats ioprati 
 vbtxov dirilpyovra t6 &TaKTOv Kal dKdXaffTOV ^^Uvai filv ifiartajv rpidv 
 fiTj TrX^oy Ix"'"'''"' KfXeiiffas /iijSf ^parbv ^ irorbv irKelovos rj ^/SoXov 
 ipepofi^vT]!' fit,T]di Kainyra viixtialov /te/foKa |»i;S^ viKTiop iropeieaSai 
 v\i)v afid^Ti Kopii^op.4v>ir Xixvov vpotpalvovros. d/iwxis Si KoirToiiivuv 
 KoX t6 dprjpeiv ireTroLTjuiva. Ktd to KtaKieiv aXkov iv ra^oLS er^puv 
 d^ciXec. ivayl^av Si ^ovv ovk etaaev oiSi (TwrtBivai irMov i/wrloiv 
 rpiui' oiS' iv' aWoVpio ixvi]p,aTa PaSi^eui xwpis iKKo/uSiji. 
 
 The great historian whose loss we are now deploring (Mr Grote) 
 
 Digitized by Microsoft® 
 
Regal Period. 19 
 
 takes the whole of this passage to refer to funerals rHistory of 
 Greece, pt. 2. oh. 11). I do not think it certain that the first 
 clause (i^iivai iiiv...irpo<palvovTos) may not belong rather to the 
 subject of festivals. As to the latter clause (d/ivxas Si...iKKoiiiSrjs) 
 there is no doiibt. Plutarch's lawgiver forbids, at funerals, disfi- 
 gurement of the face, singing of composed dirges, wailing for a 
 stranger (? hired lamentation), expensive sacrifices, extravagance 
 in dress, and going to others' sepulchres, except for the actual 
 carrying out of the corpse. 
 
 Very little of this appears in the law quoted by Demosthenes as 
 Solon's (in Maoart. 1071), iK^ipeiv rov d-iro$ap6yTa ttJ iiaTepalq. J air 
 irpoBCiVTai. irplv TJfKMv ii^x^iv. PaSL^eiv Si rois dvdpas irpdjdev Srap 
 CKcp^puvTat Tas Si yvvaiKas iinadev. yvvtuKa Si pJt] ^^eivai dai^vat els 
 TO, Tov airodavdvTos* jUi/5' dKoXovBeLf dTro6avbvTt, Srav els rd ff-qfiara 
 iyriTai evTos i^ijKovT trav yeyovvlav tXtiv Scrai ivros dveij/iaSCSv elal' 
 fiTjS' els rd TOV dTrodavSvTos elativat tTreLSdv i^evexdv ^ viKvs yvvdiKct 
 p.7jSefdav ttXtjv fitrat ivros dye^iadtdv eltrtv. 
 
 This law, contained in a speech which was most likely com- 
 posed before 354 e.g., therefore 36 years before the legislation of 
 Demetrius could have commenced, includes a regulation (trplv ijXtov 
 sf^X"") attributed by Cicero to him. 
 
 On the other hand it does not include the particulars in which 
 the coincidence of the Solonian law, as reported by Cicero (from 
 Demetrius), with that of the Twelve Tables is so remarkable. 
 Upon the whole, I am incUned to believe, bold as the supposition 
 may seem, that the particulars came from Roman to Greek rather 
 than from Greek to Eoman legislation. The comparative proba- 
 bility of the former nation borrowing from the latter or the latter 
 from the former I must leave a matter of opinion ; merely remark- 
 ing that any supposed improbability of interchange of ideas on 
 law-making at all at this early period makes as much against the 
 common theory as against that here advanced. If, then, Deme- 
 trius introduced in his legislation, or in his treatise, some of the 
 Boman law, part of this may possibly have been attributed hy him 
 to Solon, and very probably by his readers Plutarch (Solon c. 23, 
 p. 91) and Cicero, of whom the latter did, as we have seen, wrongly 
 attribute a prior regulation to Demetrius. Should this view be 
 correct, the otherwise remarkable coincidence in detail (e.g. be- 
 tween the tria ricinia and the rpla iiidria) is no proof of a Greek 
 origin for the Twelve Tables. 
 
 Cicero de Legibus 2. 24. § 60. Cetera item funebria quibus luctus 
 augetur xii sustulerunt. homini, inquit, mortuo ne ossa legito quo 
 ■post fvnus faciat. eicipit bellicam peregrinamque mortem. This 
 
 B 2 
 
 Digitized by Microsoft® 
 
■20 Early Roman Law. 
 
 prohibition seems to be directed against tlie practice of 'taking 
 out of the ground' (excipere) remains supposed not to hare been 
 buried with due solemnity, in order to hold, a solemn funeral after- 
 wards. In this case a mere covering with earth (in proper form) 
 sufficed to purify the family, which was, until such covering, 
 funesta. Funus, strictly, is either incense-offering for the dead 
 (Corrsen Beit. 179), or burning of the corpse. See Servius on 
 Aen. 2. 539: 3. 62. His notes on the whole account of Poly, 
 dorus' burial are very interesting. An exception might natu- 
 rally be made of those who had been laid in foreign earth or 
 ' shovelled up into a bloody trench.' On the ' covering with earth' 
 see Cicero de legibus 2. 22 § 55 and Yarro de lingua Latina 5. 23. 
 Si OS exceptum est mortui ad familiam purgandam, donee in 
 purgando humo est opertus (ut pontifices diount quoad inhumatus 
 sit) f amilia funesta manet. 
 
 Sohbll takes the passage quoted by Cicero to be against the 
 multiplication of funeral rites, reading, with Sohomann, after 
 faciat, the words (which in the MSS. of the de legibus come a little 
 lower) credo quod erat factitatum ut uni plura fierent lectique 
 plures sternerentur : id quod ne fieret lege sanctum est. In favour 
 of this view is perhaps Digest. 11. 8. 44. Vnius sepultura plura 
 sepulcra ef&cere non potest. 
 ire. Pliny H. N. 21. 5, 7. Ad certamina in circmn per ludoB et ipsi 
 descendebant et seruos sues equosque mittebant. inde ilia xii 
 tabularum lex, qui coronam parit ipse pecuniaue eius uirtutis ergo 
 duitur ei. quam serui equine meruissent pecunia partam lege did 
 nemo dubitauit. quis ergo honos? ut ipsi mortuo parentibusqne 
 eius dum intus positus esset forisue ferretur sine fraude esset im- 
 posita. PUny here gives the most probable interpretation of the 
 curious expression pecuniaue eius. Of course this rendering is 
 fatal to the alternative being between pecunia and uirtus. The 
 reading uirtutisue must therefore be explained by inserting with 
 Schbll honoris (see Festus under Ergo ' honoris uirtutisue ergo'), 
 or, which seems simpler, by supposing the ue to have been the 
 addition of some copier who imagined pecunia and uirtus to be 
 here connected. The latter word, of course, means personal merit 
 or conduct, as distinguished from luck: a very common use in 
 Plautus. The following difficult word duitur may perhaps, on the 
 strength of the MS. reading arguitur, be altered to arduitur, though 
 some instance of what seems an unnecessary dissimilation should 
 be found, before the occurrence of ar for ad before d can be con- 
 sidered satisfactory. Fortunately the preposition is not essential 
 to the sense of the passage, duitur in point of verbal stem agrees 
 
 Digitized by Microsoft® 
 
Regal Period. 21 
 
 with creduas, perduint, &c. As to its temporal and modal part 
 SchoU justly objects to the emendation dnitor, partly because the 
 MSS. afford no foundation for this reading, partly because the 
 imperative passive is not used in the simple style of the Twelve 
 Tables. We are then driven to a conditional sentence, the inser- 
 tion of si and the addition of words which certainly seem required 
 both by the above-quoted passage of Pliny and the parallel one of 
 Cicero. [Si} arduitur (or duitur) ei [parentiue eius se frauds esto.] 
 Compare Cicero de Legibus 2. 24. § 60. lUa iam significatio 
 est laudis ornameuta ad mortuos pertinere quod coronam uirtute 
 partam et ei qui peperisset et eius parenti sine fraude esse lex im- 
 positam iubet. The arduitur or duitur of the protasis Schbll 
 takes to be a perfect future passive, comparing the rare forms fax- 
 itur, iussitur, turbassitur and mercassitur, and plui, lui, &c. from 
 pliio, Itto. See his very learned disquisition Legis xii Tabb. Be- 
 liqq. pp. 80 — 89. Corssen makes it present indicative. Ausepr. 
 2\ p. 402. 
 . Cicero de Legibus 2. 24. § 60. Qua in lege cum esset, neue aurum 
 addito, quam humane excipit (OrelU for excipiat) altera lex: 
 cui auro dentes iuncti esunt, ast im cum, illo sepeliet uretue, se 
 fraude esto. 
 
 SchoU's emendation of the MS. sepelleturetue appears certain. 
 For the MS. essent I prefer Klotz' esunt (erunt) to his ' inchoative 
 with future signification' escunt. See however Scholl's note, pp. 
 98—100. ' 
 
 . See Cicero de Legibus 2. 24 § 61. also Pomponius in Dig. 11. 8. 3. 
 I may here remark that I have omitted to notice other points of 
 extravagance, mentioned by Cicero as forbidden, but for which he 
 does not, as in the instances above cited, appear to quote the 
 words of the Twelve Tables. De Legibus 2. 24. 60. Haeo praeterea 
 sunt in legibus : seruUis unctura toUitur (not tollitor, an attempt 
 of Manutius to turn this into a verbatim quotation) omnisque 
 circum potatio ; quae et recte toUuntur neque toUerentur nisi 
 fuissent. nee sumptuosa respersio nee longae coronae neo acerrae 
 praetereuntui. (Bake for ne...ne...nec...praetereantur.) 
 I. Livy 1. 19. 20. Plutarch Numa 18—20. Maorobius Saturnalia 1. 
 
 12. 13. 
 I. Varro de L. L. 6. 27. Primi dies mensium nominati Calendae ab 
 eo quod his diebus calamtur eius mensis Nonae a pontificibus 
 quintanae an septimanae sint futurae, in Capitolio in Curia Cala- 
 bra sic : dies te quinque calo, luno couella, septem dies te calo, 
 luno couella. 
 ^ See last note; also Macrobius Satt. 1. 15., 7. 
 Digitized by Microsoft® 
 
2 2 Early Roman Law. 
 
 s. Varro (de L. L. 5. 69) tells ua that tlie Moon is called luno Lucina 
 by the Latins. Etymologieally the stem lunon- points to lou-'- 
 (loui-) non-, and therefore cannot be ctl ed exactly a sister form of 
 lanus, though the two deities are certainly regarded as bearing a 
 very close relationship to one another by Eoman writers. See a 
 quotation from Varro preserved in the Saturnalia 1. 9. 16. In 
 sacris.-.inuocamus Ianum...Iunonium, quasi non solum mensis 
 lanuari sed mensium omnium ingressus tenentem: in ditione 
 autem lunonis sunt omnes Kalendae, unde et Varro libro quinto 
 rerum diuinarum soribit lano duodecim aras pro totidem mensi- 
 bus dedicatas. The moon is lana in Varro's Bes Bust. 1. 37. 3. 
 And Nigidius Figulus (Maerob. Satt. 1. 9. 8.) makes lana and 
 lanus respectively moon and sun. The ancient and highly honored 
 worship of the latter deity in Italy is well known. He is the ' god 
 of gods' in the Salian hymns. Maerob. Satt. 1. 14 Saliorum quo- 
 que antiquissimia carminibus dearum deus canitur. He belongs 
 too to an element- worship as ' lord of day in whom is the riang 
 and the setting' (Servius on Aen. 7. 607), whence doubtless come 
 all his associations with opening and shutting. By his creative 
 and vivifying power he becomes an all-connecting aU-embracing 
 principle of Nature herself, binding the discordant elements toge- 
 ther. So sings the augur Messalla, on this cherished national sub- 
 ject almost a poet. Marcus etiam Messalla, Gn. Domiti in con- 
 sulatu ooUega, idemque per annos LV augur, de lano ita incipit: 
 ' qtd cuncta fingit eademque regit, aquae terraeque uim ac natu- 
 ram grauem... ignis atque animae leuem...copulamt circumdato 
 caelo.' Varro de lingua Latina 7. 27. 
 
 § 5- 
 
 Gentes. Sacea. Pateefamilias. Confaeeeatio. 
 Aeeogatio. 
 
 The ceremonial itself of the first Romans has perhaps 
 little more than antiquarian interest : but the feeling 
 with which that ceremonial was regarded, and the 
 means employed for its maintenance, have exercised the 
 most important influence on Roman legal institutions. 
 Digitized by Microsoft® 
 
Regal Period. i3 
 
 Some of the oldest religious guilds were clearly con- 
 nected with particular localities ; there were, for instance, 
 the Salii CoUini and the Salii Quirinales, both mentioned 
 in the ancient Salian hymns ^. Equally clear is it that cer- 
 tain rites were connected with particular gentes: the wor- 
 ship of Hercules with the Pinarian, originally associated, 
 apparently on inferior terms, with a Potitian gens extinct 
 at or at least after the time of Appius Claudius Caecus* ; 
 the ancient shepherd's festival of the Lupercalia with the 
 Quinctian or Quinctilian gens of the Palatine and the 
 Fabian gens of the Quirinal. The peculiar worship of 
 Minerva was preserved, according to Servius and Varro, 
 by the Nautii ; that of the Sun is said by Flaccus to have 
 originally appertained to the Aurelii". In these cases 
 it is, of course, possible that public or general sacra may 
 have been committed to the charge of a particular gens, 
 which is expressly stated of the Aurelii (see end of note 
 a): but the probability seems at least as great that the 
 public sacra were, at any rate in part, a developement or 
 collection of the gentile. The institution of gentes, which 
 we find at full growth in the earliest historical times, is 
 a singular result of the Roman principle of family. We 
 find a number of families (in the modern sense of the 
 word) not merely bearing the same name but united by 
 the tradition of a common ancestor, acting together in 
 politics, going forth bodily on a colonizing expedition, 
 involved in one common sentence of exile ; above all, con- 
 nected by peculiar and distinctive religious ceremonies, 
 which the universal commonwealth, so far from discourag- 
 ing, makes it an especial object to perpetuate. The 
 impossibility, even in the earliest periods, of tracing any 
 actual relationship between all the members of a gens 
 seems to me shewn, by the ancestors whom tradition has 
 reported to us. The AemiHi come from Mamercus the 
 Digitized by Microsoft® 
 
24 • Early Roman JjUW. 
 
 son of Pythagoras or Aemilius the grandson of Aeneas ; the 
 Antonii and Fabii from a son of Hercules ; the Caecilir 
 from a son of Vulcan ; the Calpumii from a son of Numa; 
 lulus, Fusus, and Volesus are the very obvious ancestors 
 of the lulii Furii and Valerii. It is scarcely possible that 
 the fiction cannot have been patent to any Eoman who' 
 ever devoted a thought to the subject. But it was a 
 fiction destined to exercise a more powerful influence than 
 many truths. 
 
 The real derivations of the nomina (gentile names) are 
 very doubtful. In some cases, perhaps, the small associations 
 which were to form the elements of a future community 
 may have derived their name, as did, according to Thucy- 
 dides, the Hellenes, from a powerful chieftain round whom 
 they congregated ; in some, from their locality ; in some, 
 from a special pursuit or article of production*. Among 
 many other circumstances which point to unity of residence 
 as an essential characteristic of the earliest gentes is that 
 among the names of the Curiae, or wards, containing it is 
 said ten gentes each, some are clearly local while others 
 are as clearly gentile °. Nor can one see a better reason 
 for the gentile names of many of the rustic tribes, than 
 that the lands of the gens lay mainly together and in that 
 particular district. But whatever the circumstances were 
 which brought it together or gave it a name, it is clear 
 that the original gens was not considered to have suffi- 
 cient coherence unless united by the fact of a common 
 worship and what must in most cases have been the 
 fiction of a common descent. With later incomers the 
 same feeling might not exist, or, if it did exist and did 
 lead to the similar formation of newer societies, these 
 would naturally be kept to a certain extent on a lower 
 footing by the older, which must soon have assumed that 
 aristocratic character whereby, in historical times, we 
 
 Digitized by Microsoft® 
 
Regal Period. 25 
 
 know them so well. This is at least a possible way of 
 accounting for the existence of Greater and Lesser (or 
 perhaps Older and Younger) patrician, and some few 
 plebeian, gentes. These distinctions perhaps indicate two 
 successive barriers drawn round a privileged class. The 
 first, however, disappeared at a time of which we have no 
 authentic record, while the breaking down of the second 
 forms one of the most interesting chapters of history. 
 From the influx of persons having no gens^, perhaps from 
 the emigration, too, of original members, the locality of 
 gentes would naturally become less definite, and the sacra 
 — ^bond and sign of the immemorial aristocratic relation- 
 ship — more prized. So we find their maintenance watched 
 over by the gentile assembly of the . Curiae, or their 
 religious officers, with the most jealous care. The obliga- 
 tion to their periodic performance must have been con- 
 sidered as resting upon each familia (or body of persons 
 who really could trace their descent from some actual 
 common ancestor) ; upon each head of a household who 
 had no lineal ascendant living ; possibly even upon each 
 male members- 
 It may perhaps have been partly from his responsible 
 position as joint depositary of the sacra, that the Head 
 of the Family {-paterfamilias) came to exercise the asto- 
 nishingly despotic power known as the patrta potestas. 
 This relation, though founded upon patriarchal principles 
 common to all infant nations, reached at Rome such un- 
 usual developement that it seems to have borrowed both 
 in spirit and terminology from the idea of capture in war. 
 This was, indeed, in all probability, with the warlike 
 Nation of Spearmen (bellicosi Quirites) the fundamental 
 idea of property generally. As the spear was a symbol, 
 so was the strong-hand a name of their rough legal owner- 
 ship : and this expressive designation of forcible posses- 
 Digitized by Microsoft® 
 
26 Early Roman Law. 
 
 sion, which remaiDed technical in the case of the wif^, 
 was doubtless originally applied to the whole of the family 
 as welP. At any rate the power of a paterfamilias^ 
 whencesoever derived, appears at first to have differed 
 but little from that of an owner over chattels, and more- 
 over to have been generally indestructible except by 
 death*. Its determination by three sales was probably 
 a later innovation sanctioned by the Twelve Tables: the 
 still later dispensing with two of the sales in the case of 
 descendants other than sons was effected by a strict in- 
 terpretation of the word filium in the clause referred to, a 
 general extinguishment of paternal power by sale being 
 assumed, which was certainly not law in the oldest timesJ. 
 
 His extreme rights, however, can scarcely have been 
 exercised by the father who had allowed the son to con- 
 tract legal marriage with a free woman, though for a 
 formal enactment on the subject we have mere tradition''. 
 Again, it was obviously necessary, to avoid the clashing 
 of two authorities, that a daughter who passed into the 
 marital passed out of the paternal power. 
 
 Marriage was doubtless, in the oldest times, looked 
 upon mainly as the means of producing those descendants , 
 of pure blood who should perpetuate the sacra. Accord- 
 ing to the principles of the close aristocracy that we are 
 now considering, principles which lie deep in the founda- 
 tion of Roman law, it is probable that no union was re- 
 garded as a proper marriage unless each party belonged to 
 some gens. Practice would, of course, tend to break down 
 this hard rule, but it was certainly the subject of an 
 enactment in the Twelve Tables subsequently repealed 
 by the rogation or plebiscitum of Canuleius'. Such an 
 enactment can have been no new idea, but rather an 
 attempt to erect into law a customary barrier which was 
 crumbling away. It is interesting to remark that it is 
 Digitized by Microsoft® 
 
Regal Period. , 27 
 
 the interference with public and private ceremonial rites 
 likely to result from unions between a patrician and a 
 plebeian which was, according to Livy, alleged as a reason 
 for this prohibition". 
 
 We are therefore prepared to expect that connection 
 with the sacra which we find in the oldest form of mar- 
 riage. A genuine custom is no doubt here preserved to 
 us by Dionysius under the pretended form of a law of 
 Romulus — ' that a woman uniting herself in marriage 
 with a man according to the sacred laws becomes a sharer 
 in everything, property and sacraV This 'sacred mar- 
 riage ' he explains to be the Roman confarreation. It was 
 an emblematical partaking together by the bride and 
 groom of the simplest form of food, perhaps a wheaten 
 cake, under the officiation of the Pontifex Maximus and 
 Flamen Dialis". The use of certain solemn words was 
 necessary in this ceremony, as also the presence of ten 
 witnesses, who are, with great probability, believed by 
 Mommsen to represent the ten wards (Curiae) of the 
 oldest Roman constitution'. Similarly the thirty lictors 
 of far later times appeared for the thirty Curies'', and the 
 five witnesses to mancipation, in all probability, for the 
 five classes'. 
 
 In connection both with the sacra and the subject of 
 marriage, viewed with reference to its original object 
 (liberum procreandorum caussa), there remains to be noticed 
 the important principle of representation of a deceased 
 person. It was obviously desirable, to prevent the me- 
 mory of the sacra perishing by the death of the pater- 
 familias', that he should leave behind him some one to 
 fill his place and perform his duties. With the duties 
 were naturally associated the means of the deceased ; and 
 there is little doubt that the succession was originally 
 regarded as matter of public concern, to be settled by 
 Digitized by Microsoft® 
 
28 Early Roman. Law. 
 
 recognized customary rules and not by the wisa of any 
 individual. In the language of later writers, the first 
 heredes were legitimi rather than testamentarii. We are 
 dealing, in fact, with a period when there was no testa- 
 ment at all. Those who having been in the power of the 
 paterfamilias, became, on his death, sui iuris — under their' 
 own control— were also the sui heredes, ' takers by their own 
 right' of his rights, his obligations, and his means. These 
 successors, if minors or females, were protected, and at 
 the same time prevented from squandering the family 
 inheritance, by a ' surveillance ' {tatela) of those next en- 
 titled, older in all probability than the law of the Twelve 
 Tables in which it was recognized and regulated. Whether! 
 there was ever one principal 'taker' or 'master' we cannot, 
 say: no distinct traces of primogeniture appear in our 
 authorities'. 
 
 It was where there was likely to be a failure in the 
 succession, an extinction of a family and consequent di- 
 minution of the means or agents for perpetuating the 
 sacra, that the wishes of the childless master of a house- 
 hold were first recognized. By a vote of the gentile 
 comitia curiata he could, subject to the sanction of the 
 pontiffs, arrogate, or take to himself by question put", any 
 youth having attained puberty and not subject to the 
 patria potestas, to be his own son. Enquiry was made as 
 to the age of the arrogator and the non-probability of his 
 having issue of his own body : also as to the fortune of 
 the person taken in arrogation, which would, it must be 
 remembered, become the property of his new father. No 
 objection having been raised by the assembly — including, 
 of course, those interested in the natural succession to the 
 arrogate — or by the presiding pontiffs, it v/as put and. 
 carried in the form of a regular bill that e. g. ' L. Valerius 
 should be in law as completely the son, of L. Titius as if 
 
 Digitized by Microsoft® 
 
Regal Period. 29 
 
 born of L. Titius as father (and his wife as) mother of a 
 family, and that Titius should have over Valerius power 
 of life and death as a father has in the case of his son".' 
 The perfect substitution, in a Roman mind, of the legal 
 relation arising from arrogation or adoption, for the na- 
 tural one, which gives rise to many expressions familiar 
 enough to the reader of Tacitus but sounding strangely to 
 modern ears, is here expressed in plain words". 
 
 This subject of arrogation is very interesting, on the 
 one hand as being so clearly connected with the gentile 
 ,'system, and especially (since under the pontifical sanc- 
 tion) with the preservation of the sacra; on the other, 
 as perhaps leading the way to the earliest allowed will- 
 makinff. .Por the testament made in the comitia calata 
 tallies so closely in point of the assembly where its first 
 and commonest execution took place (see below § 23), as 
 well as of the presiding authorities, with arrogation, that 
 one cannot but regard it as a result or development of 
 • that ancient practice. It is, however, more convenient to 
 treat the testamentum calatis comitiis in a subsequent 
 section, together with the form of testation by which it 
 was ultimately superseded (§ 23). 
 
 a. Servius on Aen. 8. 284. 
 
 6. Id. Aen. 8. 270. Festus Potitium et Finarium. MacroWus Sa- 
 turnn. 3. 6. 12—14. 
 
 c. Mommsen Hist. 1. 4. (p. 55 n. of tr.) Servius Aen. 5. 704 ' Turn 
 senior Nantes.' Festus Fauiani, [Quinotiliani Luperci], and 
 Aiireliam. 
 
 d. Thuo. 1. 3. Association round a powerful protector was certainly 
 the original relation of clientes to theii patronus. Nor is it impos- 
 siWe that such was the origin of those gentes whose names denote 
 a personal peculiarity or quality, which may have characterized 
 their founder. Instances are Albia, Opimia, Flauia, Fuluia, Hel- 
 uia, Liuia, Naeuia, Catia, Canidia, Claudia, Lioinia, AquUia, 
 Duilia, Silia, Turpilia. The numeral names too, ranging from 
 
 Digitized by Microsoft® 
 
30 Eatly Roman Law. 
 
 fifth to ninth and perhaps last (Quinotia, Noma, Postumia), may 
 indicate the foundation of new families hy cadets of enterprise. 
 The Fabii, Cornificii, Fabricii, Porcii, Furnii, Paloidii, Veirii, 
 Hortensii must surely have been named from occupation or pro- 
 duct (see Pliny H. N. 18. 3.). This view is quite consistent with a 
 determinate locality, which each trade usually has in infant states, 
 Names directly from locality are Pontius, Marius, perhaps Tigel 
 lius, and others of which we might have more satisfactory etymo- 
 logies if we knew the topography of early Eome better. The Fla- 
 minii and Antistii must have been priestly families. The Aurelii 
 were supposed, according to Flaccus, to have been named from 
 the sun, because a place was publicly assigned to them by the 
 Eoman people in which to make sacrifice to the sun. It was from 
 this, he says, that they were called Auseli. (Festus Aureliam.) 
 The word may be traced to the same rdot -us from which comes 
 Aurora (Curtius Grundzuge 612, p. 371). This is an instance of 
 a plebeian gens, perhaps later incomers, (famUiam ex Sabinis ori- 
 undam Festus loo. cit.) traditionally connected with special sacra 
 which had been made matter of public interest. 
 
 e. Mommsen Hist. 1. 5 (p. of tr. 73). It is true that the identity of 
 the decuriae with gentes is anything but certain. This, however, 
 does not affect the inference drawn from the names of the Curiae, 
 which may be re-stated as follows: — Some names of Curiae are 
 gentile, others local ; it is probable that the same principle would 
 be followed in naming all; therefore it is probable that at least 
 those gentes had a definite locality. The word Curia itself means 
 nothing but house (Corssen, Ausspr. 1.'353) — the house, doubtless, 
 of meeting and worship common to each small original associa- 
 tion (see Festus, Curia). Here, as elsewhere, it will be seen, that 
 agglutination is considered as the more probable order of things 
 than subdivision, in the infancy of a state. Besides the evidence 
 of antiquity and inferences drawn from analogy, to this effect, it 
 may fairly be asked what possible object could the traditional 
 founder have in splitting up his little kingdom ? 
 
 /. Livy 10. 8. Semper ista audita sunt eadem, penes uos auspicia 
 esse uos solos gentem habere. 
 
 g. Heineocius Antiqq. L. 1. c. 1. App. 71. Livy 5. 46. Saorificium 
 erat statum in Quirinali colle gentl Fabiae. ad id faciendum G, 
 Fabius Dorso Gabino cinctu sacra manibus gerens .... in Quiri- 
 nalem collem peruenit. The Dorsones cannot have been the lead- 
 ing family among the Fabii — compared, for instance, with the 
 Tibulani. Nor is it likely that the individual (called by CamiUus 
 c. 52 adolescens) was even head of this particular family. 
 
 Digitized by Microsoft® 
 
Regal Period. 3! 
 
 As the son manu mittebatur it is fair to conclude that he must at 
 some time have been said to be in the manus, as well as the -wife. 
 On the subsidiary ceremonies of marriage indicative of capture 
 (see Festus Eapi, and the 4th explanation of Coelibari hasta) I do 
 not lay any special stress. They are paralleled by the oldest cus- 
 toms in this behalf amongst most nations. 
 
 The hasta was the ■well-known symbol of Quiritarian ownership 
 in the old Centumviral Court, as was its representative in the actio 
 per sacramentum (Gains, Comm. 4. § 16). With regard to Quiritei 
 I very much prefer the view accepted by Mommsen (Hist. 1. 5 tr. 
 pa. 78 n.) to any other, viz. that they were the individual warriors 
 as distinguished from the collective populus. In this view populus 
 Eomanus [et] Quirites and the crux populus Bomanus Quiritium 
 are both quite intelligible ; as is the pathetic funeral proclamation 
 ' that warrior is given to the land where all things are forgotten ' 
 (see Festus Quirites. ..oUus Quiris leto datus, and ie/um). There 
 seems no objection to the derivation from Curis, a spear, which 
 need not involve belief in an intermediate town Cures or hero 
 Quirinus (Festus Curis, Ovid Fasti 2. 477). I am glad to find Mr 
 Seeley (Livy 1. p. 72) agreeing with the spearman derivation of 
 Quirites, though the support which he apparently claims from 
 Festus' Pilumnoe poploe,..Yelut pilis uti assueti...is not unquestion- 
 able. See Curtius Grundziige 260. Corssen (Ausspr. 2. 357) pre- 
 fers the derivation from Cures. 
 
 Dionysius probably gives a true account of the old patria potestas, 
 though he attributes its institution to Eomulus. Antiqq. Bom. 
 2. 26. iLiracrav tbs clTrelv ^SuKev i^ovaiav trarpl Kad^ vlov Kal -Trapi 
 irdvra rbv rou ^lov xprfi/or idjf re etpyeiv idv re fiaartyoOv idv re 
 d^(Ffitoy iwl Tuv ko.t'* dypov ipytav Karix^^v ^dv re diroKrtvvi^vaL 
 irpoaiprfrai. 
 
 He makes the same authority place a restriction upon the 
 exposure of sons and first daughters (2. 15). This practice, with 
 regard to female infants, must have obtained, quite as a matter of 
 course, to near the time of Terence (Hautontim. 4. 1. 13 — 24). 
 Instances of nearly every kind of severity mentioned by Dionysius 
 will be found in the biographies of the Manlii, who seem to have 
 anticipated the 'Fairchild Family.' Civil death and the few 
 other ways (besides emancipation) by which the patria potestas 
 came to be terminated will be found in Gains Comm. 1. 128 — 131. 
 lustin. Instt. 1. tit. 12. On the patria potestas see generally 
 Mommsen's Hist. 1. 5. and Maine's Ancient Law, ch. 5. 
 Gains Comm. 1. 182. filius quidem ter [mancipatus sui iuris fit, 
 ceteri] uero Uberi sine masculini sexus siue feminiui una manci- 
 
 Digitized by Microsoft® 
 
! Early Roman Law. 
 
 patione exeunt de parentium potestate: lex enim xii tantrnn in 
 persona fill de tribus manoipationibus loquitur [Ms] uerbis: <i 
 pater fiUum ter uenum duuit filius a patre Uber esto. of. Ulpian. 
 fr. 10. 1. 
 
 h. Dion. Antiqq. 2. 27. iv ots (so. rots toS "Song ri/iois) . . . oii™ 7c- 
 ypdiTTai iav irariip vlQ ffuyxap'^'rv ywtuKa AyayiffBtu Koivavov lironi- 
 yijr lepdn re KoL xpiA'aTW;' Kara Toii vS/iovs /iriKin TJjv i^ovfflav tXvm. 
 tQ warpl »ruXei> Tov vl6v. For, says Plutarch, Seu'OJ' iiyeiro Tip us 
 iXev6ep<f yeyap-TiiiAviiv ywaiKa SoiiXij) a-vvocKelv. Numa 17. 
 
 I. Livy4:4, 6. Dionya. Antiqq. 10. 60. Cicero de Eep. 2. 37. § 63. 
 
 m. Livy 4. 2. coUuuionem gentium perturbationem auspioiorum publi- 
 corum priuatommque afferre (Canuleium). 6. interroganti tri- 
 bune cur plebeium consulem fieri non oporteret, ut fortasse uere 
 sic parum utiliter in praesens eertamen respondit (alter e consuli- 
 bus) quod nemo plebeius auspicia haberet, ideoque Xuiros conu- 
 bium diremisse, ne inoerta prole auspicia turbarentur. 
 
 n. Dion. Antiqq. 2. 25. 7Ji> Si T0i6(r5e i vi/ioi yvvaiKa yapsriiv Kara vifum 
 iepoiis avvikdovaav djfSpl KOtvtav^p aTrdvTOJV etvai ^7ip.drup re Kal 
 Upuv. iKd\ovv Si Toi)s iepods ol iraXaiol yaiJ.oii 'PoifmiK'^ irpoffriyoplf 
 TrepiKap.^ai'WTes ^a^/>d,Kia irl t^s Kowavias tou tpafipoi 8 KoXoSpxr 
 •hlieis feoi/. cf. Pliny hist. nat. 18. 3. Tacit. Ann. 4. 16. 
 
 0. See last note, also Servius on Georg. 1. 31. tribus modis apud 
 ueteres nuptiae fiebant,usu..., farre cum per pontificem maximum 
 et dialem flaminem per fruges et molam salsam ooniungebantur, 
 unde confarreatio appellabatur, ex quibus nuptiis patrimi efma- 
 trimi nascebantur, &c. The praetextati pueri who escorted a 
 bride to her new home were (or should be) patrimi et matrimi 
 whose parents were living. See Festus Patrimi. 
 
 p. Mommsen Hist. 1. 5. tr. p. 73. n. 
 
 (/. Festus Triginta Uctores. 
 
 r. See below, § 21. 
 
 «. Cicero de Legibus 2. 19. Hioo iura pontifiomn auctoritate conse- 
 cuta sunt ut ne morte patris familias sacrorum memoria oeoideret 
 iia assent ea adiuncta ad quos eiusdem morte pecunia ueniret. 
 Bake's reading, who, I think, satisfactorily defends this passage 
 against Madvig. The desire to secure persons 5111 sacra facerent 
 is made by Gaius (Comm. 2. 52, 55) the reason why possession 
 with knowledge of another's right was allowed to constitute urn- 
 capio of an inheritance. 
 
 ,t. Flaccus may connect heres ('apud antiques pro domino ponebatui') 
 with hems ; but nothing very certain as to the original idea of the 
 word can be inferred from Plautus Menaeoh. 3. 2. 12. Dr Donald- 
 son's her-ed- from liaer-uad- (Umbrian here ' take', Skr. hrl, and 
 
 Digitized by Microsoft® 
 
Regal Period. 33; 
 
 uad- 'bail') is perhaps fanciful as to the second part. Corssen 
 does not offer an explanation of the d, which he merely compares 
 ■with that of merce-d- and of the common suffix do. As to the 
 first part of the word he agrees with Donaldson, considering heres 
 to be 'E.xb-nehmer (Ausspr. 1. 468) from the same root as hems {ib. 
 101), the old Latia hir, (cf. LucUius cited by Cicero, de Fiuibus 2. 
 8. § 23) and the Sanskrit har 'nehmen." 
 
 As to the equal sharing of heredes see Gains, Comm. 3. 1 — 8, 
 lust. Instt. 3. Tit. 1, and Dionysius 2. 25 where he speaks of the 
 wife's right to succession as a daughter, making her take an equal 
 share to!s Trnio-i'c, as if these also took equally. 
 Gaius, Comm. 1. 99. populi auctoritate adoptamus eos qui sui uiris 
 sunt, quae species adoptionis dicitur arrogatio, quia et is qui 
 adoptat rogatur id est interrogatur an uelit eum quem adoptaturus 
 sit iustum sibi filium esse, et is qui adoptatur rogatur an id 
 fieri patiatur, et populus rogatur an id fieri iubeat. The last is of 
 course the true reason for the word. 
 
 Aulus GeUius Noctt. Att. 5. 19. Arrogantur hi qui cum sui iuris 
 sunt in ahenam sese potestatem tradunt eiusque rei ipsi auctores 
 fiunt. sed arrogationes non temere neo inexplorate committuntur : 
 nam comitia arbitris pontiflcibus praebentur quae curiata appel- 
 lantur, aetasque eius qui arrogare uolt, an liberis potius gignundis 
 idonea sit, bonaque eius qui arrogatui ne insidiose appetita siut 
 consideratur . . adrogari non potest nisi iam uesticeps. (Festua 
 s. V.) arrogatio autem dicta quia genus hoc in aHenam famiUam 
 transitus per populi rogationem fit. eius rogationis uerba haeo 
 sunt : uelitis iubeatis uti L. Valerius L. Titio tarn iure legeque 
 filius siet quam si ex eo patre matreque familias eius natus psset 
 utique ei uitae necisque in eum potestas siet uti patri endo fiUo 
 est. haec ita uti dixi ita uos Quirites rogo. 
 
 No woman could be arrogated quoniam eum feminis nulla 
 comitiorum communio est. ib. 
 
 e.g. of Augustus ' multa Antonio dum interfeotores patris uloisoe- 
 retur . . conoessisse.' The ^joter is the ' naightiest Julius. ' Ann. 
 1. 9. Tiberius, too, asserts (se) de honoribus parentis consultn- 
 rum (Ann. 1. 7), where the parens is Augustus. 
 Cicero pro Domo Sua 13, § 34 on Clodius' adoption, or, strictly 
 speaking, arrogation. ' quae . . caussa cuique sit adoptionis, quae 
 ratio generum ac dignitatis, quae sacrorum, quaeri a pontificum 
 ooUegio solet . . . quid sacra Clodiae gentis cur intereunt, quod in 
 te est? quae omnis notio pontificum, cum adoptarere, esse debuit.' 
 
 B. L. 
 
 Digitized by Microsoft® 
 
34 Early Roman Law, 
 
 § 6. 
 
 Offences within the Family. First Sanctions. 
 
 The customary law whicli has been hitherto considered, 
 whether remaining mere custom or formalized into the 
 few quasi-statutory maxims which have come down to 
 us, alike lacked that important element of law proper— 
 an express sanction. There are, however, other 'laws' 
 in which a sanction is expressed though not clearly de- 
 fined. The reputed authors of these fragments, if of little 
 value in fixing an exact date, may yet perhaps justify us 
 in referring the latter generally to the regal period, when 
 backed by the surer evidence of antiquity of form. As 
 to the relative priority of these ' laws,' which must to a 
 certain extent enter into our consideration of them, it is 
 most difficult to avoid that besetting sin of all antiqua- 
 rians, historical or philological, to make order of time and 
 intrinsic antiquity alternately prove one another. Keep- 
 ing the latter as much -as possible distinct, we find that, 
 in respect oi form, there are in the fragments attributed 
 to the Kings two instances of IndorGermanic terminations 
 all but unique in Latin and foreign to our remnants of the 
 Twelve Tables". Doubtless the latter, as being in prac- 
 tical use, may have been altered to at least a more 
 modern spelling than that of their enactment : but the 
 non-alteration of the former is in itself an evidence of 
 their more venerable and therefore more antique cha- 
 racter. The inflexibility of religious formularies or dicta 
 is well known. Here, too, subject-matter afibrds us inde- 
 pendent evidence of relative antiquity. The earliest 
 historical views that we can get of the Roman people 
 coincide with their most permanent usages and most 
 
 Digitized by Microsoft® 
 
Regal Period. 35 
 
 venerable constitutional forms in pointing to one con- 
 clusion — ^that religion, connected with or rather inclusive 
 of the idea of family relationship, was the first bond 
 between the small associations which united to form 
 Eome, It is in accordance with this general conclusion, 
 and moreover with what we know of the earliest history 
 of other nations also, that we shall be disposed to consider 
 those penal enactments the earliest, in which crimes and 
 offences are regarded as sins, and in which the penalty is 
 religious in form — though doubtless in effect it differed 
 widely from the hrutum fulmen of a modern ecclesiastical 
 sentence. This view of priority will be confirmed if we 
 find that the offences themselves which are thus pro- 
 hibited are those committed against the quasi-religious 
 parental authority which lies at the very root of the 
 oldest Roman institutions. The nascent criminal legis- 
 lature, however, to which I refer, must be clearly dis- 
 tinguished from any purely patriarchal jurisdiction. At 
 the earliest period of which we have any knowledge, the 
 community was in existence as well as the family. Of 
 any regular parental judicature we must agree with 
 Mommsen that there is not a trace to be found*. Tra- 
 dition has doubtless recorded several instances in which 
 the paternal power was exercised in accordance with what 
 would probably have been the sentence of a judge proper. 
 But such proceedings were clearly of an arbitrary cha- 
 racter, depending entirely upon the irresponsible will and 
 pleasure of the offender's owner, i.e. the paterfamilias. 
 The latter is, of course, at once distinguished from a 
 judge by the fact that it was in his option whether he 
 should take any proceedings at all. Thus, to anticipate 
 for a moment the typical case of Horatius, we may admit 
 a prior quasi-jurisdiction over the case of sister-murder, 
 appertaining to the father'' ; but, as there is no security 
 
 C2 
 
 Digitized by Microsoft® 
 
36 Early Roman Law. 
 
 to the public for its exercise, so, even -when exercised, it 
 is no bar to a public trial. Whereas, in the fragments, 
 about to be cited, it is evident that the parent (who may. 
 of course even be a paterfamilias) is the complainant and 
 that the sentence is the sentence of the commvmity, 
 whether a gens or an association of gentes. 
 
 Festus, in illustration of the word plorare, which, 
 he says among the ancients evidently signified to com- 
 plain, quotes as follows: — In thq laws of Romulus and 
 
 Tatius 'If a son's wife let her be devoted to the 
 
 deities presiding over parents.' Among the laws of 
 Servius TuUius is this, ' If a son beat a parent and the 
 latter shall have complained, let the son be devoted to 
 the deities presiding over parents °' Then follows a fur- 
 ther explanation of the word plorassit, which, though 
 mutilated, shews the complaint here mentioned to have, 
 been considered by the writer as equivalent to a formal 
 indictment in later times. 
 
 In the first of the two quotations the offence of the 
 son's wife may be assumed similar in character to that of 
 the son, and Dr Donaldson supplies the lacuna accord-, 
 ingly**. Both prohibitions therefore are directed against 
 purely family offences, and both are furnished with the 
 same sanction, devotion to the gods of the family. What, 
 this sacratio amounted to we have to learn from other 
 sources. Dionysius, who, as we have seen, makes the 
 patria potestas originate in an enactment of Romulus, 
 would appear to leave violations of filial duty for the 
 cognizance and punishment of the paterfamilias, sup- 
 ported or at least unopposed by popular feeling'. In 
 relations, however, between patron and client — a connec- 
 tion which had nothing to do with community of descent, 
 and which is also attributed by Dionysius, in substance; 
 as well as in accidents, to Romulus — he represents. 
 
 Digitized by Microsoft® 
 
Regal Period. ^7 
 
 breaches of duty as checked by a mere public sanction. 
 If either patron or client were convicted of committing 
 any one of certain specified offences he was liable to 
 Romulus' law of treason. There is an interesting analogy 
 between this view of such offences and that taken by our 
 own common law in cases of murder when the murderer 
 owed a special private allegiance to the victim. Murder 
 by a servant of his master, by a wife of her husband, by 
 an ecclesiastical person of his superior, was petit treason 
 and visited with severer penalties than the ordinary 
 crime'. 
 
 For the less serious offences, enumerated by Dionysius, 
 between patron and client ' the convicted person might be 
 killed by any that would, as a sacrifice to the infernal Dis. 
 For it was a custom with the Romans, when they willed 
 any to be killed with impunity, to dedicate their bodies 
 to some of the gods, especially to those of the infernal 
 regions^.' A modem British practice, well known at least 
 to our charitable neighbours, was apparently visited by 
 Roman law with the same penalty as above mentioned. 
 Romulus enacted a law, says Plutarch, that the man who 
 sold his wife should be sacrificed to the infernal gods^ 
 
 A great deal of Dionysius and a great deal more of 
 Plutarch comes doubtless from the love of moralising about 
 good old times which never existed ; still we cannot refuse 
 to see some core of reality and some practical effect in the 
 sacratio when we find it used as an important political 
 expedient in undoubtedly historical transactions. Passing 
 over the law which Livy says was directed against attempts 
 to revive monarchy ' by devoting the life and goods ' of the 
 culprit', we come to the sacrosanct tribunes of the first 
 secession^ who, whatever the date of introduction or tech- 
 nical meaning of this term, were undoubtedly protected by 
 a sentence of ipso facto outlawry against any one who 
 
 Digitized by Microsoft® 
 
38 lEarly Roman Law. 
 
 violated their person or privileges. This sentence, Livy 
 says, originally depended upon religion, but was made on 
 the expulsion of the decemvirs a legal enactment'. A law- 
 passed -with this particular sanction was a lex sacrata, of 
 which Livy gives us other instances™. Cicero distinctly 
 recognises this penalty in two passages". 
 
 The best authority, however, is that of Festus, who 
 tells us that saoratae leges are those in which it is pro- 
 vided that whoever shall have done any thing against 
 them be devoted {sacer) to some of the gods, with his 
 family and property : and that a homo sacer is ' he whom 
 the people hath sentenced for a crime ; neither is it right 
 for him to be sacrificed, but he who slayeth such a one 
 is not found guilty of parricide (see below, § 7), for it is 
 provided by the first tribunician law, that if any shall 
 have slain him who is sacer by this plebiscite the slayer be 
 no parricide".' 
 
 Mommsen takes the sacratio to have been, in the case 
 of the tribunes, a real outlawry : whoever laid hands upon 
 them was regarded not merely as forfeited to the ven- 
 geance of the gods, but also as outlawed and proscribed 
 among men''. But as to the older sentence his opinion 
 is different, 'Not that the person accused (sacer) was 
 outlawed; such an outlawry, inconsistent in its very 
 nature with all civil order, was only an exceptional occur- 
 rence in Eome — an aggravation of the religious curse at the 
 time of the quarrels between the orders. It was not the 
 province of the civil authorities, still less that of the indi- ' 
 vidual burgess or of the wholly powerless priest, to carry 
 into effect the divine curse ; the life of the person accursed 
 was forfeited not to man but to the gods'.' 
 
 Zumpt, also, admitting that there may have been a 
 time when the sacratio capitis was more than a mere sen- 
 tence of excommunication, places that time at the safe 
 
 Digitized by Microsoft® 
 
Regal Period. 39 
 
 distance of a 'pre-Roman periodV I cannot reconcile 
 these views ■with, the cumulus of evidence above- quoted; 
 or help believing that the sentence sacer esto involved 
 more than religious penalties even when it only existed — to 
 borrow Livy's phrase — religione, not lege. That it was 
 originally a religious sentence there is little doubt — pro- 
 claimed probably by the chief priests either solely or as 
 presidents of a burgess-assembly, on complaint by the 
 injured member of a family. The latter seems more pro- 
 bable, as answering to the ' sentence of the people ' men- 
 tioned by Festus, on whicb the property of the sacer was 
 considered as confiscated and his person placed out of the 
 protection of the law. For the final words of the plebiscite 
 are surely not so much the creation of a new as an affirma- 
 tion of the old impunity for a slayer of the sacer, which 
 impunity might possibly have been regarded as taken away 
 by an intermediate statute against homicide in general. 
 
 It must be remembered, as against the objection of 
 Mommsen, that this rough execution of justice dates from 
 the very earliest times, when that developed civil order, 
 with which it is no doubt inconsistent, had as yet no exist- 
 ence. Probably the sentence in practice only amounted to 
 exile : but, even if taken in its harsher sense, the general 
 right, in all persons belonging to a community, patriarchal 
 or otherwise, of putting to death an outlaw, is not without 
 parallel either in our own traditional common law, or in 
 the reputed statute law of Athens, or in the oldest extant 
 history of a capital crime'. 
 
 a. Mommsen Hist. 1. 11. pp. 157 — 8 tr, 
 
 6. Zumpt Griminal-Eeclit des Ebm. Eepublik. Absoh. 1. c. 7. p. 91. 
 
 c. Plorare flere nunc significat et cum praepositione implorare id est 
 inuocare. in regis Eomuli et Tati legibus ti nwrua... sacra diuis 
 parentum estod. in Semi Tulli haec est si parentem puer uerberit 
 ast olle plorassit puer diuis parentum sacer esto, id est, inolamarit 
 dix...[erit diem according to Miiller's most probable restoration.] 
 Digitized by Microsoft® 
 
40 Early Roman Law. 
 
 In the first quotation the final d of the 3rd sing, imperative is 
 a mark of antiquity almost unique in Latin, though instances are 
 found in the Oscan estud factud licitud of the Bantine tablet. Com- 
 pare the Vedic tarpatdt (jepiriTiS) Bopp, Vergl. Gram. § 470.^ The 
 second quotation, it -will he observed, wants the d, as do the imper- 
 atives of the Twelve Tables. 
 
 In the second quotation uerlerit, which Miiller apparently 
 takes to be present subjunctive, is, I think, better regarded by 
 Scholl (xii Tabb. EeUquiae, p. 83) as present indicative of the 3rd 
 conjugation. Ast is of course equivalent to autem (Festus ast. 
 Labbaeus = ^ii' 5^), see Plautue Oapt. 8. 5. 25. 
 
 Si ego hie peribo ast ille ut dixit non redit 
 
 at erit mi hoc factum mortuo memorabile. Scholl. p. 111. 
 
 d. Varronianus, c. 5. § 5. Dr Donaldson restores what may have 
 been the old spelling, sei nuros parentem \ueriesit ast ole plorasit] 
 sacra, Sua. It seems, in my present point of view, safer and better 
 to give these fragments merely as they occur in good editions of 
 the authors by whom they are quoted. Muller's remark is not a 
 bad one, ' oleum et operam mihi perdidisse uidentur qui regum 
 legibus antiquitatis illam robiginem reddere studuerunt quam iam 
 turn detersum esse apparet cum in Papirianum ius recipereutur.' 
 
 e. Antiqq. Eom. 2. 26 end. 
 
 /. Stephen's Blaokstone 6. 4. Hale, 1 P. 0. c. 29. See 25 Edw. 3rd, 
 St. 5, c. 2. 
 
 g. Antiqq. Eom. 2. 10. This chapter contains an interesting ac- 
 count of the reciprocal rights and duties of patron and client. 
 The relation bears an obvious parallel to that of lord and vassal. 
 Stephen's Blackstone, 2. pt. 1. ch. 2. ' of Tenures.' In both cases, 
 doubtless, the members of the privileged class gathered round 
 them and attached to them the non-privileged as long as they 
 could. When too numerous to be attached, the latter became a 
 definite political order, with a grievance. 
 
 As to breaches of duty in this relation Dionysius says, ci 5^ tis 
 i^e\eyx9elri tovtuv tl 5iO7rpaTT6/xci'0s ^vo^os ^i" Tip vbiufi Trjs wpoSoaiat 
 Sv iKipiaaev o Pu/iuXos. rhv Sk oKovto, rif /SouXo/i^cij) KTetvtiv Sffiov ^i» 
 <i)S Sufia Tou KaTaxSovlov Aios ^do% yap TojficUois Sffous i^ovXovro 
 viproivl reOvdvai rd tovtuiv ffdinara BeGiv bTifS-ifrivi /jdXurTa di rms 
 KCLTaX^oviots KaToyofiaj^eiv, 
 
 h, Plut. Bomulus 32. t6v S' &iroSoixevov yvvaiKa {iBrjKe vopt-ov) Siardai 
 •)(6oviots 0eoLS. 
 
 i. Liv. 2. 8. See too 3. 55. 
 
 k. Liv. 2. 83. 
 
 {. Liv. 3. 55. Gum religions inuiQlatos eos turn lege etiam fecerunt 
 
 Digitized by Microsoft® 
 
Regal Period. 41 
 
 sauoiendo ut qui tribunis plebis aedilibus iudioibus deoemuiris 
 nocuisBet eins caput loni Bacrum eseet familia ad aedem Cereris 
 Liberi Liberaeque uenum iret. See too Dionys. Autiqq. 6. 89. 
 
 TO. Liv. 3. 32: 7. 41: 9. 39: 36. 38. 
 
 n. Pro Balbo 14. 33. Sauetiones sacrandae sunt aut genere ipso aut 
 obtesiatione legis aut poenae cum caput eius qui coutra f ecerit 
 consecratur. Frag, pro Tullio 5. 47. recitauit... legem antiquam 
 de legibus saeratis quae iubeat impune occidi eum qui tribunwm, 
 pleb. pulsaiierit. 
 
 o. Festus Sacratae leges and sacer mons. At homo sacer est is quern 
 populus indicauit ob malefieium ; neque fas est eum immolari sed 
 qui occidit parricidi non damnatur; nam lege tribunioia prima 
 cauetur, si quis eu/a qui eo plebei scito sacer sit Occident, parricida 
 ne sit. 
 
 p. Mommsen's Hist. 2. 2. tr. p. 282. 
 
 q. ib. 1. 12 tr. p. 184. 
 
 r. Criminal-reoht Abscb. 1. p. 128. C£. 3. 5. p. 393. 
 
 s. See Blackstone 4. c. 24, on the other hand Hale P. C. 1. c. 42. 
 The original source of Blackstone's statement I do not know. It 
 ia not Coke on Lytt. § 128. For Attic law, compare Demosthenes, 
 3rd Philippic, p. 122. xal ari/ios, 4>^<rt, TeBvara- tovto Si X^7et 
 Kadapov Toy Tovrtav TLvd diroicTelj/ajrra elvai. See too Genesis iy. 14. 
 ' Every one that findeth me shall slay me.' The private blood- 
 revenge of Numbers, c. xxxv., is different. 
 
 §7. 
 
 Extension of Family Law to Offences without 
 THE Family. 
 
 The duties, breaches of duty, or offences, as between 
 man and man, whicb have hitherto been noticed, are 
 all connected with the family or with that relation which 
 the Komans must have regarded as analogous to a fa- 
 mily one, from their use of the word patronus\ The 
 following fragment is of much importance, as shewing not 
 only the origin of criminal justice, but also a great increase 
 in its scope and improvement in its application. 
 
 Digitized by Microsoft® 
 
42 Early Roman Law. 
 
 We find in Festus this article -.—Pamcidi quaestoreS 
 ■was the name given to officers wont to be created for 
 the investigation of capital offences. For the word par- 
 ricida did not in every case mean such person as had 
 killed a parent but (also him who had killed) any man 
 soever uncondemned. That this was so is shewn by a 
 law of King Numa Pompilius framed in these words: 'If 
 any shall have done (lit. given) to death a free man wit- 
 tingly and with malicipus purpose let him be pariddas^. 
 It is with the latter part of this passage that we have at 
 present to do; postponing consideration of the quaestors, 
 whose institution need not necessarily, though it may, 
 have been contemporaneous with the enactment of the 
 law. 
 
 It is evidently necessary first to determine the exact 
 meaning oi paricida, which M. Ortolan and Sir Patrick 
 Colquhoun derive in a manner fatal to the conclusions 
 that I venture to think may be drawn from this law. The 
 latter author draws a distinction between paricide with 
 one r and parricide with two, the former from parem and 
 caedo signifying the murder of an equal, i. e. a fellow- 
 citizen, not a slave; the latter from patrem and caedo 
 with a 'softening of the f,' signifying the murder of a 
 father. 
 
 Ortolan attributes to parricidium at least the signi- 
 fication of ' paris-cidium,' without any distinction be- 
 tween the single and double r, and translates the word 
 'meurtre de son semblable".' 
 
 No such distinction as that drawn by Sir P. Colquhoun 
 is to be found, to my knowledge, in any ancient writer. 
 Moreover, if the law be quoted ' verbatim et litteratim,' as 
 the unique retention of a nominative ending in the a-de- 
 clension indicates, the single r goes for nothing, double 
 letters not being written before 200 B. c. The invariable 
 
 Digitized by Microsoft® 
 
Regal Period. 43 
 
 length, however, of the first syllable is irreconcileahle with 
 a derivation from^ar-, paris, especially when we compare 
 homicida, where a lost syllable (-m-) might have produced 
 compensatory lengthening, but has not. 
 
 The meaning, moreover, as given by Ortolan, is too 
 philosophical for an early age, and, as given by Colquhoun, 
 reduces the law to a definition-clause little more than 
 tautological. 
 
 The difficulties of the ordinary derivation are consider- 
 able. At least I know no instance where, in a Latin 
 word, t is assimilated to r. On the whole, though the 
 loss (of nt-) is considerable, I am disposed to trace the 
 word to parenticida with a compensatory lengthening of 
 the a in pdridda. Plautus' comic perenticida is an argu- 
 ment for parenticida having existed, as there is nothing in 
 pera to suggest the nt. 
 
 Verrius Flaccus is apparently in favour of parenticida 
 (non utique is qui parentem occidisset). Quinctilian (Inst. 
 3. 6. 35) oipatricida. 
 
 Mommsen calls these quaestores 'trackers of malicious 
 homicide ' (Spiirer des argen mordes), an expression point- 
 ing rather to the law quoted by Festus than to any deri- 
 vational meaning of Paricida. 
 
 We find in later times the signification ofparriddium 
 extended to cover many cases of murder between relations 
 but not murder generally'*, and there is, I think, on the 
 whole, little doubt that the old word paricida meant 
 strictly murder of a parent. 
 
 If this be the case, the law quoted by Festus involves 
 an important step in criminal legislation. This is no 
 definition of an ill-understood term but the application of 
 a well-understood penalty to a new case. It is not neces- 
 sary that ^parricide proper should have been a common 
 crime : merely that its prohibition was already recognized 
 
 Digitized by Microsoft® 
 
44 Early Roman Law. 
 
 under known sanctions, religious no doubt in origin thougli 
 perfectly practical in effect^ "We have then, probably, 
 here a type of the origin and growth of criminal law, in 
 the utilization of a penalty upon homicide within the 
 family, for the prohibitiojl of homicide within the com- 
 munity. The words paricidas esto do not call a murderer 
 a parricide, as Plutarch absurdly fancies', but, by means of 
 a legal fiction, treat him as one. That this way of dealing 
 with murder continued to be intelligible and practical 
 down to the times of the Republic is shewn by the negative 
 clause (parricida ne sit) in Flaccus' ' first tribunician law' 
 (§ 6. note o). 
 
 As to the manner of enactment of this primitive crimi- 
 nal statute, the procedure under it, the court where such 
 procedure took place, we are alike destitute of any trust- 
 worthy information. 
 
 It is clear that no merely family tribunal could have 
 been competent to deal with offences beyond the pale 
 of the family ; nor is it likely that the delivery of sen- 
 tences so much connected with the peace of the com- 
 munity could have been left to a general gathering, or 
 their execution to Lynch law. A priori reasoning would 
 therefore seem to lead us, in accordance with consistent 
 tradition, to the king as a permanent ex officio judge. 
 Necessity also must soon have been seen for the appoint- 
 ment of regular subordinate officers to apprehend and 
 arraign offenders. 
 
 a. ilfestus, Fatr[omis a patre cur ab antiquis diotus] sit manifestum 
 quia [ut literi sic etiam olientes] numerari inter do[mus familiam 
 quodammodo possunt]. The restorations are those of Muller and 
 Ursinus. Servius on Aen. 6. 609. Patroni quasi patres. 
 
 h. Parrici[di] quaestores appellabantur qui solebant creari caussa 
 rerum capitalium quaerendarum. nam parrioida non utique is 
 qui parentem occidisset dicebatur sed qualemcunque homineni 
 indemnatmn. ita fuisse indicat lex Kumae PompUi regis his com-; 
 
 Digitized by Microsoft® 
 
Regal Period. 45 
 
 posita uqrbis si qui hominem liberum dolo sciens morti duit pari- 
 cidas esto. 
 
 Duit is, I thint, rightly considered by SohoU to be future per- 
 fect. Compare Testus ' duis duaa habet significationes. nam et 
 pro Sis ponebatur et pro dederis,' and Plautus Ampbit. prol. 67 
 sqq. wbere duint stands in juxtaposition with uiderint, ambisset, 
 ambiuerit. 
 
 The very rare s as a nominative ending in the first declension 
 has been remarked. 
 
 If the translation of rerum by offences requires justification, see 
 Festus on ' quadriplator qui...eas res persequerontur quarum ex 
 legibus quadrupU erat actio.' Whether res is or is not etymo- 
 logically connected with 0. H. G. racha (caussa), which Corssen 
 (Beit. 25) denies, this is an unquestionable meaning of the word 
 from which reus surely comes. See Corssen, Ausspr. V. 477. 
 Colqtihoun's Summary of the Eoman Civil Law, pt. 1. § 40. Or- 
 tolan, Histoire de la Legislation Eomaine, § 95. (Explication His- 
 torique, 8"= ed.) 
 . See -lustin Instt. 4. 18. § 6. on the Lex Pompeia de parrioidiis 
 which deals with ' any one that has hastened the death of parent 
 or son or generally of that class of relations which is comprised 
 under the name of parricide.' The list is given by Maroianus, 
 Digest. 48. 9. 1. 
 
 The traditional punishment, which is described in the last-quoted 
 passage of the Institutes, is stated by Modestinus (Dig. 48. 9. 9. pr.) 
 to have been instituted ' more maiorum,' an expression pointing 
 to at least considerable antiquity. See Dionysius 4. 62, who there 
 makes Tarquinius Superbus sew up in an ox-hide and cast into 
 the sea ' as a parricide' one M. AtiUus, a faithless custodian of the 
 Sibylline books. This tallies with Cicero's ' insui in ouleum atque 
 in fluuium deici' (pro Sexto Boscio, 25. 26. §§ 70. 73). So too the 
 Auotor ad Herenn. (1. 13. 23) quotes the ' law' under which Mal- 
 leolus suffered as follows : ' qui parentem necasse iudicatus erit ut 
 is obuolUtus et obUgatus corio deuehatur in profiuentem.' This 
 sentence, though inserted sandwich-fashion between two fragments 
 from the Twelve Tables, is, in form at least, clearly of later date. 
 In the passage copied by Cicero (De Invent. 2. 50. § 143) from this 
 last, only the fragments from the Twelve Tables occur, though 
 mention is made (§ 149) of certain laws under -which the particular 
 criminal suffered this penalty. 
 
 Valerius Maximus gives the same story about M. Atilius as that 
 given by Dionysius, adding that the punishment was ' non multo 
 post' (with a variant ' multo post'!) legally enacted for parricide. 
 
 Digitized by Microsoft® 
 
46 Early Roman Law. 
 
 Plutarch (Eom., 32) makes L. Hostius ' after the Hannibalian 
 war' the first parrioide. 
 
 PublioiuB Malleolus, above-mentioned (a matricide), is said by 
 Floras (Epit. Liv. 68) to have been the first sewn in a leathern 
 sack and flung into the sea. 
 
 Plutarch, Eomulus 32. He evidently refers the law to this hero. 
 "ISiof Sk TO firiSe/dcai SIktip Kara warpoKTOvai/ opiffavra iracrav ixSfioijn- 
 viav varpoKTOviav irpoaairSv (is tovtov nkv ivroi ^TO^offs iKebov Si 
 ASwdrov, 
 
 §8. 
 
 Crimes and "Wrongs. Remissible Penalty. 
 
 Whatever were the penalties involved in the sen- 
 tence paricidas esto there seems no reason to heUeve 
 that they could be remitted at the option of those most 
 nearly affected by the murder. Otherwise in Horatius' 
 case, to be shortly noticed, the whole machinery of the 
 trial perdaellionis is unnecessary: the hero might have 
 been at once put upon his trial for murder and discharged, * 
 on the father (as the person damnified by his daughter's 
 murder) expressing a wish to waive the charge. The 
 present section will be devoted to other grounds for be- 
 lieving that when the law attributed to Numa (si quis... 
 paricidas esto) was passed, the proper distinction had 
 already been drawn between a public and private offence. 
 The inexactness of Blackstone's definition of a crime as 
 differing from a civil injury has been well shewn by Austin 
 from whose l7th lecture (p. 417 ed. 1869) I quote the 
 following passage. 'The difference between crimes and 
 civil injuries is not to be sought for in a supposed differ- 
 ence between their tendencies, but in the difference be- 
 tween the modes wherein they are respectively pursued or 
 wherein the sanction is applied in the two cases. An 
 offence which is pursued at the discretion of the injureij 
 
 Digitized by Microsoft® 
 
Regal Period. 47 
 
 party or his representative is a civil injury. An ofifence 
 which is pursued by the sovereign or by the subordinates 
 of the sovereign is a crime.' If we substitute for ' sove- 
 reign, &c.' the words ' any member of the state ' we arrive 
 at the definition given in the Institutes of ' Public Suits,' 
 so called ' because, generally speaking, any of the people 
 may prosecute them".' E converse, in such cases, no private 
 individual can remit the penalty. But a different case 
 was probably recognised by the very same law which we 
 are now considering, in early Eoman times; a case where 
 the wrong was merely the private concern of the parties 
 suffering it, and the penalty might be remitted at their 
 pleasure. I must premise that the point in question 
 depends partly on an emendation though one generally 
 received. 
 
 ' It was provided,' says Servius, ' in the laws of Numa, 
 that, if any had unintentionally killed a man, he should, 
 for the life of the slain man, present to the agnati of 
 the latter a ram in public meeting''. This passage, 
 though not coming to us with the same internal evidence 
 in its favor as the law quoted by Verrius Flaccus, certainly 
 seems from its subject-matter and language to contain 
 part of a subsequent paragraph of that very law. If so, 
 we have involuntary homicide recognised as an injury 
 merely to the family of the deceased and which might be 
 condoned by them. The formal tender however of com- 
 pensation must have been made and accepted under cir- 
 cumstances of publicity (in contione). Nor does there 
 appear any great anachronism in putting upon contio 
 here the interpretation given by Flaccus elsewhere. 
 
 ' Contio signifies a meeting, but only a meeting which 
 is called together by a magistrate or public priest",' Pos- 
 sibly we may have here the first trace of a court of bur- 
 gesses held, at least, for purposes of record. Such a 
 
 Digitized by Microsoft® 
 
48 Early Roman Law. 
 
 meeting is not to be confounded witli the chance spec- 
 tators -who side with this or that disputant in the well- 
 known Homeric trial-scene*, before the regular court, 
 (there judicial) is assembled. The fact, however, at issue 
 in the Greek case — the payment or non-payment of com-, 
 pensation for homicide — ^affords an interesting parallel to. 
 the similar practice of which we have this slight trace in 
 early Roman times, and which is to be found to a much 
 greater extent in the infancy of most northern European 
 nations. It does not follow that the exaction of blood-: 
 revenge for murder was allowed among the Romans at any. 
 time of which we have knowledge °, or, on the other hand, 
 because no composition is oflered in Horatius' case, that 
 therefore none existed in cases of involuntary homicide'. 
 
 It was premised that the main point in this passage — 
 of compensation for or at least condonation of involuntary 
 homicide — depended on an emendation. The words trans- 
 lated 'to the agnati of the slain man in public meeting,' 
 iagnatis eius in contione, run in the origiual 'et natis eius 
 in cautione.' The last words, which SchoM appears to 
 retain (Reliqq. 150), might bear the meaning 'by way of 
 security,' i.e., for further or other payment, though one 
 would have expected in cautionem. This meaning is by 
 no means adverse to the general aspect of the transaction, 
 for the ram is more likely to have been a mere earnest or 
 formal tender than an actual compensation. The words 
 et natis appear to me totally unintelligible here, and may 
 have arisen very easily from a^matis through ac natis. 
 The verb offerre, too, used by Servius, indicates a presen- 
 tation or tender to some human being, and is therefore in 
 favor of agnatis. The absolute sense of offering a victim 
 (to Heaven understood) is late, or at least not Servian. 
 
 The view then here taken of involuntary homicide as 
 a private injury, condonable by those interested, seems 
 
 Digitized by Microsoft® 
 
Regal Period. 49 
 
 clearly made out. That the transaction took place under 
 religious auspices is highly probable; the "public priest,' 
 who could call the contio, would doubtless preside over it. 
 And, as the wrath of heavfen as well as that of man had 
 to be appeased, the earnest of compensation might well 
 become the vicarious victim or purificatory sacrifice. This 
 meaning, though foreign to offerre, may be gathered from 
 other expressions of Servius as well as of Flaccus*'. The 
 Athenian law tallied in both points with the Roman ; the 
 homicide must be purified, but he must first get the 
 consent of the slain man's relatives ''. 
 
 Finally, it should not be overlooked that in the ancient 
 fragment (si quis...doto sciens...) preserved by Flaccus, 
 and its probable sequel (si c^\s..Amprudens...) para- 
 phrased by Servius, we have not only a real distinction 
 drawn between crimes and wrongs, but a clear definition 
 of murder as characterised by that malice prepense which 
 still constitutes the grand criterion of the same crime in 
 our own common law. The same distinction and the same 
 procedure in case of involuntary homicide was preserved by 
 the Twelve Tables. 'To fling a weapon,' says Cicero, 'is a 
 rcatter of intent; to hit the man whom you do not wish 
 to hit, a matter of chance. Hence the substitution (perhaps 
 •vicarious slaughter') of that ram in your legal proceed- 
 ings, i/ a mans weapon hath flown from his hand rather 
 than he hath flung it\' The italicised words are quoted by 
 the same author elsewhere^, as a law of the Twelve Tables. 
 The coincidence in kind of the Roman vicarious sacrifice 
 with that mentioned in Genesis xxii. 13, though curious, 
 can scarce be more than accidental. 
 
 a, luatin. Instt. 4. 18. 1. Putlioa iudioia dicta sunt quod ouiuis ex 
 
 populo executio eorum plerumque datnr. 
 6. Servius on ipse...ariea Eel. 4. 43. Sane in Numae legibus cautum 
 
 R. L. i> 
 
 Digitized by Microsoft® 
 
50 Early Roman Law. 
 
 est ut si quis imprudens oooidisset hominem pro oapite oooisi 
 aguatis eius in oontione offerret arietem. 
 t. FestuB s.v. contio. 
 
 d. Homer, Iliad, 19. 497—508. 
 
 e. Mommsen, Hist. 1. 11. (p. 158. n. tr.) 
 
 /. as Zumpt argues Absch. 1. Cap. 9. p. 127. 
 
 g. Servius on another ipse aries Geor. 3. 387. bene ipse addit, quasi 
 qui aut dominus gregis est aut qui contra pro domino capital darl 
 consueuerat. nam apud maiores tomicidi poenam noxius arietie 
 damno luebat, quod inregum legibus legitur. The passage in 
 Festus is mutilated, but may be restored with tolerable certainty 
 ' Subici ar[ies dicitur qui pro occiso datur] quod fit ut ait Cincius 
 [in libro de officio iuris-]-consulti exemplo At-[-Hamantis ex quo or 
 -heniensium apud quos] expiandi gratia aries in-[-igitur ab eo qui 
 inuitus sce-]-lus admisit, poenae p[endendae loco]. For Muller's 
 inigiiur Mercklin reads m-actatur. inigitur seems the better on 
 account of the following passage in Festus. Subigere arietem An- 
 tistius esse ait dare arietem qui pro se agatur caedatur. The last 
 explanation is doubtless correct, sub as usual in composition mean- 
 ing substitution, and subigi to be led as a substitute for one's self, 
 being written subici from the old unity of symbol for c and g and 
 after confused with a compound of icere or iacSre (see note i.) 
 
 h. Demosthenes c. Aristoc. 6i3. 4. H oji' o v6im>s KeXevet; rbv dXowa 
 ^7r' 6.K0\)(7ltp ^6viii...<p£vy€LV ^ws B.V alSitryiTal rts rdv iv yha rod 
 ireirovBoTos r-qviKavra S rJKCiv SiSuKev lariv iv Tpowov — oix i' av 
 TVXV — dXXa Kcd Bvcai k.t.\. etpr)Kev S, xp^l Toiijaai. 
 
 There is an interesting variant aldia-niral riva recognised by 
 Harpocration {Al5^aair6ac...iv T(f ko.t' ^ApurroKpaTovs avrl tov e^iki- 
 aaaSat Kal xe'iffai,) which might perhaps mean (like e7ri9a«/i(i{«i», 
 Aristoph. Nubes 1147) to compliment by a present. The law, 
 however, quoted by Dem. adv. Macartatus is in favour of the con- 
 struction _^7'st given above. 
 
 I. Cicero Topioa 17. 64. nam iaoere telum uoluntatis est, ferire quem 
 nolueris fortunae. ex quo aries ille subiieitur in uestris actionibus 
 si telum, manufugit magis quam iecit. 
 
 j. pro Tullio 21. 51. Lex est in xii tabulis si telum manufugit irngH 
 quam iecit. 
 
 Digitized by Microsoft® 
 
ttegal Period. '51 
 
 §9. 
 
 Crimes and "Wrongs. Few Property Offences. 
 
 It does not of course follow, from the fact of a distinc- 
 tion having been drawn between crimes and wrongs, that 
 particular offences were classed under the one head or 
 the other exactly as we should class them. In fact it is 
 more than doubtful whether at the early period we are 
 considering, the law yet took cognisance of civil injuries 
 as exclusively matters for conipensation at all. Only, a 
 number of actions being recognised as prima facie penal 
 (and that most likely at first because violations of divine 
 law), it was understood that the penalty might in some 
 cases be remitted by private persons and in other cases 
 not. The religious origin of Roman law produces a 
 curious result in the way in which most offences against 
 property and many against the person are treated. Not 
 only cases of ordinary theft but even robbery and assault, 
 all of which are of course with modern nations matter for 
 indictment, were not so with the Romans, but simply con- 
 stituted an obligation ex delicto which might or might not 
 be enforced at the pure option of the sufferer alone. The 
 reason probably is that these offences did not attract 
 legislative notice until the time was past for identifying 
 them with breaches of religious duty. The difficulty of 
 such identification is doubtless one reason for the paucity 
 in early legislation of rules relating to property. Another 
 is that which is alleged by Mr Maine in the 10th chapter 
 of Ancient Law, and which is specially applicable to 
 Rome — the small proportionate number, in an infant com- 
 munity, of persons between whom any dispute as to pro- 
 perty could arise. There could be neither offence nor 
 contested claim between members of a faihily as to goods 
 
 D2 
 
 Digitized by Microsoft® 
 
52 Early Roman Law. 
 
 or lands which were in the eye of the law exclusively 
 owned by the head. Accordingly the few property of- 
 fences noticed by regal law are encroachments upon the . 
 family inheritance as a whole, or its produce : and these, it 
 must be remarked, are not treated, in accordance with the 
 spirit of later legislation, as subjects for civil action but as 
 primes, prohibited by religious sanctions of the usual tre- 
 mendous kind. 
 
 Such is the enactment attributed to Numa that he 
 who ploughed up a landmark should be devoted to the 
 gods, himself and his oxen". Examples will at once occur, 
 from the Old Testament, of the same feeling of sanctity 
 attached to boundaries and to patrimony generally''. It is 
 possible moreover that the lands of a gens, which no doubt 
 lay together, were divided into family portions by no more 
 substantial boundaries than the imaginary lines drawn 
 from post to post, which still with us often serve to divide 
 small holdings of garden-ground : in which case the 
 boundary stone assumes an importance scarcely intelligible 
 to the owners of fenced and hedged estates. , 
 
 With this boundary law may be ranked, in the charac- 
 ter of its sanction and probably in the antiquity of its 
 origin, an enactment of the Twelve Tables against noctur- 
 nal theft ; in the latter point, one against the charming 
 away of a neighbour's crop. Whoever should have been 
 guilty of the second offence was liable doubtless to some 
 penalty, but what, Pliny does not tell us°. The offence 
 of grazing or cutting a crop on arable land by night waa 
 anciently capital, the culprit being hung up as a victim to 
 the goddess of harvest, and so slain : a mitigation of this 
 law in the case of juvenile delinquents is, from mention of 
 the praetor, probably later*. The supposition, indeed, of 
 a date prior to the Twelve Tables for the two last-men- 
 tioned enactments is a mere supposition, dependent on 
 
 Digitized by Microsoft® 
 
Hegal Period. ■ 3^ 
 
 subject-matter and the archaic character of the sanction. 
 Nor have we even this last reason for referring to the 
 regal period the laws punishing an incendiary with burn- 
 ing and a false witness with hurling from the Tarpeian 
 rock ; though there is certainly ground for attributing high 
 antiquity to them if not, with Mommsen, royal origin'. 
 
 a. Festus: Termino sacra faeiebant quod in eius tutola fines agrorum 
 eBse putabant. denique Numa Pompilius statuit eum qui termi- 
 uum exarasset et ipsum et boues sacros esse. 
 
 Dionysius Antiqq. 2. 74. ei S4 tk dtpavUraev rj iieradelri rois 
 Spovs Updi/ evo/ioS^rrjtrev (o 'So/iS.s) etvai. rif delf (Aii opiif) tov tovtuv 
 rt. 5t.a.Trpa.^tifi€vov, tva T(fi ^ovXofi^Pcp KTcivuf aOrov Jjs UpoavKov ij Tfl 
 aff^ii\£La Kal to Kndapov fuaff/iarot €ivai tt/joo"^. 
 
 6. Deuteronomy xix. 14: xxvii. 17. Euth iv. 3—8. Numbers xxxvi. 
 7. 1 Kings xxi. 3. &c. 
 
 c. Pliny Hist. Nat. 28. 4. 17. Quid? nou et legum ipsarum in xit 
 tabulis uerba sunt qui fruges excantassit. See Servius on Bel. 8. 
 29 (atque satas alio uidi traducere messes) magiois quibusdam, 
 artibus boe fiebat. unde est in xii tabulis jicue alienam segetem 
 pellexeris quod et Varro et multi seriptores fieri deprehensum ani- 
 maduertnnt. The alleged fragment from Seruius is, in spite of 
 the teehnical-looMng word pellicere, justly regarded mth suspicion 
 by SchoU (Beliqq. 49) because of the use of the second person in, 
 the prohibition and the conjunctive for the imperative mood. 
 
 d. Pliny H. N. 18. 3. 12. Frugem quidem aratro quaeaitam furtim 
 noctu pauisse ac seeuisse puberi xii tabulis capital erat suspen- 
 Bumque Cereri neeari iubebant grauius quam in homicidio conuio- 
 turn : impubem praetoris arbitratu uerberari noxiamve dupho- 
 nemue decerni. 
 
 Tioaii^m decerni most probably means an order for the giving-up 
 of the delinquent to the person aggrieved. 
 
 e. Mommsen Hist. 1. 11. p. 158 tr. The punishment of the incen- 
 diary is quoted Dig. 47. 9. 9. from Gains on the Twelve Tables : 
 but there is nothing in the quotation to shew that the law comes 
 from them. 
 
 The punishment is said to have been retained in later timeB. 
 So Callistratus in Dig. 48. 19. 28. 12. 
 
 The passage in Aulus GeEius' Attic Nights, which is our au- 
 thority for the punishment of false witness, seems rather to place 
 it before the time of the Twelve Tables. 20- 1. 53. , 
 
 Digitized by Microsoft® 
 
54 Early Roman Law. 
 
 An putas, Fauorine, si non ilia etiam ex xn tatnlis de ^gstimo- 
 niis falsis poena aboleuisset et si nnnc quoque ut antea, qui falBunj 
 testimonium dijdsse conuietus esset, e saxo Taipeio deiiceretnr, 
 mentituroa fnisse pro testimonio tam multos quam uidemuB? 
 The word etiam indicates, 1 0iink, a difEerent and milder penalty 
 in the Twelve Tables. 
 
 § 10. 
 
 Early Legislature and Judicature. 
 Kings. Pontiffs. 
 
 In the so-called laws hitherto cited whether we consider 
 ■duty, offence or sanction, as also in the oldest customs of 
 the Eoman people, a religious origin is apparent. It is, 
 in fact, this prevailing, religious character, which, coupled 
 ■With the reverent retention of very old linguistic forms, 
 ■seems to justify us in dating these fragments before those 
 of the Twelve Tables. A slight degree of weight may 
 also be given to the names with which the former are 
 traditionally connected. But of their regular enactment 
 by a civil authority, as of the procedure under them and 
 the execution of their sentences, we know next to nothing. 
 Our historical authorities refer the first Roman laws as well 
 as the oldest Roman customs, civil or religious, to one or 
 pther of the well-known kings. These may possibly have 
 been real persons, with the exception of Romulus, who is 
 a mere eponymous hero. A Numa^ Tullus, and Ancus 
 may have been actual chieftains of the Pomponii, Hostilii, 
 and Marcii, who afterwards claimed them as ancestors'. 
 As to the author of the Servian reform, there is such a 
 uniform persistent and peculiar character in the traditions 
 i&nd usages connected with him, that it is difficult to avoid 
 believing him to be a real person, in spite of the miracu- 
 
 Digitized by Microsoft® 
 
Regal Period. 55 
 
 lous stories clearly arising from his first name. The 
 sovereignty of the Tarquinian family, their oppressive rule 
 and total expulsion have never been successfully called in 
 question. 
 
 As a record, however, of actual facts, it has now come 
 to be generally agreed that the history of the regal period 
 possesses little value. It is sufficient here to refer to the 
 continual admixture of the supernatural element and to 
 the unparalleled average length of the reigns. And this 
 was not a hereditary monarchy where a king may ascend 
 the throne very young, like George the third of England 
 and Lewis the fourteenth of France. Each king of Kome 
 must have at least attained early manhood before royalty, 
 and moreover the career of these wonderful men was in 
 four cases cut short by a violent death and in one by 
 deposition'' 
 
 The facts, however, narrated by the historians of the 
 regal period, may, where they involve any legal or consti- 
 tutional point, have some value as typically though not 
 actually true. They will at least be likely to have been 
 invented in accordance with what was believed to be 
 ancient practice. The some remark applies to general 
 statements of old constitutional principles. And if we find 
 that our conclusions drawn from these grounds tally with 
 what is, though scanty, the best evidence of all — the 
 formulas and customs preserved by antiquarians — we 
 may perhaps hope that we have attained something like 
 truth. 
 
 The legislative power — at least that of proposing laws 
 .^-is generally represented as vested in the king, the senate 
 being merely a body of advisers chosen at the king's plea- 
 sure, while the function of the burgess-assembly (in this 
 respect) is restricted to the ratification of laws which the 
 king prepares and propounds". 
 
 Digitized by Microsoft® 
 
56 Eafiy Roman Law. 
 
 We. should rather have been disposed, from the •cha- 
 racter of the earliest laws, to attribute them to the pontiffs, 
 whom on- other grounds we know to have exercised powers 
 and discharged duties of secular as well as religious 
 importance. 
 
 We have seen how their superintendence of the gentile 
 sacra gave them the control of the important business of 
 arrogation. They had the management of the Calendar 
 with all the political influence flowing from exclusive 
 knowledge of the times when public business could pro- 
 perly be transacted. It seems strange at first sight to 
 find these depositories of sacred lore overseers of worhs as 
 well as days. But they were undoubtedly from time im- 
 memorial connected with the construction and repair of 
 the bridge which formed the communication between 
 Rome and the Gate fortress (laniculum) on the Etrurian 
 side* On Mommsen's hypothesis, that pons in this word 
 means not merely 'bridge,' but, according to the most 
 probable etymology, ' way ' generally (Gurtius, Grundzuge 
 pa. 253), the occurrence of pontiffs in other old Latin 
 communities not connected with any river is explained, 
 and the great importance is evident of an offiee which 
 superintended the means of communication between the 
 originally detached clan-settlements". 
 
 The author first quoted recognizes the great part which 
 these authorities played in early Rome, attributing to 
 them, among other things, the fixing and promulgating of 
 ' the general exoteric precepts of ritual which were known 
 under the name of the royal laws' A similar conclusion 
 drawn from the originally religious character of these laws 
 .has been hinted at above ; but their subsequent develope- 
 ment and application must be ignored before they can be 
 barely described as ' precepts of ritual.' 
 
 Whether the complexion of the first laws came merely 
 
 Digitized by Microsoft® 
 
Regal Period, - 57 
 
 from-tbe influence of thepontifF§ with the king or whether, 
 as I believe, the regal power itself was in its remote origin 
 a developement of the pontifical, I must leave to the 
 reader's decision'. 
 
 As to the carrying out of law, the old authorities in 
 general attribute supreme judicial and executive power 
 to the king: such power if occurring in other hands is 
 only either permitted or delegated by him. Thus Diony- 
 sius tells us that it was part of Romulus' prerogative to 
 decide upon the most serious cases himself while he en- 
 trusted the minor ones to his senators^ ; Pomponius, that, 
 as to magistracy the kings had, in the commencement of 
 the Roman polity, the whole power, &c. &c.''. 
 
 The above and similar passages prove a received tra- 
 dition of respectable antiquity, borne out to some extent 
 by what, we know in more historical times of the dictator- 
 ship, an office which the Romans regarded as closely 
 resembling the kingly. It is not however so much from 
 general statements about the early constitution of Rome 
 that we derive our most trustworthy information as from 
 slight references to practice — the safest perhaps when un- 
 designed — in the accounts of early cases. Of these, what 
 have been reported by the historians are of course only 
 such as were remarkable for some matter of great public 
 interest. To us, they have a different value as preserving 
 relics of ordinary practice; and, in this point of view, the 
 legendary character of the facts is of little moment, pro- 
 vided the legend be old. Such is Livy's account of the 
 trial of the surviving and victorious Horatiusfor his sister's 
 murder'- 
 
 Whether we consider the whole story of the Horatii as . 
 a fiction or not, it is clear that the latter part contains the 
 facts and formulae of a very old procedure referred by our 
 best historical authority to the first century of Rome's 
 
 Digitized by Microsoft® 
 
58 Early Roman Law. 
 
 existence. The narrative of the punishment of Mettlus, on 
 the other hand, contains no remnant of antiquity, and 
 would, moi-eover, constitute, at best, merely an instance of 
 military imperium. 
 
 NVM. POMPIL. is read in the exergue of a denarius figured by 
 Patin. Obverse L. POMPON. MOLO. This, howerer, being an 
 equestrian family is not likely to have belonged to the old aris- 
 tocracy. Pavor and Pallor, to whom TuUus vows a temple (Livy 
 1. 27) are supposed to be represented on denarii of L. Hostilius 
 Saserna. On both brass and silver coins of L. Marcius Censorinus 
 appear heads of Numa and Ancus. (The latter was said to be the 
 sou of Numa Marcius by Pompilia, daughter of king Numa.) 
 
 Dionysius (Antiqq. 1. 75) soberly reckons up the years of the 
 seven reigns. The total is 244. Even the utterly improbable 
 supposition of a year of 10 months during the whole of the regal 
 period only reduces the number to 203. This is within 7 years of 
 the first seven kings of Judah who begin with three reigns of 48^ 
 31 and 40 years, and are moreover hereditary after the first two 
 reigns. The tremendous reigns of Lewis the fourteenth and 
 fifteenth of France only raise the number of years from the ac- 
 cession of Charles the ninth to the execution of Lewis the sixteenth 
 to 283 years. There are here three violent deaths, though not of 
 young men: but it must be remembered that the monarchy was 
 hereditary and of the two princes first mentioned the one ascended 
 the throne at 5 and the other at 15 years of age. No selection of 
 consecutive reigns in English history comes to any thing like 
 even this. 
 
 Dionysius Antiqq. 2. 14. ry Sh Sij/wtiki} xXiJfe rpla raPra (o 
 'Pw/tuXos) iwirpe^l/eif apxt^tpetnd^eLV re Kal vhp.ovs ^iriKvpovv koX irepl 
 iro\ip.ov SiayiyvdiffKiiv Urav 6 jSairtXe^s ^4'V) see too 4. IB. Tacitus 
 Ann. 3. 26. Nobis Bomnlus ut libitum imperitaverat : dein Numa 
 religionibus et diuino iure populum deuinxit, repertaque quaedam 
 a Tullo et Anco, sed praecipuos Seruius Tullius sanctor legum fuit 
 quis etiam reges obtemperarent. The last words point of course 
 to a narrowing of the royal power which will be noticed hereafter. 
 Zumpt argues very strongly for a narrowing of the royal legislative 
 power from the earliest times by the necessity for consent on th6 
 part of the comitia curiata, Erster Absoh. Cap. 2. He relies 
 mainly upon passages of Dionysius such as that above quoted, 
 4, 13, Tobs vi/iovs (d ToiiXXios) ... iKipaire rais <pparpai.s &0., and upon 
 
 Digitized by Microsoft® 
 
Regal Period. 59 
 
 Pomponius (Dig. 1. 2. 2. 2), leges (Eomnlus)...curiatas ad populum 
 tulit, tulerunt et sequentes reges. 
 
 d. Festus. laniculum dictum quod per eum Eomanus popnius pri- 
 mitus transient in agrum Etruscum. The road lay in the reverse 
 direction to Porseua : and it was doubtless originally for the 
 security of Rome that this bridge, was always to be of wood and 
 easily destructible. Dionysius Autiqq. 3. 45. xal t^v ivKlvriv 
 y4^vpav ■^v &vev xaX/coC /cot aiS/ipov Bi/ui inr' airCv diaKparetaSai juv 
 (iXbip ixeivos (d "A7K0S) iin.6eivai rifi Ti/3^pei \iycTai ijii dxpi- toS 
 TrapovTos Sia(pv\dTTovm' Upiv elvai. ro/iffoires. el Si ti irov^aaev 
 OUT^S /i^pos ol Upo<t>avTai Bepairfiovai. 
 
 The mutilated words in Festus (s. v. SuUicium) ne inrumpendi 
 p. (for inrumiendi) sublieibuS cauata... are, as it seems to me, more 
 likely to have been p[otestas sit] than (as Miiller) p[ontis sublici]. 
 
 e. Dr Donaldson gives a strange meaning to pons (a weight laid 
 down) in pontifex, holding this word to describe ' the functions of 
 the priest who settled the atonement for a specific fault by the 
 imposition of a fine &c. &c.' Varronianus 13 § 9. Varro's 
 derivation is surely safer, ' ego a ponte arbitror, nam ab his (pon- 
 tificibus) Bublicius est factus primum ut restitutus saepe, cum in 
 eo sacra et uls et cis Tiberim non mediocri ritu fiant. 
 
 The passage in Mommsen is 1. 12. (pp. 178, 9 of tr.) The 
 pontiffs might not ride on horseback but only in a carriage. Could 
 this have been meant to bring the state of the roads home to 
 them ? See, for the fact, a magnificent specimen of Servius, (on 
 exsortem Aen. 8. 552,) accounting for the apparently unclerical 
 conduct of Aeneas, who is well known to have been a pontiff. 
 /. The tradition about the typical prince Aeneas is really somewhat 
 in point. More so, is the retention, in republican times, of the 
 proscribed title rex in connection with the sacra flone, see Diony- 
 sius Antiqq. 5. 1. Livy's account clearly contains some truth. 
 Et quia quaedam publica sacra per ipsos reges factitata erant... 
 regem sacrificulum creaut (primi oonsules) 2. 2. id sacerdotium, 
 adds Livy, pontifici subiecere, differing from Flaccus who gives 
 the order (s. v. Ordo) thus. Rex, Flamen Dialis, Flamen Mar- 
 tialis, Flamen Quirinalis, Pontifex Maximus. The cognomina ' 
 Eex and Eegulus may have indicated tradition of sacerdotal 
 functions. The former was borne by a (plebeian ?) branch of the 
 Marcii, the alleged descendants of Numa and Ancus : the latter by 
 a branch, also said to be plebeian, of the Atilii, one of whom is 
 made out, it will be remembered, by Dionysius to have been a 
 custodian of the SibyUine books. Eeginus, a cognomen of the 
 Antistii, may perhaps have a local meaning. It is unneoessary 
 
 Digitized by Microsoft® 
 
6o Early' Roman Law. 
 
 to (jaote instanees, from other nations, of the connection and 
 
 frequent identity of king and priest in early times, wMoh is one 
 
 of the commonplaces of history. 
 g. Antiqq. 2. 14. jSatriXe? /ikv oSi> i^vPV^o ™'f '^^ y(pa ... r&v iZiKti- 
 
 imrav ri iiAyiVTa /liv airbr SiKofeu' rd Si iXdrroira rots PovheuTiits 
 
 imrpiireiv. See also 2. 29. 
 h. Digest. 1. 2. 1. 14, 
 I. Livy, 2. 23, 
 
 §11. 
 THE STORY OF HORATIUS. 
 
 The part of the story witli whicli we are concerned 
 commences with Horatius being raptus in 'ius (the regu- 
 lar phrase of a later period) ad regent — haled off to 
 the king's court. If any stress is to be laid upon this 
 expression it must almost imply the existence of regular 
 police officers, for who else would be likely to arrest 
 Horatius? Scarcely the people who afterwards acquit 
 him*: certainly not the king, who shuns the odium of such 
 a trial and actually suggests a way of escape to the accused. 
 If there were such officers in the time at which the story 
 is placed, thisy would in all probability be the quaestores 
 parricidi before mentioned — the ' trackers of murder' not 
 to be identified with the duumviri, but, according to 
 Mommsen's correct view, "standing deputies, whose pri- 
 mary duty was to search for and arrest murderers, and 
 who therefore acted as a sort of police"." To proceed, 
 however, with the story. "The king, to avoid giving his 
 personal sanction to a sentence so sad and so unpopular, or 
 to an execution in pursuance of such sentence, summoning 
 an assembly of the people, says : I create, according to 
 law, two commissioners to decide the charge of perdueUio 
 
 Digitized by Microsoft® 
 
Regal Period. 6i 
 
 in ihe case of Horatius. This law was one of direful 
 strain". 'Let the two commissioners decide the charge of 
 perduellio. If he (the accused) shall have appealed from 
 them, let liim contest the case with them on the appeal. 
 If they shall prevail, veil his head, hang him by a rope to 
 a barren tree**, scourge him either within or without the 
 pomoerium.' Accordingly, when the commissioners created 
 under this law, who did not consider themselves competent, 
 under the law, to acquit even a guiltless homicide, had 
 found Horatius guilty, 'Horatius,' says one of them, 'I 
 decide the charge of perduellio against thee. Go, lictor, 
 bind his hands.' The lictor had approached and was 
 casting on the noose. Then Horatius, at the instance of 
 TuUus, a merciful interpreter of the law, says 'I appeal.' 
 So the case was contested on the appeal before the people." 
 
 Then follow the speech of the father Horatius at the 
 historical Horatian Trophy; the acquittal of the son, con- 
 ditioned on the expiation of his blood-guiltiness at the 
 public cost; the institution of the traditional purificatory 
 rites of the Horatian gens; and the erection of the Sister's 
 Beam, ever after repaired at the national expense, beneath 
 w^hich the brother is sent, with veiled head, in nominal 
 execution of the first sentence. 
 
 With the origin of the legend, as a matter of fact, I 
 have not here to do, so that I need not pause to trace the 
 three Roman champions (as possibly the three later de- 
 fenders of the bridge), to some surname of the Horatian 
 family ; nor the rest of the story to the peculiar Horatian 
 sacra, the Horatian pillar, and the Tigillum Sororium, 
 under the title of which last another account appears in 
 Festu8°. Whether founded in fact or not, the narrative has 
 too poetical and dramatic a form to be much relied upon for 
 our present purpose. It is different with the professed 
 quotation, the antiquity of which there seems no reason 
 
 Digitized by Microsoft® 
 
62 Early Roman Law. 
 
 to doubt. From this we gather the existence ia the regal 
 period of a commission to try perduellio, an appeal from 
 the commissioners' decision, and a definite public penalty 
 assigned in case of that decision being supported. For all 
 else we have to depend upon the statements of later 
 historians and orators, and the illustrations afiforded by 
 subsequent practice. The latter class of authorities will 
 be noticed as they apply; to the former belong the account 
 of Livy given above, that of Flaccus^ and one by Diony- 
 sius which is appended hereto '. 
 
 a. Dionysiug (Antiqci. 3. 22) says rpicripxoi'Ta.i (t$ ^ao-iXei) tup iroXi- 
 TtKuif ficSpes oiK a(paveU rdv ^Opariov &yovTes inro blKtiv. 
 
 T). Mommsen Hist. 1. ch. 11 (p. 159 tr.). See generally below § 18. 
 
 u. Dr Donaldson, who detects the Satumian metre in this formula, 
 apparently gives carmen what is generally conceived to be its ori- 
 ginal sense. This, however, is not necessarily connected with 
 tune or metre, as the word cannot, in accordance with analogy, be 
 derived from cano, though, of course, connected with Camena 
 (Casmena). (See Corssen Ausspr. 1". 605 n.). Carmen is more 
 probably used here merely in the sense of a repeated or re- 
 • curring form of words. Compare, inter alia, Livy 3. 64 recita- 
 bat rogationis carmen and Baschig's note on 1. 24 and 26 of the 
 same author Carmen omnis soUemnis formula ar)pellatur. 
 
 d. Festus. Felices arbores Cato dixit quae fructum ferunt, infelices 
 quae non ferunt; So, too, the word ig used by Livy 5. 24. Ma- 
 crobius (Saturun. 3. 20) seems to mate infelices out to be black- 
 fruited trees. 
 
 e. Festus. sororium tigillum appellatur hao de caussa. ex conuen- 
 tione Tulli Hostili regis et Metti Fufiti ducis Albanorum trige- 
 mini Horatii et Curiatii cum dimicassent, ut nictores seqneretur 
 imperium, et Horatius noster exsuperasset uiotorque domum reuer- 
 teretur, obuia soror cognita morte sponsi, sui fratris manu occisi, 
 auersata est eius osculum, quo nomine Horatius interficit earn et 
 quanquam -. patre absolufus Bceleris erat accusatus tamen parri- 
 cidi apud Duumuiros, damnatusque prouocauit ad populum, cuius 
 iudicio uictor, duo tigilla tertio superieoto, quae pater eius consti- 
 tuerat, iielut sub iugum missus subit, conseeratisque ibi aris 
 luuoni Sororiae et lano Curiatio liberatus omui uoxia sceleris 
 
 Digitized by Microsoft® 
 
Regal Period. 63 
 
 est auguriis adprobaatibus, ex quo sororium id tigillum est appel- 
 latnm. 
 
 Diouysius 3. 21 mentions the two altars stUl remaining in his 
 time built apparently into the opposite house-walls of a narrow 
 street, the beam being let into the walls above;— in the forum, an 
 angular pillar on which the spoils of the Curiatii had been fixed. 
 The spoils have disappeared, says Dionysius naively, through 
 length of time, but the pUlar preserves its title of ' the Horatian.' 
 /. Dionysius 3. 22. The part relating to the trial. 
 
 vrpoaipxaiTiu. {t^ PnaiXei) tiSi> woKiTiKiav dvSpav oi)k d0oK«s tAi> 
 'Opdnor dyoJTes 6wb dUriv <is oi5 KaBapov ai/iaros iiji.(pv\lav Sid tov rijt 
 d5«\^^s tt>6vov...Tois vo/iovs To.pexo/J.ei'oi toi)s oi)k iiivrai aKpirov diro- 
 KTclyav oiSiva. KaX rd xapd tOv 6eav /m;ci/iaTo...5iefioi'Tcs. d di variip 
 dTrc\oyetTO...TiiJUi>plav oi> (fioyov eXvai to irpaxSiv Xiyav, SiKa<TTriv re 
 auTor i^iwi' ehai tuv IStun KaKHv afitporripav yev6iJ,eiiov iraripa.., 
 roWri TOV ^a<rt\4a KaTetxev a/tTO'"''*"-^^^'"" Te icai tov iraTpos airov 
 diro\uovToi TTJs ahlas ^ tt)v irepl t^s duyaTpos ipy^v ij re (piffis iwe- 
 SiSov irpi!>Tifi mi i vdiiOS...Te\evTiSv Kparurrov cTyat SUyvu) Tip Srifup 
 TTJv didyvuaw iirirpiTHv. yemp.eyos 5i BaraTijipopov Kpiireus rare 
 vpuTov 'Fu/uduv Sijuos Kipios airoXij'ct toO <p6vov tov SmSpa. 
 
 § 12. 
 
 The DuTiMViEr. 
 
 It is not clear from the quoted words duumuiri. . .iudicent 
 of Livy or tlie statement accusatiis...apud duumuiros of 
 Festus, whether this was a standing court or an extra- 
 ordinary commission. But the latter is certainly intended 
 by the narrative of Livy. And this fact is borne out by 
 the indications, slight as they are, to be found in subse- 
 quent practice. In one account of the condemnation of 
 Manlius duumuiri are " created to investigate the case of 
 perduellio^" an expression which could scarcely have been 
 used of a standing tribunal. In Rabirius' case the ap- 
 pointment must have been special, for it is stigmatized 
 
 Digitized by Microsoft® 
 
64 Early Roman Law. 
 
 as irregular, and made with a hostile intent against the 
 particular defendant *". 
 
 We may then assume the duumuiri to have been spe- 
 cially appointed. Their appointment in the case of Hora- 
 tius would appear, at first sight of Livy's words, to have 
 been the sole act of the king. Zumpt, however, gives very 
 good reasons for believing that the king merely gives the 
 power of electing and that the duumuiri are actually 
 elected by the assembly, i. e. the comiticC curiata, with 
 which he, I think correctly, identifies Livy's concilium 
 populi aduocatum°. This view, also; accords perfectly with 
 the words secundum legem facio, if those words refer to a 
 previously existing enactment which probably specified 
 the manner of creation of the duumuiri as well as the 
 procedure to be followed after their creation. An entirely 
 different view is taken of these words by the high modern 
 authority just cited, from whom I have the misfortjine, on 
 this last point, to differ toto caelo. 
 
 Cicero refers to the formal words quoted here by Livy, 
 when addressing the accuser of Rabirius, — "Those words, 
 which so charm your merciful and popular taste, 'Go, 
 lictor, bind the hands !' are not only no words of our pre- 
 sent freedom and humanity, but they are none even of 
 Romulus' or Numa's. To Tarquinius, proudest and cruel- 
 lest of Kings, belong those formularies of torture, which 
 you, in your mild and popular disposition, repeat with 
 such unction. 'Veil his head — hang him to a barren 
 tree,' — words, gentlemen, long ago obscured not alone by 
 the shades of antiquity but also by the light of liberty*." 
 Dr Donaldson took these words to shew that Cicero 
 referred the law to the legislation of Tarquinius °. Zumpt, 
 in his note 69, p. 423, takes a somewhat similar view, 
 supposing Cicero to have confused the imposition of a 
 different punishment by this lex with the reputed institu- 
 
 Digitized by Microsoft® 
 
Regal Period. 65 
 
 tion of tying to the stake and flogging with rods by Tar- 
 quinius'. This interpretation of the passage is quite 
 tenable and consistent with the historical inaccuracies 
 found elsewhere in Cicero's works. To myself it seems 
 easier to take the whole passage as an oratorical flourish, 
 meaning that, though this enactment was perhaps at- 
 tributed to Komulus or Numa, its spirit was much better 
 suited to Tarquinius, the proud and cruel; But the very 
 last inference one would have thought of drawing from 
 Cicero's language is that the lex was enacted by TuUus. 
 This is, however, the inference of Zumpt, whereupon is 
 based a great part of the arguments from which he ulti- 
 mately concludes that the lex mentioned by Livy was 
 merely the commission given by the king to the duumuiri, 
 answering, in fact, somewhat to the Praetor's formula of 
 later days^. It is scarce necessary to go into these argu- 
 ments, because the position of the words secundum legem 
 appears fatal to the conclusion drawn. Had these words 
 belonged to iudicent they must surely have stood before it : 
 where they do stand, they can only refer to facio ; and 
 secwndum legem facio, ' I make in accordance with law,' 
 must mean in accordance with a law previously existing. 
 We should not gather from Livy's account that the law 
 obliged the king to appoint this commission ; merely that 
 it specified the manner of such appointment, if made, and 
 the subsequent procedure. 
 
 a. Livy 6. 20. 
 
 6. Dio Cassius (xxxTii. 27) says of these commissioners in that case 
 
 KaTe^j/rj^lffavTo avTov Koiroi fiTj irpos toG Z-iifMV Kara, rd Tarp^a, dWd 
 
 Tp6s auTov Tov uTpaTiiyov ovk e^ov aipe64vT£S, 
 
 c. Criminal-reoht Absch. 1. Cap. 7. pp. 92, 3. Anmerk. 54. p. 419. 
 
 d. Cic. pro Eabirio 4. § 13. 
 
 e. Varronianus 6. § 5. 
 
 /. Dio Cassius xxiii. fr. 4. 
 g. Absch. 1. cap. 7. p. 96. 
 
 R. L. E 
 
 Digitized by Microsoft® 
 
,66 Early Roman Law. 
 
 §13. 
 
 The Right of Appeal. 
 
 The next point to.be noticed is the appeal. That this 
 was to the people, (i. e. at the time in question, to the 
 comitia curiata,) is a fact which, being supported by the 
 later use of the word prouocatio, may fairly be believed 
 on the testimony of Livy, Festus, and Cicero ^ 
 
 In neither of the two former writers is there any hint 
 at restriction upon the right of appeal, unless this is to 
 be gathered from Livy's expression auctore Tullo. The 
 strict technical meaning of these words is perhaps rather 
 with the sanction than at the instance of TuUus ; and a, 
 permission which had to be granted might be refused. 
 So too clemente legis interprete possibly means that it lay 
 with the king to decide whether the law allowed an 
 appeal or not, in such a case as the present one. (See, 
 however, end of § 16.) 
 
 Such an interpretation is quite compatible with the 
 view that the duumuiri were elected by the assembly 
 of burgesses, but that it lay in the king's option whe- 
 ther he would call together the assembly for that pur- 
 pose or not. If they were, on the other hand, the king's 
 mere delegates, not simply appointed but selected at his 
 own will and pleasure, an appeal, as of right,, from them 
 to the assembly clearly limits the king's supposed supreme 
 judicial authority. And that this was the view main- 
 tained in some traditional account of the affair of Hora- 
 tius may appear from the words represented by Livy to 
 have been addressed to the dictator Papirius by the old 
 M. Fabius A.v.c. 430. "I will see whether thou wilt 
 yield to that appeal to which the king of Rome, Tullus 
 Hostilius, yielded*. These words, while they imply that 
 
 Digitized by Microsoft® 
 
Regal Period. 67 
 
 the right of appeal was a moot point, imply also that this 
 Was regarded as being virtually an appeal against the 
 king himself. They do not appear to me capable of the 
 construction which Zumpt puts on them, that this was tbe 
 first case of appeal. The lax flourish of Cicero"' would 
 prove that this was the first case of a capital sentence at 
 all: unless we are to put, in a purely oratorical pas- 
 sage, upon the word iudicium the technical and (here) 
 forced meaning of sentence by iudices to whom the magis- 
 trate has referred the case, as distinguished from sentence 
 by that magistrate himself. Dionysius (above § 11 note f) 
 expressly represents this as the first appeal. The point 
 now in question, however, is whether appeal was allowed 
 as of right in the regal period, not at what date of that 
 period it became established. 
 
 Valerius Maximus expressly states that Horatius, after 
 being condemned by King TuUus, was, on appeal to 
 the people, acquitted". And Cicero, in one passage, main- 
 tains, on the authority of the pontifical books, that appeal 
 was allowed even from the kings, which is scarcely recon- 
 cileable with the view that the king could limit the right 
 of appeal from the duumuiri, whether these were merely 
 his delegates or no**- 
 
 Lastly, the idea that the duumuiri could be allowed to 
 give a final sentence seems unreasonable in the face of 
 that limitation of their functions which is clearly implied 
 in Livy's words: — 'who did not consider themselves com- 
 petent under that law, to acquit even a guiltless homi- 
 cide.* That is, (as Gruter long ago saw,) who held that 
 a mere finding oi fact fell within their province, not a 
 consideration of extenuating circumstances. Zumpt ac- 
 cepts this as the result of the lex, though he takes the 
 latter to be only the special commission of Tullus for the 
 particular case% 
 
 £ 2 
 
 Digitized by Microsofi® 
 
68 Early Roman Law. 
 
 a. Cicero pro Milone, c. 3. In qua tandem nrbe hoc homines stultis- 
 simi disputant? nempe in ea quae primum iudioium de capite 
 uidit M. Horati...qui nondum libera ciuitate tamen popuU Eomani 
 comitiis liberatus est. Livy 1. 26. Certatum ad populmn est. 
 Festus. 1. c. prouocauit ad populum. 
 
 6. LiTy 8. 33. Videro cessurusne prouooatione sis cui rex Eomanns 
 TuUus HostUius cessit. 
 
 c. Valerius Maximus 8. 1. Absoluti 1. M. Horatius interfeotae 
 sororis crimine a Tullo rege damnatus, ad populum prouoeato 
 [? iudicio] absolutus est. 
 
 I do not set much store by the evidence of this gossiping 
 ■writer. His date is fixed by a dedication to Tiberius, of suffici- 
 ently nauseous character. ' Cetera diuinitas opinione colligitnr, 
 tua praesenti fide patemo auitoque sideri par uidetur... &c.' 
 
 d. Cic. de Bep. 2. 31 § 54. Prouocationem autem etiam a regibus 
 fuisse declarant pontificii libri significant nostri etiam augurales. 
 
 e. Criminal-recht Absch. 1. Cap. 7. p. 97. 
 
 § 14. 
 
 The King's supreme Judicial Power. 
 
 Some of these passages undoubtedly make against the ■ 
 generally received opinion of the royal judicial autho- 
 rity as supreme in all cases. On the same side may 
 be reckoned Cicero's description of the changes introduced 
 on the expulsion of the Tarquins. " Then came," says 
 Scipio in the dialogue De Republica, " appeals in every 
 case" words certainly capable of the interpretation that 
 appeals had existed before, at least in some cases". Dio- 
 nysius represents the kings as availing themselves in their 
 judicial capacity of the sei-vices of the senators as dele- 
 gates or counsellors", and Livy blames Tarquinius Su- 
 perbus for neglecting, in capital cases, to consult such a 
 consilium" (which Zumpt identifies with that of the ju- 
 dicial functionaries under the republic") ; but none of the 
 
 Digitized by Microsoft® 
 
Regal Period. 69 
 
 passages in the last two authors go so far as to make out 
 a court of appeal or even of concurrent jurisdiction. 
 
 On the other side : Cicero himself compares the au- 
 thority of a king with the imperium of a dictator in time 
 of war°j from which it is certain that no appeal lay'. And 
 Pomponius makes appeal from capital sentences the limi- 
 tation of consular as distinguished from regal power^. 
 The power of the dictator, without special reference to 
 war, is said by Cicero to be nearest to the likeness of the 
 royaP. This remark is made of T. Lartius, the first 
 dictator, whose appointment, says Livy, was so formidable 
 to the plebeians because there was no appeal from him'. 
 The question, however, of appeal under the republic does 
 not properly arise here. 
 
 Dionysius, in the case of Horatius, makes it appa- 
 rently, an entirely voluntary action of the king to refer 
 the matter to the people-'. This is in accordance with the 
 other passages in the same author, which leave the su- 
 preme judicial authority of the king entirely unrestricted 
 except by his own act. Dionysius, however, answers 
 elsewhere the query of Zumpt — If appeal were from the 
 king to the assembly, who was to summon this assembly 1 
 The deus ex machina to solve this constitutional knot is 
 the serviceable Brutus, created Tribunus Celerum, on ac- 
 count of his stupidity, by the last Tarquin''. 
 
 a. Cic. de Eep. 1. 40. 62. tnm prouocationes omnium rerum. 
 
 6. DionysiuB 2. 12. pa(ri.\e!..J^fipriTo (6 'Pii^uXos) rdSe rh yipa... 
 iravrbi tov Kard (pvaiv 7J Kark avvBiiKas Smalov vpovoSn, rav re dSi- 
 KrijjidTdiv rd niyiara p,kv airov SiKa^etv rd S' iXdrrova Tois jSouXeuTois 
 iTTiTpiveiv. Tullus takes counsel in the case of Mettius 3. 26. 
 
 c. Livy 1. 49. Cognitiones capitaUum rerum sine consUiis per se 
 solus exercebat. See too Dionysius 4. 42. 
 
 d. Criminal-recht Absoh. 1. c. 9. p. 123. Mommsen (Hist. 1. 5. 
 p. 72) takes much the same view. 
 
 Digitized by Microsoft® 
 
7o Early Roman Law. 
 
 e. De Eep. 1. 40. 63. noster populus in pace et domi imperat et ipsiS 
 
 magistratibus minatur, reousat, appellat, prouocat; in bello sie 
 
 paret ut regi. 
 /. See the episode in Livy 8. 30 — 85. 
 g. Dig. 1. 2. 2. 16. qui (ConsuleB) tamen ne per omnia regiam potes- 
 
 tatem sibi nindioarent, lege lata factum est ut ab iis prouocatio 
 
 esset, neue possent in caput ciuis Eomani animaduertere iniussu 
 
 populi. 
 li. Cic. de Eep. 2. 32. 56. Atque his ipsia temporibus dictator etiaa 
 
 est institutus decern fere annis post primes consulea T. Lartins; 
 
 nouomque id genus imperi uisum est et proximum similitudim 
 
 regiae. 
 i. Livy 2. 18. 
 j. Dionysius 3. 22. i.iropoi}xam...KpaTi<nov ehai Siiyva r!f S^fup t^* 
 
 Sidynuaiv linTpiireiv. 
 k. Dionysius Antiqq. 4. 71. 
 
 § 15. 
 Eight of Appeal imperfect. 
 
 On the whole the greater weight of tradition is un- 
 doubtedly in favour of the supreme and irresponsible 
 character of the royal jurisdiction. This is also the view 
 taken by most of the best modern authorities. It is that 
 of Zumpt and that of Mommsen. Of the former, the 
 fourth chapter of the first section of the Criminal-recht 
 may be consulted with advantage. Mommsen places the 
 kingly power almost higher than Zumpt. In a most in- 
 teresting parallel drawn between the position of the king 
 in the state and the paterfamilias in the household he 
 says of the former, ' He had the same right as a father had 
 to exercise discipline and jurisdiction.... He sat in judg- 
 ment in all private and in all criminal processes, and 
 decided absolutely regarding life and death as well as re- 
 garding freedom... When he had pronounced sentence 
 of death he was entitled, but not obliged, to allow an 
 appeal to the people for pardon*.' 
 
 Digitized by Microsoft® 
 
Regal Period. 71 
 
 Now, that the offences first taken cognizance of by 
 Roman judicature were derived from the idea of the 
 family and punished by quasi-religious penalties connected 
 with the same idea, I fully believe ; but that the chief 
 magistrate at Rome was ever entrusted with the full 
 patriarchal power, is surely open to question; especially 
 when we remember that the peculiar developement of the 
 latter at Rome is considered with good ground '' as a mere 
 result of Quiritarian ownership, which could scarcely have 
 been attributed to the king with respect to all the citizens. 
 There are traces of sentence by the people in the old 
 meaning of sacer (above § 6) ; of a meeting of burgesses 
 for a quasi-judicial purpose in the Contio (§ 8); and the 
 lex quoted by Livy as regulating procedure in perdudlio, 
 is in favour of appeal to the people as of course. 
 
 May we infer some right of a burgess, even though an 
 imperfect right merely dependent on custom, to be tried 
 upon certain charges by his peers ? If so, the arrogation 
 by a king of the power of adjudicating upon all cases 
 without appeal, would justly be regarded as unconstitu- 
 tional, and may have been one of the causes for the 
 abolition of the regal power". So that the lex Valeria, 
 which had to be twice re-enacted, was possibly not so 
 much the creation of a new constitutional right as the 
 recomition and extension of an old one. 
 
 a. Mommsen Hist. 1. 5 (p. 67 of Dickson's translation). 
 
 ft. Heinecoius Elementa luris CivUis § 136. 
 
 c. It is only fair, however, to add that the very faint indications of 
 what is regarded as arbitrary conduct of the king in passing capi- 
 tal sentences, have been explained as mere neglect to consult a 
 consilium. Nor are all the offences stated as cases of perduelKo. 
 TConysius makes it one instance of the wVotijs attributed to Bomu- 
 lus that he iK^Xevaev wffai Kard Kprnxvov 'toifialuv nvm tirl XjjffTrij 
 Tuv vK-qaioxdipi'V KaTrjyopTiOiirTas...Trjv diKrjv aMs /iovos SiKaaas 
 (Antiqq. 2. 56). The same author speaking of Tarc[uinius Super- 
 
 Digitized by Microsoft® 
 
72 Early Roman Law. 
 
 bus and Ms delatores (to put in word Dionysius' anachronism of 
 fact) says (Antiqq, 4. 42) o! 5' inrdyovres airois els rds SUas iWovi 
 eir' (LWcus 'pevSiao' ahlais iiaKusTO, S' em^ovXeveiv alniifi.ej'oi rif ^a- 
 o-iXei KaTrrybpovv tit' avTifi SiKaar^. 6 Si rSv iikv ddfarov KareSf/cofe 
 TW Si ipvyliv K.T.X. Supeibus, says Livy (1. 49), cognitiones oapi- 
 taJium rerum sine consiliis per se solus exercebat. 
 
 SeetooZumpt Criminal-rechtAbsoh, 1. Cap.9. p. 123. Monun- 
 sen Hist. 1. 5. p. 72 translation. 
 
 § 16. 
 Peedtjellio. 
 
 It remains to consider what was the offence or class 
 of offences for which this earliest recorded procedure was 
 established. 
 
 PerduelKo or perd-uellis was no doubt derived from 
 per and duellwm the old form of helium. Flaccus evi- 
 dently regards the prefix as being nothing but the prepo- 
 sition per in anintensitive sense^ It is more likely that 
 we have here thg,t " depreciative " or condemnatory per 
 (Donaldson Varron. 10 § 7) which occurs in periurus and 
 perfidus, and which certainly corresponds curiously in mean- 
 ing with some uses of the Greek irapa- and the German ver- 
 (Gothic fair). In this point of view comes naturally 
 enough the meaning 'he who wars wrong,' or, 'on the 
 wrong side,' i. e. enemy, which Flaccus tells us was the 
 old meaning of perduellio, a statement borne out' by the 
 testimony of Gaius as to perduellis and the use of the 
 latter word by Plautus and Ennius^ 
 
 As applied to a citizen, we should expect this word 
 to mean, 'an enemy of his country,' and the concrete 
 perduellio, that species of treason which mutatis mutandis 
 answers to our ' levying war against our lord the king in 
 his realm.' (25 Edward 3. c. 2). And this seems to be 
 
 Digitized by Microsoft® 
 
Regal Period. 73 
 
 the idea, somewhat vaguely expressed, of Ulpian, when 
 he tells us that not every man who is accused under the 
 Lex lulia Maiestatis, and dies while subject to the charge,, 
 forfeits his property, but only he who is accused of per- 
 duellio as animated with a hostile mind against the 
 commonwealth or emperor". And those condemned for 
 perduellio are coupled with hostes, as persons for whom 
 mourning is not to be made*. 
 
 Like our own ' treason ' the word perduellio seems to 
 have come to be taken in a conveniently extensive sense. 
 This was the form of indictment probably brought against 
 Sp. Cassius (a. v. c. 268), destroyed on the ground of 
 attempting to make himself king' : against Gn. Fulvius 
 for bad management and cowardice in military command 
 (a. v. C. 541) ': against Ti. Gracchus and G. Claudius, for 
 breach of the respect due to a tribune (a. v. c. 583) ^ : 
 against G. Eabirius for the slaughter of the tribune Sa- 
 turninus, thirty-seven years after the event; Saturninus 
 being killed A. v. c. 654, and Rabirius defended by Cicero 
 A.v. c. eQl""- In later times, from the eases of Fulvius 
 Gracchus and Claudius, it would appear that any violation 
 of a high constitutional principle or any gross dereliction 
 of duty in a public oiEcer could be brought under this 
 compendious form of accusation. 
 
 The coup d'etat, too, in which Saturninus fell, might 
 naturally be treated from its magnitude and tumultuous 
 character as not an ordinary murder. But it is difficult to 
 understand how the mere parricidium of Horatius could 
 be considered as a state offence: nor can I see any reason 
 for his being represented as charged with the latter crime, 
 but the prevalent tradition that the accused of treason had 
 that right of appeal, which is made available for the hero's 
 escape. Nor is it impossible that in writing the words 
 clemente legis interprete, which have not a very satisfac- 
 
 Digitized by Microsoft® 
 
74 Early Roman Law. 
 
 tory sense if orily applicable to the place where they stan5, 
 Livy may have had some thought of the merciful con- 
 structioQ that treated a clear case of murder as a doubtful 
 one of treason upon which the popular accused was sure to 
 be acquitted. (See, however, as to these words § 13.) 
 Zumpt, too, if I understand him rightly, takes this view of 
 Tullus' conduct as described by Livy; with the exception 
 of considering that there was previously no general enact- 
 ment as to treason, and that Tullus' ' merciful interpreta- 
 tion ' consisted in the issuing of a special mandate for this 
 particular case, by which an appeal was allowed'. My 
 objection to this last point has been stated above (§ 12) on 
 the words secundum legem. 
 
 a. Feetus. Z)«cHttm...perduellio, qui pertinaciter retinettellum. 
 
 h. id. Hostis apud autiquos peregriuus dioebatur et qui nunc hostis 
 perduellio. See Corssen Beitrage p. 218 ed. 1863. Gaiua in 
 Digest 50. 16. 234. pr. quos nos hostes appeHamus eos ueteres 
 perduelles appellabant per earn adiectionem indicantes cum quibus 
 bellum eeset. Plautus Amphit. 1. 1. 97. Miles 2. 2. 69. Pseu- 
 dolus 2. 1. 11. &o. Ennius ap. Varronem de li. L. 7. 49. . 
 
 The original meaning otper- was probably otherwise (i. e. than 
 the right way). See Corssen Ausspr. l^ 776. Compare too the 
 Greek aXXus. 
 
 c. XJlpian, Digest 48. 4. 11. 
 
 d. TJlpiau (quoting Neratius), Digest 3. 2. 11. 3. Non Bolent ... 
 lugeri ... hostes uel perduellionis damnati. 
 
 e. Livy 2. 41. 
 /. Id. 26. 3. 
 ff. Id. 43. 16. 
 
 ]i, Cicero pro Babirio, argnmentnm. 
 
 i. Criminal-recht Absoh. 1. Cap. 7. p. 9S. 
 
 Digitized by Microsoft® 
 
Regal Period. 75 
 
 §17. 
 
 The Quaestores Parricidi. 
 
 The question whether the quaestores parricidi were 
 ordinary officers or extraordinary commissioners, and 
 generally whether there was or was not in early times the 
 institution of police and public accuser, is of so much 
 interest that one is scarce free to avoid what must be 
 confessed to be a very difficult and unsatisfactory subject. 
 The name, of course, means investigators (trackers, spurer 
 is Mommsen's word). We may advert for one moment, 
 by way of illustration, to the modern word detective. They 
 were originally called quaestors, says Ulpian, quoting older 
 authorities, 'a genere quaerendi, from that class (of their 
 duties) which consisted in investigation*.' If these words 
 are to have another meaning, i.e., 'from the species of 
 investigation which they conducted,' the first part of the 
 sentence should have run 'they were called quaestores 
 parricidi or quaestores aerari, according to the species, 
 &c.' The whole passage of Ulpian is appended"^ So, 
 too, Varro derives the name from their duty of searching 
 out public moneys and crimes, which last, he says, 'are 
 now sought out (or investigated) by the Tresuiri capitalesK 
 This confusion of functions is the principal source of 
 difficulty throughout the subject. 
 
 First, as to the time when the office of quaestor came 
 into existence; all the authorities of Ulpian recognize 
 this office as established in regal times, not later than the 
 reign of Tullus. The opinion of ancient writers cited by 
 this jurist that Tullus first introduced quaestors into the 
 state, may be, but is not necessarily, a confusion of 
 quaestores with duumuiri. We have the authority of 
 Tacitus also that quaestores were instituted even during 
 the royal domination, which fact is shewn, he proceeds to 
 
 Digitized by Microsoft® 
 
76 Early Roman Law. 
 
 tell us, by a lex curiata ah L. Bruto repetita". The quota- 
 tion from Festus given above ( § 6, note c.) is in favour of 
 high antiquity for quaestores parricidi, who may have 
 been contemporaneous with the enactment containing the 
 words paricidas esto. At least, the term parricidium, 
 used in an improper sense, seems scarce likely to have 
 been chosen for the distinctive appellation of an office, at 
 a time very much later than the act of legislation by 
 which that sense was given. 
 
 I proceed to consider the authorities which appear to 
 make in favor of a first appointment of quaestors in re- 
 publican times. 
 
 Livy places in the mouth of G. Canuleius (A.V.C. 309) 
 an argument in favor of throwing open the consulship 
 to the plebeians, drawn from the various changes and new 
 offices which had already been introduced into the consti- 
 tution. After enumerating the pontificate and augurate 
 (here attributed to Numa), the census of Servius, the 
 consulship, and the dictatorship, he proceeds: 'Tribunes of 
 the plebs, Aediles, Quaestors there were none; it was 
 ordained that they should be made. Decemvirs for draw- 
 ing up laws we have within these ten years created and 
 abolished from our state''.' There is an unmistakeable 
 order of time in the greater part of this passage. The 
 decemuiri probably do not come into that order, because 
 they are honored with special mention as holding an 
 office which had not only been newly introduced but also, 
 unlike the others, abolished. But Canuleius is clearly 
 made to place the institution of the quaestorship at least 
 after the time of the first secession. Nay, if the close 
 coupling of the three last-named offices goes for anything, 
 we should have expected the quaestors to be plebeian 
 officers, or at least not exclusively in the patrician interest; 
 yet down to A.V.C. 333 they were patricians". 
 
 Digitized by Microsoft® 
 
Regal Period. 77 
 
 - Quaestores are first mentioned by Livy as indicting 
 Sp. Cassius on a ch^xgQ of perduellio, A.V.C. 269'',. where 
 they are clearly official accusers and acting in the patrician 
 interest. The same is the case with the quaestors who 
 indict M. Volscius (a.v.c. 295, 6) for false witness*'. The 
 quaestorship in question is there shewn to be a yearly 
 office. 
 
 Quaestores appear for the first time in Livy's history, 
 as connected with the treasury, A.v.c. 308 ^ The Falis- 
 can booty' is brought into their hands, A. v. c. 360, whereas 
 in the year of Sp. Cassius' accusation, by quaestores, it is 
 the consul who sells the booty and brings the proceeds into 
 the public treasury^ These treasury quaestores would 
 seem, however, to have been confined to home affairs until 
 A.v.c. 333, when the proposal is made that beside the 
 two city quaestors two should attend upon the consuls to 
 assist them in war. The number is accordingly doubled, 
 the office being thrown open at the same time to the 
 plebeians'. 
 
 Plutarch, in his life of Publicola, attributes to that 
 worthy the institution of a treasury and two treasurers 
 from the younger members of the community'. 
 
 The testimony of Zonaras is only valuable so far as it 
 may be regarded as practically that of Dio Cassius. His 
 statement about the same Publicola is certainly of interest, 
 if it can be depended upon, and is capable of the following 
 interpretation* which appears to me the only one con- 
 sistent with common sense. 'The management of the 
 funds, too, he assigned away (from the chief officers, now 
 consuls) to others, on which occasion the treasurers (ra/ii'at) 
 first began to exist, but were called by the name of quaes- 
 tors, which (quaestors) first used to adjudicate on capital 
 charges, whence, in fact, they have got this title, on 
 account of their investigations and the search of the 
 
 Digitized by Microsoft® 
 
78 Early Roman Law. 
 
 truth from these investigations; but afterwards they 
 received the task of managing the common funds, and 
 were called by the additional name of treasurers (? = ae- 
 rarii). Subsequently the courts were entrusted to another 
 body, and the former officers were only managers of the 
 funds".' 
 
 Lastly, Pomponius, after mentioning the institution of 
 the right of appeal from the consuls, and several other 
 matters, not here material, proceeds : 'At the time of the 
 secession of the plebs from the patricians, the former 
 created tribunes for themselves, and also two officers from 
 the plebs who were called Aediles. Subsequently, when 
 the public treasury had begun to increase, that there 
 might be officers to preside over it, quaestors were consti- 
 tuted to preside over the money, so called because created 
 for the purpose of seeking out and preserving money. 
 And because, as we have said, the consuls were not allowed 
 by law to give sentence on the life of a Roman citizen 
 without order of the people, therefore quaestors vsed to he 
 appointed (constituebantur) by the people to preside over 
 capital charges. These were called quaestores parricidi, 
 and are moreover mentioned by the law of the Twelve 
 Tables".' 
 
 The principal objection to a pre-republican appoint- 
 ment of quaestors lies evidently in the passage last quoted, 
 for the appointment mentioned by Pomponius is clearly 
 subsequent to the passing of the Valerian law de provoca- 
 tione. The usual plan followed with this author has been, 
 where expedient, to reject his testimony altogether, on 
 account of the inaccuracies which it no doubt contains. 
 Zumpt justly protests against such a proceeding, and gives 
 a key to the explanation of Pomponius' statement in his 
 very acute and scholarlike notice of the tenses employed 
 by that author. Constituebantur must, he says, mean 
 
 Digitized by Microsoft® 
 
Regal Period. 7q 
 
 occasional not periodic appointment when regarded by the 
 side of constituti sunt (Consuls and censors), creauit sibi 
 plebs (tribunes), constituerunt (aediles), constituti, sunt 
 (quaestors of the treasury) ; but the masters of the knights, ' 
 an occasional office, iniungehantur dictatoribus, and the 
 perfect used of the dictators themselves is qualified by an 
 interdum". There is a slight weakness in the last point, 
 and it might be said, too, that the perfects are all descrip- 
 tions of the first institution of an office, while the two 
 imperfects do not take that point of view; iniungehantur 
 meaning 'used to be added' to the dictators already men- 
 tioned, constituebantur 'used to be appointed,' whether 
 occasionally or periodically. Still the imperfect will un- 
 doubtedly bear Zumpt's interpretation, which is, I think, 
 confirmed by the word praeessent, describing the functions 
 of Pomponius' quaestors.^ There is no evidence of any 
 weight shewing that the province of the older quaestors 
 in criminal matters extended any further than the inves- 
 tigation of crimes, perhaps the apprehension of accused 
 person?, and the promotion of charges ; and praeesse capi^ 
 talibus rebus would be a somewhat incorrect term to apply 
 to such functions. On the other hand it is the exact term 
 employed of the later occasional quaestors appointed to 
 investigate and adjudicate upon particular criminal cases, 
 Such was the' appointment of the consuls to investigate 
 the murder and sentence the murderers of Postumius, 
 A. V. c. 341', of the dictator C. Maenius to investigate and 
 try the cases of treason in Capua, and subsequently Rome 
 A. V. c, 440'. It is worthy of remark that Livy in the 
 latter case uses the coordinate form quaesitor, which (with 
 quaestio) seems to have become appropriated to the crimi- 
 nal as distinguished from the fiscal business (quaestura). 
 The former may have been the first appointment of an 
 occasional quaestor with judicial powers; it is at least 
 
 Digitized by Microsoft® 
 
8o ■ Early Roman Law. 
 
 significant that it comes so near the doubling of the 
 number of regular quaestors and the throwing open of 
 that office to the plebeians, A. v. c. 333'. But whether the 
 institution of occasional quaestores is to be placed between 
 333 and 341, or even earliei^ I am convinced that we have 
 in them the second class of officers mentioned by Pompo- 
 'nius who were appointed occasionally by the people to 
 preside over capital charges, and who would very naturally 
 be confused with earlier quaestores parricidi, whom they 
 probably superseded. 
 
 For those yearly patrician quaestors who are so useful 
 in removing obnoxious plebeians do not appear in the 
 case of Sp. Maelius (a. v. c. 314), or at all, to my know- 
 ledge, after that of M. Volscius Fictor, A. V. c. 296. Here 
 comes in an important piece of evidence from Tacitus, 
 who tells us° 'that the power of selecting quaestors re- 
 mained to the consuls until the people took upon them- 
 selves the appointment to that office as well as to others. 
 And there were created for the first time {i.e. of such 
 creation) Valerius Potitus, and Aemilius Mamercus in the 
 sixty-third year after the expulsion of the Tarquins (A. V. C. 
 307) to accompany the military operations. Subsequently, 
 business increasing, two were added to take charge at 
 Rome.' Valerius Potitus is doubtless the peacemaker of 
 A. V. c. 305, and the Valerius Poplicola Potitus successful in 
 the same year against the Aequi and Volsci; Aemilius 
 Mamercus possibly the military tribune of that name, 
 A. V. c. 316, victorious, as dictator, over the Veientes and 
 Fidenates next year. I mention these particulars as partly 
 in confirmation of Tacitus' statement that the quaestors 
 of 307 A.V. c. (the first quaestors, according to him, 
 elected by the people) were military officers, in which he 
 differs from Livy. But whether we suppose the fiscal or 
 military functions of these quaestors to have been prior, 
 
 Digitized by Microsoft® 
 
Regcd Period. 8t 
 
 m importance or time, the accounts of both Livy and 
 Tacitus are perfectly consistent with the idea of a great 
 change in the office of quaestor, A. V. C 307. No longer 
 in the consul's nomination, it ceases to be the organ of 
 patrician inipeachment, that is, the old quaestores parri- 
 cidi, the right of nominating whom descended to the^ 
 consuls from the kings, here come to an end ; it is of the 
 later regular quaestors, fiscal or militaiy, that Canuleius 
 speaks two years later, whom, as elected by the people, he, 
 treats as the only quaestors worth considering, and couples 
 with the tribunes and aediles. 
 
 The later quaestors mentioned by Pomponius have 
 been identified with a third class, the specially-appointed 
 judges no doubt referred to by Varro, as those qui quaes^ 
 tionum iudida exercerent^ : the earlier quaestors of Pom- 
 ponius are fiscal authorities created subsequently to the, 
 first secession". Plutarch' and Zonaras"' attribute the in- 
 stitution of officers of the treasury to Publicola ; the latter 
 author, I think, implying that the officers to whom this 
 charge was given existed before, under the name of quaes- 
 tors, derived from their function of investigating criminal 
 cases. Plutarch's statement that Publicola 'gave to the 
 people the power of appointing two of the young as trea- 
 surers ' is highly improbable in itself, supported, as far as 
 I am aware, by no evidence, and directly contrary to the 
 assertion of Tacitus. Dionysius recognizes officers of the 
 treasury {Ta/ilai) as existing at the end of the war with 
 Porsena". He also speaks of Sp. Cassius' accusers as rrjv 
 Ta/ji.tevTiK^v i^ova-iav ejjjoz/Ts?'. While not setting great 
 store by the four last-mentioned authorities, I think they 
 may represent a fact : — that on or shortly after the abo- 
 lition of royalty, some public funds were intrusted to the 
 care of the old quaestores \ This was natural enough if 
 the capital penalty in cases of which they had the in- 
 
 B. L. P 
 
 Digitized by Microsoft® 
 
82 Early Roman Law. 
 
 vestigation were occasionally commuted to a fine: ana 
 their charge of this source of public revenue might 
 easily be extended to others. At the same time Livy's 
 silence is remarkable, and may indicate that the fiscal 
 functions of these oflficers were regarded as unimportant 
 compared with their criminal ones. Zumpt considers the 
 quaestorship of the treasury, introduced by Publicola, to 
 have been an extraordinary ofiBce until the fall of the 
 decemvirs. For this view, we must assume two pairs of 
 quaestors during the period in question; an assumption 
 surely unsupported by evidenced But whatever may 
 have been the origin of the treasury quaestors, I hope 
 it has been sufficiently shewn that there is no insur- 
 mountable objection to the statements by Tacitus and 
 Ulpian of the existence of quaestors in the regal times, 
 nor to the identification of these with the patrician 
 accusers mentioned by Livy and with the quaestores par- 
 ricidi of Festus — a distinctive title which could scarcely 
 have first originated with the appointment of the latter 
 occasional quaesitores. Neither is the discrepancy as to 
 the mode of election, between Tacitus and TJlpian, more 
 than apparent. According to the former the power of 
 selecting quaestors survived to the consuls from the kings 
 and the appointment was in some manner connected with 
 a lex curiata. According to the latter (or rather his 
 authority, Junius Gracchanus) Romulus and Numa had 
 each two quaestors whom they were in the habit of cre- 
 ating not by their own voice but by the vote of the 
 people. A more prevalent tradition, adds TJlpian, ascribes 
 the introduction of quaestors to Tullus, in whose reign 
 they certainly existed. I have not the slightest hesitation 
 in accepting the reconciliation of these two statements 
 given by Zumpt: that the quaestors were selected or 
 nominated by the kings, which nomination was afterwards 
 
 Digitized by Microsoft® 
 
Regal Period. 83 
 
 Confirmed, and tlie royal nominees formerly created by a 
 hx curiata, i. e. by the vote of the people, as Gracchanus 
 says, assembled in the only assembly of those times, the 
 comitm curiata. And this particular lex curiata becoming 
 no doubt a common statutory form, was on the abolition 
 of royalty repeated or revived by the consuls in the case 
 of the quaestores whom they first nominated after the 
 example of the kings. Perhaps the actual terms were 
 preserved till later times, and bore express reference to 
 kingly institution : perhaps it was the fact of this having 
 been a lex curiata, backed of coui'se by the tradition of 
 revival by Brutus, which Tacitus regarded as proof that 
 quaestors existed under the kings. Whether the early 
 republican quaestores parricidi were, in their police func- 
 tions, considered as endowed with a sort of imperium must 
 be mere conjecture : but leges curiatae were principally 
 employed, in the republican period, for conferring im- 
 perimn. 
 
 This quaestorship was, as we have seen, in the repub- 
 lican times, annual: what it was in the regal times can 
 only be inferred from the language of Tacitus and Ulpian. 
 The expression used by the former 'quaestors were,' or 'the 
 office of quaestor was instituted (perfect) even under the 
 domination of the- kings,' seems in favour of a standing 
 office rather than an occasional commission. TJlpian's 
 statement, that Romulus and Numa 'had two quaestors 
 each whom they were in the habit of creating, &c.', also 
 supports the idea of a standing office and, perhaps, periodic 
 appointment. 
 
 The offences which came within the province of these 
 officers were probably at first all murders of a free man 
 uncondemned, but afterwards all matters of capital charge. 
 Both these inferences may be fairly drawn from the words 
 of Verrius Flaccus (above, § 6, note c). Nor could the 
 
 F 2 
 Digitized by Microsoft® 
 
84 Early Rormn Lhw. 
 
 impeacliineiit of Manlius and Volscius by the quaestorea- 
 parricidi be otherwise explained, for neither of these was 
 accused of any act of bloodshed. Thus every case of per-, 
 duellio would be a proper one for the quaestores to pro- 
 secute, though of course every case of parricidium would 
 not be one oiperduellio, (See below, § 16.) 
 
 a. Dig. 1. 13. pr. § 1. Origo quaestoribus creandis antiquissima est 
 et paene ante omnes magistratus. Graoohanus denique luniua 
 libro septimo de potestatibus etiam ipsum Eomulum et Numam 
 Pompilium binos quaestores habuisse quos ipsi non sua uooe sed 
 populi Buffragio erearent ref ert. sed siouti dubium est an Eomulo' 
 et Numa regnantibus quaestor fuerit ita TuHo Hostilio rege quaes., 
 tores fuisse certum est. sane crebrior apud ueteres opinio est, 
 Tullum HostUium primum in rempublicam induxisse quaestores. 
 et a genere quaerendi quaestores initio dictos et lunius et Treba- 
 tiuB et Fenestella scribunt. 
 
 6. Varro de.Ling. Lat. 5. 14. Quaestores a quaerendo qui conqnire^ 
 rent publioas peounias et maleficia quae tresuiri capitaleg nunc 
 oonquirunt. ab his postea qui quaestionum indicia exercerent 
 quaestores dicti. 
 
 c. Tacitus Ann. 11. 22. Sed quaestores regibus etiam turn imperan- 
 tibus instituti sunt : quod lex Curiata ostendit ab L. Bruto repe- 
 tita. mansitque consulibus potestas deligendi donee eum quoque 
 honorem populus mandaret. creatique primum Valerius Potitus 
 et AemiHus Mamercus sexagesimo tertio anno post Tarquirdos 
 exaotos ut rem militarem comitarentur. dein gli'scentibus nego- 
 tiis, duo additi , qui Bomae ourarent. mox duplicatus numerua 
 (a.v.c. 489). Florus Epit. Liv. 15 quaestorum numerus ampliatua 
 est ut essent octo. 
 
 d. Livy 4. 4. At enim nemo post reges exactos de plebe consul fuit. 
 quid postea?. ..pontifioes, augures, Eomulo regnante, nulli erant: 
 ab Numa Pompilio oreati sunt, census ia ciuitate et descriptio 
 centuriarum classiumque non erat : ab Ser. Tullio est facta, cou- 
 Bules nunquam fuerant: regibus exactis creati sunt, dictatoris 
 nee imperium nee nomen fuerat : apud patres esse coepit. tri- 
 buni plebis aediles quaestores nulli erant: institutum est ut fie^ 
 rent, decemuiros legibus scribendis intra decem hos annos et 
 creauimus et e republica sustulimus. 
 
 e. Liv. 4. 43. 
 
 /. Liv. 2. 41. Sunt qui patrem aaotarem eiuB suppliei ferant; eum 
 
 Digitized by Microsoft® 
 
Itegal Periods 85 
 
 oognita domi causa uerterasse et necasse peonliumque filii Cereri 
 consecrauisse ; signum inde factum esse et inscrJptum 'ex Cassii 
 familia datum.' inuenio apud quosdam idque proprius fidem est 
 a quaestoribus K. Fabio et L. Valerio diem dictam perduellionis 
 damn^tumque populo iudioio, dirutas publico aedes. 
 
 g. Liv. 3. 24. A. Cornelius et Q. Seruilius quaestores M. Volsoio, 
 quod falsus baud dubie testis in Kaesonem exstitisset, diem dix- 
 erant. 25. in quaestoribus nouis maior uis maior auotoritas erat. 
 cum M. Valerio . . quaestor erat T. Quinctius Capitolinus qui ter 
 consul fuerat. 29. Confestim se dictator abdicasset ni comitia 
 M. Volsci falsi testis tenuissent: ea ne impedirent tribuni diota- 
 toris obstitit metus. Volscius damnatus Samnium. in exsilium 
 abiit. ' 
 
 h. Liv. 3. 69. Signa eo ipso die a quaestoribus ex aerario prompta. 
 
 i. Liv. 5. 26. 
 
 k. Liv. 2. 42. 
 
 li Plut. PubUcola c. 12. TafMeTov dir^Seife rbv ToC Kpovov vaov $ I'^XP'' 
 vvv ;tpc6/i6i'ot 6taTeXoD(rt ra/i/as 5h ri^ di^jxc^ dOo tuv v^ojv ^bwKev diro- 
 
 Plutarch's date is towards the close of the first century of our 
 era. 
 
 m. Zonaras 7. 13. teal tt/v ti2v yjyr}^6,Tiiiv St.oiK7jtTLV fiXXots dw^vecfjiey ^ 
 iva fi"^ TQ^ttiv iyKpareis bvres ol vtraTeioyre^ fieyai, Suj/difTcu' 8re irpia- 
 rov ol :rafiiai TJp^avTO yivetrOcu Koaio-rupas 5' iicciXovv avroOs. ot irpta- 
 rov ^v Tas $ava(7lfjLovs 6//cas ^blxa^ov^ 66ev Kcd ttjv Trpoctjyoplav ra^rriv 
 6ta Ttts dvaKpicreis itrx'^fcao'i Kal rriv ttjs aXfjOeias iK TfSv dvaKpiaetav 
 ^Tp-Tjtriv' vtrrepov 5^ Kal r-qv rdv koivGv xpvl^aT(av SLoiKTjcriv IXaxoi' Kal 
 rafilat irpoubivoimaBfiaav. fierd raura 5' er^pois fih iirerpaTrTj rd dtKa- 
 aTijpia iKeifoL 8i twv xpT)imTuv TJaav iioiK-qral. 
 
 Zonaras -wrote the "S-poviKhv, in his monastic retirement at 
 Mount Athos, about the beginning of the twelfth century a.d. 
 
 n. Dig. 1. 2. 2. 16. Exaotis regibus, consules eonstituti sunt duo... 
 lege lata fa<!tum est ut ab iis prouocatio esset . . 20. iisdem tem- 
 poribus cum plebs a patribue secessisset . . tribunes sibi . . crea- 
 ■vit. 21. itemque . . duos ex plebe constituerunt qui etiam aediles 
 appeUati sunt. 22. deinde cum aerarium populi auotius esse 
 coepisset, ut eseent qui illi praeessent, eonstituti sunt quaestores 
 qui pecuniae praeessent ; dicti ab eo quod inquirendae et eonser- 
 uandae pecuniae cauesa creati erant. 23. et quia, ut diximus, de 
 capite ciuis Eomaui iniussu populi non erat lege permissimi con- 
 EuUbus ius dicere, propterea quaestores eonstituebantur a populo 
 qui capitalibus rebus praeessent. hi appellabantur quaestores par- 
 ricidi quorum etiam- memiait lex duodecim tabularum. 
 
 Digitized by Microsoft® 
 
86 Early Roman Law. 
 
 A Bimilar statement is attributed to Gaius by LyduB. Gains' 
 testimony would stand high at first hand: strained through this 
 ■worthless medium it scarce deserves quotation. 
 
 riios Tolmv yofUK&s iv tv ^iri-ypa^o/^Fifi Trop' avrov ad legem xii 
 Tabularum . . airois p-q/Mai irpbs ip/itiveiav raOra ^7;<n'c. . . 
 
 ^TretSi; U irepl KcipoKiKris Tip-uplis oiiK i^vv tois dpxovcri Kara "Pia- 
 /juuou iroXirov fTi<pliTa<r8ai trpocp\-li9r)ira.v Kvcdarupes rafpidSiot (sic) 
 u(ravel xpiral xal SiKaaral tup iroKWas i.n\(ivTun>. T)e magistratibua 
 1. 26. 
 
 On this passage Fuss remarks, Forsitan et hie Lydus errauit 
 ac Pomponi uerba (Digest. 1. 2. 2.) Gaio tribuit. 
 
 0. Criminal-recht Abtheil. 1. Anm. 41. 
 
 J). Livy 4. 51. Senatus consultum factum est ut de guaestione Po8« 
 tumianae caedis tribuni primo quoque tempore ad plebem ferret 
 plebesque praefioeret quaeationi quem uellet. a plebe consensu 
 populi consulibus negotium mandatur. 
 
 q. Liv. 9. 26. quaestiones decretae dictatoremque quaestionibus ex- 
 eroendis dici plaeuit...uersaEomam interpretaudo res: non nomi- 
 natim qui Capuae sed in imiuersum qui usquam coissent coniu- 
 rassentue aduersus rempublicam quaeri senatum iussisse. . . inde 
 nobilitas (queri) ipsos . . dictatorem magistrumque equitum reos 
 magis quam quaesitores idoneos eius criminis esse. 
 
 r. Livy 4. 43. in urbe . . moles discordiarum inter plebem ao patres 
 exorta est coepta ab duplioando quaestorum numero, quam rem, 
 praeter duos urbanos quaestores ut duo consulibns ad ministeria 
 belli praesto essent, a consulibus relatam cum et patres summa 
 ope approbassent, consulibus tribuni plebis certamen intulenmt 
 ut pai'S quaestorum (nam ad id tempus patricii creati erant) ex 
 plebe fieret. 
 
 The discord is aJlayed by the recommendation of the interrex 
 L. Papirius Magillanus 'mediis eopularent coneordiaia patres 
 patiendo tribunes militum pro consulibus fieri, tribuni plebis non 
 intercedendo quo minus quattuor quaestores promiscne de plebe ao 
 patribus libero suffragio populi fierent. 
 
 ii. Dion. Halic. Antiqq. 5. 34. ^Si^Xuire S' y) trpaaiz rp^ htodyram-o jxerct 
 TTiv ijraKkarfiiv toD /SatrlX^us oi rafdau 
 
 t. Dion. Halio. Antiqq. 8. 77. Kalffai' *a|8ws . . Kal Aeiixtos Oi>aX^- 
 pios lloTr\iK6\as...Trjv TaiuevTiKTlv ItxflvTei e^ovaiai) nal Slo, tovto 
 ^KiiK'qalav auvdyetv Avres K0pLOi...'2Tr6ptov 'Kdutnov , , ela-^yeiXaj/ els 
 Tov drjiJiov. 
 
 Cicero, speaking of the same ease, says quaestor accnsauit (De 
 Bep. 2. § 60j. He retains the absurd story of the father's execu- 
 tion. One trusts that aU the accounts of paternal brutality in this 
 
 Digitized by Microsoft® 
 
Regal Period. 87 
 
 family cannot be true. See, as to L. Manliua Imperiosus, Liv. 7. 
 4, as to T. Manlius L. F. Liv. 8. 6, 7, as to T. Manlius Torquatus 
 Liv. 54 Epit 
 M. This is the view taken by Mommsen. (Book 2. ch. 1. p. 260 tr.) 
 V. Crimiual-reoht Absch. 1. cap. 5. pp. 54, 55. I may here acknow- 
 ledge the many valuable suggestions which I owe to this chapter: 
 inter alia as to the mode of reconciling the accounts given by 
 Tacitus and Ulpian of the election of the first quaestors. 
 
 § 18. 
 Early Civil Procedure. Sacrament um. 
 
 With respect to the criminal law of regal Rome there is, 
 besides the few authorities hitherto cited, little or nothing 
 upon which any reliance can be placed. The king as 
 judge ; sometimes availing himself of the aid of a 'coun- 
 sel ; ' sometimes perhaps, in cases of minor importance, 
 delegating his judicial powers to individual 'judges'"; 
 aided, in his quest of capital crimes, by the quaestores par- 
 ricidi ; appointing at his pleasure, in cases of treason, the 
 extraordinary duumuiri; allowing, though perhaps not 
 bound to do so, an appeal from the latter to the assem- 
 bled burgesses — this is all that we can recognize with any 
 degree of confidence. 
 
 In civil law as distinguished from criminal — the for- 
 mer being understood to mean generally rules on the 
 violation of which proceedings can only be" taken by the 
 private person aggrieved — we have no remnant of direct 
 legislation belonging to the regal period. In point of 
 procedure, tradition represents the king here again as 
 judge, deciding all those matters which in later times 
 came before private persons as indices or arhitri. This 
 is certainly implied, if not expressly stated, in a compari- 
 
 Digitized by Microsoft® 
 
B8 Early Roman Lav). 
 
 son drawn Iby Cicero between early Greet and Roman 
 kings'". Duties so engrossing are made by tbe same 
 author the ground for an endowment of royalty with am- 
 ple lands cultivated at public charge : but the power of 
 delegating the judicial function is recognized, perhaps as 
 an innovation, in the case of .Servius administering justice 
 by the alleged direction of Tarquinius Priscus". The 
 same delegation appears in the speech which Livy makes 
 Tanaquil address to the people on the same occasion*; 
 while the feigned case, whether turning upon contested 
 property or a personal broiP, in hearing which Tarquinius 
 Priscus meets his death, is an instance of the compre- 
 hensive jurisdiction over the most minute affairs attri- 
 buted to the kings. 
 
 So Dionysius tells us that in ancient times the kings 
 settled the cases for the suitors by themselves, and their j udg- 
 ment was law *'. But even Eomulus (as we have seen above) 
 only retains the decision on greater offences (which would 
 seem to include private wrongs) himself, entrusting the 
 lesser to the senators, doubtless as to individual delegates 
 (rot? ySoKXeurat?), not to the whole senate as a court (for 
 which we should have read t^ ^ovK-qY- The same king 
 passes his decisions speedUy on wrongs by citizen against 
 citizen, deciding some himself, entrusting others to sub- 
 stitutes''- A delegated jurisdiction upon matters of con- 
 tract seems to be assumed in the ' magistrates and courts' 
 mentioned as existing under Numa: though the whole of 
 this passage has most suspiciously the air of a moral 
 theme'. Tarquinius Priscus hears the pretended case of 
 the two hinds, which seems in this author to be a civil 
 suit'. Finally Servius is presented to the people by 
 Tanaquil, as appointed by the king to superintend 'all 
 matters public and private '^ 
 
 The oldest form of 'action' (see next section, p. 92) 
 
 Digitized by Microsoft® 
 
' Eegal Period. 89 
 
 known to us is not inconsistent with the view of royal 
 jurisdiction here presented. And its reconciliation with 
 that view is most satisfactorily effected by recognizing the 
 close connection, if not the original identity, of the royal 
 with the pontifical function. Actio per sacramentiim is 
 incorrectly apprehended as " proceedings by legal wager,' 
 because, of the two parties staking, while the one lost the 
 other did not gain. Sacramentum was the solemn con- 
 secration of so many pounds of copper to public sacred 
 purposes, each party to a suit depositing the whole 
 amount, but only the loser's deposit being ultimately 
 taken. From its proper meaning of the act or form of 
 consecration the word passed to that of the sum deposited, 
 in which sense it is explained by Varro and Festus. The 
 decemvirs fixed the amount of deposit, by a rough ad 
 valorem scale, in the coinage which Mommsen, probably 
 with justice, supposes them to have introduced'. But 
 there is no reason to suppose that they introduced the 
 actio per sacramentum itself, which was doubtless the one 
 form under which, in the very oldest times, all civil pro- 
 ceedings were brought™. 
 
 The sum forfeited by the losing party must have 
 served in some sort as a fee to the court for time and 
 trouble expended: from which we may fairly infer that 
 court to have been not unconnected with the sacra, to 
 which that sum nominally went. The testimony of Varro 
 on this point is interesting and significant. The plaintiff 
 and defendant, says he, deposited the sum of money 
 respectively ad pontem. Miiller, who retains this reading^ 
 supposes it to mean some sacred place near that bridge 
 which we have seen to be under the pontiffs' special care. 
 But Augustinus' emendation, ad pontificem, for which ad 
 pontem might very well be an abbreviation, seems to me 
 infinitely preferable". Either reading indicates a conuec- 
 
 Digitized by Microsoft® 
 
go Early Roman Law, 
 
 tion of the earliest jurisdiction over private suits with the 
 pontificate. And whether we regard the king as a de-, 
 velopement of the pontiff or no, it is certainly at least 
 probable that this jurisdiction was, in the period repre- 
 sented by the first five reigns, confined to him or some 
 other member of the sacred college. In respect of the 
 latter, the view best reconciling the somewhat conflicting 
 authorities appears to be that which regards it as origin- 
 ally consisting of four, with the king in the fifth place as 
 ex officio chief, though not bearing the later title pontifex 
 nuLximus". 
 
 a. See above, § 15, notes 6, e. 
 
 b. Cieero de Bepubliea S. § 3. [Nihil esse tam] regale quam explana- 
 tionem aequitatis in qua iuris erat interpretatio, quod iua priuati 
 petere solebant a regibus: ob easque eaussas agri...definiebantur 
 qui essent regii qui colerenturque sine regum opera et latere ut 
 eos nulla priuati negoti cura a populorum rebus abduceret. nee 
 uero quisquam priuatns erat disceptator aut arbiter litis ; sed . 
 omnia eonfioiebantur iudiciis regiis. et mihi quidem uideturNuma 
 noster maxime teuuisse hune morem ueterum Graeciae regum. 
 
 c. De Eep. 2. § 38. quod, cum Tarquinius ex uolnere aeger fuisse et 
 uiuere falso diceretur iUe (Seruius) regio ornatu ius dixisset ob- 
 aeratosque pecunia sua liberauisset, multaque comitate usus iussa 
 Tarquini se ius dieere probauisset, (fee. 
 
 d. Livy 1. 41. 'interim (Tarquinium) Ser. Tullio iubere populum 
 dicto audientem esse, eum iura redditurmn obiturumque alia 
 regis munia esse, ' &e. 
 
 e. Livy 1. 40. specie rixae. Dionysius Antiqq. 3. 73. jSoj iieyaXT) 
 XPtif^m TT]v irapb, toS panCKius ^o-q0aav inaXovr a/iipSTcpoi irapov- 
 Twv avTois a'vxvwv...ffvva.yava.KT0iivTU3tf dj^xpardpois Kal avfifiapTvpovv^ 
 rtdV wi 5^ €l(TK(tKk(ra% aurob^ 6 ^affiXeiis Xiyetp iK^Xevffe jrepl (Se 5te- 
 ^iepovTO, alytSv p^v ^vcKa dcap.(pta^rjT£tif ^ffK-^iTTovTO k.t.\. 
 
 f. Dion. 10. 1. rd pL^if dpxcuov oi jSactXets i<l> avriSif ^tolttov rots 
 Smp^vot? rds SIkols Kal Tb ditcaicadiv {rjr^ iKdvuii touto v6p.os ijv, 
 
 g. Dion. 2. 14. ^a(rL\et...i^yp7fro rdSe rd yipa,.,ira.vT6i tov Kara ipi^ffLV 
 ■q Kara (rwSrJKas Sixalov irpomeli' tiSv tc ddiKrip,aTwv rd lUyurra piv 
 auTov Sucd^eiv rd Si iXaTTOva. Tots povKevrais iwirpiwav Trpovooip^vov 
 Im p.-ifikii yivriTai irepl rds SUas T\iip,iie\h. 
 
 h. Dion. 2. 29. riav S' els dXkriXois ddiKrjp.drai', ou xpoyioi/i a'XXa 
 
 Digitized by Microsoft® 
 
Regal Period. 91 
 
 taxeiia irola rds Kfttaeis rd /iiv 01)765 SicXciv to 6' d'lWois 
 
 Dion. 2. 75. oV tc cipxcd fal to SiKajT^pia to TrXeiiTTa tmk dii^ia-^ri- 
 TTjfiaTtav Tois ^K TTJs iriffTeujs opKQLS 5t7jTtt)V, TavTa...inr6 tov No/ia 
 rare i^evpeBiina KoaiuiijTipav...T^v 'Pa/ialoiv iroXirdav dT£ipyd<raro, 
 It is not, however, clear whether he is speaking of the practice 
 in Numa's times or the subsequent results of Numa's ordinances. 
 Tore TOV TiiXXtov (^ TavaKv\is) auToU avviffTHjfftv (is Wo tov j3o(rtX^ws 
 iwlTpoTTOtf cLirdvTUV Te Twv KOiviav KoX tQv ISlcov diroheLKVvfiSvov. 
 MommsenHist.rei nummariae Eom.p. 175, quoted by Soholl. There 
 was still apparently only one denomination, the penalties of the 
 Twelve Tables being mere numbers, e.g. si iniuriam faxsit, xxv. 
 poenae sunto, see SchoU Eeliqq. Praef. viii, ix. As to the amount 
 of the penal sum, see Gaius Comm. 4. 14. 
 . Gains Comm. 4. 13. Sacramenti actio generalis erat &o. §§ 11 
 . — 32 contain almost all that we know of the actiones legis ; a full 
 consideration of which belongs less to the present subject than to 
 that of the Twelve Tables. The sacramentum appears from 
 Festus to have been employed in criminal cases as well, by way 
 of a challenge from the accuser to the accused, in a certain sum. 
 Sacramentum aes significat quod poenae nomine penditur siue eo 
 quis interrogatur siue contenditur. This, however, belongs to the 
 most probably later jurisdiction of the tresuiri eapitales. See 
 Epit. Liv. 11. In the part of Flaccus' article referring to the 
 latter (not here cited) L. Papiri Tr. PI. is a contradiction in 
 terms. It is surprising that MUller does not see the necessity of 
 some such correction as that of Ursinus (Tr. Mil.) in spite of its 
 historical difficulties. Clodius would scarcely have been at the 
 trouble of a plebeian adoption if a Papirius could so long before 
 have been a tribune of the plebs. The triumuiratus nooturuus to 
 which a plebeian was eligible existed as early as a.d.c. 430. Liv. 
 9. 46. 
 
 De Lingua Latina 5. 180. Ea peounia quae in indicium uenit 
 in Utibus sacramentum a sacro. qui petebat et qui infioiabatur de 
 aUis rebus utrique D aeris ad pontem deponebant, de aliis rebus 
 item certo alio legitimo numero assum ; qui iudioio uicerat suom 
 sacramentum e sacro auferebat, uicti ad aerarium redibat. 
 See Cic. de Bep. 2. 14. 26, Livy 1. 20, 32 : 2, 2 : 10. 6. Dionysiua 
 Antiqq. 2. 73 and Zumpt's excellent note, Criminal-reoht, Erste 
 Abth. Anmerk. 61, p. 420. He suggests the original identity 
 between this board and the five officers who are mentioned by 
 Festus: the king, the three flamens, and the pontiii afterwards 
 maximus. It is very possible that the board was at first the 
 
 Digitized by Microsoft® 
 
92 Early Roman Law. 
 
 king, (maiof pontiff propef,) the three flamens, and the minor 
 pontiff proper. See Macr. Sat. p. 15. 10. 
 
 § 19. 
 
 Early Civil Peoceduee. Vindicatio. In Iure Cessio. 
 
 It should never be forgotten that the English word action 
 scarcely conveys a correct notion of the Roman legis actio. 
 This might rather be rendered a Tnode or stage of statutory 
 civil proceedings. Moreover it could evidently not be the 
 first stage, but must have been preceded by claim on the 
 one part and counter-claim or denial on the other. The 
 'hand-grapple' {manuum consertio), that followed, was ap- 
 parently symbolical of physical conflict, a meaning which 
 the phrase vnanus conserere, as applied to armies, retained'. 
 "Whether any such symbolism is to be found in the techni- 
 cal word expressing ' claim,' depends on a moot point of 
 etymology. Corssen connects the first syllable of the 
 words uindex, uindicare, &c. with a root signifying desire 
 (of. Venus, &c.) ; so that uindicare, according to him, means 
 merely means 'to express desired' Many, however, will 
 doubtless still prefer the old explanation of this word,- 
 which SchoU accepts — that it means uim monstrare, 'to 
 declare or manifest force ' in the case of a particular article, 
 whether this be the actual thing, the title to which is in 
 question, or a mere legal representative of it, e.g. the clod 
 from the estate". Hereupon the question seems to arise 
 whether the force declared purports to be that of the 
 rightful owner, or of a deforciant. Mommsen (1. 11. p. 
 1 63, tr.) evidently considers the latter to be the case, but 
 although uis has this meaning in the Praetor's order, quod 
 nee ui nee clam nee precario, &c., I incline to the former in 
 uindicare, having regard to the phrase uindicare in, liber- 
 Digitized by Microsoft® 
 
Regal Period. 93 
 
 taiim, and the fact that it is the claimant into liberty (to 
 translate the phrase literally) who really does exercise the 
 act of force by striking the person to be made free with 
 the uindicta^ This word probably first meant the thing 
 claimed, afterwards the claiming rod. So, in the uindi- 
 catio in iure, of which Gains gives us such a graphic 
 picture (4. 16), the claimant is in typical possession, not de- 
 forced from possession, of the slave on whom he lays the 
 straw declaratory of his power. This is the uis festucaria of 
 Gellius, 20. 10. 10. The subject of uindiciae belongs rather 
 to the Twelve Tables from which the difficult expression 
 uindiciam ferre is quoted by Ser. Sulpicius, according to 
 Flaccus' article on uindiciae. Here it may suffice to say 
 that from a comparison of this article with the passage in 
 Gaius, it would appear as if uindicia at first meant claim ; 
 uindiciae the samples or parts brought into court emblem- 
 atical of the thing itself in dispute; then intermediate 
 possession pendente lite. The partes in Gaius are in most 
 cases (for the pilus is doubtful) parts of the thing itself — 
 as we should say in land, parts of the freehold — not of its 
 produce. If they could be produce, this would explain the 
 difficult phrase in Gaius ' litis et uindiciarum, id est rei et 
 fructuum,' where, as the settlement of the lis relates to 
 the thing, so the settlement of the uindiciae relates to itg 
 produce pendente lite". 
 
 This solemn form of claim, which must be made before 
 the magistrate (in iure), was not employed solely as a pre- 
 liminary to sacramentum. Various amicable transactions 
 were placed on record, or legally validated, by the institu- 
 tion of collusive proceedings, which probably never went 
 so far as the deposit. 
 
 Such was the caussa liheralis, whereby a slave who 
 was to become a Roman citizen received manumission. 
 This was without doubt a fictitious suit, in which the 
 
 Digitized by Microsoft® 
 
9}. Early Roman Laiv. 
 
 uindex or assertor lihertatis, ultimately represented by the' 
 lictor, claimed the slave, not as his own property but ' for 
 liberty ' {in lihertatem), and on the owner being silent or 
 otherwise waiving Ms claim, the magistrate made award 
 accordingly". Such, too, when an adoption was to be 
 effected, was the surrender (m iure cessio) by which the 
 filius-familias passed from his natural to his adopted fa- 
 ther'. And the two last-mentioned cases are probably 
 only particular applications of a much more general prin- 
 ciple — that of effecting alienation by a feigned suit, default 
 on the part of the alienor, and award, by the magistrate, 
 to the alienee. Of this species of assurance {in iure cessio) 
 Gains gives us an account in Comm. 2. 24. It was, accord- 
 ing to Ulpian, a common form for the alienation of any 
 thing whatever^: and, according to Gains, the onli/ form 
 by which certain incorporeal things, e.g. inheritances, usu- 
 fructs, and servitudes of estates in Rome, could be as^ 
 su^ed^ 
 
 No date can be given for the origin of this mode of 
 assurance, which may have sprung into existence at any 
 thne after the establishment of a court or magistrate at all. 
 With some kinds of property the artifice of a fictitious suit 
 was doubtless adopted in the interest of the purchaser, whose 
 best security against future proceedings would be a record 
 of the court in which such proceedings must be instituted : 
 with others'', an exceptional limitation of the ordinary 
 rights of ownership, or an avoidance of family obligation 
 was perhaps thought to require magisterial sanction. The 
 resemblance of our Common Recovery to the Roman Sur- 
 render in Court has been frequently remarked. It is perhaps 
 scarcely necessaiy to point out the difference between the 
 latter and its English namesake in Copyhold, where there 
 is no SLiit, real or fictitious, between vendor and purchaser. 
 
 Digitized by Microsoft® 
 
Regal Period. 95 
 
 and the lands are surrendered not to the purchaser (at 
 least directly) but to this lord. 
 
 a. This Tiew of conserere manus seems favoured by Varro de Lingua 
 Latina 5, 7. Sie conserere manum dicimur cum hoste ; by the 
 common use of the phrase to indicate hostile encounter ; and per- 
 haps by the lines of Ennius quoted in Noctt. Att. 20. 10. 
 Non ex iure manum consertum sed mage ferro 
 rem repetunt regnumque petunt, uadunt solida ui. 
 Ortolan (§ 1863, n. 2) takes the consertio to have been merely 
 the simultaneous seizure of the disputed property, by the two 
 parties. In favour of his view must be reckoned the explanation 
 of Aulus Gellius in the passage cited (cum adversario eimul manu 
 prendere), and an article in Festus : sertorem quidam putant dictum 
 a prendendo quia cum cuipiam adserat manum, educendi eius gratia 
 ex semitute in libertatem, uocetur adsertor. The preposition, how- 
 ever, in adserere might well indicate taking to oneself by sertio (or 
 consertio) similarly to the ad in arrogare. Gains also (4. 16) only 
 tellsusof two simultaneous vindications, not of a symbolic contest. 
 h. Corssen Ausspr. 2^ 272. Vindicare, if connected with uie, is a 
 ' spurious compound ' (unlike causidicns &c., which contain no 
 case-suf&x), unless we can suppose the Latins to have possessed at 
 some time, besides their surviving stem uis- shewn in uires (for 
 older uises), another stem in n corresponding to the Greek pw- in 
 tves, Iviov, &c. See however Curtius Grundziige, p. 362. 
 
 c. Aulus Gellius 20. 10. 9. et in ea gleba tanquam in toto agro 
 uindicarent. 
 
 d. See Gains Comm. 1. 17. Boethius in Ciceronis Topica, 2. § 10. 
 Vindicta est uirgula quaedam quam lictor manumittendi serui 
 capiti imponens eundem seruom in libertatem uindicabat dicens 
 quaedam uerba sollemnia. See Ortolan's note on lustin. Instt. 
 1. 5. 1, especially n. 4 to § 58 of the Explication. 
 
 e. Gains Comm. 4. 16, 17. Festus Yindiciae. Not much is to be 
 made out of the Pseudo-Asconius on Cicero Verr. 2. 1. § 115. 
 
 /. Noctes Atticae 5. 19. 1. Adoptantur autem cum a parente, in 
 cuius potestate sunt, tertia mancipatione in iure ceduntur, atque 
 ab eo qui adoptat, apud eum apud quem legis actio est uindi- 
 cantur. 
 
 g. Ulp. 19. 9. In iure cessio communis alienatio est et mancipi 
 rerum et nee mancipi quae fit per tres personas, in iure cedentis, 
 uindicantis, addicentis. 
 
 h. Gains Comm. 2. 29. 30. 34, Provincial estates were neither 
 
 Digitized by Microsoft® 
 
Early Roman Law. 
 
 capable of mancipation nor of surrender (ib.. 31), but of conree 
 these had no existence till long after the Eegal period. Estates in 
 Italy \?ere capable of both (£&.), 
 
 §20. 
 The Servian Refobm. Criminal and Civil Law. 
 
 Hitherto the statements of historians have been con- 
 sidered rather as illustrative of ancient practice than as 
 narrative of actual facts. It is not necessary, as has been 
 before remarked, to discuss the question whether the 
 time-honoured heroes of Roman legend ever existed or 
 not. It is quite possible to believe in the early introduc- 
 tion of appeal without dating it by the reign of Tullus : 
 nor do the quaestores parricidi require the names of Ro- 
 mulus or Numa to back them. 
 
 In reading of Servius, however, fabulous as great part 
 of his story is, we find so much of the reform 'known 
 under his name proved to be historical by its long sur- 
 viving remains, that it seems scarcely wise at once to dis- 
 credit even what Dionysius tells us further of the Com- 
 mons' King, provided there be nothing improbable in the 
 tale. And those who will not go so far as to believe in 
 a personal Servius may yet perhaps consent to connect 
 certain changes attributed to him with the occasion of the 
 Servian reform, which is a fact beyond question. 
 
 There is no reason for thinking that any material 
 alteration was made in crimina,l law : the appeals, if there 
 were appeals, may have been to the new assembly of the 
 centuries instead of the old one of the curies; but of this 
 we have no proof% A special penal enactinent, directed 
 against default in making return of the amount of the 
 offender's property, is attributed to Servius both by Livy 
 
 Digitized by Microsoft® 
 
Regal Period. 97 
 
 and Dionysius, the latter asserting that this law remained 
 for a long time amongst the Romans. Livy rather treats 
 the law as temporary, and it need not detain us here 
 either on the score of importance or credibility^ 
 
 The antiquity of the fragment against the striker of a 
 parent, preserved by Festus (above § 6, note c), is proba- 
 ble on internal evidence. There is no necessity to press 
 its reference to Servius, a reason for which may perhaps 
 be found in his own tragical end". 
 
 While, however, no new criminal enactment of im- 
 portance can be referred to this epoch, other branches of 
 law in all probability sustained material alteration. The 
 traditional popular character of Servius is scarcely ac- 
 counted for by the constitution attributed to him, which, 
 at least directly, assigned to the non-burgesses duties 
 alone and not rights*. Accordingly we find, in the ' 
 stories which reached Dionysius, besides the constitution 
 (treated by that historian as a mere equitable assessment), 
 most of the measures actually passed by later champions 
 of the people, typified or exemplified in the person of the 
 first. Servius puts taxation on a fair footing for the 
 poor', pays the debts of their country's defenders out of 
 his own pocket', and engages to forbid the pledging of 
 personal liberty for the future^. Servius redistributes the 
 public lands'", and moreover gives homesteads to the 
 ' hearthless ' Eomans around his own on the best part of 
 the Esquiline'. All this bears, as has been intimated, a 
 suspicious resemblance to the popular measures of the 
 early republican period; and history, as we know she 
 often repeats, may perhaps be said sometimes to antici- 
 pate herself. Besides these acts, however, of the first 
 reformer, there are others not so clearly modelled upon 
 those of his successors. He collects the laws of earlier 
 kings, creating certain new ones himself: he has the laws 
 
 E. L. Digitized by Microsoft® ^ 
 
9 3 Earhj Roman Law, 
 
 relating to contracts, as well as to offences, ratified by the 
 comitia curiataJ : lastly, he diminishes the royal power by 
 separating private from public charges, retaining cogni- 
 zance of the latter himself, while he entrusts the former 
 to private judges, whose powers and rules of procedure he 
 settles by law''. A probable commentary on the last 
 measure is furnished in the account given of the sufferings 
 of the people under the next king. ' The laws enacted by 
 Tullius, according to which they used to get their due 
 from one another on terms of equality, and were in no 
 wise subject to injury by the patricians, as before, in 
 respect of their contracts — all these laws Superbus abro- 
 gated'.' They are represented as being re-enacted, or at 
 least recalled into use by the first consuls™. 
 
 The changes which will now be noticed as probably 
 connected with the Servian reform are in the law of civil 
 procedure, of conveyance and contract, and of the family. 
 
 Mommsen inGists upon the piirely military character of the system 
 of centuries at first. Its application to political purposes must, 
 he thinks, be pronounced a later innovation. (Hist. 1. ch. 6. 
 p. 100 of tr.). Incidentally, however, he allows that certain 
 changes must necessarily have followed; for instance that it was 
 the centuries, now, who interposed their authority to the testa- 
 ments of soldiers made before battle (ib.). See below, § 23. 
 
 A valuable and interesting disquisition on the comitia cen- 
 turiata and their connection (or original non-coimection) with the 
 local tribes will be found in Mr Seeley's Livy, Book 1. pp. 76. 87. 
 Liv. 1. 44. Censu perfecto quem (Seruius) maturauerat metu 
 legis de incensis latae cum uincnlormn minis mortisque edixit &o. 
 Dion, Antiqq. 4. 15. rtp 5^ fiij rtfLTjtrafi^fip Ttfiojpiav capiae ttjs re 
 odffias cTT^peffdai. Kal airhv p.aaTLyu6ivTa irpa&Tjvai' KoX p^XP^- ttoWov 
 dL^p.€ivG irapcL ''Pbjp.aiois ovros 6 v6/mos, 
 Liv. 1. 48. Dion. Antiqq. 4. 39. 
 Mommsen Hist. 1. ch. 6. p. 95 tr. 
 
 Dionysius Antiqq. 4. 9. im...Tas...el<ripopds Si' as oZ irivrrre! im^a- 
 povvral re Kal dvayKdl^ovTai Savei<rp.aTa 9ro;ery KovtpoTiput els t4 
 XoittJi' <j){priTe, Ti/i'/iffcurBai rds oifflas dlTrai^as KeKeiaa k, t. \, 
 
 Digitized by Microsoft® 
 
; Regal Period. 99 
 
 /. Dion, Antiqq. 4. 9. iic tQv i/MVToS ^PW^tihv SiSa/ii SmKiaaaCai. rk 
 ■Xpia- 10. irdvTiiiv optbvrav &irtipl8fiei Tois SaveicrTiiis ra x/'^"- 
 
 g. Dion. Antiqq. 4. 9. vi/iov Bijaoixai firiSiva 8o»rifeu» iirl a-ilifianv 
 i\ev84pms ixavdv '%70iJ/ie»os Tois SaveiffTaU Tis oiaim tQv ffviipaWiv- 
 Tiav KpaTeif. 
 
 h. Dion. Antiqq. 4. 10. i^i$Tiicev iv ^avepi} Sidray/m ^aaiXiKov iKX'^p^'i' 
 Tyjs STjfioffias yfjs rotJs Kapirovfiivovi re koX ISla Karixo^^f^^ ^^ thpiap-^vif 
 Tivl xphvif KoX Toils oihha. KKijpov Ix"'^"'^-'''^'' voKitiSv vphs iavrov 
 arorfpd<pe(T9ai. 
 
 i. Dion. Antiqq. 4. 13. Siivei/ie Trjf Sriiiodiav xCipav tois SijreiJoi/a-t. 
 'Fafi,cduiy...Kal Siheifuv avTois {roits Siio \6^ovs) rots dvctrrlois 'Pw- 
 fiaiuv olxias KaraaK^vaaaaBai Ma koI airros iwof^ffaro rijv otKijaiv 
 iv TiJ KparlnTif t^s 'Iff/cuXfas rbvif. 
 
 j. Dion. Antiqq. 4. 10. vdfiovs re <rw4ypa<f>ev ix rav dpxalav Kal 
 irapiiiisKyiiiAvar dvaveov/iivovs ovs 'Pu/tuXos re datiyriaaTa koX No/ios 
 IIoyiMr/Xios ous 5^ airds KaBL<TTdfi,evos. 13. rois vS/iovs tovs re avvaX- 
 XaKTLKois Kal Toiis irepl Tuy dSiKTjfidTOJv iireK^ptaffe reus (ppdrpais. 
 h. Dion. Antiqq. 4. 25, t)jv ^affi\iK^]v dpx^v ip^diaffe ttjv Tjfittretav t^s 
 t^ovffias airbs d^eXo/jte^os" riSv ydp irpo airrov ^affiK^iav dirdtras d^ioiv' 
 Tbji/ i(fi iavToiis dyecv tcls SUas Kal Trdi/ra rd iyKK-^/iara rd re idta Kol 
 rd Koivd irpos tov iavrdv rpbrov SiKa^VTOiv, (Ketms SieX&i' dird tup 
 IdMTLKoji' Ta dT^iioffta^ TWi/ p.kv els Td kqlvov tpepovTiav d8iKtjp.dTCoy avTos 
 iiroLetro Tds Siayvdtreis Ttov 5k IdiomKuiv Idiilyras ^Ta^ef etvai Si/catrras, 
 Spovs avrois Kal Kavovas rd^as ovs avThs ^ypa^e v6p,ovs. 
 I. Dion. Antiqq. 4. 43. roils... w/ioi/s toi>s iird TvKKlov ypatpivras KaS' 
 pus i^ taov Ta SiKata Trap' dWijKtav iXdfi^ayov Kal ouS^z' viro rQv 
 irarpiKluv us irpoTepov i^XdirrovTO irepl Td ^v/iPoXaia, Trdvras dvei\e. 
 m. Dion. Antiqq. 5. 2. 
 
 § 21. 
 
 luDicES. Legis actiones. Centumvibi. 
 
 Except in the most patriarchal times, it is evident that 
 such religious sanctions as that mentioned in § 9, must 
 soon cease to suffice even a small community. In ques- 
 tions of the title to and the assurance of property as well 
 as in matters of civil injury, a sort of ' common law' will 
 , grow up, of which cognizance must be taken sooner or 
 
 02 
 
 Digitized by Microsoft® 
 
100 JSarly Roman Law. 
 
 later by the state tribunals if not by the legislature. The 
 business that thus arose could not but very soon surpass 
 the powers of any single man. So that even supposing 
 criminal jurisdiction to have been confined to the more 
 atrocious cases, and so capable of being discharged by the 
 king or perhaps his occasional delegates, it could scarcely 
 be so with civil business. Thus we should d, priori arrive 
 at the institution ,of some other court beside the king's, 
 without the testimony of Dionysius, as a simple matter of 
 necessity; and, if Cicero's statement to the contrary* be 
 taken as anything more than an opinion that the tra- 
 ditional Numa came nearest to certain traditional Greek 
 sovereigns, we can only say that the state of things which 
 he describes could not long be possible. The best modern 
 authorities admit the existence of indices under the kings, 
 whether their institution is to be attributed to Servius or 
 not". 
 
 In the first days, however, of the actio per sacramentum 
 as the sole form of civil proceedings, it seems not unlikely 
 that this jurisdiction was confined to the king, and the 
 other pontiff or pontiffs. The majority of cases would in 
 all probability come before the latter, who were patricians 
 and held their office for life. It is not likely that the 
 most even-handed justice would be administered, by such 
 judges, in cases where plebeians were concerned, especially 
 if one party happened to be a plebeian and the other a pa- 
 trician (see § 20, note 1). We shall not bq surprised, then, 
 to find almost any change of jurisdiction from the pontiffs 
 to a body of private judges (though the latter were mere 
 delegates appointed at the magistrate's option) looked on 
 as a popular measure. At the same time the permanent 
 Establishment of such a body might well be regarded as a 
 certain narrowing of the regal power, which view Diony- 
 sius takes in a passage above quoted (20, note k), and in a 
 
 Digitized by Microsoft® 
 
Regal Period. loi 
 
 speech of Servius. 'All the power which ye gave me, I 
 chose ncrt to keep, but having estabUshed laws on the most 
 important matters, which ye all ratified, I granted you the 
 right of giving and receiving what is due, in accordance 
 with these laws, and I myself first of all submitted to the 
 rules of justice which I defined for others, obeying them 
 like a private manV The untranslatable Greek idiom 
 BiSovai Kal 'Ka/j.^dveiv to, iUaia, of course points exclusively 
 to civil actions : and the tradition followed by Dionysius 
 appears to have been that Servius enacted not only the 
 severance of such cases from the ordinary royal jurisdiction, 
 but also certain rules, both of principle and procedure, for 
 the settlement of them, which were binding upon the 
 whole community, the king included. Something like this 
 view must have been taken by Tacitus, who tells us with 
 his usual difficult brevity that Servius was the chief en- 
 actor of laws, laws which even the kings were to obey*. 
 Whether the consent of the parties entered into the selec- 
 tion of the index we cannot say, but it seems that it did, 
 and we know that such was the case with the index of the 
 republican period. The language of Dionysius (§ 20, n. 1) 
 is vague and coloured by his desire to represent the Servian 
 administration throughout as a plebeian movement; for it 
 cannot be true that plebeians were regularly or to any 
 extent appointed iudices. There is no ground for contest- 
 ing the universally received opinion that the index was, in 
 the earliest times, always a senator. And admission of 
 plebeians to the Senate, though perhaps possible before 
 and somewhat facilitated by the reformed constitution", 
 must have been very ixncommou. Still it might be a 
 great advantage for the plebeian to exchange the irre- 
 moveable pontiff, bound to no rule and amenable to no 
 authority, for the index temporarily appointed, with powers 
 and procedure defined, perhaps too selected by agreement 
 
 Digitized by Microsoft® 
 
I02 Early Roman Law. 
 
 of both parties or, if they could not agree, by lot. This is 
 the grain of truth which I conceive to lie hid in Dionysius' 
 chaff-heap : to go any farther would be to anticipate the 
 times of Gains Gracchus'. 
 
 From this Servian reform, then, probably date the civil 
 proceedings ' by application for a judge ' {per iudicis postvr- 
 lationem), in the account of which we are unfortunately 
 deserted by our only safe guide. That part of the MS of 
 Gains which doubtless would have explained the iudicis 
 postulatio, as well as the original condictio, is lost, unless we 
 may place under the former head a scanty fragment (§ 15), 
 which is generally connected with sacramentnm. If we 
 are to conclude, from this and the following section, that the 
 appointment of a judge formed a necessary part or rather 
 an inseparable accompaniment of actio per sacraTnentum, 
 this too perhaps dates from the Servian reform. It may, 
 however, not impossibly have been older, and taken place 
 originally in iure, before the magistrate, whether king or 
 pontiff, alone ; the application for a judge {iudicis postu- 
 latio) being the later means of importing a certain latitude 
 into the rigid issues of the old law^. The original condictio 
 was the mutual notice to attend, for the purpose of receiv- 
 ing the judge, given by the parties to one another^ 
 Throughout the whole subject of the legis actiones, it must 
 be remembered that they were not actions in our seiise of 
 the word, but statutory forms or stages of procedure, 
 several of which may have entered into the same action, 
 as we apprehend it. 
 
 Of the two remaining legis actimies, the manus iniectio 
 which in the illustration given by Gains approximates to 
 our taking the person in execution, in all probability ex- 
 isted as a matter of what we should call common law 
 before it was enacted by the Twelve Tables'. The pignoris 
 capio of common law or custom {moribus Gains 4. 26j, if 
 
 Digitized by Microsoft® 
 
Regal Period. 103 
 
 connected in the first instance with military pay, cannot 
 have come into existence before that was introduced, ac- 
 cording to Livy, A. u. c. 348^ The subject, however, of the 
 legis actiones generally belongs to the law of the Twelve 
 Tables, from which it is probable that the first four re- 
 ceived both their statutory enactment and their name. 
 For in iure cessio see above (§ 19). 
 
 The indices of Seruius Tullius have been often iden- 
 tified with the centumuiri, though the passage of Dionysius 
 (4. 25) cited by Walter" in support of this view contains 
 no allusion to the latter court. We do not know the date 
 of its institution, but the spear, as the sign of Quiri- 
 tarian ownership, is evidence of considerable antiquity'. 
 We do know that the centumuiri dealt with many 
 questions arising out of the ancient law of persons and 
 things", and that the actio per sacramentum was retained 
 as a preliminary to proceedings before them when else- 
 where (except in one case) disused". 
 
 If the original constitution of this court is to be con- 
 nected, as Verrius Flaccus and Varro intimate", with the 
 thiitj-five tribes, the centumuiri cannot have existed before 
 A.V.C. 513, when that number (35) was made up p. The 
 antique forms just referred to are against this, and the 
 supposition that the name of hundred was given to a court 
 which at its origin consisted of a hundred and five (perhaps 
 exclusive of presidents) seems to me unwarrantable. The 
 somewhat vague testimony of Pomponius on the subj-ect", 
 only amounts to a statement that, after the institution of 
 a Praetor peregrinus (A. V. C. 512), decemuiri litibus iudi- 
 candis were made presidents of the centumuiri, which we 
 know they continued to be till the time of Pliny the 
 younger'. In a passage of Livy (3. 55) which treats of the 
 re-institution of the tribunate of the plebs after the decem- 
 virate, he couples with the tribunes and aediles indices and 
 
 Digitized by Microsoft® 
 
104 Early Roman Law. \ 
 
 decemuiri whoare clearly plebeian, and possibly as old ii; 
 point of institution as the tribunes themselves. The last- 
 named ofificers, though first erected into a magistracy on the 
 secession to Mons Sacer, may cei-tainly have existed before 
 the secession, in connection.with the local tribes, attributed 
 by consistent tradition to Servius. The original number of 
 these is so uncertain that little or no inference, as to the 
 centumuiri, can be safely drawn from it. Dionysius, in his 
 account of the Seraian reform, gives authorities for thirty 
 and thirty-one'.- The same author, when describing the 
 trial of Coriolanus, recognizes only twenty-one tribes to 
 which the vote was allowed, though his calculation that 
 the accused must have been acquitted 'for equality of 
 votes,' if he had gained those of two tribes more than he 
 did, assumes a total number of twenty-two'. 
 
 Livy represents the number of tribes as made up to 
 twenty-one in the year of Superbus' death (a.v.c. 259)-, 
 accounting for the other fourteen at different subsequent 
 periods". If the addition in A.V.C. 259 was of one tribe, 
 as has been supposed, the number originally established by 
 Servius may have been twenty, which suits very well with 
 that of a hundred officers. 
 
 The learned bishop of Lerida, Antonius Augustinus, 
 appears to have considered the centumuiri and their presi- 
 dents as plebeian petty magistrates. I have not been able 
 to find Augustinus' treatise De Legibus, knowing him only 
 by his excellent account of Eoman families. For the 
 above quotation of his opinion on the present subject I 
 rely upon Drakenborch's note to Livy, 3. 55. Both Draken- 
 borch and Augustinus recognize a lex Aebutia de centum- 
 uiris — in all probability the same as that by which the 
 old legis actiones were abolished except in cases damni 
 infecti and those which were to come before the centum- 
 viral court. The date of the lex Aebutia is matter of great 
 
 Digitized by Microsoft® 
 
Regal Period. 105 
 
 question, thbugli the institution of a Praetor Peregrinus 
 (a.V. c. 512), and the entire remodelling of civil procedure 
 which evidently then took place, seem to me quite as 
 likely an epoch for this law's enactment, as that usually 
 given (circiter 573). It may have been part of this re- 
 modelling to set aside the centumviral court for questions 
 of pure Quiritarian ownership where the old forms of pro- 
 cedure would most naturally be retained ''. But the origin 
 of the court must, I think, clearly be placed very much 
 earlier — probably in Servian times. The expressions of 
 Dionysius quoted above, though they have a certain mean- 
 ing when appUed to the appointment of patrician (or at 
 least senatorial) indices, have a much better oiie when 
 applied to the co-ordinate institution of plebeian centumuiri 
 for the hearing of plebeian cases. This, of course, ceased to 
 be the characteristic of the court in later times, when we 
 find it dealing with questions of status, inheritance, 
 testament, and Quiritai-ian law generally, irrespective of 
 order". 
 
 a. See § 18. note b. 
 
 b. Walter (trad, par Labonlaye) , Procedure civile chez les Eomains, 
 ch. 1. Ortolan, Histoire de la legislation Eomaine, §§ 162. 117. 
 Zumpt, Criminalreeht. Absch. 1. c. 4. 
 
 V. Dion. Antiqq. 4. 36. Kal ttjv i^ovirlav fjv vfieis iSdiKari iioi...ovx 
 &TTaaav i^ov\6fi7jv ^X"^ dWa. j/o^wvs re irjrip t&v KvpLtindruiV Karaarrj- 
 ffd/xevos Qvs fiTrai^es €TreKOpta<raTe Kara to6tovs vfuy &ir^So}Ka SiSovai 
 ra Stxaia Kal Xa/ipdveiv, Kal avTos c^riTa^/ajv irpuros oTs dipcaa Kara 
 Tuv SXKwv SckoIqis (aaTep IStdir^s ireidotievos. 
 
 d. Tacitus Ann. 3. 26. sed praeoipuos Seruius Tullius sanctor legum 
 fuit quis etiam reges obtemperarent. 
 
 e. Mommsen Hist. 1. 5. p. 70 tr. and 1. 6. p. 100 tr. 
 
 /. Zumpt (Abscb. 1. cap. 4.) considers tbat Servius was the iustitutor 
 of iudiees, who were senators individually appointed for each case 
 according to the agreement of the parties. For later changes in 
 the constitution of the judicial body see the laws Sempronia, 
 Liuia, Plautia, Cornelia, Aurelia. , 
 
 Digitized by Microsoft® 
 
io6 Early Roman Law. 
 
 g. Ortolan (§§ 1870. 1875) considers the procedure by iudicis postu- 
 latio to have gradually encroached upon that by sacramentum, 
 irom which it was of course distinct, as appears by Gaius Comm. 
 4. 20. He treats the judge, however, as necessarily entering into 
 the sacramental procedure also (§§ 1861. 1900), relying principally, 
 as it seems, upon a note- of the pseudo-Asconius to Cicero's first 
 count of accusation against Verres. (In Verrem 2. 1. c. 9 § 26.) 
 
 Namque cum in rem aliquam agerent litigatores et poena se 
 sacramenti peterent poscebant iudicem qui dabatur post trigesi-J 
 mum diem. 
 
 This no doubt tallies with the number xxx in Gaius 4. 15, before 
 which there is a hopeless lacuna. As far as Gaius alone is con- 
 cerned the point turns upon whether we are to supply in the fol- 
 lowing sentence [idque] per legem Pinariam factum est ; ante earn 
 
 autem legem dabatur iudei the word confestim or statim, 
 
 with Buttmann and HoUweg, or (as I should prefer) the word non- 
 dum with Heffler. 
 
 I question whether much independent value should be attached 
 to the general statement of the pseudo-Asconius. If the following 
 note about the personal examination of witnesses come from his 
 hand, he cannot, according to Baiter, have written before the time 
 of Hadrian, who established the stricter treatment of evidence. 
 Analecta ad pseudo-Aseoninm. Onomasticon. See too Digest. 
 22. 5. 3. 1. The assertion, therefore, that application was made 
 for a judge where proceedings in rem were taken per sacramentum 
 may very well be no independent testimony but merely derived 
 from Gaius' own account of two stages of the law on that point. 
 
 h. See Gains Comm. 4. 18 for the condictio. Condicere is inadequately 
 rendered by denuntiare: it must have originally signified mutual 
 notice or notice about something agreed upon, not notice simply, 
 or the preposition is meaningless. An agreement between the two 
 parties as to the iudex is indicated by the old formula which Festus 
 has preserved us under Proeum . . est enim procare posoere nt 
 cum dioitur in iudice conloeando si alium procas nine eum procas 
 hoc est poscis. We know, too, that mutual notice was given to 
 appear before the judge, when appointed. See Gaius 4. 15, who 
 is here perfectly consistent with the pseudo-Asconius (loc. cit.) 
 comperendiuatio est ab utrisgue Utigatoribus inuicem sibi denun- 
 tiatio in perendinum diem. 
 
 i. For manus iniectio see Gaius Comm. 4. 21 — 25. The term of 
 course is applicable to any form of arrest. It was effected not by 
 an officer but by a private person, see Liv. 2. 23 : 3. 44. &o. , and 
 might apparently (from the last-cited passage and others) take 
 
 Digitized by Microsoft® 
 
Regal Period. 107 
 
 place extra ius i.e. not before the magistrate. See, however, 
 Gaius Comm. 4. 29. 
 j. Livy 4. 59. See Aulus Gellius 6. 10. Verba Catonis 8unt...pig- 
 norisoapio ob aes militare quod aes a tribuuo aerario miles acci- 
 pere debebat, &e. When pay for service actually began is doubtful. 
 The word stipendium cannot have existed before the introduction 
 of coined money, if the derivation in Festus be correct. Stipem . . 
 nummum signatum. Muller, pp. 296. 313. 'Stamped' or 
 'pressed' seems a correct expression to us, though it should be 
 remembered that the old coins were not stamped but strueh with a 
 hammer and double die. I fail to see the slightest connection in 
 meaning between Corssen's translation of stips (kleines Geldsttiok 
 1^. 505) and that of the other words with which he justly connects 
 this, (stipulus stipes stipare, oti^os, otuVos, CTVpekis, &c.). Surely 
 the notion of close pressure is the connecting link? 
 
 If the allowance for purchase of a horse and that for forage 
 {aes equestre and aes hordearium) are to be connected, as Livy (1. 43) 
 connects these, with the Servian military system ; pignoris capio, 
 being the means provided for their recovery (Gaius 4. 27), must 
 have had an earher date than that given in the text. Cicero (de 
 Eepublica 2. 20. 36) appears to confii-m Livy's account of the early 
 institution of these allowances, referring them, however, to Tar- 
 quinius Priscus, and connecting them with Corinth, the fabled 
 home of the Tarquinii, so as to throw discredit upon the whole 
 story. 
 
 h. Tr. Laboulaye Procedure Civile, ch. 1. 
 
 I. Gaius Comm. 4. 16. Valerius Maximus 7. 7. 2: 7. 8. 1, 4. 
 
 m. Cicero de Oratore 1. 38. 173. 
 
 n, Gaius Comm. 4. 31, 95. 
 
 0. Festus. Centumuiralia indicia a c uiris sunt dicta, nam cum essent 
 Eomae xxxv tribus quae et curiae sunt dictae temi ex singulis tribu- 
 bus sunt electi ad iudicandum qui c uiri appellati sunt : et licet quin- 
 que amplius quam centum fueriut, tamen quo facilius nominaren- 
 tur uiri sunt dieti. Varro de Ee Eustica 2. 1. . . numerus non 
 ad amussim ut cum dicimus mille naues ad Troiam isse, centum- 
 uirale iudicium Eomae. 
 
 p. Floras Epit. Liv. 19. 
 
 q. Dig. 1. 2. 2. 28. . . creatus est et alius Praetor qui peregrinus ap- 
 peUatus est . . 29. deinde cum esset necessarius magistratus qui 
 hastae praeesset decemuiri Utibus iudicandis sunt constituti. 
 
 r. Epist. 5. 21. The presidency appears to have been towards the 
 close of the repubUo usurped by the ex-quaestors but was restored 
 to the decemuiri by Augustus. See Suetonius Augustus c. 36 and 
 
 Digitized by Microsoft® 
 
io8 Early Roman Law. 
 
 Torrentius' note, who adduces, against the suggestion of a first 
 institution of these officers by Augustus, the antique s (of stlis) 
 found in inscriptions (xvik. sl. rroiK.). The decemuiri were still 
 presidents when Cicero was a young man (pro Caecina 33 § 97). 
 
 t. Antiqq. 4. 15. 
 
 t. Antiqq. 7. 64. /uSs . . koX eUoai tots ^vKuv oiaav aCs -n ^v<t>o' ave- 
 SoBi) TttS dTTOXuoutros iaxev o MdpKWi ivvia- war' el Sio irpoarjKeav 
 avTif 0uXai did t'^d l<ro^ri(j)lav iviXmro &v uavep 6 vofios ijfi'ou. 
 
 u. Livy 2. 21. Eomae tribus una et uiginta /actae. As to the others 
 see 6. 5; 7. 15; 8. 17; 9. 20; 10. 9; and the epitome of book 19. 
 
 V. Gains Comm. 4. 80. GeUius Noctes Atticae 16. 10. 
 
 w. See pro Caecina 33 § 97 cum Arretinae mulieris libertatem defen- 
 derem. also ib. 18 § 53. As to inheritance, here concerning both 
 orders, Cic. de orat. 1. 39. Quid qua de re inter Marcellos et Clau- 
 dios patrioios ouiri iudicarunt?...nonne in ea oaussa...de toto stir- 
 pis ao gentUitatis iure dicendum? As to testament see Valerius 
 Maximus 7. 7. 1, 2; 7. 8. 1, 4. Digest 5. 2. 13, 17. GeneraUy 
 Cic. de orat. 1. 38. § 173. 
 
 § 22. 
 
 Mancipium, Nexum. 
 
 The intermixture of what we term common with statute 
 law is of course unavoidable in the account of any early 
 legislation. With the oldest enactments of Rome, as with 
 those of our own country, it is often evidently the case 
 that they are merely ' declaratory of the common law.' 
 That is, there is first the custom, then the specific act of 
 the legislature recognising, sanctioning, and regulating 
 that custom^ Thus from the provisions of the Twelve 
 Tables may be clearly inferred the previous existence of 
 those very ancient assurances or acts in law, nexum and 
 mancipium, of which some notice seems proper here. As 
 the institution of indices is directly connected by ancient 
 
 Digitized by Microsoft® 
 
Eegal Period. 109 
 
 tradition -v^^ith Servius, so that of mancipdtion has been 
 indirectly connected by modern inference with the Ser- 
 vian reform, 
 
 Mancipium, from manus and capere, is evidently an ex- 
 pression originally proper of the taker, not the giver. 
 Later, doubtless, the secondary verb, mancipare, was used 
 of the latter: but at first it is the taker who is considered 
 as the acting party, and purchase rather than conveyance 
 is the correct translation of mancipium. I need not 
 remind the reader of English Law that, under the legal 
 tevm purchase, the notion of paying a price is not neces- 
 sarily included. A price certainly enters into the earliest 
 form of mancipium which has come down to us, but the 
 word signifies only a taking by hand. Mommsen, ac- 
 cepting this bare physical meaning, refers the first man- 
 cipium to a time before the invention of property in im- 
 moveables, considering it primarily applicable only to 
 objects which are acquired by grasping with the hand — 
 such as slaves and cattle**- Whether we are to remount 
 or no to this hoar antiquity, we may, I think, assume that 
 manus, in the phrase m^anu capere, carried with it that 
 peculiar idea of power and possession which we know be- 
 longed to the same word with reference to a wife in much 
 later times. This power and possession was asserted by 
 the symbolical 'hand-seizure,' which, when accompanied 
 by the formal words, the payment of the piece of copper 
 to the seller or its acceptance by him, all before the 
 proper witnesses, operates as the original Koman con- 
 veyance, which we may now for convenience call by 
 the later term, mancipation". Ortolan, comparing the 
 use of the lance as the well-known symbol of Quiritarian 
 ownership, justly, in my opinion, regards the earliest man- 
 cipium as an emblem of capture''. And the same view 
 is shewn in a definition by Florentinus of the word man- 
 Digitized by Microsoft® 
 
1 10 Early Roman Law. 
 
 cipium, used, it is true, in the later sense of the thing 
 taken rather than the taking, but defined as that which 
 is taken by (force of) hand from the enemy ^ It is highly 
 probable that the five •witnesses required for this assur- 
 ance "were intended to represent the five classes of the 
 census. If so, mancipation, as we know it, would seem to 
 have been subsequent to the Servian reform, or perhaps 
 part of the new system thereby introduced'. Whether 
 this mode of conveyance was originally intended to be 
 confined to certain kinds of property, or that construction 
 was, as Mommsen holds, a misunderstanding of later 
 times, we need not here enquire. It was doubtless re- 
 garded from the earliest times as specially applicable to 
 the things which came to be known as res mancipi (ob- 
 jects oi mancipium), and which are clearly the articles of 
 most value in an infant agricultural state. Of these 
 articles the law, apparently, did not at first recognize any 
 other mode of assurance than mancipation: whereas 
 other property, at least if corporeal, might legally pass by 
 mere delivery (traditio)^. The doctrine that enjoyment 
 {usus) for a certain time should enure to ripen imperfect 
 ownership arising from irregular alienation into that full 
 ownership recognized by the ancient law of the Quirites 
 {dominium Quiritarium), was probably one of the earliest 
 equitable modifications imported into that law by judicial 
 authority (see below, p. 141). 
 
 The exact force of the nexum, and its connection with 
 mancipium, are matters of some difficulty. The latter is 
 coupled with the former by the particle que in the Twelve 
 Tables, which fact would seem rather to make against the 
 opinion held by some, that mancipium is a mere species 
 of the genus nexum. This opinion is based on the defini- 
 tion of Manilius, preserved by Varro. ' Nexum is any 
 transaction by balance and copper, under which head are 
 
 Digitized by Microsoft® 
 
Regal Period. 1 1 1 
 
 mancipia.'' A much more valuable definition follows, bj' 
 the great jurist Scaevola. 
 
 ' Mucius makes nexa to be things which by copper and 
 balance beeome subject to obligation besides those things 
 which are given by mancipium.' ' That this is the 
 truer view,' adds Varro, 'the word in question itself 
 shews ; for the very thing which by balance becomes 
 subject to obligation and not its own, is thence called 
 nexum. The free man who owed his labour for servitude, 
 in consideration of certain money, until he should pay 
 that money, is called nexus,' &c.^ The difference be- 
 tween Manilius and Mucius appears to be that the former 
 is speaking of nexum, the act in law, the latter of nexum, 
 the thing or person affected by that act in law. But the 
 statements of both are • perfectly in harmony with the 
 view that the primary idea of nexum is obligation, afSxed 
 by law to the receipt of a nominal consideration. Some" 
 parallel may be found in the bargain and sale of our com- 
 mon law, by which a use was raised on the payment of 
 any, even the smallest, sum of money. (A use, too, we 
 may remember, originated in the obligation on the con- 
 science of the terre-tenant.) So nexum, obligation, most 
 likely originated in an actual bargain and sale of future 
 services ; and, if we consider mancipium as a conveyance, 
 it would probably be more correct to say that nexum 
 arose out of mancipium than that mancipium was a spe- 
 cies of nexum. The two original ideas of acquisition and 
 obligation are so combined in the earliest form of manci- 
 pium known to either us or our authorities, that confusion 
 between them was and is inevitable': but, however com- 
 plex the ancient legal conception or transaction was, I 
 cannot beU'eve that the proper and primary signification 
 of nexum was anything but bond or obligation. And, 
 generally, the things affected by such an assurance are 
 
 Digitized by Microsoft® 
 
112 E(Mrly Roman Law. 
 
 those which 'become subject to obligation (nexa) by cop- 
 per and balance,' as distinguished from those which ' are 
 given (out and out) by mancipium' (see page 111). This 
 is the well-known use of the word in Livy, and the per- 
 sons who place themselves in this position are said nexum 
 inire, to enter into a bond or obligation. 
 
 Verrius Flaccus gives the first definition of VaiTo, 
 attributing it to Gallus AeUus, and adding, as instances 
 of nexum, testamenti /actio, and (if the emendations be 
 correct), nexi datio and nexi Uberatio\ The two latter 
 are most probably the giving and releasing of the bond 
 or engagement by which the poor debtor became liable to 
 personal servitude, and, to quote the graphic language of 
 Varro, ' not his own.' The testamenti /actio is, of course, 
 the third mode of will-making mentioned by Gains', 
 which will be more particularly noticed^hereafter (§ 2.3). 
 
 The old transaction, then, out of which both mancipa- 
 tion and nexum grew, being a bargain and sale for value, 
 where the article purchased is present property, abso- 
 lutely transferred, the business would seem to be over, 
 and the nexum, or bond between the parties, at an end ; 
 where anything is left to be done, i. e. where the article 
 purchased includes, or is, some future service, the nenxm 
 continues. Herein lies the important truth, ably pvit by 
 Mr Maine, that in the original popular, as well as in the 
 professional view, a contract was regarded as an incom- 
 plete conveyance. 
 
 It is not impossible that, even where property was 
 absolutely and finally transferred, there may still have 
 •been a nexum subsisting. It seems that conveyances in 
 this legal form fixed on the seller special liability of 
 making good his title as owner, or at any rate of guaran- 
 teeing the purchaser in possession™. So, in our own law, 
 if .before the statute of quia emptores a man enfeoffed 
 
 Digitized by Microsoft® 
 
Regal Period. 113 
 
 another in fee by the feodal word dedi, the law annexed 
 a warranty to this grant. Therefore, even when man- 
 cipium or mancipatio was an absolute sale and complete 
 transfer of property, the seller might stiU remain, to a 
 certain extent, nexus, though the more natural and in- 
 telligible application of the term is to such cases as those 
 instanced by Flaccus, where the main part of the trans-> 
 action consisted of stipulations between the two parties, 
 which were yet to be fulfilled. A good example of this 
 subsisting nexum occurs in the mancipatio jiduciae caussa, 
 or conveyance on trust. This was employed in the cere- 
 mony of emancipation, and other modes of modifying the 
 legal condition of persons"; as applied to things, it was 
 probably the earliest form of a mortgage" and trust deed''. 
 Whatever of a limitative or executory character ac- 
 companied any jparticular mancipation was doubtless ori- 
 ginally set forth in the lex or binding contracf^ of the 
 mancipiiom, which was first orally declared nuncupata (see 
 next section, p. 119), but afterwards reduced to writing 
 and corresponded to our modern limitations, uses, trusts, 
 covenants for title, provisoes — in fact everything which 
 follows the words of grant in a conveyance. 
 
 It. -So we are told Frag. Vatic. § 50, et maneipationem et in iure 
 
 cessionem lex duodecim tabularmu confirmat. 
 J. Mommsen Hist. 1. 11. p. 162. n. tr. 
 
 c. On the legal form of mancipium the locus classicus is Gains Comm. 
 1. 119. 
 
 d. Histoire §§ 88—90. 
 
 e. Dig. 1. 5. 4. 3. Mancipia dicta quod ab hostibus manu oapiantur. 
 /. Ortolan Hist. loo. oit. Mommsen Hist. 1. 6, p. 100 tr. 
 
 Festus. Classici testes dicebantur qui signandis testamentis 
 adhibebantur. These, we know, were identical with the witnesses 
 to mancipation. 
 g. See Mommsen Hist. 1. 11, p. 162, n. of tr. TJlpian. Frag. 19. 
 1. Mancipi res sunt praedia in Italico solo, tarn rustica qualis est 
 fundus quam urbana qualis domus; item iura praediorum rus- 
 
 Jti« L. H 
 
 Digitized by Microsoft® 
 
114 Early Roman Lavj. 
 
 ticontm "uelut nia iter actus aquaeductus ; item serui et qnadru- 
 pedes quae dorso colloue domantur uelut boues liiuli equi asini. 
 ceterae res nee mancipi sunt. 
 
 Again id. 19. 3. Mancipatio propria species alienationis est 
 rerum mancipi. Compare Gains Comm. 2. 22. 
 
 ft. Varro de lingua Latina 7. § 105. Nexum ManiUus scribit omne 
 quod per libram et aes geritur, in quo sint mancipia. Muoius 
 quae per aes et libram fiant ut obligentur praeter quae mancipio 
 dentur. hoc uerius esse ipsum uerbum ostendit de quo quaerit; 
 nam idem quod obligatur per libram neque suum fit inde nexum 
 dictum, liber qui suas operas in seruitutem pro peounia quadam de- 
 tebat dum solueret nexus uooatur. The personal construction fiant 
 ut obligentur is peculiar and not quite to be explained by Lucretius' 
 impersonal ■pieonasm. fit ut....l do not see, however, how it can 
 bear any other meaning than that given in the text. The diffi- 
 culty very probably arises from the confusion between nexum 
 the thing bound and nexum the bond, of which I think traces may 
 be seen in the passages cited below (ft) from Festus. 
 
 i. See Maine's Ancient Law, ch. ix. especially pp. 314 — 316. 
 
 k. Festus. Nexum est, ut ait Gallus AeUus quodcunque per aes et 
 libram geritur, idque necti dicitur, quo in genere sunt haec : testa- 
 menti factio nexi datio nexi liberatio. (MUUer for dando and 
 liberanto. Again, nexum aes apud antiquos dicebatur pecunia 
 quae per nexum obligatur. 
 
 I. ' per aes et libram ' Gaius Comm. 2. 102. 
 
 m. See Mommsen Hist. 1. 11, p. 162 tr. As auctoritas or warranty 
 certainly accompanied those imperfect assurances, the title under 
 which might be ripened by usus into Quiritarian ownership, we 
 should d fortiori expect it to accompany mancipation. It seems 
 questionable, however, whether this continued to be the case, in 
 later times, with mancipations by a mortgagee for the nominal sum 
 of one sesterce. See Poste's Gaius p. 582 and below, note p. 
 
 n. Gaius Comm. i. 114, 115. lust. Instt. 3. 2. 8, also below, § 25. 
 
 u. Isidor. Origg. 5. 25. Fiducia est cum res aliqua sumendae mutuae 
 pecuniae gratia uel mancipatur uel in iure ceditur. 
 Isidorus Hispalensis, so called from his bishopric of Seville, 
 flourished at the beginning of the seventh century of our era. 
 ' Anno 636,' says Bellarmine, ' migrauit in caelum, ut ex chro- 
 niois Hispaniensibus intelUgitur.' His Origines or Etymologiae 
 contain many derivations and explanations which have consider- 
 able antiquarian if not much philological value. 
 
 p. The two cases of mortgage and trust are distinguished by Gaius 
 in Comm. 2. 59. qui rem ahoui fiduciae caussa mancipio dederit 
 
 Digitized by Microsoft® 
 
Regal Period. 115 
 
 nel in iure cesserit, si &c., and 60 fiducia oontrahitiir aut cum 
 creditore pignoris iure aut cum amico quod tutius nostrae res 
 apud eum essent. 
 
 Compare, as to trust, Boethiua on Cicero's Topica 10 § 45. 
 Fiduciam...acoepitcuiounque res aliqua mancipaturut eam manci- 
 panti remancipet ; uelut si quia tempus dubium timens amico 
 potentiori fundum manoipet ut ei, cum tempus quod suspeotum 
 est praeterierit, reddat. haec manoipatio fiduoiaria nominatur 
 idciroo quod restituendi fides interponitur. 
 
 A most interesting relic was discovered in the year 1867 near 
 the mouth of the Guadalquivir in the shape of a brazen tablet 
 having inscribed upon it a form of mortgage by mancipation, to 
 secure present and future advances, with a power of sale. The 
 estate mortgaged is conveyed to the mortgagee uti optumus max- 
 urmisque esset, which according to Digest, 21. 2. 75 means that it 
 is to be guaranteed liber ab omni seruitute to the mortgagee. He, 
 on the other hand, in case of sale, is not bound to make more 
 than a formal mancipation for a single sesterce, which apparently 
 did not involve warranty of title (Poste's Gains, p. 532). Hubner 
 attributes this tablet, from the form of the letters, to the first 
 century a.d. I give the lex mancipi in fuU from Bruns' Fontes 
 luris Eomani pp. 131, 2. It is also to be found in the addenda to 
 Poste's edition of Gains. 
 
 Dama L. Titi ser(uos) fundum Baianum, qui est in agro, qui 
 Veneriensis uocatur, pago Olbensi, uti optumus maxumus-q(ue) 
 esset HS n(ummo) I et hominem Midam HS n(ummo) I fidi fidu- 
 ciae causa mancipio accepit ab L. Baianio, libripende autest(ato). 
 adfines fundo dixit L. Baianius L. Titium et C. Beium et populum 
 et si quos dicere oportet. 
 
 Pactum comuentum factum est inter Damam, L. Titi ser(uom) 
 et L. Baian(ium) : quam pecuniam L. (Titius L.) Baianio dedit 
 dederit, credidit, crediderit, expensumue tulit tulerit, siue quid 
 pro eo promisit promiserit, spopondit (spoponderit,) fideue quid 
 sua esse iussit iusserit, usque eo is fundus eaque manoipia fiducia 
 (e) essent, donee ea omnis pecunia fidesue persoluta L. Titi 
 Boluta liberataque esset; si pecunia sua quaque die L. Titio 
 h(eredi)ue eius data soluta non esset, tum uti eum fundum eaque 
 manoipia, siue quae mancipia ex is uellet L. Titius h(eres)ue eius 
 neUet pecunia praesenti uenderet; mancipio pluris HS n(ummo) I 
 inuitus ne daret, neue satis secundum mancipium daret, neue 
 ut in ea uerba, quae in uerba satis s(ecundum) m(ancipium) dari 
 solet, repromitteret, neue simplam neue {duplam)... 
 a, hex is probably connected rather with the root of ligare than with 
 
 H 2 
 
 Digitized by Microsoft® 
 
ii6 Early Roman Law. 
 
 that of legere; Bee CorBsen Ausspr. V.Ui and Curtius GnindzUge 
 173. Considered in connection with mancipium, less and nexum 
 appear only to differ in so far as the latter is the bond or obliga- 
 tion between the parties, and the former the expression of it. 
 
 § 2,3. 
 TeSTAMENTA CALATIS COMITIIS and FEB AES ET LIBRAII. 
 
 The testamenti /actio per aes et lihram, being a form of 
 mancipation, naturally comes here, but the old form of will 
 which it superseded deserves a brief notice. Arrogatio could, 
 as we have seen (p. 28), he only performed at a meeting 
 of the Curies. The first wills were made at a ' summoned 
 meeting,' in the first instance doubtless of the same Curies. 
 The primary object of these 'Calata Comitia' would ap- 
 pear from Gellius" to be the inauguration of a rex or 
 flamen. As these were life offices, a meeting for the pur- 
 pose of filling up a vacancy would be occasional and 
 specially summoned, which is probably the origin of the 
 name. So Macrobius makes the people to be summoned 
 by the pontifex minor to the Curia Calabra as soon as he 
 has caught sight of the new moon, whose rising, though 
 to us a tolerably regular event, was originally treated as one 
 to be specially observed for each individual occasion "- 
 However, at those Calata Comitia was also performed the 
 making of testaments and the detestatio sacrorum^- The 
 subject-matter with which the latter solemnity dealt is 
 clear: whether it was a formal notice to take up certain 
 sacra priuata or a formal disavowal of them is not clear ^ 
 But there can, I think, be little doubt that the secondary 
 or incidental function of the Comitia Calata (which were 
 always held under the presidency of the pontiffs) was to 
 
 Digitized by Microsoft® 
 
Regal Period. 117 
 
 supervise the maintenance and proper devolution of the 
 sacra priuata. And when this business assumed, as we 
 shall shortly see that it did, a form which was in frequent 
 practical requisition, the incidental function of the Comitia 
 Calata might well become a substantive one, and lead to 
 their being held at regular intervals instead of being 
 merely called when a king or flamen died. Indeed, a 
 formerly questioned statement of Theophilus, that the 
 Calata Comitia took place regularly twice a year has been 
 confirmed by the discovery of Gains' Commentaries". 
 Considering, then, the peculiar subject-matter with which 
 these Calata Comitia dealt, as also the antiquity implied 
 by that subject-matter, by their name and by the name of 
 the officer (not yet rex sacrificulus, but rex) with whose 
 inauguration they were originally concerned; it does not 
 seem too bold to identify them with those assemblies of 
 the Curies which transacted the business of arrogation 
 under the same presidency (of the pontiffs). The naming 
 of an heir being once allowed, more general powers of 
 disposing of an inheritance would naturally follow, the 
 supervision of the pontiffs providing for the perpetuation 
 of the sacra, and the meeting of burgesses, as Mr Maine 
 suggests, for the protection of the rights oi the gentiles. 
 
 The assembly of the Curies, although perhaps not 
 exclusively patrician (see below, § 27, p. 137), would 
 certainly seem from the functions which it discharged 
 to have been essentially gentile. It was scarcely likely 
 that this venerable assembly would concern itself about 
 the last wishes of any one not a member of a gens. 
 But the Servian reform doubtless gave similar testa- 
 mentary powers to any one on the census-roll. For the 
 words of Gellius on the subject of Calata Comitia clearly 
 shew that these meetings were called of the centuries as 
 well as of the Curies, a point which has been much over- 
 
 Digitized by Microsoft® 
 
liS Early Roman Law. 
 
 looked. The first wills, then, were oral declarations of 
 the testator's wishes as to his inheritance, before an 
 assembly of the people, in all probability formally put 
 (rogata) like the arrogations from which they were de- 
 rived, with the sanction of the pontiffs ''. If we may be 
 allowed to translate the custom into a modem form, every 
 such will was a private act of parliament passed subject to 
 the veto of the Episcopal Bench. The inconvenience and 
 probable expense of such a system is evident in the case 
 of either curies or; centuries, but more in that of the cen- 
 turies, as being the larger assembly : so that it may have 
 been, (as is sometimes assumed,) by those who had to 
 avail themselves of the latter, that the new form of will 
 was devised. This was a legal transfer (mancipatio) of the 
 inheritance inter' uiuoS, with that payment of a nominal 
 consideration which seems to have been the first legal 
 method of creating art obligation between parties. The 
 perfectly mutval character of the nexum is seen here in 
 the fact that it must have been the payef of this con- 
 sideration, the 'purchaser of the family,' as he was called, 
 who became bound to fulfil the ' binding direction (lex)' of 
 the mancipium. The act of declaration by the testator 
 (nuncvpatio) originally perhaps stated his wishes in full, 
 afterwards by reference to the tablets, which, from his 
 calling the five witnesses to attest their delivery, became 
 the 'tablets of his testament ;' and lastly, by an easy change, 
 the 'testament' itself that has descended to modern 
 times, Gaius describes the whole ceremony in a well- 
 known passage ° in which the only points that appear to 
 require special notice here are the following. The words 
 of the familiae emptor or trustee (who was originally the 
 heres, the principal cestui-que-trust, also) seem to contain 
 a reference to the law of the Twelve Tables. He, declares 
 himself to receive the property ' whereby thou mayest 
 
 Digitized by Microsoft® 
 
Regal Period. iig 
 
 •make a valid (or binding) will in pursuance of the public 
 law,' This public law I have little hesitation in identify-, 
 ing with that of the Twelve Tables, so called as distin- 
 guished from the private lex or declaration of a man- 
 cipium'. From the latter comes the word legare, appearing 
 in the enactment in question, and which, first meaning 
 simply to direct, afterwards signified to leave away from 
 the heres. The word iure I have ventured to understand 
 ' in a valid (literally binding) manner,' on the authority of 
 the words, in the Twelve Tables, ita ius esto, (so be it 
 binding.) translated according to the only derivation at all 
 satisfactory of the difficult word ius^, I mention this refer- 
 ence to the Twelve Tables for the purpose of remarking 
 that it merely fixes the date of the formula in which it 
 occurs as subsequent to that code. The previous practice 
 of testamentary disposition may rather be inferred from 
 the words of the enactment itself, which substitutes the 
 authority of law for that of custom. If legare be rightly 
 connected with the lex mandpi, the word legassit in the 
 Twelve Tables proves an established custom of mancipa- 
 tory testation. 
 
 The declaration of the testator was called nuncupatio, 
 for nuncupare signifies, says Gains, to name openly (palam 
 nominare) °. The latter part of the word, which is clearly 
 the same as in mancupare, has here no explanation. If 
 we may regard mancupare and nuncupare as originally 
 antithetical — ^the manual taking and the nominal taking — 
 we may see a peculiar propriety in the use of the latter 
 word, where a continuing nexum was intended, where cer- 
 tain services had yet to be performed, and the transaction 
 was, at lea*st in one point of view, executory. This is the 
 case with the familiae emptor in the testamentum per aes 
 et libram, where, however, the word doubtless soon passed 
 altogether into the meaning of ' declaring ' those executory 
 
 Digitized by Microsoft® 
 
I20 Early Roman Law. 
 
 services which the testator was perhaps originally con- 
 sidered as ' nominally receiving ^' 
 
 There is a considerable analogy between this Roman 
 artifice of making a conveyance inter uiuos do duty for a 
 will, and the English feofifm«nt to use of the feoffor, for a 
 similar purpose, before the statute of uses. The owner be- 
 came thus enabled to devise the use where he could not 
 have devised the legal estate, which became vested in the 
 feoffee as the familia in the emptor^. Whether the 
 nexum in the Roman case included a trust for the testator 
 during the remainder of his life, like the use with us, we 
 do not know : probably not, as this will was only made on 
 the approach of death ^ It may be observed that the 
 nominal consideration which seems to have created the 
 bond between the parties in Roman law, would have 
 been fatal to the resulting use which our Court of 
 Chancery only held to arise where no consideration passed. 
 
 a. Noctes Atticae 15. 27. In litro Laeli Felicia ad Q. Mucium primo 
 soriptum est Labeonem soribere calata comitia esse quae pro ool- 
 legio pontificum habentur aut regis (? sacrorum) aut flaminum 
 inaugurandorum caussa. eorum autem alia esse curiata alia een- 
 turiata. cnriata per lictorem euriatmn calari id est conuooari 
 centuriata per oornioinem. isdem comitii^ quae calata appellari 
 djximus et sacrorum detestatio et testamenta fieri solebant. 
 tria enim genera testamentorum fuisse accepimus ; unum quod 
 calatis comitiis in populi oontione fieret, alteram in procinctu 
 cum uiri ad proelium faoiendvmi in aoiem uocabantur, tertium 
 per familiae manoipationem cui aes et libra adhiberetur. The 
 sacrorum detestatio mentioned here and in Noct. Att. 7. 12 was 
 very probably a solemn renunciation of family sacra made before 
 the comitia calata and with the sanction of the pontiffs. This 
 sanction was, doubtless, often difficult to obtain ; from which fact, 
 as the burden of the sacra become more and respect for them less 
 felt, arose the artifice of shifting this duty upon some slave eman- 
 cipated for the purpose (Festus Manumitti (bis) ; pun probi &e.), 
 or upon some man of straw (senex coemptionalis), who become' 
 liable to the duty of keeping up the sacra whether by nominally 
 
 Digitized by Microsoft® 
 
Regal Period. 121 
 
 purchasing the inheritance or, as the prefix co would seem to 
 indicate, by going through the ceremony of coemption (below, 
 § 26) with an heiress so liable. Cie. pro Murena 12. 27. Com- 
 pare to some extent our common vouchee in a recovery. 
 
 5, Satt. I. 15.. 
 
 u. Gains Comm. 2. 101. 
 
 d. The form of rogation in arrogation is given by Gellius Noott. Att. 
 5. 19. As to the pontiffs' sanction see Cic. pro domo sua ad 
 pontt. 13. 35. pontificibus bona eaussa uisa est : approbauerunt. 
 
 e. Gains Comm.. 2. 104. qui faoit, adhibitis sicut in ceteris mancipa- 
 tionibus qioinque testibus ciuibus Eomanis puberibus et libripende, 
 postquam tabulas testamenti scripserit, mancipat alicui dicis gratia 
 familiam suam, in qua re his uerbis famiUae emptor utitur "fami- 
 liam pecuniaTtique tuam endo mandatam tutelam custodelamque 
 meam [recipio eaquej quo tu iure testamentum facere possis secun- 
 dum legem publicam hoc aere et, ut quidam adioiunt, aeneaque 
 libra, esto mihi empta," deinde aere peroutit libram idque aes 
 dat testator! uelut preti loco, deinde testator tabulas testamenti 
 tenens ita dioit " haec ita ut in his tabulis cerisque scripta sunt ita 
 do ita lego ita testor itaque uos, Quirites, testimonium mihi perhibe- 
 tote." et hoc dicitur nuncupatio : nuncupare est enim palam 
 nominare &c. 
 
 /. Vti legassit super pecunia tutelaue suae rei ita ius esto. 
 
 g. Legare is interpreted, on phUologioal grounds, by Corasen as 
 bindenden Auftrag geben, to give a binding charge or commission. . 
 Ausspr. 1^. 444. Ius is traced by the same author to a root 
 iu (binden). The stems springing from this root mostly indicate 
 connection rather than constraint, but the former meaning is quite 
 proper in the case of a valid bond between parties. Ius, it may be 
 remembered, belonged to civil not criminal law. The word cannot 
 come from iubeo, an assumption on which much now exploded 
 metaphysical and juridical speculation has been founded. 
 
 h. This view of nuncupare is slightly supported by the following 
 passage. Festus. Nuncupata pecunia... nota nunoupata diountur 
 quae Consules Praetores cum in prouinciam proficiscuntur faciunt 
 ...at Santra, L. ii. de uerborum antiquitate, satis multis nunou- 
 pata coUigit non de recto (Mailer directo ? unnecessarily) nominata 
 significare sed promissa et quasi testificata circumscripta recepta, 
 quod etiam in uotis nuncupandis esse conuenientius. 
 
 Compare, besides manu-, usu-capio. For the etymology, there 
 is not much more 'loss' than in homi(ni)cida. The intermediate 
 , in dropping, contact with the c changes m to n. For change of o 
 to u compare contiuncula, &c. See Corssen Ausspr. 2". 577. 
 
 Digitized by Microsoft® 
 
122 
 
 Early Roman Law. 
 
 i. 1 Sand. tTses. Williams on Beal Property, ehaps. 8 and 10; 
 
 A. G^ius Comm. 2. 102. Qui negue calatis eomitiis neque in pro- 
 
 cinotu testamentum fecerat, is si subita morte urgebatur amico 
 
 familiam suam mancipio dabat, &e. 
 
 § 24. 
 
 Testamenta in peocinctu. 
 
 An exceptional and not very valuable privilege of 
 testation was allowed to soldiers, without distinction of 
 order, on the eve of a battle". The well-known expres- 
 sion procinctus would appear from Servius' explanation 
 to mean that the sort of plaid which formed the ordinary 
 Italian dress, instead of falling in a loose fold over the 
 breast, was thrown over the back, then brought tightly 
 round the front of the body and tied so as to form a 
 girdle^ In procinctu, then, means in fighting order, and 
 the will in question was made, as Gellius informs us, 
 ' when the men were being called into line for battle ' 
 (see above, § 23, n. a), or rather, perhaps, after formation 
 in line and during the brief delay of taking the auspices : 
 for Cicero distinctly connects the cessation of the latter 
 practice with the disuse of testaments in procinctu". At 
 what time they came into legal recognition it is difficult 
 to say: but they very probably took their rise in the 
 Servian military organization. The coupling of the 
 epithet procincta with the well-known technical term 
 classis, speaks slightly in favour of this theory, though 
 there is nothing to prevent classis (a calling or summon- 
 ing) having been used for any body of soldiers, independ- 
 ently of the Servian constitution*. The allowance, then, 
 of this practice may possibly have been coeval with power 
 to make a will in the caZata comitia of the centuries; so 
 
 Digitized by Microsoft® 
 
Regal Period. 123 
 
 that it did not amount to the conferring of a new right 
 upon the plebeians, but merely to the dispensation with 
 forms otherwise necessary. This is clearly the view taken 
 by Cicero, who speaks of the testamentum in procinetu as 
 also dispensing with the forms of that per aes et libram". 
 
 Heineccius ingeniously suggests that these wills were 
 held valid because made by implied vote of the people, 
 assembled, here on the battle field, as, for the regular wills, 
 in their calata comitia^. In this opinion he is followed 
 by Ortolan I 
 
 The /orm. was an oral declaration of the soldier's wish 
 to his fellow-soldiers present''. It is probable that the 
 testament was only valid in case of the testator's death 
 in that particular battle'. 
 
 Testamenta in procinetu, having fallen into disuse to- 
 wards the close of tbe republican period", were replaced 
 by the testamentum militare temporarily allowed by Julius 
 Csesar, Titus, Domitian, and Nerva, and placed on a foot- 
 ing of permanent authorization by Trajan''. A similar 
 allowance has been made in most modern systems'. 
 
 , Gaius Comm. 2. 101. aut in procinetu (testamentum faoiebant) id 
 est cum belli causea ad pngnam ibant ; procinctus est enim expe- 
 ditus et armatus exercitus. alternm itaque in pace et in otio 
 faeiebant alterum in proelium exituri. 
 
 Servius on Virg. Aen, 7. 612. Gabinua cinetuB est toga sic in ter- 
 gum reiecta ut una eius laoinia reuocata bominem cingat, hoc 
 autem uestimenti genera ueteres Latini cum necdum arma babe- 
 rent praecinotis togis bellabant unde etiam mUites in procinetu 
 esse dicuntur. 
 
 Cic. de Nat. Deonun 2. 3. 9. Itaque maximae reipublieae partes, 
 in his beUa, quibus reipublieae salus continetur nuUis auspiciis 
 administrantur : nulla peremnia seruantur nulla ex aouminibus ; 
 nulla cum uiri uocantur, ex quo in procinetu testamenta perierunt. 
 The italicised words are a certain emendation (founded on GelUus' 
 cum uiri . . .uocabantur § 23. n. a, above) of nulli uiri uocantur the 
 MS. reading. 
 
 Digitized by Microsoft® 
 
124 Early Roman Law. 
 
 While the general was taking the auspices, (we are told by 
 Sabidius on Virg. Aen. 10. 241,) interim ea mora utebantur qui 
 testamenta in procinctu faeere uolebant. This mora, though 
 longer doubtless in duration, answers well in point of time to 
 our poet's : — 
 
 ' One moment while the trumpets blow. ' 
 
 d. Festus. Classis procincta exercitus instructus. See too Opima 
 spolia, endo procinctu, and procincta. Dionysius Antiqq. 4. 18. 
 iyhovTO ii aviiiwplai fiiv l| Ss /caXoCo-i 'Vafuitoi /fXair«!...8 yap rifieis 
 fifj/ia vpo<rTaKTiKU)s ffxW"''f<""'" ixtjiipopiev, KoXei, tout ixetvoi 
 'Kiyovn KoXa, koL tos Ka\4a-£is i,px<uov ixaXovii K\a.<reit. The ex- 
 planation of (caXei is probably that the name of the Epsilon, which 
 (as following the X) corresponded to a Latin a, was not e or i; 
 but et (Eoby's Latin Grammar, Ixvii). The passage from Dionysius 
 is rather in favour of a borrowing of classis from Doric Greek, 
 (which is Mommsen's theory) than of derivation from » stem 
 ola-t (cf. Gothic la-th-6n) by which Corssen proposes to account 
 for the first b. Ausspr. 1^. 490. Curtius GrundzUge 133. The 
 meaning is the same in either case. 
 
 c. Cicero de Oratore 1. 53 § 228. tanquam in procinctu testamentum 
 faceret sine libra et tabulis. 
 
 /. Heineoc. Antiqq. Syntagma 2. 10. 3. 
 
 g. Ortolan Explication § 651. 
 
 h. Festus. Jii procinctu factum testamentum dicitur quod miles pug- 
 naturus nuncupat praesentibus oommilitonibus. 
 
 i. Heinecc. Antiqq. Syntagma 2. 10. 4. 
 
 k. Digest. 29. 1. 1. pr. Militibus liberam testamenti factionem 
 primus quidem Diuos lulius Caesar concessit, sed ea concessio 
 temporalis erat : postea uero primus Diuos Titue dedit ; post hoc 
 Domitianus ; postea Diuos Nerua plenissimam indulgentiam in 
 miUtes contulit eamque et Traianus seoutus est et exinde man- 
 datis inseri ooepit caput tale &c. The gist of the 'caput' is 'ut 
 quoquo modo testati fuissent rata esset eorum uoluntas.' 
 
 The above is due to Ulpian, who also in Frag. 23. 10 speaks 
 to the same effect, adding, as to the duration of such wills, 'sed 
 quod testamentum miles contra iuris regulam fecit ita demum 
 ualet si uel in castris mortuos sit uel post missionem intra aimum. 
 Compare Gains Comm. 2. 109 — 111. Justin. Instt. 2. 11, specially 
 §3. 
 
 I. 1 Yic. c. 26 § 11. Code Napoleon (Civil) Liv. 3. Tit. 2. Sec. 2. &e. 
 
 Digitized by Microsoft® 
 
Hegcd Period, 125 
 
 § 25. 
 
 Emancipatio. Noxae deditio. Adoptio. 
 
 Consistently with the view that ownership was the main 
 constituent element oipotestas, we find the legal convey- 
 -ance forming a large part of these acts in law by which 
 that peculiar relation was transferred, modified or ex- 
 tinguished. Of these, the emancipation of a son from 
 the father's power was in all probability recognized rather 
 than created by the enactment of the Twelve Tables, ' if 
 a father shall have thrice sold his son, let the son be free 
 from the father"'. This practice, then, may have dated 
 from shortly after the introduction of mancipation. There 
 does not seem, however, any ground for supposing that 
 the mancipation of a son was introduced merely for the 
 purpose of setting him free. It was sometimes doubtless 
 the boni, fide transfer of a chattel, which, for instance, in 
 the case (noxalis caussa) of making over bodily an offend- 
 ing son to the person injured as amends for the injury, 
 clearly existed in the time of Gaius, though it had ceased 
 in that of Justinian^ It need not be now discussed 
 whether such a surrender {noxae deditio) was introduced 
 by the Twelve Tables or, as seems more probable, existed 
 before" : the barbarity of the practice, which may have 
 extended even to the surrender of dead bodies'', speaks 
 for its antiquity. The noxae deditio is merely mentioned 
 here as a proof of the lengths to which the exercise of 
 patria potestas was actually carried. The child indeed, as 
 Dionysius tells us, was in some respects worse off than 
 the slave. On the former's attaining liberty in the hands 
 of his new owner, the father's rights were revived. To 
 these, at least in this particular respect, the law at last 
 fixed, as we have seen, a limit which had probably been 
 
 Digitized by Microsoft® 
 
126 Early Roman Law. 
 
 previously recognized by custom. And a strict interpreta- 
 tion of the law introduced the curious anomaly of less 
 ceremonial suflacing for the enfranchisement of a daugh- 
 ter or grandchild than for that of a son'. The form of 
 emancipation resulting from this enactment may be easily 
 made out from Gaius' Commentaries, 1. 132, though there 
 are some lacunae in this section, The only thing requir- 
 ing notice is the position of the son after the third sale. 
 The father's peculiar rights are now extinguished, and the 
 former son is in the position of a slave to the Emptor. 
 If, therefore, on his enfranchisement it is intended that 
 his former father should occupy the position of patromls 
 to him, he must be resold to the father, and finally manu- 
 mitted by him ; whereas on the two former sales, either 
 manumission or resale by the purchaser would suffice, 
 equally welF. 
 
 The word emancipatus, in the ordinary signification 
 under which it has just been considered, apparently means 
 mancipated away, i.e. out of the father's power. It is 
 however sometimes used even by the classical jurists, as 
 it is certainly by the writers of the Augustan and pre- 
 Augustan period, to express mere mancipation, yery often 
 a voluntary sale of one's self. So Plautus Bacchides, 1. 1. 
 59, Nunc ego mulier tibi me emancupo, and the fine 
 passage in Horace's Epodes, 9. 12, Romanus (eheu posteri 
 negabitis) Emancipatus feminae, &c. Lambinus, on the 
 latter, takes what seems to be the true view that mom- 
 cipare was strictly proper of the buyer only, emancipare 
 being said of the seller^. It is therefore not surprising 
 to find the latter word used even in cases of adoption, 
 where it is not intended that the filius-familias shall pass 
 out oi patria potestas altogether, but only out of that of 
 the natural into that of the adoptive father*". Adoption 
 pay of course be as old as arrogation, but would seen\ 
 
 Digitized by Microsoft® 
 
. Hegal Period. 127 
 
 not to be so, from the state supervision, which was prac- 
 tically requii-ed, being of a purely civil character — whereas 
 that required in arrogation was at least in part religious — ■ 
 and from the employment of mancipation. The person to 
 be adopted was thrice purchased by the adoptive from the 
 natural father, the last sale being followed or accom- 
 panied by a formal claim (uindicatio) on the part of the 
 former, and surrender in court {in iure cessio) on the part 
 of the latter'. 
 
 a. Si pater filium ter uenum dmiit filing a patre liber esto. tllpiaii 
 10.1. duuit is Schbll's future perfect, (p. 85.) 
 
 6. Gaius Comm. 4. 75 — 81. It was a question whetlier three sales 
 were required here as in 'voluntary mancipations' or one would 
 suffice. Compare on the whole subject lust. Instt. 4. 8, especi- 
 ally § 7 ; also below, note d. 
 
 e. Ulpian in Dig. 9. 4. 2. 1. See note d. 
 
 d. See the fragmentary section 81 of Gaius Comm. 4. Compare too 
 Livy's story of the Samnites surrendering Brutulus' dead body to 
 the Romans, (8. 39. ) The same author makes out the resurrender 
 to the Samnites of Sp. Postumius and the other guarantors of a 
 peace (after their capture at the Caudine Forks), to be u, noxae 
 deditio. Livy 9. 10. A. Cornelius Aruina fetiaHs ita uerba fecit, 
 "quahdoquehisce homines iniussu populi Bomani Quiritiumfoedua 
 ictum iri spoponderunt atque ob eam rem noxam nocuerunt . . . 
 hosoe homines nobis dedo." Sohiill would here apparently read 
 noxiam following Seruius on Aen. 1. 41. {noxam. pro noxiam. et 
 hoc interest inter noxam et noxiam quod noxia culpa est id est 
 peccatum, noxa autem poena, quidam noxa quae nocuit noxia id 
 quod nooitum accipiunt). Placcus makes noxia the damage done, 
 noxa the fault or its penalty. Festus noxia (bis). 
 
 SchoU, then, seems to interpret noxae dedere ' give up to punish- 
 ment' (eh K&Xaffiv). Of all this I can only here say that the sim- 
 pler form is the more likely to come near the meaning of the root 
 noc — hurt; and that the MS. reading of the passage from Livy 
 seems at least as good authority as the opinion of the Eoman phi- 
 lologers and jurists upon the original meaning of noxa, when they 
 do not affect to quote any ancient fragment. In the passage from 
 the Digest, ' si seruos furtum faxit noxiamue nocuit,' Haloandrus 
 reads noxam. 
 
 Digitized by Microsoft® 
 
128 Early Roman Law. 
 
 e. Gains Comm. 1. 132, 4. 
 
 /. Goschen on Gains Conun. 1. 132. 
 
 g. FeBtus is ambiguons. Emancipati dnobus modis intelUgnntnr 
 ant ii qui ex patris iure exiernnt ant ii qui aUornm fiunt domini 
 quomm utrumque fit mancipatione. The second clause may 
 mean voluntary sale of one's self, as in the case of Antony, put by 
 Horace. 
 
 h. Cicero de Finibns 1. 7. . . seueritatem (Torquati) in eo filio... quern 
 in adoptionem D. SUano emanoipanerat. 
 
 t. Suetonius, Augustus 64. Caium et Lucium adoptauit domi (as 
 opposed to in iure) per assem et hbram emptos a patre Agrippa. 
 So too Festns (at least according to Miiller's additions, mainly fol- 
 lowing those of X7rsinus). [Mancipatione adoptatur] ut patris sui 
 heres e-[-Ese desinat: sed eius qui adop-]-tet tarn heres est 
 qua-[-msi ex eo natus esset &c.] Gellius 5. 19. adoptantdr 
 autem cum a parente in cuius potestate sunt tertia mancipatione 
 in iure eeduntur atque ab eo qui adoptat apud eum apnd quern 
 legis actio est (=in iure, apud magistratum) niudieantnr; adro- 
 gantur hi qui cum sui iuris sunt in alienam sese potestatem tra- 
 dnnt einsque rei ipsi auctores fiunt. , 
 
 Query, did the latter, after mancipation was introduced, em- 
 ploy that form, as the nexi doubtless did? This would give a 
 good explanation of the expressions above cited from Plautus and 
 Horace, as also of the second meaning of emancipatus in Festus 
 (above, note g). For uindicatio and in iure cessio see above, § 19. 
 
 § 26. 
 
 Original Legal Position of Women and its 
 Modifications. 
 
 With regard to the patria potestas the daughter was do 
 doubt originally in no better position than the son. She 
 might even be given up, according to the Institutes* like 
 him, in noxali causa (see above, p. 125). For her marriage, 
 of course the consent of those in whose 'power''' or tute- 
 lage" she might be was necessary : nor are we surprised to 
 
 Digitized by Microsoft® 
 
Regal Period. I29 
 
 find a form of mancipation employed for her purchase and 
 sale, as a bride. This coemptio is probably, at least in the 
 form we know of it, later than confarreatio, by which, 
 however, it is quite possible that it was sometimes accom- 
 panied, as we now occasionally have a religious ceremony 
 celebrated in addition to a civil marriage. Coemptio would 
 perhaps be first used by those who had not family sacra, 
 which were no doubt essential to confarreatio. 
 
 It may possibly have been from its originating among 
 those with whom the paternal authority, though of course 
 existing, was not a thing quite so sacred and supreme as 
 with members of an old gens, that we do not in this mar- 
 riage find it to be the father so much who sells his daugh- 
 ter, as the daughter who with his direction (iussus) sells 
 herself. She is generally said coemptionem facer e, and 
 the compounded preposition is explained by Servius' view 
 that this is a mutual transaction in which each party buys 
 the other". A price being apparently always mentioned, 
 and the aes et libra being made by Servius essential to co- 
 emption, it does not seem necessary or proper here to have 
 recourse to the original meaning (take) of emere '- 
 
 The words which Boethius^ makes the parties use in 
 this marriage perhaps explain his strange statement that 
 those who came into the husband's power {manus) by 
 coemption were called mater-familias but not those who 
 did the like by confarreatio or usus. These words are not 
 unlike a modem form. They asked one another, the man, 
 would she be his mater-familias ?...and the woman, would 
 he be her pater-familias'} to which questions both an- 
 swered, they would. The regular form of mancipation no 
 doubt followed, and probably constituted the binding part 
 of the transaction : indeed Boethius' account may be little 
 more than a gloss upon the often-quoted formula, uhi tu 
 Gaiiis ibi ego Gaia, words which seem according to Cicero 
 
 B. L. I 
 
 Digitized by Microsoft® 
 
I3P Eafly Roman Law. 
 
 to have caused the same trouble to the pedantic lawyers of 
 Ms day as the mysterious letters N. or M. do sometimes to 
 the catechumens of ours". The statement as to materfa- 
 milias contained in this passage of Boethius is mentioned 
 by Servius as an alternative theory together with what is 
 no doubt the truer one — that all wives in manu were 
 matresfamiliasK The other mode by which a woman 
 passed in manum may be mentioned here, though all we 
 know of its date is that it was in vogue before the Twelve 
 Tables. I mean usus or prescription, by which cohabita- 
 tion for a year, with the consent of those in whose power 
 she was or of her guardian, transferred a woman into the 
 power of him who was thenceforth her husband. This is 
 merely an application of the wider doctrine referred to 
 above (p. 110) and more particularly in the next section 
 (p. 141). 
 
 Gonuentio in manum, however, the technical term for 
 passing into the power of a husband, was found undesir- 
 able by some persons, even in those early times, as it was 
 almost universally avoided in later. Hence arose a prac- 
 tice of breaking the usus by a certain amount of absence 
 during the year of prescription, which absence the law of 
 the Twelve Tables fixed at three continuous nights^ 
 
 The guardianship or tutelage exercised over women 
 must be noticed here, as coemptio was also employed with 
 reference to it, and it presumably existed prior to the 
 Twelve Tables!. According to Roman common law a 
 woman though of full age did not, like a man, become a 
 perfectly free agent by the death of him in whose power 
 she was. She merely passed into the tutelage either of a 
 guardian appointed by the deceased or of those relatives, 
 as guardians fixed by law, to whom on her death un- 
 married and intestate her property would come™. On 
 these points the enactment of the Twelve Tables may with 
 
 Digitized by Microsoft® 
 
Regal Period. I31 
 
 protabllity be considered as merely 'declaratory of the 
 commoa law.' The special exception of the Vestal virgins 
 contained in that code"' sufficiently proves the rule, and 
 the normal condition of all other women. So that even if 
 a woman abstained from marriage or at least from those 
 forifls of marriage which brought her and all her property 
 into the ' power (mamis)' of a husband, her liberty to deal 
 as she would with her own was of a most questionable 
 kind. 
 
 She succeeded, it is true, to her share of property, but 
 she could not, in the old times, alienate it, or perform any 
 act in law whatever, without the sanction of her tutor, who 
 might be an interested relative. ' To every act,' says Livy, 
 'even of a private character, done by a woman, our ances- 
 tors required the sanction of a tutor".' It is true that this 
 rigid primitive law was in time evaded, and even overruled 
 by equitable regulations proceeding from the state tribu- 
 nals themselves. Gains, curiously anticipating a now well- 
 known argument, scouts the idea of a ' want of weight in 
 the female mind ' as forming any good reason for their 
 state of wardship : ' because,' says he, ' women of full age 
 manage their affairs for themselves, and in some cases the 
 tutor puts in his sanction by way of form : nay, is often 
 obliged to give it against his wiU by the praetor' (whom we 
 may here perhaps identify with the Court of Chancery) p. 
 Originally, however, a single woman on the death by 
 which a man would have become perfectly free, had a 
 tutor cast on her by law (if one had not been otherwise 
 appointed for her), who was interested in the succession to 
 her property, and without whose sanction she could neither 
 alienate the portions of that property regarded as most 
 valuable by the old law', nor make a will at all'. 
 
 Down to the time of Gaius the statutory tutor could 
 not be compelled to give his sanction to either of these 
 
 12 
 
 Digitized by Microsoft® 
 
132 Early Homcm Law. 
 
 acts, and that avowedly because of his own conflicting' 
 interests"- In fact until the passing of a Senatus-con- 
 sultum, under Hadrian, not even the sanction of a statu- 
 tory tutor would sufiice to validate a woman's will, but 
 she must first have come into the tutelage of a trustee by 
 the cumbrous process of coemption, remancipation, and 
 manumission. This point of law we see confirmed by. 
 a passage of Cicero'. The trustee or fiduciary tutors, 
 of whom Cicero complains p, were of course flexible 
 enough, but it must be remembered that the sanction of 
 the statutory tutor was necessary before a woman could: 
 effect the formal coemption through which she exchanged 
 his tutelage for that of her own choice. The state of ward- 
 ship with women was for life, not, as with males, termin- 
 able at puberty". 
 
 a. lustin. Instt. 4. 8. 7. 
 
 6. lustin. Instt. 1. 10. pr. dum tamen, si fiUi familias sint (here 
 
 including daughters) oonsensum habeant parentium quorum in 
 
 potestate sunt. 
 
 Digest 23. 2. 2. Nuptiae consistere non possunt nisi consen- 
 
 tiant omnes id est qui ooeunt quorumque in potestate sunt. 
 
 TJlpian Frag. 5. 2. lustum matrimouium est si inter eos qui 
 
 nuptias contraliunt conubium sit et tarn masculus pubes quam 
 
 femina uiripotens sit, et utrique consentiant si sui juris sint aut 
 
 etiaru pareutes eorum si in potestate sint. 
 
 c. Cicero pro Flacoo 34 § 84 so far as regards usus and coemptio. 
 
 In manum, inquit, conuenerat. nunc audio, sed quaero usu 
 an coemptione? usu non potuit. nihil enim potest de tutela legi- 
 tima nisi omnium tutorum auotoritate deminui. coemptione? 
 ergo omnibus (tutoribus) auctoribus. See too Ulpiau Frag. 11. 
 22, 27. 
 
 d. Heineooius however quotes an inscription,— pvbl. clatd. • • anto- 
 
 NINAM VOLTMNIAM TIKGINEM TOLENT. AVSPIO. A PAEENTIBVS BVIS 
 
 COEMIT. ET. FAo. iiii. IN DOM. EvxiT. I do not ]mow his author- 
 ity. It was, doubtless, the independent, or at least concurrent, 
 action of the daughter which constituted the difference, both in 
 form and result, between coemption and ordinary mancipatim. 
 See Gains Comm. 1. 123. 
 
 Digitized by Microsoft® 
 
Regal Period. 133 
 
 Servius on Georg. 1. 31. Teque sibi generum Tethys emat omni- 
 bus undis. quod autem ait emat ad antiquom nuptiarum pertinet 
 ritum quo se maritua et uxor inuioem emebant siout habemua 
 in iure. And on Aen. 4. 103. liceat. sane hie ooemptionia Bpe- 
 ciem tangit. coemptio enim est ubi libra atque aes adhibetur et 
 mulier atque uir in se quasi emptionem faoiunt, &o. See his note 
 also on 4. 211. dominum. 
 
 Festus. Emere quod nunc est meroari antiqui aooipiebant pro 
 sumere. Cf. adimere, perimere, &o. > 
 
 Boethius in Topioa 3. § 14. quae . . in manum per coemptionem 
 oonuenerant eae matres-familias uooabantur quae uero usu uel 
 farreo miriitne. coemptio uero certis sollemnitatibus peragebatur 
 et sese in ooemendo inuioem interrogabant, uir ita ; an sibi mulier 
 mater-famOias esse vellet? iUa respondebat, uelle. item mulier 
 interrogabat : an uir sibi pater-f amilias esse uellet ? ille responde- 
 bat, uelle. 
 
 This commentator is the author of the celebrated work, trans- 
 lated by our own Alfred, De consolatione philosophiae. See the 
 fine eulogium on him in Gibbon's 39th chapter. He was executed 
 A.D. 526. 
 , Cicero pro Muraena 12. § 27. Quia in aKcuius libris exempli 
 caassa id nomen inuenerunt, putarunt omnes mulieres quae 
 coemptionem facerent gaias uocari. 
 
 Seruius on Aen. 11. 476. matronae. See Cicero Topica 3. § 14, 
 who there gives a tolerably crucial instance. Si ita Fabiae pecnnia 
 legata est a uiro, si ei uiro uxor mater-familias esset, si ea in 
 manum non conuenerat nihil debetur. genus est uxor; eius 
 duae formae: una matrum-f amilias, earum quae in manum conue- 
 nerunt ; altera earum quae tantummodo uxores habentur. 
 
 Also GeUius Noctes Atticae 18. 6. lUud . . probabilius . . . 
 matrem-famUias appellatam esse earn solam quae in mariti manu 
 mancipioque aut in eius, in cuius maritus, manu manoipioque 
 esset: quoniam non in matrimonium tantum sed in familiam 
 quoque mariti et in sui heredis locum uenisset. 
 
 It is possible that the term mater-familias may have been 
 laxly applied to a woman sui iuris and Mwmarried. See TJIpian in 
 Digest 1. 6. 4. Patres-famihas sunt qui sunt suae potestatis sine 
 puberes sine impuberes; simili modo matres-familiarum. Also, 
 though the following is not so clear, Frag. 4. 1. Sui iuris sunt 
 famiharum suarum principes id est pater familiae itemque mater 
 familiae. But the ordinary meaning of the term is clearly that 
 given by Gellius and a statement sometimes quoted from Nonius 
 (de compendiosa . dootrina per litteras) ia simply absurd. ,'Ma- 
 
 Digitized by Microsoft® 
 
134 Early Roman Law. 
 
 trem-familias (esse nuncupatam) quae in familia mancipi6que 
 sit patria etsi in mariti matrimoBio esset.' Both this and the 
 statement of Boethlus as to wives usu uel farreo (above, note g) 
 may have arisen from a consideration of the exceptional case 
 given VD. the mutilated § 136 of Gains' first book, which must, I 
 think, reaUy refer only to wives who passed in manum (by con- 
 farreation), sacrorum caussa. See Gosehen on that passage. Also 
 Tacitus Ann. i. 16. 
 
 h. Gaius Comm. 1. 111. Usu in manum conueniehat quae anno 
 continuo nupta perseuerahat ; nam uelut annua pdssessione usu- 
 capiebatur in familiam uiri transibat filiaeque locum obtinebat. 
 itaque lege xii tabularum cautum erat si qua noUet eo modo iu 
 manum mariti conuenire ut quotannis trinoctio abesset atque ita 
 usum cuiusque anni interrumperet ; sed hoc totum ius partim 
 legibus sublatum est partim ipsa consuetudine oblitteratum est. 
 See GeUius 3. 2. 12 — ^13, where this breaking of the use is ex- 
 pressed by the word usurpari said of the woman. From usum 
 rupere (SohoU 104) comes usu-ripare, and, when applied to one's 
 own case, the middle usurpari. 
 
 I. Gaius Comm. 1. 144. 146. 
 
 m. Id. 1. 156. quibus testamento tutor datua non sit iis ex leg§ xn 
 tabularum agnati sunt tutores. 157. Olim . . quantum ad legem 
 XII tabularum attinet etiam femiuae agnatos habebant tutores. 
 
 For the identity of the tutores legitimi with the persons enti- 
 tled on intestacy see Gaius Comm. 1. 164, 5. The relation of a 
 tutor in respect to his pupil's property — ^that of reversioner or ex- 
 pectant — must have had some awkward consequences from the 
 earliest times. As to later, see Persius 2. 12, 13. pupillumue 
 utinam quem proximus heres impello expungam ! 
 
 As instance of the act (not thought merely) to which such 
 wishes were father, see Suet. Galb. 9, Juvenal 6. 629, &c. 
 
 n. Gaius Comm. 1. 145. loquimur autem exceptis uirgiuibus Ves- 
 talibus quas etiam ueteres in honorem sacerdoti liberas esse uol- 
 uerunt : itaque etiam lege xii tabularum cautum est. 
 
 0. Livy 34. 2. The sentiment is attributed to Cato (major) in his 
 defence of the Oppiau law, ' majores nostri nuUam ne priuatam 
 quidem rem agere feminas sine tutore auctore uoluerunt.' 
 
 p. Gaius Comm. 1. 190. So Cicero, speaking of the practical elusion, 
 in his time, of the restraints of tutelage, says: Mulieres omnes 
 propter infirmitatem consili maiores iu tutorum potestate esse 
 uoluerunt : hi inuenerunt genera tutorum quae potestate muHemm 
 continerentur. pro Murena 12. 27. 
 
 q. Gaius Comm. 2. § 80. Huno admonendi smuus neque feminam 
 
 Digitized by Microsoft® 
 
liegcd Period. I35 
 
 beque pupillum sine tutore auotore rem mancipi alienare posse ; 
 neo mancipi uero feminam qnidem posse pupillum non posse. 
 
 Neither could such property pass by tradition and ususi Gaiua 
 2. § 47. Item mulieris quae in agnatorum tutela erat res man- 
 cipi usucapi non poterant : id ita lege xii tabularum oautum erat. 
 It must be remembered that the Twelve Tables no doubt contained 
 the first statutory notice of iisiu;apio; so that the last-quoted 
 enactment is probably not the imposition of a new restriction on 
 women, but their exclusion from a new (statutory) power of alien- 
 ation. 
 
 See too the sweeping final clause in the following passage of 
 Ulpian (Frag. 11. 27). Tutoris auctoritas necessaria est mulieri- 
 bus in his rebus : si lege aut legitime iudioio agant, si se obligent, 
 si oiuile negotium gerant, &c. 
 
 Gains 2. 118. Obseruandum praeterea est ut, si mulier quae in 
 tutela sit faciat testamentum, tutoris auctoritate faoere debeat: 
 alioquin inntiliter iure ciuili testatur. Ulpian Frag. 20. 15. 
 Feminae post duodeoimum annum aetatis testamenta faoere pos- 
 ■ sunt tutore auctore donee in tutela sunt. 
 
 If a woman happened to have no tutor (a very rare ease) she 
 must apply for one in order to make a will. Livy 39. 10. Quiu 
 eo processerat (Hispala, a freedwoman) ut post patroni mortem, 
 quia in nuUius manu erat, tutore a tribunis et praetors petito, 
 cum testamentum faceret, unum Aebutium institueret heredem. 
 Gains Comm. 1. 192. 
 
 lb. § 115". Olim etiam testamenti faoiendi gratia fiduoiaria fiebat 
 coemptio. tunc enim non aJiter feminae testamenti faoiendi iuS 
 habebant, exceptis quibusdam personis, quam si coemptionem 
 fecissent remanoipataeque et manumissae fuissent. sed hano 
 neoessitatem coemptionis faciendae ex auctoritate diui Hadriani 
 senatus remisit. 
 
 Cicero (Topica 4. 18) maies a capitis deminutio essential, under 
 praetorian law, to possession in accordance with a woman's testa- 
 ment. Si ea mulier testamentum fecit quae se capite nunquam 
 deminuit non uidetur ex edioto praetoris secundum eas tabulas 
 possessio dari. 
 
 This capitis deminutio was the result, not of the eonventio in 
 manum by coemption, whioh only put the woman in the position of 
 daughter to the coemptionator; but of the resale, here a mancipa- 
 tion proper, to the tutor fiduciarius, by which she comes into the 
 position of slave to the latter. See Gains Comm. 1. § 123. Si 
 tamen quaerat aUquis quare citra coemptionem feminae etiam 
 mancipentur, ea quidem quae coemptionem faoit...Beruilem condij 
 
 Digitized by Microsoft® 
 
136 Early Roman Law. 
 
 cidiiein...manoipati manoipataeue seruorum loco eonstituimtur. I 
 give the reading of Goschen's edition which seems to me best. 
 The meaning clearly is, ' The reason for women undergoing 
 mancipation besides coemption is that by the latter they do not 
 enter into servile condition, by the former they do.' If a woman 
 in the position of filia were manumitted, it appears to have been 
 held that her manumitter (and subsequent tutor) could not aid her 
 to disappoint the agnati. She must, therefore, to gain free power 
 of testation, enter into servile condition, on which the manumitter 
 became by common law her patronm, and that patronus, by an 
 analogous interpretation of the rule of the Twelve Tables about 
 agnati, her tutor fiduciarius. See Gains 1. § 165. 
 u. Gains 1. §§ 144, 145. The exceptional privilege under the lex 
 luUa and Papia Poppaea, as that in favour of the Yestal virgins, 
 proving the general rule. See too § 194. 
 
 §27. 
 Commencement of the Repuhlic. 
 
 The expulsion of the Tarquinii and abolition of royalty 
 only come under notice here as causing change in legisla- 
 tion or judicature. Both appear to have been modified to 
 a greater extent than we should gather from the words 
 of Cicero in which he treats the consular authority as 
 scarcely differring from the royal except in duration*. 
 
 Whatever power of direct legislation may have been 
 enjoyed or usurped by the Kings, it is clear that none 
 such descended to the two first magistrates of the re- 
 public. The function of enacting pubhc laws belonged to 
 the comitia centuriata. It is possible that the older as- 
 sembly (curiata) may for some time have retained a power 
 of sanction or veto in matters of general legislation. But 
 their sphere of action was undoubtedly soon confined to 
 a few special departments, such as the passing of private 
 bills (in the matter of arrogation), and the investiture of 
 officers with military authority (imperivm)\ The consti- 
 tution of this assembly as of the comitia centuriata is a 
 
 Digitized by Microsoft® 
 
.. Regal Period. ' 137 
 
 * 
 
 difficult and disputed question for which I must refer 
 the reader to such histories as those of Niebuhr, Rubino, 
 and Mommsen. A very able discussion of these matters 
 will also be found in Mr Seeley's Historical Examination 
 printed with the first book of his Livy. The conclu- 
 sion at which I myself have arrived as to the comitia 
 euriata has been briefly indicated already, i. e. that it was 
 essentially a gentile assembly but was not exclusively a 
 patrician one". 
 
 The legislative power of the comitia centuriata was 
 probably at this epoch subjected to a constitutional check 
 in the requirement that their enactments should be rati- 
 fied by ' sanction of the fathers ' (auctoritate patrum) *. It 
 is clear, I think, that these patres are not identical with 
 the curiate assembly"'. They are considered by Mommsen 
 as a convention of patricians distinct at once from the 
 senate and the comitia centuriata, confronting the latter ' in 
 firm and serried ranks like an Upper House.' In this 
 view Mr Seeley appears to coincide °. With much defer- 
 ence to the two last-mentioned authorities, I am disposed 
 to believe that the patres were, in this case, neither more 
 nor less, than the Senate, which we know to have borne 
 that title and to have gradually appropriated to itself the 
 different branches of power from the commencement of the 
 republic till its decay'. 
 
 The Senate was no doubt originally a body of advisers 
 chosen by the consuls in the same manner as before by 
 the kings ; the choice being perfectly arbitrary, and there- 
 fore falling usually on intimates of the consuls for the 
 time being. The power of removal was probably exer- 
 cised but very rarely, and the chance of being left out on 
 the general revision at the census came only every fourth 
 year. Merit began to be recognised as a qualification for 
 the Senatorship, at least after the institution of censors ; 
 
 Digitized by Microsoft® 
 
138 Early Roman Law. 
 
 rejection became a direct stigma, and would therefore be 
 in general sparingly used^. Subject to the chances of 
 omission or rejection here mentioned, a senators ofiBce 
 was for life: moreover the practice grew up of allowing, 
 as a matter of course, a quasi-senatorial position to those 
 who had held a magistracy, which position would neces- 
 sarily involve a preference for, if not a right of, admission 
 to the rank of full senator ^ These causes did not, of 
 course, all operate immediately on the abolition of the 
 life-monarchy: but, even then, the comparative perma- 
 nence of the Senate, as against the yearly Consuls, must 
 have given. the former a gre^t increase of power. So 
 these patres who, whether the Senate, a portion of the 
 Senate, or a patrician convention, had certainly little or 
 no definite function under the kings, now enjoyed the 
 important right of veto if no initiative. That this veto 
 was a substantial power may be inferred from'the neces- 
 sity, in later times, of passing the Publilian law which, 
 making the sanction precedent and a matter of course, 
 reduced it to a mere formality'. 
 
 How far the Senate may have enjoyed any independent 
 legislative power in the early republican period is matter 
 of doubt. The Senatus-Consulta which have come down 
 to us in eoctenso, belong to a much later tirne. They ap- 
 pear in fact to have been decreed on the sole advice of 
 this body as taken by the consuls : in form they are 
 rather opinions given to the executive than independent 
 acts of the legislative authority''. 
 
 With regard to the administration of justice, the treat- 
 ment of crimes seems, as before, to demand first notice. 
 Here, that supreme and final jurisdiction which some at 
 least of the kings, whether legitimately or not, appear to 
 have possessed, was clearly done away with. One result 
 of the appointment of two magistrates with equal autho- 
 
 Digitized by Microsoft® 
 
Regal Period^ 139 
 
 rity was that a citizen, aggrieved by the sentence of one, 
 might obtain assistance {auxilium) by calling to his aid 
 {appellando) the othey: failing this, he could summon 
 (prouocare) the magistrate or magistrates themselves be- 
 fore the supreme court of the people, there to maintain 
 the impugned judgement. The latter right is expressed 
 very strongly and clearly by Dionysius, who evidently 
 considers it as extending to all penal sentences, for he 
 includes the case of fine in addition to those mentioned 
 by other authors, of death or scourging'. And both 
 Hmitations of the consular authority may be gathered 
 from the passage in which Livy speaks of the dictator- 
 ship — a temporary revival of kingly power, soon found 
 necessary either in the national or aristocratic interest — 
 as an authority under which there was none of the relief 
 that might be sought from one consul against the sentence 
 of the other, nor any appeal™. 
 
 This right of appeal, then, which was probably, as has 
 been seen above (§ 15), a disputed point under the 
 regal authority, was, on the downfall of that authority, 
 raised from the position of a questionable customary to 
 that of a definite statutory rule". It is quite possible 
 that no express penalty was attached to its breach: the 
 real sanction probably was the danger which a consul 
 offending against the law would run, of impeachment, 
 after his office had expired, for wnconstitutional conduct, 
 which seems a more satisfactory meaning than that of 
 mere moral censure attributed by Livy to the phrase 
 improbe factum''. 
 
 From the character of the sanction, this law might no 
 doubt sometimes be, as Livy intimates, a dead letter in 
 the case of very powerful offenders : but its formal import, 
 as of the similar succeeding enactments carried by that 
 ' People-courting ' family to which the first is attributed, 
 
 Digitized by Microsoft® 
 
140 EaMy Roman Law. 
 
 was doubtless to place the supreme criminal jurisdiction 
 in the hands of the centuriate assembly ^ It should not 
 be forgotten that this limitation of the consular power 
 •only extended to the city and a mile round, beyond which 
 space their absolute military authority began'. 
 
 In point of civil judicature, the consuls succeeded to 
 a considerable portion of the kingly power. 'Judge,' in 
 fact, appears to have been their distinctive title in rela- 
 tion to the people when within the city walls. When 
 therefore an array (exercitus) was to be ordered, whether 
 for military or political purposes, the consul's officer first 
 summoned the QuiAtes to the presence of the 'judges,' by 
 which term the consuls must be meant'. We should not 
 infer from this title either that the private indices were 
 as yet unknown (see above, § 21) or had been discon- 
 tinued, but that the line between their functions and 
 those of the public magistrate was not so sharply drawn 
 as it is supposed to have been in the later time oi formulae. 
 With regard to derivational meaning, the word is as 
 proper for the one as for the other : and the decision of 
 the iudex was always given by him merely as the delegate 
 and under the commission of the magistrate. Whether 
 the latter became now hound to refer civil cases to a 
 iudex (such reference having been previously optional) is 
 not perhaps quite so clear as Mommsen (11. 8, p. 449 
 of tr.) seems to assume. 
 
 Neither in civil nor criminal cases do we find any 
 general jurisdiction possessed by the pontiffs, under the 
 republic. With their special cognizance of certain offences 
 committed by religious persons we have not here to do. 
 Any other judicial functions that the pontiffs may, in the 
 earliest times, have possessed, must have been merged in 
 the royal power before that was superseded by the con- 
 sular, and dearly descended to the consuls, not to the 
 
 Digitized by Microsoft® 
 
Regal Period. "\ 141 
 
 original possessors. As, however, retaining the custody 
 of legal forms and precedents, the sacred college doubtless 
 continued, both in the later regal and early republican 
 period, to exercise a great, if an indirect, influence upon 
 the administration of justice, and thereby also upon a 
 species of legislation. 
 
 By means of their civil decisions, the chief magistrates 
 of the republic cannot but have introduced a great' deal 
 of judge-made or magisterial law I This is generally 
 treated as if it only commenced with the institution of 
 the praetor urhanus, an assumption based, no doubt, upon 
 the name [ius praetorium) by which .these modifications 
 and reforms of the strict original law were most generally 
 known. But it must not be forgotten that the name of 
 praetor was borne, long prior to that institution, by the 
 two chief officers of the Roman republic'. The title 
 under which we usually know them, probably derived 
 from their function of taking counsel with the Senate" 
 was later than the general appellation of ' leader,' where- 
 by they, as perhaps also any chief magistrates, were origi- 
 nally called^ So that praetorian is simply magisterial 
 law, and, as such, must have had some existence from the 
 very earliest days of any regular enactment at all. For 
 the first laws of an infant state are brief, crude, inflexible ; 
 and it is seldom that any easily available machinery 
 is provided for repeal or reform. In the meantime, 
 owing to the increasing complications and refinements 
 of a growing society, new cases must arise, not contem- 
 plated by the strict law, and calling for equitable modifi- 
 cations or free rules of interpretation, amounting to little 
 short of new laws, into which they often become formally 
 converted. Such is doubtless the history of usus; in the 
 ■ case of which we may infer, from enactments of the 
 Twelve Tables, a prior statute declaring that mancipation 
 
 Digitized by Microsoft® 
 
14-2 Early Moman Law. 
 
 or surrender in court shall be the only title conferring 
 full ownership of- certain classes of property, and a prac- 
 tice of the magistrates allowing such ownership to spring 
 out of other titles, when followed by a certain time of 
 possession. Such is probably the history of those limita- 
 tions which the necessities of practice imported into the 
 originally simple and absolute mancipium, and of the 
 employment of mancipium so modified for the purpose of 
 private testation. Some judicial recognition no doubt 
 intervened between the hard rule of old law and the 
 later enactment that, according to the verbal declaration 
 of the mancipator, or, according to the direction concern- 
 ing his property, of the testator, so should it be binding". 
 And as in the last-cited enactment of the Twelve Tables 
 we have an instance where powers considered too narrow 
 were extended, so have we in the subsequent history of 
 testation an instance where powers considered too exten- 
 sive were narrowed, by the accretion of judicial decisions 
 which came to be known as Praetorian law^ These deci- 
 sions and precedents of co;irse assumed a greater degree 
 of permanence and authority ^hen they began to be 
 codified into rules and ' declared forth ' (edtcta) by the 
 yearly magistrate as the principles of decision which were 
 to bind himself and his indices: but the principle of 
 indirect judicial legislation must, I think, have been 
 established before the praetor urbanus, and may perhaps 
 account for the very small body of statutes which so long 
 sufficed the Roman people. 
 
 Cicero de Eepublica 2. 32. 56. Atciue uti consules potestatem 
 haberent tempore duntaxat aimuam genera ipso ao iure regiam. 
 See too Livy 2. 1. 
 
 Of the many passages wliicli may be quoted as to the Ux curiata 
 de imperio the following appear to me among the most interesting 
 
 Digitized by Microsoft® 
 
Regal Period, 143 
 
 and valuable. Cioero de EepuMica 2. §§ 25, 31, 33, 35, 38, ad di- 
 uersoB 1. 9. 25. Livy 5. 46, 52 : 9. 88: 26. 2. 
 c. The comitia curiata are undoubtedly treated by Livy as representing 
 the populua, under which title it ia almost certain that he must 
 have included plebeians as well as patricians. Seeley pp. 68, 69. 
 There are, I may add, two important passages, cited above (note i), 
 to which I think Mr Seeley scarcely gives sufficient notice. Livy 
 5, 46. Aooepto inde senatus decreto ut et comitiis curiatis reuo- 
 oatus de exsilio iussu populi Camillus dictator extemplo dioeretur 
 
 militesque haberent imperatorem quern uellent lex curiata 
 
 lata est diotatorque absens dictus. The first sentence is somewhat 
 confused, but I think there is little doubt that Livy treats iussu 
 populi as equivalent to lege curiata. 
 
 Compare vrith this 26. 2. Prinoipio eius anni cum de litteris 
 L. Maroi referretur, res gestae magnificae senatui uisae : titulus 
 honoris (quod imperio non populi iussu non ex auctoritate patrum 
 dato propraetor senatui scripserat) magnam partem hominum 
 offendebat. 
 
 It appears pretty clearly from this latter passage that auctori- 
 tas patrum was something distinct from populi iussus, i.e. from 
 lex curiata, 
 (I, Cicero de Bepublica 2. 32. 56. Quodque erat ad obtinendam 
 potentiam nobUium uel maximum uehementer id retinebatur, 
 populi comitia ne essent rata nisi ea patrum approbauisset auc- 
 toritas. 
 e. Mommsen Hist. 2. 1. pp. 265, 269 of tr. Seeley pp. 66, 67. See 
 
 next note (/). 
 /. Mommsen Hist. 2. 3. pp. 327, 328 of tr. Ortolan (Histoire § 178) 
 treats the auctoritas patrum as that of the senate. One would 
 certainly expect to find more definite accounts of the body (if not 
 the Senate), with which so important a power as this universal 
 veto was deposited, than the vague expressions of Diouysius in 
 2. 60 and 6. 90, and the patricii of Livy 6. 42. The last passage, 
 upon which Mr Seeley mainly relies, as proving these patres not 
 to be the Senate, runs as follows : Per ingentia oertamina dicta- 
 tor senatusque uictus ut rogationes tribuniciae aociperentur ; et 
 comitia consulum aduersa nobUitate habita, quibus L. Sextius de 
 plebe primus consul factus, et ne is quddem finis certaminum fuit 
 quia patricii se auctores futures negabant, &c. Is it impossible or 
 inconsistent with the conduct of the aristocracy tu this struggle, 
 that after the senate as a body had accepted the rogations and 
 allowed the elections to take place, the patrician majority of that 
 body should afterwards refuse to accept the result of those elections ? 
 
 Digitized by Microsoft® 
 
144 Eafly Roman Law. 
 
 g. On the original constitution of the Senate Flaceus' testinlony is 
 valuable. Praeteriti Senatores quondam in opprobrio non erant 
 quod, ut reges Bibi legebant Bublegebantque quos in consilio pub- 
 lico baberent, ita post exactoa eos oonsules quoque et tribuni 
 militum consnlari poteBtate coniunctissimos sibi quosque patri- 
 ciorum et deinde plebeiorum legebant ; donee Ouinia Tribunioia 
 (sc. lex) interuenit, qua sanctum est ut censores ex omni ordine 
 optimum queinque curiatim (Herschk centuriatim] in senatum 
 legerent, quo factum est ut qui praeteriti essent et loc'o moti 
 ■haberentur ignominiosi. On the question when this lex Ouinia 
 ■was passed and ivhen a note of censure was formally recorded 
 against rejected Senators, see Liyy 39. 42, and Drakenborch'g 
 very full note thereon. 
 
 h. Festus. &na/ores...[adiicitur] 'quibusque in senatu sententiam 
 dicere licet,' quia hi qui post lustrum conditum ex iuniorlbus 
 magistratum ceperunt, et in Senatu sententiam dicunt et non 
 uocantur senatores antequam in senioribus sunt censi. 
 
 i. Livy 8. 12. ut legum quae comitHs centuriatis ferrentifr ante 
 initum Buffragium patres auotores fierent. In 1. 17 he says, 
 referring to the patres' sanction given to the election of a king by 
 the populus, Hodieque in legibus magistratibusque rogandis usur- 
 patur idem ius, ui adempta: priusquam populus suffragium infeat, 
 in incertum comitiorum euentum patres auctores fiunt. 
 
 fc. See the commencement of the Senatus-Consultum de Bacehana- 
 libus (568 A.v.c.) Q. Marcius L. f, Sp. Postumius L. f, cos. senatum 
 consoluerunt n(onis) Octob. apud aedem Duelonai...De bacstna- 
 libus quel foideratei esent ita exdeioendum censuere, &o. Also 
 that de philosophis et rhetoribus (593 a.v.c). C. Faunio Strabone 
 M. Valeric Messala cos. M. Pomponius praetor senatum oonsuluit... 
 Quod uerba facta sunt de philosophis et de rhetoribus, de ea re 
 ita censuerunt ut M. Pomponius praetor animaduerteret curaret- 
 que uti ei e republioa fideque sua uideretur ut Eomae ne essent. 
 Here, certainly, the Senate seem to give an order to the Praetor, 
 though only on his application. (I have taken these two docu- 
 ments from Brun's Pontes iuris Bomani antiqui.) 
 
 I, Dionysius Antiqq. 5. 19. ''Edv rts apxtav 'Viofiaiiav rivh diroicrtlyeLv 
 
 "KeiffOaL TTjv &px^v ^ttI T-ffV rov 5'^fiov Kpltriv TrdtrxeLv h'iv ri^ fiera^it 
 Xpi'"fi I^V^^" i"""^ T^s ^PXV^ ^"' "" o Sijiios iTrip airov ^?;^(<n;Tai. 
 Compare Cicero de Eepublioa 2. 31. 54. Idemque, in quo fuit 
 Publicola maxime, legem ad populum tulit earn quae centuriatia 
 comitiis prima lata est, ne quis magistratus oiuem Eomanum 
 aduereus prouocationem necaret neue ueiberaret. Also Livy 10, 
 
 Digitized by Microsoft® 
 
Regal Period. 145 
 
 9 (telow, note o). On the probably later extension of this law to 
 the case of heavy fines see Mommseu 2. 1. p. 259 tr. 
 
 m. Livy 2. 18. Nectue enim, ut In oonstdibus, qui pari potestate 
 assent, alterius auxilium, neque prouooatio erat. 
 
 71. Ortolan Histoire § 94. 
 
 0. Livy 10. 9. Porcia tamen lex sola pro tergo ciuium lata iddetur 
 quod graui poena si quia uerberasset necassetue oiuem Bomanum 
 eanxit. Valeria lex, oum eum qui prouocasset uirgis c(i«di securi- 
 que neoari uetuisset, nihil ultra quam improbe factum adieeit. id, 
 qui turn pudor homiuum erat, uisum, credo, ulnculum satis uali- 
 dum legis. Compare Cicero de Bepublica 2. 31. 64. Neque uero 
 leges Porciae, quae tres sunt trium Porciorum, quioqnam praeter 
 sanetionem attulerunt noui. 
 
 p. This is in^cated by the stories of the removal or lowering of the 
 axes. Cioero de Eepubhca 2. 31. 56. Itaque Publicola lege ilia 
 de prouocatione perlata statim secures de faaoibus demi iussit. 
 The same worthy, according to Livy, before the passing of the law 
 ' Bummiasis fascibus in contionem escendit.' 2. 7. 
 
 Valerius Maximus 4. 1. 1. Inuidiosurtt magistratus fastidium 
 moderatione ad tolerabilem habitum deduxit, fasces secttribus 
 uaouefacieudo et in contione populo summittendo. 
 See too Dionysius quoted in the next note. 
 
 q. Livy 8. 20. ad EegiUum lacum...omues id iussuros quod consules 
 uellent: neque enim prouocationem esse longius ab urbe mille 
 passuum ; et tribimos, si eo ueniant, in alia turba Quiritium sub- 
 iectos fore consulari imperio. 
 
 Dionysius Antiqq. 5. 19. d^eiXec (o OiioWpios) otto tCh pd^SiM 
 Tois ireX^iceis (coi KareaT^ffara rets /hct' hutov iwdTOiS Iflos, i Kal H^XP^ 
 TTjs e/j.TJs SUiiiiviv ^Xisias, &Tav i^adev t^s ?r6XeMs yivwrTM xp^vOni 
 TO?! ireX&ecrii/ IrSop di rais pa'/SSois KOfffneivBai fiovMt. 
 
 r. Varro de lingua Latina, 6. 88. In commentariis consularibus sio 
 inueni : qui exercitum imperaturus erit aceenso dicit hoc ' Galpurni, 
 uoca inlioium omnes Quiritea hue ad me.' aocensus dicit sio 
 'omnes Quirites inliciiun uisite hue ad indices.' ' C. Calpumi,' 
 COS. dicit, 'uoca ad conuentionem omnes Quiiites huo ad me.' 
 aocensus dioit sio 'omnes Quirites it© ad conventionem hue ad 
 indices.' 
 
 Oorssen makes lidum 'girding' and inliciilim-s.in. proeinctum. 
 He considers therefore the first summons to be a ' calling into 
 equipment' or ' mobilizing' of the people. (Ausspr. V. 494—498.) 
 A statement of Livy is against the consuls having been origi- 
 nally named indices. In speaking of an interpretation of the lex 
 Horatia, according to which the protection thereby given to the 
 
 K. L. K 
 
 Digitized by Microsoft® 
 
146 Early Roman Law. 
 
 plebeian indices was considered as extending to tte consuls also— 
 iudicem enim consulem appellari- — he adds — quae refellitur mter- 
 pretatio quod his temporibus nondum consulem iudicem sed prae- 
 torem appellari mos fuerit. Liyy 3. 55. 
 
 Cicero de Legibus 3. 3. 8 can only, I think, be relied upon so 
 far as to shew that at some time or other the consuls were called 
 indices as well a.s praetors; not, as Drakenborch (on Livy loc. cit.) 
 gathers, that they were first called praetors, then indices, lastly 
 consnls, 
 s. See for this meaning of ins honorarium lust. Instt. 1. 2. 7. ' quod 
 qui honorem gerunt, id est magistratus, auctoritatem huic iuri 
 dederunt. It is a generic term, applicable, in later days, to 
 aedUes' law as well as praetors', 
 t See Livy 3. 55 quoted in note r. Zonaras Annal. 7. 19. Tire yap 
 (a.t.0. 305) X^7crai Trpdrov uirdrous airoiis irpoffayopevSijuat ffTparri- 
 yois KaXovfi^vovs to irporepoi'. Festus. Praetoria porta ...iniiio 
 praetores erant qui nunc consules. See also next note. 
 u. Varro (apud Nonium 1. 91). lidem dicebantur consules et prae- 
 tores ; quod praeirent populo praetores, quod consulerent senatum 
 consules. Compare the senatus consulta abofe quoted (/t), and 
 Corssen Ausspr. 1". 446, 'from their conducting the consultations' 
 of the Senate and popular assembly (?) or (2^. 71) 'taking those 
 bodies to counsel.' 
 V. See aboye, note t, as to the consuls; as to the more general appli- 
 cation of the term Livy 7. 3. Lex uetusta est priscis Utteris uer- 
 bisque scripta ut qui praetor maximus sit Idibus Septembribus. 
 clauom pangat . . . . M. Horatius consul ex lege templum louis 
 optimi maximi dedicauit anno post reges exactos; a consuUbus 
 postea ad dictatores quia mains imperium erat soUemne claui 
 figendi translatum est. So, on the occasion which introduces 
 the subject, senatus diotatorem claui figendi caussa dici iussit. 
 (a.t.o. 391.) 
 
 This fixing of the year-nail took place after the institution of 
 the Praetor Urbanus (a.v.c. 387), so that there were then two 
 Consuls and a Praetor proper — enough to justify the use of a 
 superlatiye, whether indicating greatest age or greatest dignity 
 (Festus, Maximum Praetorem). But Livy clearly refers the lex to 
 an earlier time, whatever be made of the difficult ex lege . . dedi- 
 cauit. 
 
 Now as between the two consuls (originally praetors) the term 
 
 must have been maior. Compare Festus, maiwem consulem 
 
 L. Caesar putat dici uel eum penes quem fasces sint uel eum qui 
 
 - prior f actus sit. Praetorem autem maiorem, urbanum ; minores 
 
 Digitized by Microsoft® 
 
Regal Period. 147 
 
 ceteros. In the last case the term maior survived from a time 
 ■when there were but two praetors proper to a time when the addi- 
 tion of more would have justified maximus. 
 
 The inevitable conclusion, I thint, is that praetor was an old 
 general term signifying commander, which, though applied to the 
 two chief magistrates who succeeded the king, was by no means 
 invented for them or understood to be confined to them. 
 Cum nexum faciet mancipiumque, uti lingua nunoupassit ita ius 
 esto. (Festus, nuncupata pecunia.) Vti legassit super pecunia 
 tutelaue suae rei ita ius esto. Ulpian Fr. 11. 14. 
 Gains Comm. 2. 123 and following sections. 
 
 Digitized by Microsoft® 
 
148 
 
 INDEX. 
 
 Actio legis, 92, 102, 103 
 
 „ periudicispostnlationem, 
 
 102, 106 
 „ per mamis iidectionem, 
 
 102 
 „ per pignoris capionem, 
 
 102, 103 
 „ per saeramentum, 88, 90, 
 102, 103 
 adoptio, 128 
 
 „ perhaps not so old as arro- 
 gatio, 126, 127 
 aes equestre et hordearinm, 107 
 antiquarian authorities, 7 
 appeal to people, 66 
 
 „ „ from iing, 68, 69 
 
 .. .. „ origi- 
 
 nally an imperfect right, 71 
 appellatio &ndi prouocatio, 139 
 Appius Claudius Gaecus, 3 
 
 ,, „ the decemvir, 3 
 
 arrogatio, 28, 29, 33 
 Arval guild, 13 
 auctoritas, 114 
 
 auctoritas patrum, 137, 138, 143 
 Aulus Gellius, 9 
 
 Aurelii an!d worship of the sun, 23 
 auxilium, 139 
 
 hargain and sale, 111 
 
 biographers untrustworthy authori- 
 ties, 6 
 hlood-revenge, 48 
 burial law of Twelve Tables, 14, 15 
 
 calendar, 15 
 
 calends, 15 
 
 caussa liberalis, 93 
 „ noxalis, 125, 128 
 
 centumuiri, 108, 104, 105 
 
 cessio in iure, 94 
 
 Cicero de legibus, 4 
 
 classis, 122, 124 
 
 coemptio, 129 
 
 coemptionalis senex, 120 
 
 coemptimiator, 135 
 
 comitia, calata, 116, 117, 120 
 „ centuriata, 136, 137 
 „ curiata, 117, -118, 137, 143 
 
 common and statute law, 108 
 
 condictio, 102, 106 
 
 consertio manuum, 92, 95 
 
 consuls, why so caUed, 141 
 
 eontio, 47, 48, 49 
 
 crimes anciently treated as sins, 35 
 „ and wrongs, 46, 47 
 ,, ,, different classi- 
 
 fications of,at different periods, 51 
 
 custom embodied in earliest laws, 
 12, 13, 14, 15 
 
 Digitized by Microsoft® 
 
Index. 
 
 I4Q 
 
 ousfomary law, Austin on, 11 Horatius, trial of, from Flaoous, 62 
 
 ^ „ „ Livy, 60, 61 
 A of 3d singular imperative, 40 
 
 daughter given up in noxali caussa, lanus and luno, 22 
 
 128 improbe factum, 139 
 
 decemuiri litibus iudicandii, 103, indices, a name of the consuls, 140, 
 
 104, 107 145, 146 
 
 decwiae, 30 ,, first appoiutnieut of, 100 
 
 Demetrius Phalereus, 18 ,, patrician, 101 
 
 detestatio sacrorwm, 116 „ plebeian, 103, 104, 105 
 
 Dionysius of Halicarnassus, 8 luno Couella, lo, 16 
 
 duumuiri perduellionis, § 12 ,, Lucina, 16 ' 
 
 „ limitation of their func- jurisdiction, civil, of king, 87, 88 
 
 tions, 67 
 , , specially appointed, 63, 64 
 „ „ by whom, 64 
 
 edicta, 142 
 
 emancipare, double meaning of, 126 
 
 emancipatio, 125, 126 
 
 false witness, 53, 54 
 . familia, 25 
 familiae emptor, 118 
 
 „ compared with feoffee to 
 
 uses, 120 
 family records a source of error, 6, 
 
 7,8 
 Festiis, Sextus Pompeius, 8 
 Jiducia, 114 
 
 Flaoous, Marcus Verrius, 8, 9 
 Flavius, 3 
 funus, 20 
 
 „ „ under republic, 
 
 140 
 ,, criminal, of king, 57, 
 
 68, 70 
 „ „ under repub- 
 
 lic, 138, 140 
 „ delegated civil, 88, 100 
 
 jurists, classical, 7 
 ius and iure, 119, 121 
 ius honorarium, 141, 146 
 ius Papirianum, 2 
 
 kings compared ■mSa.pater-familias, 
 70 
 
 ,, first legendary, perhaps real 
 chieftains of clans, 54, 58 
 
 „ possibly developed from pon- 
 tiffs, 57, 59 
 
 land-mark, penalty for removing, 52 
 
 legare, 119, 121 
 
 legislation, indirect or magisterial, 
 
 141, 142 
 legislative power, 55, 58, 136, 137, 
 
 138 
 legislators, traditional, 54 
 lessum, 18 
 
 „ „ purification lex, derivation of word, 116 
 
 of, 49, 50 „ Aebutia, 104, 105 
 
 Horatius, trialo{,fromDionysius,63 „ curiata, 83 
 
 gentes, 23, 24, 25 
 Uranlus Flaccus, 3, 4 
 
 heredes, 28 
 
 lieres, derivation of, 32, 33 
 
 homicide, involuntary, 47, 48, 50 
 
 Digitized by Microsoft® 
 
I50 
 
 Early Roman Law. 
 
 lex, mancipi, 113 
 ,, Papiria, 2 
 „ perduellionis, 61 ; by whom 
 
 enacted, 64, 65 
 „ sacrata, 38, 41 
 „ Valeria, 71 
 
 Macrobius, 10 
 mancipatio, 110 
 
 „ Jiduciae cmissa,llS,115 
 
 mancipiwm, original nxeauing of, 109 
 
 „ legal form of, 113 
 
 manus, 25, 26, 129 
 marriage, earliest, 26, 27, 28 
 
 „ consents necessary to, 
 128, 132 
 mater-familias, wlio so called, 129, 
 
 130, 133 
 month, divisions of, 16 
 moon identified with Juno Luciua, 
 
 22 
 mortgage, Eoman, 113 
 
 „ form of, diseovfired in 
 1867, 115 
 mmrder, criterion of, 49 
 murrata potio, 16 
 
 Nautii, connected with worship of 
 
 Minerva, 23 
 ncxum, 110, 111, 112, 113 
 
 ,, mutual character of, 118 
 „ two meanings of, 114 
 nocturnal depredation on arable 
 land, 52, 53 
 theft, 52, 53 
 noviina, meanings of, 24, 29, 30 
 }ioxa and noxia, 127 
 noxae deditio, 125, 127 
 nuncxipare, 119, 121 
 nuncupatio, 118 
 
 ofiences, many, criminal now, not 
 so with Eomans, 51 
 
 offences, small nmnber of original, 
 as regards property, 51, 
 52 ■ •_ 
 
 original documents of legislation, 1 
 orthography, vi. vii. 
 
 „ of regal laws older 
 
 than that of Twelve 
 Tables, 34 
 outlawry, 38, 39, 41 
 
 Papirius, 2 
 
 paiicidas, 42 
 
 parricidi quaestores, 42, 44 
 
 parricidium, 42, 45, 46 
 
 pater-famiUas, 25, 26 
 
 „ as owner, 35 
 
 patria potegtas, 25, 26, 31, 125 
 Paulus, epitomizer of Festus, 8 
 pellex, 13, 16, 17 
 
 penalty, remissible or non-remissi- 
 ble, 46, 47, 51 
 perduellio, derivation ot term, 72 
 ,, original and later mean- 
 ing of, 72, 73, 74 
 „ why the charge brought 
 against Horatius, 73, 
 74 
 petit treason, 37 
 Pinarian gem, 23 
 plarare, 36, 39 
 police ofSeers, early, 60' 
 pontifex minor, 15, 92 
 pontiffs, books of, 12, 13 
 
 „ custodians of legalforms, 13 
 „ extensive functions of, 56 
 „ their connection with pons 
 
 sublicius, 66, 59 
 „ their connection with sa- 
 eramentum, 89 
 pontifical college, its original con- 
 stitution, 90, 91, 92 
 Potitian (jens, 23 
 
 Digitized by Microsoft® 
 
Index. 
 
 i=;i 
 
 'praetor, originally a general name, sanction of earliest ' laws, ' what, 14 
 
 141 
 Iprimogeniture; 28, 33 
 procinctus, 122, 123, 124 
 p'ouocatio and appellatio, 139 
 
 quaestors, derivation and original 
 meaning of term, 75 
 „ diirationoftheirof6ce,83 
 „ mode of their appoint- 
 ment, 82, 83 
 
 Senate, 137, 138 
 Senatus-consulta, 138, 144 
 Bervius, commentator on Virgil, 9, 
 10 
 „ TuUius, historical cha- 
 racter of, 96 
 „ later reforms attributed 
 
 to, 96 
 „ legal reforms actually ef- 
 fected by, 98 
 number of regular, dou- Solon's law no origin of Twelve 
 
 bled, 80 Tables, 18, 19 
 
 original, their functions, spolia opima, law of, ] 3 
 75, 77, 79, 83, 84; 
 their introduction §^17 teitamentum calatis comitiis, 116, 
 
 distinguished from 
 the later occasional 
 quaesitores,77, 79, 80 ; 
 first appointment of 
 the latter, 79 
 „ treasury business com- 
 mitted to, 77, 81, 82 
 ■ Quinctian or Quinctilian gens, 28 
 
 Quuites, 25, 31 
 
 quotations of laws, 4 
 
 117, 118 
 „ in procinctu, 122, 123 
 
 „ militare, 123 
 
 „ per acB et libram, 118, 
 
 119, 120 
 traditio, 110 
 tribes, number of, 104 
 trust, Eoman, 113, 114, 115 
 tittela, 28 
 
 tutelage of women, 130, 132 
 tutor fiduciariui, 132, 135 
 „ legitimus, 134 
 
 Varro, M. Terentius, 9 
 
 reigns, great average length of, 
 
 55,58 
 remancipation, 135 
 representation of deceased person, uindicare, derivation of, 92, 95 
 
 27 uindiciae, 93 
 
 ricinium, 17 mndicta, 93, 95 
 
 usus, 110, 141 
 sacra publica aiid priuata, 23 
 
 „ priuata, li6, 117 ; bond of warranty, 113 
 
 the gens, 25 mils, English, by feoffment to use, 
 
 sacramentum, what, 89; its con- 120 
 
 nection with pontiffs, ift. « first Eoman, what, 118 
 
 sacratio, 36, 39 „ of women, 131, 132, 135 
 
 Salian guild, 13, 23 
 
 Digitized by Microsoft® 
 
Cambrtop ; 
 
 PKINTED BY C. J. CLAS, M.A. 
 AT THE UNIVEESITT PEESS. 
 
 Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
Digitized by Microsoft®