captured booty belonged, primarily, to the state, and that it was through the state alone that it could become the property of individuals. Thus, according to the view now under consideration, no citizen originally owned an inch of Roman soil; he could only possess and enjoy it by permission of the populus, and it remained ager publicus until the settlement of large numbers of strangers on Roman territory had brought into prominence the legal distinction. between civis and peregrinus, a distinction which then became emphasised by the former being held capable, the latter incapable, of owning land ex iure Quiritium. But to maintain the principle that all res mobiles belonged, ultimately, to the state, was less easy. On one explanation, however, of a famous distinction of Roman law-that of 'res mancipi' and 'res nec mancipi'-the traces of that principle were retained until the distinction itself was swept away by Justinian. It is suggested that the idea that all res mobiles belong ultimately to the state survived only in connection with certain subjects of propertythings, in other words, which usually form the staple of military booty, and of which individuals were thus most likely to have got possession by concession from the state. This idea, it is maintained, led to the introduction of a peculiar mode of alienation for these kinds of objects, namely, mancipatio, in which the sanction of the populus to the transaction was supplied by the presence of a definite number of witnesses who were full citizens of Rome (Gaius i. 119)1. But whatever may be the truth as to the distinction of res mancipi and res nec

1 This is but one of many views as to the origin of the distinction. Sir Henry Maine (Ancient Law p. 275) says: 'The explanation which appears to cover the greatest number of instances is, that the objects of enjoyment honoured above the rest were the forms of property known first and earliest to each particular community, and dignified therefore emphatically with the designation of Property. On the other hand, the articles not enumerated among the favoured objects seem to have been placed on a lower standing, because the knowledge of their value was posterior to the epoch at which the catalogue of superior property was settled. They were at first unknown, rare, limited in their uses, or else regarded as mere appendages to the privileged objects. Thus, though the Roman res mancipi included a number of moveable articles of great value, still the most costly jewels were never allowed to take rank as res mancipi, because they were unknown to the early Romans.' Ihering thinks that the res mancipi were those objects of property essential to the maintenance of the joint family life: ohne beides [i. e. free persons and res mancipi] lässt es sich ein ordentliches Hauswesen, eine gesunde Wirthschaft gar nicht denken' (Geist des römischen Rechts ii. p. 165). Other explanations are based on the actual market value (Kostbarkeit) of the objects (Cujacius, Bynkershoek), or on the supposition that a special return of res mancipi was required in the census (Puffendorf, Göttling). The matter is fully discussed, and the divergent views stated, in Böcking, Institutionen § 73.

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mancipi, we know that for many centuries a slave could not be effectually enfranchised except by a public act; that the earliest forms of wills were dispositions sanctioned either by direct legislative authority of the populus or by its representatives, the seven witnesses of the mancipation; and that the earliest mode in which a binding contract could be concluded was possibly the so-called nexum, which in all essential features was identical with mancipation. Thus the authority of the populus-the sanction of public law-was required. to validate almost every dealing between man and man, whether it was a marriage, a sale, a contract, the manumission of a slave, the emancipation of a son, or a testamentary disposition.

sacrum.

The prominent influence of the plebeian element of the state in the development of private law has been already alluded to as a fact which by itself appears beyond question. The theory now under discussion has the merit of explaining this fact, and of carrying the history of the evolution of private law even further backwards. Suits in which religious considerations or a religious sanction were involved were submitted for decision to the pontifices, presided over by the king as pontifex maximus; and it is represented that religion occupied so large a sphere in the life of early Rome that the whole of the original law may be regarded as partly ius publicum, partly ius What was subsequently known as 'ius privatum' attained a gradual recognition and advanced by timid steps to independence under the protecting aegis of ius sacrum: 'ius sacrum was the form which private law at first assumed, and in which it first received an independent though subordinate existence, as against the absorbing and preponderating weight of ius publicum.' But the plebs, when it became an integral part of the Roman state, was free from all prejudices based on the history of the populus; and 'it was in the plebs that the ius Quiritium, the private portion of the code, received its full development, and from the plebs that Rome got an idea which perhaps otherwise she would never have got the idea of a private person.' The relations of a private person must be governed by private law, and thus it is to the plebeian element in the state that the main institutions of private law are to be ascribed. Some of these developments the new forms of marriage and of adoption-have been already suggested. But the plebs consisted of persons who were no part of the populus; exactly then as the members of the latter (who had now come to be called patricians) could only possess and enjoy land, but not own it, so the members of the former, precisely because they were not of the populus, could only, if they

were to hold land at all, hold it in absolute private ownership, ex iure Quiritium. And thus, it is argued, private ownership of land originated with the plebeians, and was extended to the populus from a feeling that the latter ought in no way to be inferior to a population which politically lay so far below it. Similarly, emancipation, as a form of escape from patria potestas, manumission of slaves and the resulting patronatus, nexum, and manus iniectio, are all supposed to have been institutions due to the plebeian development of private law.

This view, however, of the relation of public to private law in early Rome, attractive though it is, and though very widely accepted, has not passed without challenge. By its chief opponent1 the earliest character of the Roman law is explained by reference to another principle, that of the 'subjective will,' or mere brute force and individual strength, uncontrolled by any state organization whatever. 'Might is right' is the first principle by which disputes between man and man are determined. This social condition is followed by a period in which self-redress is no longer arbitrary, but is regulated by minute rules sanctioned by custom; and eventually the stage of legal history is reached which is so vividly represented to us in the 'legis actio sacramenti,' disputes being referred at first to the arbitration of a 'vir pietate gravis,' though a private individual, and subsequently to that of an official of the state. The question thus arises, What then is the origin of the state? This is found in the family organization, and in the association of a number of families connected by real or fictitious relationship for the purpose of common defence, and forming an aggregate known to us as the gens: 'die Gens ist eine Familie im Grossen, und ein Staat im Kleinen.' The individual thus precedes the family, the family the gens, and the gens the state; and from the point of view of the subjective principle' the state is based upon a contract or quasi contract, whence the connection of the terms pax, pactum, pacisci.

To those who hold this view, private law appears, in origin, entirely independent of the state. The plausibility of the theory (first stated) is due to the public forms in which private law at first is clothed, and in the absence of opposition between the different parts of the system. It is, however, just those forms which prove that the

1 Thering, Geist des römischen Rechts part i. bk. i. §§ 9-19: 'die Ausgangspuncte oder die Urelemente des römischen Rechts.'

2 Maine, Early History of Institutions p. 273.

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state, in itself, had nothing to do with private law; for their very purpose is to place the two in a relation to one another which previously did not exist: and that absence of opposition consists, not in the domination of private law by the state, but of the state by private law that is to say, the state is constructed on private law principles. The evolution of private law out of the state would be a contradiction of all history. Nor is the force of this argument in any way weakened by the admitted fact that the principal dispositions known to early Roman law were effected under state supervision (p. 18, supr.). The object of this was to obtain a public guarantee for the rights which they conferred; a citizen who disputed such rights would be resisting the authority of the whole people. And it is conceivable that the idea of law backed by irresistible force, with which Austin has made us familiar, and which is peculiar to societies in which the judicature is and has long been organized on an effective system, was developed out of this expedient of defending individual rights, through the medium of a form, by the collective force of the whole community: 'das Concrete war hier wie so oft in der Geschichte des römischen Rechts die Brücke zum Abstracten; aus dem Schutz der Rechte entwickelte sich der Schutz des Rechts.'

Like so many other irresponsible rulers, the 'decemviri legibus scribundis' were corrupted by the taste of power which they had enjoyed; so much did they relish it that they attempted to make their own office permanent, and to revolutionise the form of government by substituting themselves entirely for the consuls and tribunes. Pretending to make an 'exaequatio iuris' the main object of their policy, they set to work to attain it by reactionary measures; they were for retaining the comitia curiata only for religious purposes, and for abolishing the comitia tributa altogether; thus the plebeians, would lose their organization, and so their very existence as an order, while the privileges of the patricians would be perpetuated, though under forms slightly altered or disguised. The plebs saw through the design, and (B. C. 449) resorted once again to the well-tried stratagem of a secession. The patrician opposition at once crumbled to nothing, and the old constitution, with its consuls and tribunes, was restored. By a lex of the consuls, Horatius and Valerius (B.c. 449), it was enacted 'ut quod tributim plebs iussisset populum teneret;' words which must not be understood to mean that the comitia tributa thereby received a legislative authority co-ordinate and co-extensive

1 Thering p. 219.

with that of the comitia centuriata, but only that the tribal assembly was established in the form in which it had existed, and with the functions which it had enjoyed, before the regular constitution had been suspended by the appointment of the commission of codification. One result of this restoration was that the patricians now began to take part in the comitia tributa, which thereby gradually lost its character as a merely plebeian assembly. Either by the same statute, or by another carried by the same consuls, it was provided that in future no new magistrate should be created from whose decisions there should be no appeal (provocatio) to the centuries.

The measures by which the coveted 'exaequatio iuris' was finally attained require a brief review. The lex Canuleia (B.C. 445) legitimated connubium between patricians and plebeians, and by uniting the members of the two orders by the tie of blood rapidly paved the way for the other enactments which at length welded them into an united people, with identical interests, and equal one with another in the eye of the law. Two years later was introduced the office of censor, which immediately became of large political importance. The duty of making out the lists of citizens in their various classes of course involved a very considerable power of affecting the individual in his political rights; thus, for instance, the censors were privileged to exclude a man from the senate, to deprive an eques of his horse and rank, or to remove a plebeian from his tribe, on account of defects not only of legal qualification but even of moral character; while as moribus praefecti they could lower his position in the eye of his fellow-citizens by the subscriptio censoria, or mark set against his name in their official list—the sure indication of dishonesty or profligacy. Among the other functions through which they gained their political influence may be enumerated the administration of the public revenues, the farming of the customs, and the making of all contracts for public works.

At the time of the passing of the lex Canuleia, the plebeians had striven hard to gain access to the consulship, but their efforts had been baffled by the patricians, who, however, conceded that a new magistracy should be established, ‘tribuni militum consulari potestate,' to relieve the consuls of some of their duties, and to this new office members of the plebs were to be eligible. At first it seems to have been frequently held by plebeians, but by degrees the patricians succeeded in making it almost as exclusively their own as the consulship had ever been, and Livy represents (vi. 37) a tribune of the plebs as saying in the year B. C. 369 that no plebeian had attained this