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also derived great assistance from the edition by Ducaurroy, and from the Manuel du Droit Romain' of Lagrange, as well as from the 'Commentaries' of Warnkoenig, and the 'Institutes' of Puchta. In the Introduction I have embodied much that was suggested by the 'Histoire de la Législation Romaine,' and the Généralisation du Droit Romain' of Ortolan, and by the first volume of the Institutes' of Puchta. In the translation I have been 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 I have 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.

T. C. S.

LINCOLN'S INN,

NOVEMBER, 1853.

INTRODUCTION.

Object of the 1. THE legislation of Justinian belongs to the Introduction. latest period of the history of Roman law. During the long space of preceding centuries the law had undergone as many 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 first 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 learnt 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.

B

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.

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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 considered 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

Roman pulus.

* GIBBON, viii. 30.

with the name of Romulus and the tribe of the Ramnes, the other with Numa and the Titienses; the former dwelt on the 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 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

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 curiæ, 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. 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 members 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 government, 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.