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a Cf. Moyle, edn. of Just. Inst. Introd.

pp. 67-71.

'Vel ad res.'

Singulae res, see Gai. ii. §§ 1-96, and Just. ii. 1-9; for acquisition by Universal Succession, especially the Law of Inheritance, Gai. ii. § 97-iii. § 87, and Just. ii. 10-iii. 12; for Obligations, Gai. iii. §§ 88-225, Just. iii. 1-iv. 5.

'Vel ad actiones.'-Gai. iv. and Just. iv. 6–17 (tit. 18 de publicis iudiciis).

The Roman institutional works thus present a division into the doctrine of Persons (entirely agreeing with the second part of the following exposition); of the objects of rights corporeal and incorporeal (i.e., obligations), their acquisition-the Law of Inheritance being treated as a form of acquisition-and loss; and of legal remedies."

PART II.

OUTLINES OF THE HISTORY AND THE
SOURCES OF ROMAN LAW.

Cf. Puchta, vol. i.; Rivier, • Introduction historique au droit Romain'; Karlowa, Röm R. Geschichte.

e Cf. Clark,

'Early Roman

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§ 7. THE REPUBLIC.

First Period. To the Legislation of the Twelve Tables.

Law, pp. 136, ROMAN Private Law, like the Roman State, developed out of small beginnings. But from the outset the Roman People comes before us as one endowed legally and politically like none other. The strained civil and military discipline, rigidity of thought and action, steadily practical view, clearness in the apprehension of matters within the sphere of Politics and of Law, energy, circumspection and consistency in the pursuit of problems and objects once entertained; in fine, the sharpness of juristic conception and legal arrangement of the relations of life-all these hereditary qualities of the Roman mind give to that nation the appear

ance of having been predestined to the cultivation of LAW.

According to tradition, the original constitution

comitia; Rivier,

of Rome was monarchical." After the abolition of Rivier, pp. , III-125. royalty, the place of 'rex' was taken by two 'consules,' chosen yearly. Though they were invested with royal authority, their power was limited by the association with them of the Senate (at first composed of the heads of the gentes) in government and the Assembly of the People, or comitia curiata, centuriata," which had legislative functions, and was See Brown, s. the Supreme Court in respect of capital offences of pp. 129, $27. Roman citizens. But inasmuch as the governing power was vested alone in the Patricians, or original citizens, and the Plebeians were excluded not merely from the magistracy, but also from the sacral offices commanding influence (especially from the college of the augurs and pontiffs) and from the Senate, there had been in the constitution itself a jar, which evoked the struggle of classes that began in the infancy of the Republic and was for two centuries maintained with great persistency. By it the Plebeians gradually acquired political equality with the Patricians, and finally secured acceptance of the democratic principle in the constitution.

The first result of the contest was the recognition of leaders and officers of the Plebs, the 'tribuni plebis,' upon whom should devolve the defence of that body against encroachment of the consular 'imperium,' as well as against Patrician oppression; and the recog nition of separate Plebeian assemblies, the 'comitia plebis' and 'comitia tributa,' whereby the Plebeians were constituted into a special order recognised by Law, and organized as well politically as socially."

e Cf. Maine,
'Ancient Law,'
pp. 2-14.

A second gain of the Plebeians, in its significance far outlasting the struggle of the orders and the Republic itself, was the legislation of the TWELVE TABLES, which dates from about the year 305 U.C. Rivier, pp. This was known as the Lex XII tabularum,' or

d

163-182.

simply 'Lex.' Called forth by the endeavour sharply to define the consular imperium, especially as to jurisdiction, by written and ambiguous rules, to put also effectual checks upon Patrician caprice, and to bring about uniformity in the administration of justice, the Law of the Twelve Tables was, and continued to be to the latest times, the firm basis of the national a Cf. Liv. 3, 34, Private Law, or ius civile." In clear and definitely omnis Romani conceived commands and prohibitions, it gave formal expression to, and established principles of, the Customary Law until now in vogue, which Law in Maine, .c. pp. fact was often unsettled; and at the same time the

velut corpus

iuris,' 'fons

omnis publici

privatique

iuris,' and see

14-20.

Cf. 'Early' Roman Law,' pp. 12, 8qq.

Private Law, which had continued overgrown with the Public and Sacral Law (ius publicum, sacrum, fas), was raised to a footing of independence.

The so-called leges regiae which have come down. to us in Roman authors contain only long-standing patriarchal and sacral maxims of law, gathered in a Ibid. pp. 1-4. collection called 'ius Papirianum.' This probably was derived from the commentarii pontificum,' and indeed scarcely existed before the Twelve Tables. Towards the end of the Republic it found a commentator in Cf. D. 50, 16, Granius Flaccus." 144; Bruns, 'Fontes iur.

d

ed. iv. pp. 1-13.

The Lex XII tabularum, as being the basis of the Rom. antiqui, ius civile,' was the subject of many commentaries by jurists down to the latest times; thus we find one by S. Aelius Catus (c. 550), and the last was by Gaius, under Antoninus Pius or Marcus Aurelius. Nevertheless, no copy of any continuous portion has come down to us; indirectly through citations and references alone, about one hundred partly imperfect fragments of it have been transmitted."

See Gothfredus, Fragm. xii Tab. etc.'; Fontes iv. iur. civ.'; Dirksen, 'Uebersicht u. s. w.'; Schöll, 'Leg. xii Tab. reliquiae';

Second Period. To the Decline of the Republic.

Rome extended her dominion over all Italy, little Bruns, pp. 14. by little incorporated its communities, and aimed at 35; Voigt, Die world-wide sovereignty. She did this by the subjuga

xii Tafeln.'

tion into provinces of the existing civilised States and other territories of independent peoples, and cementing these ties by means of colonies. The extension of the bounds of Roman sovereignty, by which Rome was exalted into the central point of the world's intercourse, was accompanied by an enlargement of her horizon; whilst Hellenic culture began at the same time to make its way into Roman life, and to exercise an influence which gave a new shape to her hitherto contracted views. The finishing touch to the equalisation of the orders was reserved for the first century of this period, when the Plebeians, through the leges Liciniae Sextiae (387 U.c.), acquired joint government by a share in the Consulship and, soon afterwards, admission to the newly formed Patrician offices; to the censorship and praetorship, in particular. The constitution did indeed acquire a more democratic basis with the growing significance of the 'comitia tributa,' as resulting from the recognition of the general validity of the 'plebiscita,' ultimately through the 1. Hortensia (468 U.c.). It led to the 'comitia centuriata' being soon cast into insignificance. Nevertheless, the aristocratic continued long to hold its own against the democratic principle, because the nobility did actually exercise the governing power in the person of the magistrates supplied from their ranks, and by means of the Senate, and offered successful resistance to democratic tendencies. But when, at the beginning of the seventh century, an ever rapidly increasing degeneration of Roman custom and discipline, a moral and political corruption and a far-reaching social disintegration set in, consequent upon the wealth that poured into Rome, and accumulated in the hands of the ruling classes, the balance of power was destroyed in favour of absolute democracy. Whilst the mass of the people laid claim to the highest sovereignty and put no limit upon its exercise, individual masters of power temporarily succeeded in gaining an unconstitutional control of affairs, in the political and social disorders and

• Cl. § 41.

revolutions which sprang from the intrigues of demagogues, until at last Julius Caesar acquired a position of power bordering on sole imperium, by which the State was certainly preserved from the ruin into which the civil wars threatened to plunge it, and anarchy was disposed of, but the Republic also really ceased to exist, and the groundwork was laid of the monarchy.

The older Private Law fixed by the Twelve Tables, and which alone was in force down to the middle of this period (perhaps to the second Punic War), was an inflexible and rigidly national Law of the City, the 'ius civile proprium Romanorum,' as it suited the simple circumstances in life of a civic community within narrow limits and a settled, and essentially agricultural, population. It is founded on the recognition of the private personality of the independent Roman citizen, the 'paterfamilias,' and his power, originally unlimited, over his whole household-familia pecuniaque '"—and the free persons belonging to him (patria potestas and manus'), and over his goods, or the 'dominium ex iure Quiritium'; because in certain forms it guaranteed to him the free disposition of each, as also of his own person (adrogatio,' nexum'); and for the maintenance of his rights it established certain judicial processes, the 'legis actiones.' Corresponding to the rigidity and inflexibility of the Law was the stiffness and unwieldiness of legal transactions, which operated by virtue of a few solemn legal forms firmly established in formulae and ceremonies (gerere'), and especially of a public, partly also of a sacral, character. They were called 'adrogatio,' 'in iure cessio,' 'mancipatio,' 'coemptio,' 'nexum,' 'confarreatio,' 'sponsio': these alone assured full legal effect and protection by $$ 52, 79 bis, legis actio."

49 bis, 116, sq.

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From the middle of this period, however, the Law so far in force underwent gradual transformation through the infusion, recognition and increased development of the ius gentium as one of the constituents of the Roman Private Law. This 'ius gentium' was

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