magisterial caprice the decision of most points upon which the successful bringing of an action depended. How far the Tables were a complete codification of existing rules must always remain somewhat doubtful. It appears beyond dispute that being intended as an exposition of the general civil law, applicable to all classes alike, they did not regulate practices or institutions peculiar to either order, such as the older forms of marriage and adoption1; nor did they include the leges regiae, law and religion having now been differentiated. Much again relating to the effects of legal acts and dispositions, which was matter of common knowledge and formed no subject of dispute, remained, as we might say, 'common law,' the familiar. possession of every citizen, and the same remark may be made of many laconic aphorisms similar to others which we know to have been embodied in the Tables. Finally, it may be observed that the enactment of the Twelve Tables is also direct evidence of the independent position which private law had won for itself under plebeian auspices, and at the same time starts it on a new career of development; it was no longer the peculiar province of the plebeian order; but having been sanctioned by the whole populus in its comitia, it began to be looked on more by all parties as the best security for order and prosperity. But this is part of a subject on which there is great diversity of opinion, and to which we shall shortly return-the relation, at Rome, of private to public law.

English lawyers in particular will fully appreciate the advantage which was secured by the expression of the law in a more scientific and therefore more convenient form than that in which it had hitherto been clothed. But it was a still larger boon that provision was made for its being generally known by all citizens who cared to make themselves acquainted with it. Historical analogy would perhaps lead us to suppose that the knowledge of the law had hitherto been engrossed by the patrician caste, as represented by the pontifices, who are described in a passage of Pomponius already cited (Dig. 1. 2. 2. 6) as the only masters of the legal rules and forms of procedure at that time binding. But it has already been suggested that private law was to a large degree of plebeian creation, and the sole possession of legal knowledge by a dominant aristocracy is truer of the Greek oligarchies than of Rome, of which we may, with some qualification, accept the view of the German historical school of jurists, who assert that the material law was no secret, being founded on the common

1 E.g. Gaius, iii. 82.

legal consciousness (Rechtsbewusstsein) of the nation as evidenced and attested by its usages and customs. Still, it is of no avail to know the law, if one cannot get one's rights protected and enforced by action; and of the forms of actions, as already observed, the plebeian could know little, through their implication with the ius sacrum. The decemviral legislation introduced simplicity and uniformity into these; it was exposed in a public place for all to read, and from the fact that in Cicero's boyhood the Roman youth was used to learn the Twelve Tables by heart, it is evident that they were long used as the foundation of a legal education as, in the three centuries and a half preceding the legislation of Justinian, a mastery of the Institutes of Gaius was considered the proper groundwork of an adequate knowledge of the law. For nearly a thousand years they remained the only complete legislation which professed to embrace the whole positive law of Rome, and though in point of fact the greater part of their original substance was repealed or modified by subsequent enactments, the Roman citizen, even under the Empire, always continued to revere them as the solid basis of the noble system of jurisprudence by which all his rights and duties were determined; and it was only by the great work of Justinian that, nine hundred and eighty-four years after their enactment, they were formally deprived of their authority.

At this point it will be well to pause in order to look back over the centuries behind us and try to ascertain what was the material content and what the scope of the customary law which, as we have seen, was to the early Romans the only rule of life, and which was summed up and (if we may use the expression) codified in the Twelve Tables. Ausonius (Idyll xi. 61) describes the contents of the latter as 'ius triplex:'

'Sacrum, privatum, populi commune quod usquam est.'

But even if we admit the substantial accuracy of the attempts which have been made to reconstruct the Tables in outline it is not easy to distinguish these three elements with any precision. There appears to be no doubt that the first three Tables dealt with civil procedure, from summons down to execution of judgment. According to the most recent authority on the subject', the fourth regulated inheritance, both testamentary and intestate, and patria potestas: the fifth various titles to property, servitude, and con

M. Voigt, Die xii Tafeln, 1883.

tract: the fifth and sixth related to divorce and the two varieties of guardianship: the seventh to delict and usury: the eighth to a variety of topics, including the relations of adjoining proprietors and certain criminal matters: the ninth continued the latter subject, and prescribed the procedure on criminal prosecutions: the tenth regulated interment; while the last two made provision for appeals from the action of the magistrates, and contained other subordinate enactments. The scantiness of the law relating to contract is noteworthy.

Legal antiquaries on the Continent who have accepted as substantially true the myth which ascribes the origin of Rome to the union of three tribes belonging to different ethnic stocks, two of which are by them identified as Pelasgic and Sabine', have spent much ingenuity in attempting to detect the original diversity of the elements contributed to the common stock of jurisprudence by the two dominant tribes, and to trace the gradual process by which these were blended into a homogeneous system of law. They speak of the element peculiar to the Ramnes, as opposed to that peculiar to the Quirites; the genius of the former people lay in the direction of conquest and activity in external relations, that of the latter in the promotion of domestic order and peaceful internal development; and the genius of each is supposed to have reflected and reproduced itself in their legal habits and in their modes of life and thought. Such speculations assuredly cannot claim our serious attention; but a question which is suggested by them is of larger interest, because the answer to it will affect our judgment upon the general character of the legal system through a great part of its history, and will determine our explanation of many of its most peculiar phenomena. It is the view of many who have deeply studied the institutions of Rome that, in its infancy, the consciousness of the people as a military state, which had perpetually to be defending its very existence with the sword, asserted itself so irresistibly as to colour the law of Rome to the very end of its history. In periods of grave national peril citizens always realise most fully their membership one with another, and are most ready to sacrifice the fleeting interest of the individual to the higher and more engrossing requirements of the state. Hence is inferred a fact which (as it is represented) left its mark upon Roman law even in the age of Justinian, twelve hundred years after the epoch which we are now considering; the fact, namely, that in the earliest

1 Puchta, Institutionen, i. p. 73.

period of the nation's history almost every relation with which jurisprudence has ever had any concern was dominated by public law, or by the idea, expressing itself in law, that beside, or apart from, the state, the citizen is as nothing, and that he has no ground for complaint if his family life, his religion, his dealings with his fellow-men, his very liberty and life are treated principally as means to the end of government, and placed under state control. The position of the family in the state economy has been already indicated. The very existence of the people, as an organic whole, depended on the maintenance of the gentes through families; and as a new family could arise only from the lawful wedlock of two citizens, marriage was made a public act and placed under sacerdotal supervision; the solemn rite of confarreatio (Gaius i. 112), by which alone it could be contracted, was a ceremony of deep public and religious import. Again, through lack of children, or through the death of such as might be born, a family might be in danger of dissolution; hence the supreme political importance of the institution led to the recognition of adoption as an artificial means of perpetuating its existence; and adoption, too, was a public act, accomplished under the auspices of the priestly college before the comitia curiata.

There is perhaps less probability in the alleged extension to the field of property of this domination of public over private law. The old principle of law, it is said, laid it down that conquered land and captured booty belonged, primarily, to the state, and that it was through the state alone that it could become the property of individuals. Thus according to the view now under consideration, no citizen originally owned an inch of Roman soil; he could only possess and enjoy it by permission of the populus, and it remained 'ager publicus' until the settlement of large numbers of strangers on Roman territory had brought into prominence the legal distinction between civis and peregrinus, a distinction which then became emphasised by the former being held capable, the latter incapable, of owning land ex iure Quiritium. But to maintain the principle that all res mobiles belonged, ultimately, to the state, was less easy. On one explanation, however, of a famous distinction of Roman law-that of 'res mancipi' and 'res nec mancipi'—the traces of that principle were retained until the distinction itself was swept away by Justinian. It is . suggested that the idea that all 'res mobiles' belong ultimately to the state survived only in connection with certain subjects of property— things, in other words, which usually form the staple of military booty, and of which individuals were thus most likely to have got possession

by concession from the state. This idea, it is maintained, led to the introduction of a peculiar mode of alienation for these kinds of objects, namely, mancipatio, in which the sanction of the populus to the transaction was supplied by the presence of a definite number of witnesses who were full citizens of Rome (Gaius i. 119)'. But whatever may be the truth as to the distinction of res mancipi and res nec mancipi, we know that for many centuries a slave could not be effectually enfranchised except by a public act; that the earliest forms of wills were dispositions sanctioned either by direct legislative authority of the populus or by its representatives, the five witnesses of the mancipation; and that the earliest mode in which a binding contract could be concluded was almost certainly the so-called nexum, which in all essential features was identical with mancipa

This is but one of many views as to the origin of the distinction. Sir Henry Maine (Ancient Law, p. 275) says: 'The explanation which appears to cover the greatest number of instances is, that the objects of enjoyment honoured above the rest were the forms of property known first and earliest to each particular community, and dignified therefore emphatically with the designation of Property. On the other hand, the articles not enumerated among the favoured objects seem to have been placed on a lower standing, because the knowledge of their value was posterior to the epoch at which the catalogue of superior property was settled. They were at first unknown, rare, limited in their uses, or else regarded as mere appendages to the privileged objects. Thus, though the Roman res mancipi included a number of moveable articles of great value, still the most costly jewels were never allowed to take rank as res mancipi, because they were unknown to the early Romans.' Ihering thinks that the res mancipi were those objects of property essential to the maintenance of the joint family life: 'ohne beides (i. e. free persons and res mancipi) lässt es sich ein ordentliches Hauswesen, eine gesunde Wirthschaft gar nicht denken' (Geist des römischen Rechts, ii. p. 165). Other explanations are based on the actual market value (Kostbarkeit) of the objects (Cujacius, Bynkershoek), or on the supposition that a special return of res mancipi was required in the census (Puffendorf, Göttling). The last theory is in substance adopted and ably argued by Prof. Muirhead (Roman Law, pp. 57–64), who attributes the distinction to Servius Tullius, the founder of the census: res mancipi meant 'a man's land and its appurtenances:' and 'in order to ensure as far as possible certainty of title, and to relieve the officials of troublesome investigations of the genuineness of every alleged change of ownership between two valuations, it was declared that no transfer would be recognised which had not been effected publicly, with observance of certain solemnities, or else by surrender in court before the supreme magistrate (in iure cessio).' The majority of recent authorities seem however to agree that the distinction is based upon a still older one between Familia and Pecunia, the former denoting family, the latter, private property. Upon this see in particular Cuq, Institutions juridiques des Romains, i pp. 91-100. Voigt (Röm. Rechtsgeschichte, i. pp. 437 sq.) holds that the distinction of things into mancipi and nec mancipi, under those names, is no older than about 150 B. C., and was established by a constitutio iurisperitorum (constituebatur quasdam res mancipi esse, quasdam non mancipi, Gaius ii. 16).

MOYLE