§ 9. The preponderant influence of land was thus transferred from the economic to the political sphere. In the exercise of the sovereign powers of the Roman community -except as regards the regulation of certain questions of gentile law"- the comitia curiata were now superseded by the new comitia, the comitia centuriata. This fact marks the great turning-point in the development 15. A new community had come into existence, a populus Romanus consisting of both patricians and plebeians. The plebeians had thus succeeded in obtaining a recognition of their capacity in regard to public as well as to private law. As distinguished from the plebeians, the patricians merely represented henceforth a noble caste enjoying certain privileges the real foundations of which had disappeared. It was only a question of time when the last remnants of the ancient class distinctions would be swept away, though the two final stages in the development-the concession of connubium with the patricians (involving a recognition of equality of birth as between the two orders), and the acknowledgment of the plebeians' equal rights to public and sacerdotal offices— were not reached till after the Twelve Tables 16. The multitude rose from vassalage to full freedom. The strength of the Roman body politic dates from this time, and Roman law was ready to set out on its great historic career. The regal period ends with the break-up of the state of clans and, at the same time, with the new birth of the populus Romanus on a broader basis. The citizen of the new state was called civis. He superseded the older type of citizen, the quiris, or member of a curia. In place of a quiritary law we have a civil law, that is, a law for the turiata, and of the laws dealing with For example, if an independent 15 The comitia tributa-which existed in the first instance side by side with the comitia centuriata, but as comitia of lesser legal authority (comitia leviora) -did not embody any new and fruitful idea of fundamental importance; Mommsen, ibid., p. 322 ff. 16 The Lex Canuleja of the year 309 A.U.C. (445 B.C.) gave the plebeians connubium with the patricians. In 387 A.U.C. (367 B.C.) the Lex Licinia enacted that one of the consuls must be a plebeian. The tribuni plebis-whose office was perhaps a very ancient one, though the right of intercession was not bestowed on them till the year 260 A.U.C. (494 B.C.) as a result of the first secessio were not, as such, magistratus populi Romani. individual civis as such, whose liberty has its foundation, not, as § 9. before, in clanship, but simply in membership of the state (civitas). It is the development of the Roman civil law that gives to the history of Roman law its special character and its permanent importance. § 10. The Development of the Civil Law in its Principal Stages. Two features characterize the pre-historic stage in the develop- § 10. ment of Roman law which we have just described. In the first place, there is the preponderant influence of landed property. The old common ownership of the gentes in the land was the basis of the gentile organization. When the land was divided up, the gentile organization disappeared, but only to make way for another system, founded, like it, on landed property. In the second place, we cannot fail to be struck by the energy with which the idea of individual landed property was carried through at, comparatively speaking, so early a stage, and by the rapidity with which the consequences involved in the idea were realized. For the development of free private property in land (as in movables) from its beginnings down to its final completionfalls entirely within the regal period, in other words, it was finished before the authentic history of Rome even commences. German law adhered, during its whole development right down to the close of the Middle Ages, in the main to restricted forms of landed property, viz. collective ownership, feudal and other kinds of tenure. The history of Roman law, on the other hand, starts at once, from the moment the authentic tradition begins, with free private property in land as in movables, and this conception of the freedom of ownership becomes henceforth the guiding principle in the entire development of Roman private law. It is readily perceived that the remarkably early victory of the principle of free ownership in Rome was due to the conditions of town life. From the very outset the city (urbs) stood in the centre of Roman history, legal as well as political. The city is § 10. the birth-place of commerce1, and commerce demands free rights of property. It is the city again that begets the multitude, the compact body of persons living close together, and the effect of a multitude is to wear away the gentile bond and to leave the field free for the individual. A community of clans thus makes way for a community of persons belonging to the same locality. Throughout the Middle Ages German law remained primarily a law for the country. The distinctive feature of Roman law is that when it first appears on the stage of history it is already a city law. Almost throughout the Middle Ages again German law received its decisive impulses from the peasantry and the nobility; Roman law, on the other hand, tended from the very outset to become a law for a city and for citizens. In the history of the Roman civil law we observe two stages of development. During the first period Rome is a state of peasant-citizens. We have seen how the fusion of patricians and plebeians produced a new type of commonwealth, but the citizens of this commonwealth had not, as yet, shaken off the associations of their earlier rural life; they still breathed the strength that comes of contact with the earth. A man's worth and duties as a Roman citizen were alike measured by the land he owned. It was the freehold that made the man. In the comitia centuriata the preponderance of power lay, as we have seen (p. 43), with the classici, the largest owners of land. Afterwards, when the Roman plebeian had succeeded in securing a recognition of his right to hold his house and his field in free separate ownership, the rights in the ager publicus, the common land—it was originally pasture land-became the principal object of his economic and political interests. The struggle for the enlargement and, at the same time, for the distribution of the ager publicus occupies nearly the entire period of the Republic. The Roman peasant-citizen embodies the true type of the genuine In Rome as elsewhere the commercial interests were quick to assert themselves, Mommsen, Köm. Geschichte, 8th ed., vol. i. p. 46 ff. (Dickson's Translation, vol. i. p. 56, 1894). The ancient patricians represented a class of 'great landed proprietors engaged in commerce on a large scale,' M. Weber, Röm. Agrargeschichte, p. 116. 2 Cp. M. Weber, op. cit., p. 117. Roman burgher. The civil law of this period bore a distinctively § 10. national Roman (i. e. Latin) character.. It was rigid, cumbrous, punctilious in form, and of juristic acts it had but few to show. True, it was already a law for citizens, a law based on freedom of property and freedom of intercourse, but, for all that, it bore clear traces, in its narrowness and its limitations, of the old-world peasant notions of an earlier age. The Roman law of this period was a city law, a law adapted to the requirements of a community circumscribed and determined by its national character; but it was the city law of a peasant community, and its essence lay in the jus strictum, the rigid law of an age when commerce moved but slowly. As a result of Rome's political successes the range of the Roman community was enlarged. Towards the close of the Republic the Roman franchise had been extended over the whole of Italy, and the soil of Italy had become Roman ager privatus. At the same time Rome became the centre of the world's government and the world's trade. The Punic Wars had decided the struggle for supremacy in the world in favour of the Romans. The close of the wars marks the commencement of the second period in Roman history and Roman law. The ravages of the war with Hannibal broke the back of the Italian peasantry. Rome ceased henceforth to be a nation of peasant-citizens. The great Carthaginian was vanquished, but in succumbing he dealt a mortal wound to the national life of Rome, and the young empire which arose over the ruins of Carthage bore the seeds of its own destruction within it. The class of small landowners disappeared. A larger type of citizen survived, the type represented by the proprietors of the great latifundia and the great merchants, the class who, with their troops of slaves, crushed the free labour and, with it, the freedom of the masses. The system of latifundia spread from Italy all over the Roman Empire, carrying serfdom with it wherever it went. While Rome's serfs were growing into freemen, her power was steadily in the ascendant; when the mass of her small freemen lapsed into serfdom, her power was § 10. doomed. Christianity came to proclaim the gospel to the masses, but it arrived too late to effect any decisive reform in the existing economic conditions. The Roman Empire fell a prey to the barbarians. The decay of the Roman State set in at the very time when the foundations of Rome's supremacy were laid. At the same time, however, Roman law (and more particularly Roman private law) reached the culminating point of its development. The great capitalist and land-owning class became the agents of a world-wide commerce which in its energy and in regard to the part played by money in its economic development reminds us of our own times". Rome was no longer the country town of old. It had become the meeting-place of the nations of the earth who carried their treasures to her markets. And while commerce was levelling the national distinctions, Greek culture was spreading over all parts of the civilized world. The peasant-citizen was being transformed into the world-citizen, and, as a necessary consequence, the law of the peasant-state was broadening into a cosmopolitan system. The lines on which the development of the civil law actually proceeded are thus indicated. The jus civile, the law for Roman citizens, as it had been transmitted from the past, underwent a gradual transformation and tended to approximate more and more to that other body of law which had matured alongside of the jus civile: the jus gentium, namely, the law regulating the dealings with foreigners-a law which combined simplicity in the requirements of form with a surprising comprehensiveness in regard to the matters brought within its range; a law in which the claims of equity and the conceptions of honour and good faith (without which no developed system of commerce is possible) were given free play and were yet brought within the operation of definite rules. Towards the commencement of the third century (in the reign of Caracalla) the Roman franchise was extended to the great bulk of the subjects of the Empire (infra, § 33). In point of form, the Roman civil law was still only applicable to Roman citizens. But to be a citizen of Rome was now to be 3 A comprehensive account of this subject is to be found in Goldschmidt's Handbuch des Handelsrechts, 3rd ed., vol. i. 1891, p. 65 ff. |