HISTORY OF ROMAN LAW.

Division of 2. In the history of Roman law there are four the subject. distinct periods which naturally serve as divisions of the subject. We could not break up the civil history into epochs more clearly marked off from each other than those of the Kings, the Republic, the Empire from Augustus to Constantine, and the Empire from Constantine to Justinian. And the history of law, inseparable from the history of the State, because the growth of a legal system both determines and is determined by the general condition and civilization of the nation, finds in these same epochs its most natural divisions. Gibbon, in his well-known chapter on the history of Roman law, characterizes the epochs of law by the degree of development which the law had in each attained, and by the mode of instruction and the character of the civilians *. Such a method of dividing the history of law is clear and satisfactory only to those who are already familiar with the place which is to be assigned to law in the history of the people. To designate the epochs of legal history by borrowing limits from the course of the civil history is preferable, as being a method much more precise and more intelligible to readers previously unacquainted with the subject, and also as keeping before the mind the connection between general and legal history. We proceed to give a sketch of the history of Roman law in each of the four periods we have named.

Roman po

I. History of the Roman Law under the Kings. Double ori- 3. Obscure as is everything connected with the gin of the early history of Rome, it may at least be conpulus. sidered indisputable that the Roman people sprang from a double origin; that two distinct races combined to impress their peculiar manners, traditions, and national ideas on an united society. The one we associate

*GIBBON, viii. 30.

with the name of Romulus and the tribe of the Ramnes, the Rames other with Numa and the Titienses; the former dwelt on the Pa Palatine, the latter on the Capitoline and Quirinal. From these two sources flowed two distinct streams of thought and feeling, which are reflected in the double character of Roman law. Public law, the notion of a polity absorbing, colouring, permeating every relation of individual life, elaborated into a whole, perfect, at least in theory, and presenting at all points the front of a compact and exclusive system, we may venture to speak of as belonging to the people of Romulus. Private law, the peculiar notions of the family, and of property, which uses the form so marked a feature of Roman law, belong to the people. of Tatius and Numa. When we have apprehended this distinction, which lies at the bottom of so many of the institutions of Rome, we may dismiss from a sketch of the history of Roman law, many of the vexed and curious questions which perplex the historians of early Rome. Such important problems as the origin and rise of the Luceres, the influence of Etruria and Etruscan institutions, the constitution of Servius, may be passed almost entirely without notice, because, great as may have been their effect on the history of Rome, we cannot perceive that they exerted any marked influence on any but its constitutional law. A complete history of law would indeed embrace points of inquiry which, like these, are rather collateral than foreign to its main subject.. But an acquaintance with them cannot be said to be necessary for the comprehension of the Institutes. A brief sketch of the chief elements of public and private law as they present themselves to us, simple, obvious, and strongly marked in the light of an early civilization, and a cursory notice of the mode in which, during the period of regal Rome, laws were made and justice administered, is all that we can attempt to give here.

The Ramnes.

4. The Ramnes, the leading tribe of early Rome, and the earliest of its settlers who were connected with the Romans of later history, were probably of the same origin as the inhabitants of the contiguous Latin towns: a mixture of Tyrrhenian or Pelasgic with some more exclusively

Ramano.

10 curia in
10 Send in a curia

reads of Jentes form Comitia curiara

Italian race.
When we first see them on the stage of history,
they present the features of a carefully-organized polity. The
tribe was divided into ten curie, and each curia into ten
decuriæ; another name for a decuria was a gens, and it in-
cluded a great number of distinct families, united by having
common sacred rites, and bearing a common name. It was
not necessary that there should be any tie of blood between
these different families, in order that they should form part of
the same gens; but a pure unspotted pedigree, ancient enough
to have no known beginning, was claimed by every member of a
gens *, and there was a theoretical equality among all the mem-
bers of the whole tribe. The heads of the different families in
these hundred gentes met together in a great council, called the
council of the curies (comitia curiata). A smaller body of one
hundred, answering in number to the gentes, and called the senate,
was charged with the office of initiating the more important
questions submitted to the great council; and a king, nominated
by the senate, but chosen by the curies, presided over the whole
body, and was charged with the functions of executive govern-
ment, but the will of the assembled people was always recognised
as the fountain of power. The whole of the community kept a
careful watch over the proceedings of its individual members.
If a member of one family wished to enter another, or any one
wished to alter the course of succession to his property after
his decease, these were matters which the council of the curies
inquired into, and decided whether it should permit or not. As
far as the exigences of daily life would allow, the individual was
swallowed up in the society. When the tribe went out to war,
it did not conquer lands for the benefit of individuals, but for
the whole people. The land it won by the sword was public
land; individuals might, if the people thought right, gather
the fruits of the land, but it did not, and never could belong
to them. There was private property in land, for the portions

* Gentiles sunt, qui inter se eodem nomine sunt; non est satis: qui ab ingenuis oriundi sunt: ne idquidem satis est: quorum majorum nemo servitutem servivit: abest etiam nunc qui capite non sunt deminuti.— CICERO, Topic 6.

of the city they inhabited could scarcely be held in common, and plots were marked off as the burial-grounds of the gentes, and the place where their sacred rights were celebrated; but still the great bulk of the land was the property of the tribe. Beneath this community of freemen was a slave population, and also a body of dependents, called clients, who were attached to different members of the aristocratic body as retainers, or clansmen, personally free, but having no share or interest in the government or laws of the ruling tribe.

5. The Titienses, or Quirites, were of Sabine The Titienses. extraction. It was from them that the later Romans derived all that was most distinctive in their private law. The great peculiarity of the Sabine law, or, as it is called by Latin writers, the jus Quiritium, was the power of the manus. The manus was the hand of the conqueror. The warrior, or rather the freebooter, went out to fight and to rob; and all he won was the fruit of his right hand. He could deal with it as he pleased; and as a successful raid was his chief mode of acquiring property, all he possessed, of whatever kind, was considered to be the spoils of war. He was the owner by conquest of all that belonged to him. His property was all classed under the term mancipium-it had all been taken by the "hand" (manú captum). Even his wife and children were considered to belong to him, as if he had acquired his rights over them by the strength of his hand. The wife was reckoned as the daughter of her own husband, in order that his ascendancy over her might be more marked; and she and her children were as completely in his power as if they had been carried off from a captured town. The children could have no separate property; all belonged to him to whom they themselves belonged: and if a son married, his wife belonged to his father. When the tribe went out to war, the spoils belonged, of course, to the whole conquering force. Sometimes the spoil was not divided; but it was sold, and the proceeds paid into the public chest (ærarium) of the tribe. This sale of the

mancipia was called mancipatio; and as it was, perhaps, origi

nally made in the presence of the whole army, and as the money was told out by weight, the sale of mancipia generally came to be effected in the presence of a certain number of witnesses, representing, perhaps, the assembly of soldiers, and by a pair of scales and a piece of brass, which represented the old mode of payment. Thus arose the form of mancipatio, so important a part of the jus Quiritium; and as only certain things, such as men, land, tamed cattle, &c., are the prizes of such warfare as would be carried on between the tribes of Italy, certain things came to be considered as the fitting subjects of a sale by mancipatio, while others were not; and a distinction was drawn between things mancipi and nec mancipi.

6. From the Quirites, or Sabines, much, also, of Jus Sacrum. the sacred law of the Romans was derived. The very name of Numa awakens the idea of religious institutions and ceremonies. What was most peculiar in the religion of Rome was its intimate connection with the civil polity. The heads of religion were not a priestly caste, but were citizens, in all other respects like their fellows, except that they were invested with peculiar sacred offices. The king was at the head of the religious body; and beneath him were augurs and other functionaries of the ceremonies of religion. All the whole body of the populus had a place in the religious system of the State. The mere fact of birth in one of the familie forming part of a gens gave admittance to a sacred circle which was closed to all besides. Those in this circle were surrounded by religious ceremonies from their cradle to their grave. Every important act of their life was sanctioned by solemn rites. Every division and subdivision of the State to which they belonged had its own peculiar sacred ceremonies. The individual, the family, the gens, were all under the guardianship of their respective tutelary deities. Every locality with which they were familiar was sacred to some patron god. The calendar was marked out by the services of religion: the pleasure of the gods arranged the times of business and leisure, and a constantly-superintending provi