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EXCURSUS X.

ON THE EARLIER HISTORY OF ROMAN CIVIL

PROCEDURE.

A favourite subject of speculation with the political philosophers of the 17th and 18th centuries was the social condition of man in the remote ages anterior to his union with his fellows in the organization called the state, and the process by which this latter first came into existence, with all its paraphernalia of legislatures, judicial institutions, and political subordination. Upon the latter question they agreed, in the main, in holding the theory known as that of the

Social Compact,' though their respective political prejudices led them to differ largely as to the actual form of government in which the Compact historically resulted. The age was one in which a priori reasoning was in high repute, and their method was to disregard the facts of history, and to attach no importance to such knowledge of primitive societies as even they possessed :. consequently, their doctrine has now been so universally discredited, that modern thinkers find in it no value except as a convenient form for the expression of moral truths.' Upon the former question there was greater diversity of opinion. On the one hand man was represented as living in a golden age, of which universal peace, simplicity of manners, and freedom from the constant toil of modern society were the leading characteristics, apart from the absence of that restraint which is the inevitable accompaniment of law and political organization. On the other, his state was said to be one of internecine war with all around him ; every man's hand was against his neighbour : the strong man armed alone was secure of life and property, and that only so long as no one stronger than himself appeared to try conclusions with him.

Though the latter of these theories is no less pure speculation than the former, it cannot be denied that it is largely supported by the actual evidence afforded us by primitive societies. As by the fossils which he finds at different depths beneath the earth's surface the

geologist is enabled in some measure to reconstruct the natural history of past ages, so in the language of the Romans, as well as in their law, we find unmistakable testimony that, among the men from whom their race descended, and before the state yet existed even in embryo, the world, which we conceive as ruled by law, was ruled by force, and by personal force alone each man's position was determined. Might, if not right, is at least her mother; there being no state machinery for the protection of life and property, man has either to suffer his own effacement, or to keep with the strong arm that which he has won by his labour or his blood : and the essence of early ideas lies in the absence of any basis for right and law other than the individual consciousness, and the consequent necessity of self-assertion : 'in sich selbst trägt der Einzelne den Grund seines Rechts, durch sich selbst muss er es schützen?'

Space does not allow us to cite more than a few of the most striking facts of law and language in support of this statement. Thus, the origin and true ground of dominium, or lawful control over objects of enjoyment, is placed by the Romans in the idea, not of mere occupation or peaceable discovery, but of 'taking' or forcible seizure : 'maxime sua esse credebant,' says Gaius (iv. 16), 'quae ex hostibus cepissent;' and perhaps the earliest term by which they denoted property (mancipium) at once arrests the attention, combining, as it does, with the idea of taking' another term, manus, which, as we shall see, is no less valuable evidence of primitive ideas; property is that which is taken by strength of arm? Precisely the same thought reappears in the early form of conveyance; the property was deemed to pass not so much in virtue of the will of the parties, or of delivery by the one to the other, as by the 'taking' of the object by the latter (mancipatio); original is symbolised in derivative acquisition. Sir Henry Maine (Early History of Institutions p. 253) refers to Mr. McLennan's work on Primitive Marriage,' to show that a large part of mankind still simulate in their marriage ceremonies the carrying off the bride by violence, and thus preserve the memory of the reign of force which, at all events as between tribe and tribe, preceded everywhere the reign of law;' that this was usual among the early Romans might have been conjectured from the legend of the

"Ihering, Geist des römischen Rechts i. p. 109. I am indebted to the following seventy pages of the same volume for many of the thoughts expressed in the early part of this Excursus.

* Cf. what is said on the distinction between res mancipi and res nec mancipi, p. 17 supr.

rape of the Sabine women, and is expressly stated by Festus, who ascribes the custom to Romulus' success in thus providing himself with a wife. Even the gods were supposed to get their earthly ministers in much the same unceremonious manner; the vestal virgin, says Gellius (i. 12. $ 13) pontificis maximi manu prehensa ab eo parente in cuius potestate est veluti bello capta abducitur.' The spear was the oldest symbol of right; hence there was no stronger title than purchase .sub hasta,' at a sale held by state authority; it was planted in the ground in the centumviral court, which had a special jurisdiction in questions of ownership: it appeared in the vindicatio or real action, and its use in manumission per vindictam will occur to every reader. Property in land was never called anything by the Romans but praedium ; the analogy with praeda, 'booty,' suggests itself at once, and has been noticed by early writers, one of whom remarks 'antiqui agros quos bello ceperant ut praedae nomine habebant.' Again, the term manus, meaning primarily hand,' and derivatively 'power,'«force,' 'control,' plays an extremely prominent part in early legal phraseology. Perhaps its frequency in procedure (e.g. manum conserere, manus iniectio) is due to the survival in judicial institutions of traces of an older system, namely, violent self-redress of wrong; but Sir H. Maine has observed (Ancient Law p. 317) that there is very strong reason for believing that manus was the ancient general term expressing power, whether exercised over flocks, herds, slaves, children, or wife : and there is an affinity between herus, 'owner,' and the Greek xeip, through the Sanskrit hr, which has the same meaning as the Latin root cap. On the other hand, while to denote man the Sanskrit and Greek agree (nri, nara, ávýp), the Romans have discarded the corresponding word, and use 'vir,' which in Sanskrit means 'warrior;' they name him not from his sex, but from his calling and occupation : 'virtue' is conceived first and foremost as valour in war, only later as purity and honesty. The very name in which the Romans delighted, and which their satirists cast in their teeth--Quirites—may be taken as a final illustration : Quiris or Curis in old Sabine is equivalent to hasta ; Quirites are 'spearmen :' and thus we see how dominium ex iure Quiritium has a deeper meaning, as carrying us back to the prehistoric time when the strong man armed could alone possess his goods in peace.

In such a social condition the only mode in which a man who conceived himself wronged by another could obtain satisfaction was by taking the law, as it is said, into his own hands. A system of self-redress, in the form of private vengeance, preceded everywhere

the establishment of a regular judicature; the injured person, with his kinsmen or dependents, made a foray against the wrongdoer, and swept away his cattle, and with them, perhaps, his wife and children, or he threatened him with supernatural penalties by. fasting' upon him, as in the East even at the present day; or, finally, he reduced his adversary to servitude, or took his life. The idea of such a procedure was not compensation, but punishment; self-redress existed not so much rei, as poenae persequendae causa ?: and as there is no objective standard of right and wrong, the measure of the injury, and therefore of the punishment, is the feeling of the injured person. Traces of this linger on in Roman Law throughout its whole history. It has been observed ? that in settling the damages to be awarded the earliest administrators of justice took as their guide the measure of vengeance likely to be exacted by an aggrieved person under the circumstances of the cases, and that this is the true explanation of the very different penalties imposed by ancient law on offenders caught in the act, or soon after it, and on offenders detected after considerable delay. Even the later Roman law permitted the husband to kill with impunity the adulterer taken flagrante delicto; and distinguished the guilt of the thief according as he was caught in the act or not; the fur nocturnus was liable to the same penalty as the adulterer : sor certain bodily injuries (Gaius iii. 223) the Mosaic law of retaliation had its counterpart at Rome. And from the 'addictio' of the fur manifestus and the insolvent debtor, and the commonness of noxal surrender (Gaius iv. 75-79, Bk. iv. 8 supr.) in international no less than in private relations, Ihering conjectures that a form of selfredress especially favoured by usage was the seizure and detention of the person of the wrongdoer, until he was ransomed by his friends, or had earned by the sweat of his brow his own liberation.

From a comparison of the different communities in which we know this system of self-redress to have prevailed, or even to obtain at the present day, it would seem that there are two alternative connecting links, as it were, between it and the later remedial process of advancing civilization. The practice of uncontrolled private vengeance, extending even to life and limb, dwindles everywhere to one of the various forms of distraint; the survival, as at Rome, of a limited right of personal arrest anddetention seems abnormal. From this point, however we find a well marked divergence. One alternative 'consists in toler. ating distraint up to a certain point: it is connived at so far as it serves to compel the submission of defendants to the jurisdiction of courts, but in all other cases it is treated as a wilful breach of the peace. The other is the incorporation of distraint with a regular procedure. The complainant must observe a great number of forms at his peril, but if he observes them he can distrain in the end in The first step, we may say, in the process by which self-redress slowly yielded to the encroachments of courts of justice was the gradual development of a body of custom, in some cases extremely bulky precisely defining the conditions under which it might be exactes and minutely prescribing the proper stages in the process, without the due observance of which the complainant must altogether lose his remedy. Notice of the intention to distrain-fasting upon the wrong. doer--attendance of witnesses—allowance of a 'stay' or interval between the earlier and later steps—and many other formalities are or may be, the essential conditions of success. Such limitation by custom of the right of self-redress—in other words, its incorporation with a regular procedure'-is most common in societies, such as that of the Irish as revealed to us in the Brehon law tracts, in which, even if there be a judicial system at all, its action is weak and intermittent or where 'courts of justice exist less for the purpose of doing right universally than for the purpose of supplying an alternative to the violent redress of wrong. But 'the Roman tribunals became the organs of the national sovereignty at an exceptionally early date. and the development of Roman law and procedure was exceptionally rapid;' consequently, we are enabled to bridge over the gulf between the primitive system of private vengeance, and the earliest Roman civil process of which we have any knowledge, less by tracing this gradual incorporation of self-redress with a regular procedure than by other indications of more advanced ideas. These in the main are three in number : the introduction and development of the idea of composition for injury; the plan of guaranteeing a man's rights by collective action through witnesses; and the contractual decision of disputes.

1 For the prominence of 'penalty' in primitive law see Ihering i. p. 126, Maine, Ancient Law p. 368 sq. Cf. Mr. O. W. Holmes' Common Law p. 2 sq.

? Maine, Ancient Law pp. 378, 381.

: Cf. the sentiment of Cleon in Thuc. iii. 33, duóveodai be to maleiv ori égyuτάτω κείμενον αντίπαλον δν μάλιστα την τιμωρίαν αναλαμβάνει.

i. There can be little doubt that the term 'poena' originally meant not so much penalty as composition for injury; the earliest poenae were sums in consideration of which the injured person consented to forego 'his customary right of self-redress, and the penal sums re

1 Maine, Early History of Institutions p. 278.

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