viii

PREFACE TO THE FIFTH EDITION.

the first volume of the Institutes' of Puchta. In the translation I was greatly assisted by the French translations of Ortolan and Ducaurroy, as well as by the translations in English of Harris and Cooper.

Under each paragraph of the text are placed references to the parallel passages of the Institutes' of Gaius, of the Digest,' and the Code.' These references are nearly the same as those given in the Juris Civilis Enchiridium.' The text is almost the same throughout as that given in the Corpus Juris,' edited by the Kriegels, Leipsic, 1848.

At the end of the volume I have given a Summary of the principal contents of the Text and Notes. As the arrangement of the Institutes' is often deficient in method, and as the transition from the text to the notes makes the combination of the materials they respectively supply sometimes a little difficult, I have thought a Summary might be useful to those to whom the whole subject is new.

INTRODUCTION.

1. THE legislation of Justinian belongs to the latest period of the history of Roman law. During the long space of Object of the preceding centuries the law had undergone as many Introduction. changes as the State itself. The Institutes of Justinian embody principles and ideas of law which had been the slow growth of ages, and which, dating their origin back to the first beginning of the Roman people, had been only gradually unfolded, modified, and matured. It is as impossible to understand the Institutes, without having a slight knowledge of the position the work occupies in the history of Roman law, as it is to understand the history of the Eastern Empire without having studied that of the Western Empire and of the Republic. Many, also, of the leading principles of Roman law contained in the Institutes are unfamiliar to the English reader, and though they may be learned by a perusal of the work itself, the reader, to whom the subject is new, may be glad to anticipate the study of details by having placed before him a general sketch of the part of law on which he is about to enter. It is proposed, therefore, in this Introduction, to give first an outline of the history of Roman law, and then an outline of Roman private law. Each, however, will only be given with the very moderate degree of fulness proper to a sketch intended to be merely a preliminary to the study of the Institutes.

HISTORY OF ROMAN LAW.

History of early Rome. The Populus.

2. However obscure may be the history of early Rome, we cannot doubt that Roman citizens were, from a very early period, composed of two distinct bodies, the populus and the plebs, of which the first alone originally possessed all political power, and the members of which

In

were bound together by peculiar religious ties. Nor can we have any reasonable doubt about the general features of the constitution of the populus. Whatever may have been their origin, it consisted of three tribes. Each tribe was divided into ten curia, and each curia into ten decuriæ; another name for a decuria was a gens, and it included a great number of distinct families, united by having common sacred rites, and bearing a common name. theory, at least, the members of the same gens were descended from a common ancestor, and the families of the gens were subdivisions of the same ancestral stock, but both individuals and groups were occasionally admitted from outside. A pure unspotted pedigree was claimed by every member of a gens,* and there was a theoretical equality among all the members of the whole tribe. The heads of the different families in these gentes met together in a great council, called the council of the curies (comitia curiata). A smaller body of three hundred, answering in number to the gentes in each of the three tribes, 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 government.

3. The populus was also bound together by strong religious Religious ties. The religion of Rome was intimately connected. system. with the civil polity. The heads of religion were not a priestly caste, but were citizens, in an 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. 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 familia 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

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

† Quirites, regem create; ita Patribus visum est.-Liv. i. 17. Mommsen argues from the analogy of the mode in which the magistrates who replaced the king were appointed, that the king must have been nominated by his predecessor (Hist. Rome, i. 71).

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 Providence watched over the councils of the State, and showed, by signs which the wise could understand, approval or displeasure at all that was undertaken.

The Plebs.

4. By the side of this associated body there was another element of the State, occupying a position very different from that which was occupied by this privileged community. The plebs was probably formed by the inhabitants of conquered towns being brought to Rome, by the influx of voluntary settlers, and by freedom being accorded to slaves. The plebeians were in a position of dependence on the king or on members of the populus, and were, as strangers, outside the political circle of members of the gentes. They belonged to no gens, had no place in the comitia, no share in the legislative or executive government; as little had they any share in the jus sacrum. They were as much excluded from the pale of the peculiar divine law as from that of the peculiar public law of the ruling body. Even the Servian constitution, and the formation of the thirty tribes, laid the foundation of future change, rather than altered in early times the basis on which existing institutions were founded. The centuries opened to the plebs a door to political power by making the two orders meet on the common ground of a graduated scale of property; and the constitution of the thirty tribes marked off the inhabitants of the town and country into small local divisions, in the comitia of which the plebs had of course the preponderance, if it is to be supposed that the tribes had any recognised comitia before the institution of tribunes at the beginning of the Republican period. But though the comitia centuriata took away ultimately almost all political power from the comitia curiata, still the old relations of the different members of the body politic remained, in theory at least, long unimpaired. The curies alone could give the religious sanction which was indispensable to the validity of the resolutions of the centuries, and the plebs was as much as ever excluded from admission into the body of the populus, fenced round with its impassable wall of religious privileges, although the plebs and the populus were governed for the most part by the same rules of private law.

5. There could be very little direct law-making, except to meet Legislation in temporary emergencies, in such a community as early early Rome. Rome. What laws were made, were first proposed, arranged, and determined on by the Senate, under the guidance of its chief magistrate, the king, and then submitted to the highest source of power, the comitia curiata. After the institution of the centuries, the comitia centuriata gradually succeeded to the political power of the curiata, and the curies only met to give a formal religious sanction to the resolutions of the centuries. The king published regulations on matters that fell exclusively within his province as pontifex maximus, and a collection of these leges regia, which were probably nothing more than by-laws for the conduct of religious ceremonies, was made, or said to be made, by Papirius, who lived in the time of Tarquinius Superbus.*

6. The king was the supreme judge in all cases.

Judges.

But if, in

a criminal trial, the accused was a member of the populus, he could appeal from the king to the comitia curiata. If the accused was a plebeian, he had no tribunal to which he could appeal, until, shortly after the expulsion of the kings, the Valerian laws transferred appeals to the comitia centuriata, of which the plebs formed a part. Civil causes were decided by the king in his quality of pontifex maximus or by the subordinate pontifices acting under him, as all the private law of the populus was so mixed up with the sacred law, that it was part of the duty of a pontifex to know and guard its provisions.†

Position of the Plebs after the expulsion of the Kings.

7. After the expulsion of the kings, the plebeians were admitted to the comitia curiata and the Senate, and were allowed, within limits which practically were very narrow, to form gentes of their own. But the old antagonism remained, and the struggle between the plebs and the populus became gradually more and more serious. Besides the right of appeal to the centuries secured by the lex Valeria in every case when a citizen was condemned to death, the secession to the Aventine in 260 A.U.c. wrung from the patres the extinction of existing debts, and the creation of tribunes, at first

* There is no reason to doubt that Papirius was a real person (DIONYS. iii. 36). But when Pomponius speaks of his collection as the jus civile Papirianum (D. i. 2. 2. 2), he probably uses the term not with reference to the real work of Papirius, but to a work composed towards the end of the republic by Granius Flaccus, De Jure Papiriano (D. l. 16. 144).

† D. i. 2. 2. 6.

Mommsen, Hist. Rome, i. 280.