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 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 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 dence watched over the counsels of the State, and showed, by signs which the wise could understand, approval or displeasure at all that was undertaken. Union of the The Plebs. 7. The Ramnes and Titienses combined to form a common society. The political system of the former opened to receive the latter, who in return impressed upon the whole community a sacred character, and penetrated all the relations of private life with their peculiar notions of the manus and its consequences. In process of time there grew up, by the side of this associated body, a new element of the State, occupying a position very different from that which was occupied by this privileged community. The plebs was formed by the inhabitants of conquered towns being brought to Rome; perhaps also by the influx of voluntary settlers. These new-comers, or, if we are to suppose that the plebs was coeval with the populus, these strangers, remained without the political circle which included the Ramnes and Quirites. 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. But they had one point in common with the populus. They had the same private law. They shared the jus Quiritium. The Sabine doctrine of the manus coloured their life, as it did that of the patricians. They exercised the same powers over their family as the patres, that is, the members of the populus, did over theirs. They could sell by mancipatio; they could hold land by the peculiar tenure which was part of the Quiritian law. The manus also enabled them to effect those acts of private life for which the patres required the sanction of the curia. If a plebeian wished to free his son from his manus, he sold him to a nominal purchaser; if he wished to enter another family, he was bought by the head of the family he wished to enter. If he wished to make a testament, he sold his inheritance to a nominal purchaser, who was trusted with its ultimate distribution. The plebs, principally of a Latin origin, preserved many of the usages and some portion of the law which obtained in Latin towns. In some instances, as, for instance, in forming the tie of marriage, we know the plebs to have used both the Latin and the Sabine form. But it was their participation in the jus Quiritium, in the peculiar private law of the populus, which made the plebeians, partially at least, citizens of Rome, and distinguished them from the inhabitants of neighbouring towns, or from occasional visitors at Rome itself. It was impossible that the two orders should mix, for no plebeian could possibly go through the sacred rite of confarreatio, by which alone a binding marriage could be formed by a patrician. But so far as regarded the acquisition of property and the capacity to hold or alienate it, the two orders were on a footing of equality. In the language which the subsequent history of Rome makes familiar to us, the plebs had the commercium, but not the connubium*. How far the preceding ac count historically true. 8. Probably the relative positions of the Ramnes, Quirites, and plebs, have been here stated in a much more unqualified manner than is warranted by the actual state of facts at any one time of the national history. We do not, for instance, ever find the Ramnes, before their junction with the Sabine tribe, modelled into an organized system of curie and gentes. But when the two, or, if we include the Luceres, when the three tribes were united into one political body, we find that in each tribe the same divisions were adopted, that the same system was repeated, and that the whole State machinery would have * Ihne, who has been followed by many writers whose opinions are entitled to weight, considers that all the three tribes were Sabine, and that the plebs was a conquered Pelasgic population, the previous holders of the site of Rome. It is impossible here to enter into the reasons why the account given in the text, much of which has been suggested by Puchta (Inst. i. 124–155), has been preferred. But if the opinion of Ihne was adopted, it would be necessary to make little change in the history of Law. There would still be a ruling race, with a public and sacred law of its own, and a private law which it shared with a subject population. been theoretically perfect if only one tribe had ruled at Rome. When, therefore, we have arrived at the position, that the general principles of this system originated with the elder tribe of the Ramnes, we may, for the sake of convenience and clearness, speak as if they had elaborated their political organization before their union with the Quirites; or rather, we may look at it as it might in theory, and may in fact, have existed, apart from any other political body. So, too, we cannot imagine that any Italian tribe would have a scheme of civil polity which was not hallowed by the attendance of religious rites: the Ramnes must have had a jus sacrum of their own. But as we find abundant signs to guide us to the conclusion, that many of the most striking features of the jus sacrum that obtained in Rome were of Sabine origin, and as we cannot hesitate to think that the peculiar spirit in which religion was regarded by the Romans was shared by races of Sabellian origin, we may be warranted in speaking as if the Quirites had infused through the polity of the united body their own notions of things divine. Provided that we do not strain facts to meet theories, or apply theories as if they embraced all the facts which would seem naturally to bear upon them, we are safe, when we wish to gain a conception of so wide and vague a subject as early Roman law, in summoning up before us the phantoms of general ideas which we cannot find ever to have been incorporated into palpable existences. 9. Setting before us, then, the idea of the compact polity of the populus invested with a peculiar religious character, and a plebs that shared its private law, but was excluded from its public and its sacred laws, we may pass over much that, in the history of early Rome, is properly considered of great importance *. The What we may pass over. *The account given above of the relative positions of the plebs and the populus (see PUCHTA, Inst. i. 126) is not quite in accordance with the views of Niebuhr. Supposing, however, that is the true one, the discrepancy, or, at least, a great portion of it, may fairly be attributed to the different form which ideas take when stated as the result of his |