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Bible Encyclopedias
Roman Law
1911 Encyclopedia Britannica
or ROMAN LAW.i The term Roman law is indefinite and ambiguous, being used in more than one sense. First, in a wide sense, it comprehends the totality of the laws of the Roman state, which were observed by its subjects during about thirteen centuries, from Romulus to Justinian. In a second and stricter meaning it indicates the law as consolidated by Justinian or, in other words, the law contained in the Corpus Jun5 Civilis, which is the name that has been given since the 16th century to Justinians legislative works as a whole, and distinguishes them from the Corpus Junis Canonici. In this acceptation it is equivalent to, and is often called, civil law as contrasted with canon law. In a third and loose sense Roman law embraces, in addition to the Corpus Junis, the interpretations of it after Justinian by medieval and modem courts, jurists and commentators adapting it to the customs and laws of their own countries and times. The German expression, for example, modernes (or heutiges) romisches Recht, indicates the Roman law as it was applied in Germany in modern times. Such medieval and modern interpretation, however, is also sometimes expressed, in English usage at least, by the term civil law as contrasted with native or common law; writers in, this field being usually styled civilians rather than Romanists. It is to the Roman law in the first of the above-mentioned three significations that the present article is devoted.
To give a proper sketch of Roman law it must be treated historically. Nearly all systems of positive law are the product more or less of an historic development, but the Roman r6e~tY has this great advantage over other systems, that it historic was at all times a homogeneous body complete in itself. treat- For the Romans were comparatively little indebted to ment. other peoples for their jurisprudence, and, when they did borrow legal ideas and institutions from others, they generally transformed or modified these in adapting them to their own native system, so that they became substantially Roman. Moreover, the various stages of progress of the law from its genesis to its maturity and ultimate consolidation can be traced in unbroken continuity. Beginning in 753 B.C., the traditionally accepted date of the foundation of Rome, it continued its course till the death of Justinian in A.D. 565. Allowing for the first three centuries being without historic evidence, we have at least an authenticated evolution of about 1000 years. Of no other system of law, ancient or modern, can anything like the same thing be said.
As to the proper method of historic treatment there have been different opinions. Without going into these, it is enough to say that the subject may be treated from two sides, viz. on the one side in relation to the external sources of the law, including therein the political and social conditions and the various constitutional changes at different periods affecting the development of the law, as well as the modes in which the law manifested itself and the legal literature from which our knowledge of it is derived; on the other side it may be treated in relation to the several departments or institutions of the law in view of their development or changes through time or circumstance, such as marriage, slavery, property, and so forth. This corresponds to what Leibnitz described as external and internal history respectively, terms which are now rather out of vogue. Of course it is possible to treat the historic sources of the law, constitutional and literary, independently of the doctrines, and this is now often done; but unless both are discussed the field of Roman law is not covered. Both the external and the internal history, however, may be treated together or in a measure interwoven, and it is in this way that the subject is treated in the following pages. But constitutional events affecting the law are only noticed very summarily, details about these being given in separate articles.
Modern writers on the history of the Roman law have as a rule, for the purpose of systematic treatment, divided the subject into definite historic periods. Gibbon, in the Division 44th chapter of his Decline and Fall of the Roman into Empire, seems to have been the first to suggest this historic mode of treatment, though the particular periods of epochs. division he selected (being based on an artificial symmetry of about three hundred years each) are not satisfactory.2 In the present article, the division made by Muirhead in his article in the 9th edition of this Encyclopaedia into five historic epochs has been left unaltered, These are: (1) the regal period; (2) thejus civile, representing the period from the establishment of the Republic until the subjugation of central and southern Italy; (3) the jus gentium andjus honorarium, representing the latter half of the Republic; (4) the jus naturale and maturity of Roman jurisprudence, representing the period of the Empire until the beginning of the reign of Diocletian; (5) the period of codification, i.e. from Diocletian to Justinian. Not that there is any sharp or fundamental division between these or, indeed, between any historic epochs. The law is a unity: it has its roots in the past and grows with the nation itself, and, like it, decays; there is no break in its continuity. The division is made merely for convenient treatment of the subject.
It must be kept in view that our knowledge of Roman customs and laws earlier than the XII. Tables and even for some time after them cannot be based on strict historical evidence; it is almost entirely traditional and conjectural, and different writers will take different views according to the relative value they place upon this or that piece of presumptive evidence.
It is only the private law that is dealt with in the present article. - -
I. THE REGAL PERIOD
i. The People and the Law.
The Beginnings of the St ate,T he early Romans were not different from other Indo-European communities in their essential characteristics. The tribe, the clan, the family, the individual: each of these appears in course of development prior to the XII. Tables. Putting aside much of the traditional accounts of Livy, Dionysius, and other ancient historians, regarding the foundation of Rome and its early political and social life, as mythical, modern critical historians are none the less agreed that in the earliest period of their existence as a settled community the Romans were subjected to the govern~ ment of a king (rex), with a council of elders (senatus) and an assembly of burghers (comitia cuniata).
It used to be a somewhat common opinion that the primitive Romans were a sort of amalgam of three different racesLatin, Sabine and Etruscan. This opinion is mainly based upon the tradition that the state was originally formed by a union of three tribes called Ramnes, Tities and Luceres; the Ramnes being of the Latin race, the Tities of the Sabine and the Luceres of the Etruscan. Attempts have even been made to find in the Roman laws and institutions traces of the influence of each of these races, and especially of the first twopatria potestas and manus, for example, being attributed to the Latin or dominant race; adoption and confarreation to the Sabine; fOrms and ceremonial (such as lictors, fasces, &c.) to the Etruscan.3 But this attractive theory of a union of three races, apart from the suspicion of a symbolic trichotomy (tres tnibus) due to later times, is based on no substantial evidence;4 many of the See Muirhead, Historical Introduction (2nd ed., 1899), pp. 35, and authorities there cited.
Some writers deny the existence of the tribes altogether, but this goes too far. See Bruns-Lenel in Holtzendorffs Encyklopo4ie d. Rechtswissenscha~ft, i. p. 86.
institutions attributed to the Sabines and Etruscans were, as Mommsen and others have shown, common to all peoples of Greek-Italian stock, and could not be strange to the Latins. We must hold that the Romans were essentially a Latin race, though influenced by a considerable admixture with Sabine and, to a lesser degree, Etruscan races (see RoME).
Patricians, Clients and Plebeians.But whatever their ethnographic descent, it is pretty certain that the Roman. civitas Divisions was in the earliest period an organization that was of the patriarchal in its essence, but in which there was to be people. distinguished, on the one hand, a dominant class enjoying all the rights of citizenship, and, on the other, a semi-servile or quasi-vassal class excluded from such rights. The former class were called patricii or Quirites; i the latter were called clientes and (later) plebeii.
PatriciansThere was part of the law of Rome that even in the Empire was known by the name ~f jus Quiritium, and this in the regal period was the only law. The patricians at ~ first were the Quirites, and prior at least to the time of Servius Tullius they alone enjoyed rights under this law.
From their number the council of elders was selected; they alone could take part in the curiate comitia; they alone could contract a lawful marriage and make a testament; in a word, all the peculiar institutions of early Rome were for their benefit alone.
But these rights and prerogatives they enjoyed as members of gentes or clans, the clans being aggregations of families bearing a common name and theoretically at least tracing g~~netes. their descent from a common ancestor. These clans, of which there were normally three hundred altogether according to a rather doubtful tradition, were organized constitutionally in curies. Of the curies, again, there were thirty in all, there being probably ten in each of the three tribes, organized primarily for military and secondarily for political and religious purposes. Though for the federation of the curiae and gentes Rome required a common ruler and common institutions, religious, military and political, yet it was long before such federation into a state displaced entirely the separate institutions of the several gentes. Every clan had its own cult peculiar to its own members. It had its common property and its common burial-place. It probably had some common council or assembly, for we read not only of special gentile customs, but of gentile statutes and decrees. Tradition records instances of wars waged by individual gentes, indicating that they had the right to require military service alike from their members and dependants. Widows and orphans of deceased clansmen were under the guardianship of the gens or of some particular member of it to whom the trust was specially confided. If a clansman left no descendants, his property passed to his fellowgentiles. Finally, its members were always entitled to rely upon its assistance, to have maintenance when indigent, to be ransomed from captivity, and to be avenged when killed or injured.
Along with the gentiles there were in Rome from the earliest period other persons known by the name of clientes (clients).
Cli nt Their origin is wholly unknown. Some of them may e ~. have been the original inhabitants of Rome and their descendants, but more probably they were mostly immigrants from other communities or citizens of conquered towns whom the Romans were unable or unwilling to treat as slaves. Some may have been slaves to whom liberty de facto had been given. Following a custom familiar both to Latins and Sabines, such persons were placed under the protection of the heads of patrician families. The relationship was hereditary on both sides, and known as that of patron and client. The client2
i The derivation of the name is uncertain, and ancient writers differed about it. It probably comes either from qu-iris, a Sabine word for a spear, or from curia. The derivation from Cures is inadmissible. See Mommsen, Rm. Staatsrecht (1887, 1888), iii. I, p. 5 n.
-The derivation of cliens from cluere indicates the relationship one who is called on, who hearkens. The theory that clientage became a dependent member of his patrons clannot gentilis but gentilicius. His patron had to provide him with what was necessary for his sustenance and that of his family; and, as ownership or possession of lands increased in extent, it was probably not unusual for the patron or his gens to give him during pleasure a plot of land to cultivate for himself. The patron had, moreover, to assist him in. his transactions with third parties, and obtain redress for him when. injured. The client, on the other hand, had to maintain his patrons interests by every means in his power. But the advantage must have been chiefly on the side of the client, who, without becoming a citizen, obtained directly the protection of his patron and his clan, and indirectly that of the state. A large number of clients attached themselves to and received protection from the king as patron royal clients, as Cicero calls them.
The plebeians (plebs, from irAijOor, meaning crowd), as distinguished from the clients, must be regarded as a heterogeneous mass of non-gentile freemen. It used to be Piebelans.
the prevailing opinion among modern writers, following the Roman historians, that the plebeians existed as a body since the very beginning of the city. They v~ cre thought to be mainly composed of immigrants and refugees who, while being allowed personal liberty, declined to submit themselves to a patron. But recently a theory of Mommsen, based on solid philological and other grounds, has obtained wide adhesion and tends to become the dominant one. Mommsens view is that at first there were only two classes in the community, the patricians and clients, or, in other words, that the only plebeians were the clients who, as such, possessed only quasi-liberty (Halbfreiheit), and that it was not till after a century or two that the practice of voluntary cientage began to decay and the class of plebeian freemen arose. This was partly due to gentes dying out, so that the clients attached to them were left without patrons; partly to the numbers of foreigners at Rome (through transplantation. of the in.habitants of conquered cities and otherwise) having become so large that they felt themselves sufficiently powerful to do without protection; and partly to other causes.3
However this be, it is generally admitted that, during the latter part of the present ,epoch at least, plebeians existed as a body composed of individuals of mixed races not united by any gentile organizations of their own. nor attached to any Roman gentes. Tradition attributes to Numa the formation of gilds or societies of craftsmen, such as potters, carpenters, gold- and silver-smiths (collegia opificum) at Rome, eight or nine in number. This, though probably a myth as regards Numa, may be taken as slight evidence of the creation among the plebeians of associations for trade and other purposes, that to some extent compensated them for the want of gentile organization. These gilds seem to have had a common cult and a common council to arrange disputes and consolidate customs. Between the brethren (sodales) there was a bond of close alliance and interdependence, each owing duty to the other similar to what might be claimed from a guest or a kinsman.
The Regulatives of Public and Private Order.It would be absurd to expect any definite system of law in those early times. What passed for it was a composite of fas, jus and boni mores, whose several limits and characteristics it is extremely difficult to define. This may to some extent be accounted for by the fact that much of what was originally within the domain of fas, once it had come to be en.forced by secular tribunals, and thus had the sanction of human authority, was no longer distinguishable from jus; while it may be that others of its behests, once pontifical punishments for their contravention had gone into desuetude, sank to nothing higher than precepts of boni mores.
arose from the voluntary subjection of poorer citizens to the rich is an hypothesis supported by no satisfactory authority.
Mommsen, Staatsrecht, iii. 1, pp. 66 seq. and pp. 127 seq. Fora different view, Karlowa, Ram. Rechtsgeschichte, i. 62. Cf. Cuq, Instil. fund. des Romains (2nd ed., 19048), i. 1112.
By fasi was understood the will of the gods, the laws given by heaven for men on earth, much of it regulative of ceremonial, F but a by no means insignificant part embodying rules as. of conduct. It appears to have had a wider range than jus. It forbade that a war should he undertaken without the prescribed fetial ceremonial, and required that faith should be kept even with an enemy when a promise had been made to him under sanction of an oath. It enjoined hospitality to foreigners, because the stranger guest was presumed, equally with his entertainer, to be an object of solicitude to a higher power. It punished murder, for it was the taking of a godgiven life; the sale of a wife by her husband, for she had become his partner in all things human and divine; the lifting of a hand against a parent, for it was subversive of the first bond of society and religion,the reverence due by a child to those to whom he owed his existence; incestuous connections, for they,defiled the altar; the false oath and the broken vow, for they were an insult to the divinities invoked; the displacement of a boundary or a landmark, not so much because the act was provocative of feud, as because the march-stone itself, as the guarantee of peaceful neighborhood, was under the guardianship of the gods. Some breaches of fas were expiable, usually by a peace-offering to the offended god; others were inexpiable. When an offence was inexpiable, the punishment was usually what is called sacratio capitis, excommunication and outlawry of the offender. The precepts of the fas therefore were not mere exhortations to a blameless life, but closely approached to laws, whose violation was visited with punishments none the less effective that they were religious rather than civil.
The derivation of the word jus is disputed. The usual derivation is from the Sanskrit, ju, to join, bind or unite, from which some deduce as its signification that which Jus. binds. the bond of society, others that which is regular, orderly or fitting. Bral identifies it with the jos or jaus of the Vedas, and the jaes or jaos of the ZendAvestawords whose exact meaning is controverted, but which he interprets as divine will or power.f If Brals definition can be adopted we obtain a very significant interpretation of the words addressed by the presiding magistrate to the assembled comitia in asking them whether they assented to a law proposed by him,Velitis, jubeatis, Quirites, &c., Is it your pleasure, Quirites, and do you hold it as the divine will, that, and so on. As legislation by the comitia of the curies and centuries was regarded as a divine office, and their vote might be nullified by the fathers on the ground that there had been a defect in the auspicia, and the will of the gods consequently not clearly ascertained, this explanation of Brals seems not without support,vox populi vox del. If it be right, then the main difference between fas and jus was that the will of the gods, which both embodied, was in the one declared by inspired and in the other by merely human agency. -
This jus might be the result either of traditional and inveterate custom (jus moribus constitutum) or of statute (lex).3 As to the customs, it can well be believed that at the outset they were far from uniform; that not only the customs of the three original tribes but those also of the different gentes varied, 2 Nouv. rev. hisl. (1883), p. 605. But see J. Schmidt in Mommsen, Staatsreckt, iii. 310 n.
1 For the distinction between jus and lex, see Mitteis, Romisches Privatrecht (1908), i. 30 seq. There is some controversy about the etymology of the word lex. See l3rbal, l.c. p. 6f 0; Schmidt in Mommsen, S.R. iii. 308 n. While lex is often used like ,jus to express law generally, it early acquired two distinct meanings, viz. (i) an obligation of any kind expressly incorporated in a private deed (lex privata), as in the phrases lex mancipif, lex contractus, &c.; (2) a comitial enactment, hence occasionally called lex publica (Gaius, i. 3 and ii. 104). But by the Jurists of the Republic this latter meaning was extended so as to cover all laws resulting from the will of the people, including, for example, plebiscites and even senatorial or proconsular ordinances (leges data.,).
and that they only gradually approximated, and in course of time consolidated into a general jus Quirilium. Of legislation there was, so far as is known, practically almost nothing What went by the name of boni mores (as distinct from jus moribus constitutum) must also be regarded as one of the regulatives of public and private order Part of what B fell within their sphere might also be expressly mes. regulated by jas or jus; but there was much that was only gradually brought within the domain of these last, and even down to the end of the Republic not a little that remained solely under the guardianship of the family tribunal or the censors regimen morum. The functions of those who took charge of boni mores were twofold: sometimes they restrained by publicly condemningthough they could not preventthe ruthless and unnecessary exercise of legal right, as, for example, that of the head of the house over his dependants, and sometimes they supplied deficiencies in the law by requiring observance of duties that could not be enforced by any legal process. Dutiful service, respect and obedience from inferiors to superiors, chastity, and fidelity to engagements, express or implied (Jides), were among the o,fficia that were thus inculcated, and whose neglect or contravention not only affected the reputation, but often entailed punishments and disabilities, social, political or religious. It was the duty of those in arthority to enforce their observance by such animadversio as they thought properthe paterfamilias in his family, the gens among its members, the king in relation to the citizens generally; and many a wrong was prevented not by fear of having to make reparation to the party injured but by the dread of the penalties that would follow conduct unbecoming an upright citizen.
That the bulk of the law during the regal period was customary is universally admitted, and that no laws were committed to writing prior to the XII. Tables is generally believed. Yet the jurist Pomponius, a contemporary of Hadrian, speaks of certain laws enacted by the comitia of the curies, which he calls leges regiae and which, he says, were collected by one Sextus Papirius, a prominent citizen in the reign of Tarquinius Superbus, under the name of Jus Papirianum.4 We are also told by Paul that this work was commented on by a certain Granius Flaccus,5 who was, it is supposed, of the time of Julius Caesar or Augustus. No remains of this Jus Papirianum are extant, but we have a considerable number of so-called leges regiae cited by Livy, Dionysius and others, which contain rules of the private law relating..almost entirely to matters of fas and which appear to have been enacted under the kings We are also told by Servius, the commentator on Virgil, that there was a work known to Virgil called de Ritu Sacrorum, in which leges regiae were collected.6 The authenticity of these laws, however, is disputed, and the question is one of difficulty. Some modern writers of high authority (e.g. Mommsen hold that the Jus Papirianum is an apocryphal compilation made from pontifical records about the close of the Republic.1 It has even been attributed (the suggestion was first made apparently by Gibbon) to Granius Flaccus himself. Nevertheless, the internal evidence from the character and language of the laws themselves (apart from the weight that must be given to the testimony of Pomponius, Servius and other ancient writers) is favorable to their great antiquity, and it is best to accept the view that the leges regiae are authentic remains of laws of the regal period. This does not, however, involve the belief that they were collected by Papirius, nor that they were enactments of the comitia curiata, as Pomponius says. They seem rather to have been regulations made by the king at his own hand.
Dig. i. 2.2, 2 and 36. In the latter passage Papirius is given the praenomen Publius.
i Dig. 1. i6, 144.
6 Serv., in Aeneid, 12, 836, cited in Bruns, Fontes, p. 3.
1 It has been suggested that a work of the jurist Manilius mentioned by Pomponius (Dig. i. 2.2, 39) is its source (Zeitsehrift d.
Say. Stilt. Xxiv. 420~
or perhaps old-established customs formulated by the higher pontiffs and ascribed to the kings.i It is also stated by Dionysius that under Servius Tullius various laws, fifty in number, dealing with contracts and delicts, were enacted in the comitia of the curies.2 But we have no corroboration of this, and recent writers are now generally agreed in regarding the statement as a legend.
ii. Reforms of Servius Tullius.
It is generally agreed that towards the end of the regal period, and connected with the king traditionally called Servius Tullius, a great reform of the constitution took place, which exercised much influence on the subsequent development of the law. No doubt there is a good deal of myth attached to the name of Servius, who seems to have been regarded by later Romans as a popular monarch, like Alfred by the English, but the main features of the traditional account of the constitutional reforms of this period may be taken as based on fair presumptive evidence. That all of them indeed were evolved from one brain is hardly credible, and that some of them were in observance de facto before being made constitutionally binding is very likely.
The design attributed to Servius was that of altering the old constitution in order to promote an advance towards equality between patricians and plebeians. He is credited with having desired, on the one hand, to ameliorate the position of the plebs and, on the other, to make them bear a proportionate share of the burdens of the statein particular, to serve in the army and contribute to the war tax (tribulum). He effected this by giving them qualified rights of citizenship, not indeed by admitting them into the gentile organizations, but by creating a new political assembly of a distinctly military character in which they as well as the gentiles could take part. The so-called Servian reforms may be roughly summarized under the following four heads, viz. (1) a division of the Roman territory within the city walls into four local wards called tribus (to which a number of tribes outside the cit ytribus rusticaewere afterwards in course of time added); (2) the establishment of a register of the citizens (census) which was to contain, in addition to a record of the strength of their families, a statement of the value of their lands, with the slaves and cattle employed in their cultivation, and which was to be revised periodically; (3) a division of the people, as appearing in the census, into five classes for military purposes, determined by the value of their holdings in land and its appurtenances, with a subdivision of each class into so-called centuriae; (4) the creation of a new assembly with legislative power called comitia centuriala, in which the vote was to be takeii by centuriae. While it may be an open question how far these reforms, and particularly the institution of the centuriate comitia, were actually due to Servius, or only a result of his arrangements, the whole conception of the new constitution is obviously of early date and indicative of considerable statesmanship.
The plebeians were thereby made constitutionally part of the populus Romanus; they became citizens (Quirites).1 They got commercium and also connubium so far that their marriages jilter Se were recognized as legal marriages. Rights and duties See Clark, Hist. of Roof. Law (1906), i. 1619; Kipp, Geschichte d. Quellen (1903), pp. 2425. The most comprehensive treatise on these royal laws, which also contains references to the earlier literature, is that of Voigt, Uber die Leges Regiae (Leipzig, 1876). An exhaustive collection of them, including numerous references to royal institutions by Livy, Dionysius and others, is given in Bruns, Fontes Juris, 6th ed. i. I seq. Another collection is in Girard, Textes, 3rd ed. pp. 3 seq.
2 Dion. iv. 10, 13.
The view of some recent writers that the plebeians had at all times participated in the jus Quiritium and were admitted to the curiate comitia and even had gentile rights (see Lend in Holtzendorifs F.neykloi5die d. Rechtswissenschaft, 6th ed. i. 90 nfl. I, 2, and authorities there cited), must be decidedly negatived. Not only does it render the whole tradition about the Servian reforms untrustworthy, but the accounts of the struggles between patricians and plebs in the early Republic are left largely without meaning were so far to be measured by each citizens position as a holder of lands; the amount of land (including slaves and cattle appurtenant thereto)4 held by him on quiritarian title was to determine the nature of the military service he was to render, the tribute he was to pay, and his right to take part in the new political assembly. It is indeed probable that a good while before Servius the conception. of individual ownership of lands and things necessary for their cultivation had been reached, and that such ownership was recognized not only among the gentiles, but also de facto even more largely among the plebeians. The common lands of the gentes had become split up, to a considerable extent, among families and individuals. However this be, the creation of the census ensured, as far as possible, certainty of title, as it was declared that no transfers of property enrolled in it would be recognized unless made by public conveyance with observance of certain prescribed formalities.5 The form of conveyance thus legally sanctioned was called originally mancupium, afterwards mancipium, and at a still later period mancipatio, while the lands and other things that were to pass by it came to be known as res mancipii (or mancipi). Hence arose a distinction of great importance in the law of property (which lasted till Jdstinian formally abolished it), between res mancipi and res nec mancipi; the former being transferable only by mancipation or surrender in court, the latter by simple delivery (see infra, p. 541).
iii. Institutions of the Private Law.
Law of the Family.6The word familia in Roman law had at once a more extensive and a more limited meaning than it has in its English form. Husband, wife and The children did not necessarily constitute an independ- patrician eat family among the Romans, as with us, nor were familY.
they all necessarily of the same one. Those formed a family who were all subject to the poweroriginally manus,1 later potestas or jusof the same head (paterfamilias). The paterfamilias was himself a member of the family only in the sense in which a king is a member of the community over which he rules. He might have a whole host dependent on him, wife and sons and daughters, and daughters-in-law and grandchildren by his sons, and possibly remoter descendants related through males; so long as they remained subject to him they constituted but one family, that was split up only on his death or loss of citizenship. But if his wife had not passed in manum (a result apparently unknown among the patricians at this period), she did not become a member of hi~ family: she remained a member of the family in which she was born, or, if its head were deceased or she had been emancipated, she constituted a family in her own person. Both sons and Modern writers are not agreed as to whether movable ref mancipi were included with lands in the valuation of property for fixing the classes.
i Or else by cessio in jure, though this may not have been before the XII. Tables, and it was in any case of very limited operation.
6 On tribal family and matriarchate among the Romans in prehistoric times, consult Westermarck, History of Human Marriage (London, 1891); Post, Grundriss der ethnologischen Jurisprudenz. (1894) i. 15160. Familia and family are used in this section solely to designate the group of free persons subject by birth, marriage or adoption to the same paterf amities. Strictly the word familia meant the household and all belonging to it. It had also the following principal meanings: (1) a gens or branch of a gens (group of families in the stricter sense); (2) the whole body of agnatic kinsmen (famitia communi jure); (l) the family estate or patrimonium, as in the provisions of the XII. Tables about intestate succession, e.g. adgnatus proximus familiam ha beta (4) the family slaves collectively, as in the phrase familia rustica. See Mommsen, Staatsr. iii. 10 fl. 16 a. 22; Rivier, Prcis du droit defamille romain (Paris, 1891), I.
This word menus, though in progress of time used technically to express the power (hand) of a husband over his wife in familia, was originally the generic term for all the rights exercised, not only over the things belonging but also over the persons subject to the head of the houseas seen, for example, in the words manumission and emancipation. Cf. Inst. i. 5 pr. It should be observed that among uncivilized peoples there is always a very small vocabulary, and the same word often has to do duty in several sensese.g. familia, mancipium, nexum, cc put.
daughters on emancipation ceased to be of the family of the paterfamilias who had emancipated them. A daughters children could never as such be members of the family of their maternal grandfather; for children born in lawful marriage followed the family of their father, while those who were illegitimate ranked from the moment of birth as patresfamilias and inatresfamilias.
With the early Romans, as with the Hindus and the Greeks, marriage was a religious duty a man owed alike to his ancestors Marilage. and to himself. Believing that the happiness of the dead in another world depended on their proper burial and on the periodical renewal by their descendants of prayers and feasts and offerings for the repose of their souls, it was incumbent upon him above all things to perpetuate his race and his family cult. The Romans were always strictly monogamous. In taking to himself a wife, he was about to detach her from her fathers house and make her a partner of his family mysteries. With the patrician at least this was to be done only with divine approval, ascertained by auspicia. His choice was limited to a woman with whom he had connubium (~irt-yauLa) or right of intermarriage. This was a matter of state arrangement; and in the regal period Roman citizens could have it outside their own bounds only with members of states with which they were in alliance, and with which they were connected by the bond of common religious observances. A patrician citizen, therefore, if his marriage was to be reckoned lawful (justae nuptiae), had to wed either a fellow-patrician or a woman who was a member of an allied community. In either case it was essential that she should be outside his sobrinal circle, i.e. more remote in kinship than the sixth degree. The ceremony was a religious one, conducted by the chief pontiff~ and the flamen of Jupiter, in presence of ten witnesses, representatives probably of the ten curies of the bridegrooms tribe, and was known as farreum or confarreatio. Its effect was to dissociate the wife entirely from her fathers house, and to make her a member of her husbands; for confarreate marriage involved in manum conventio, the passage of the wife into her husbands hand or power, provided he was himself paterfamilias; if he was not, then, though nominally in his hand, she was really subject like him to his family head. Any property she had of her ownwhich was possible only if she had been independent before marriagepassed to him as a matter of course; if she had none, her paterfamilias usually provided her a dowry (dos), which shared the same fate. In fact, so far as her patrimonial interests were concerned, she was in much the same position as her children; and on her husbands death she had a share with them in his inheritance as if she had been one of his daughters. In other respects manus conferred more limited rights than patria potestas; for Romulus is said to have ordained that, if a man put away his wife except for adultery or one or two other grave offences, he forfeited his estate half to her and half to Ceres, while if he sold her he was to be given over to the infernal gods.i Patria potestas was the name given to the power exercised by a father, or by his paterfamilias if he was himself in potestate, over the issue of such justae snptiae. The Roman poStes~~as. jurists boasted that it was a right enjoyed by none but Roman citizens; and it certainly was peculiar to them in this sense, that nowhere else, except perhaps among the Latin race from which they had sprung, did the paternal power attain such an intensity. The omnipotence of the paterfamilias and the condition of utter subjection to him of his children in potestate became greatly modified in the course of centuries; but originally the children, though in public life on an equality with the house-father, in private life, and so long as the poteslas lasted, were subordinated to him to such an extent as, according to the letter of the law, to be in his hands little better than his slaves. They could have nothing of their own: all they earned was his; and, though it was quite common when they grew up for him to give them peculia, cattle of their own, to manage for their own benefit, these were only defacto theirs, but de jure his. For offences committed by them outside the family circle, for which he was not prepared to make amends, he had to surrender them to the injured party, just like slaves or animals that had done mischief. If his right to them was disputed, he used the same action for its vindication that he employed for asserting his ownership of his field or his house: if they were stolen, he proceeded against the thief by an ordinary action. of theft; if for any reason he had to transfer them to a third party, it was by the same form of conveyance that he used for the transfer of things inanimate. Nor was this all; for, according to the old formula recited in that sort of adoption. known as adrogation, he had over them the power of life and death, jus vitae necisque.
It might happen that a marriage was fruitless, or that a man saw all his sons go to the grave before him, and that the paterfamilias had thus to face the prospect of the Ad~gaextinction. of his family and of his own descent to tion and the tomb without posterity to make him blessed. To adoption. obviate so dire a misfortune, he resorted to the practice of adoption, so common in India and Greece. If it was a paterfamilias that he adopted, the process was called adrogation (adrogatio); if it was a filiusfamilias it was simply adoptio. The latter, unknown probably in the earlier regal period, was, as we first know it, a somewhat complicated conveyance of a son by his natural parent to his adopter, the purpose of course being expressed; its effect was simply to transfer the child from the one family to the other. But the former was much more serious, for it involved the extinction of one family that another might be perpetuated. It was therefore an affair of state. It had to be approved by the pontiffs, who probably had to satisfy themselves that there were relatives of the adrogatee to attend to the manes of the ancestors whose cult he was renouncing; and on their favorable report it had to be sanctioned by a vote of the curies, as it involved the deprivation of his gens of their possible right of succession to him and possible prejudice to creditors through capitis deminutio. If it was sanctioned, then the ad rogat us, from being himself the head of a house, sank to the position of a filiusfamilias in the house of his adopting parent; if he had had wife or children subject to him, they passed with him into his new family, and so did everything that belonged to him and that was capable of transmission from one person to another. The adopting parent acquired potestas over the adopted child exactly as if he were the issue of his body; while the latter enjoyed in his new family the same rights exactly that he would have had if he had been born in it.
The inanus and the patria potestas represent the masterful aspects of the patricians domestic establishment. Its conjugal. and parental ones, however, though not so prominent in the pages of the jurists, are not to be lost sight of. The patrician family in the early history of the law was governed as much by fas as by jus. The husband was priest in the family, but wife and children alike assisted in its prayers, and took part in the sacrifices to its lares and, penates. As the Greek called his wife the house-mistress, ~th7roLza, so did the Roman speak of his as materfamilias,1 the house-mother. She was treated as her husbands equal. As for their children, the potestas was so tempered by the natural sense of parental duty on the one side and filial affection on the other that in daily life it was rarely felt as a grievance; while the risk of an arbitrary exercise of the domestic jurisdiction, whether in the heat of passion or under the impulse of justifiable resentment, was guarded against by the rule which required in grave cases the paterfamilias to consult in the first place the near kinsmen of his cl~,ild, maternal as well as paternal. Even the incapacity of the children of the family to acquire property of their own cannot in those times have been regarded as any serious hardship; for, though the legal title to all their acquisitions was in the housefather during his life, yet in truth they were acquired for and belonged to the family as a whole, and he was little more than a trustee to hold and administer them for the common benefit.
The patria potestas, unless the paterfamilias voluntarily put an end to it, lasted as long as he lived and retained his status. The marriage of a son, unlike that of a daughter passing into the hand of a husband, did not release him from it, nor did his children become subject to him so long as he himself was in potest ate. On the contrary, his wife passed on marriage into the power of her father-in-law, and their children as they were born fell under that of their paternal grandfather; and the latter was entitled to exercise over his daughters-in-law and grandchildren the same rights that he had over his sons and unmarried daughters. But there was this difference, that, when the pater-familias died, his sons and daughters who had remained in potestate and his grandchildren by a predeceased son instantly became their own masters (sui juris), whereas grandchildren by a surviving son simply passed from the potestas of their grandfather into that of their father.
The acquisition of domestic independence by the death of the family head frequently involved the substitution of the Ouard- guardianship of tutors (tatela) for the po~estas that !anship had come to an end. This was so invariably of tutors. in the case of females sui juris, no matter what their age: they remained under guardianship until they had passed by marriage in manum mariti. It was only during pupillarity, however, that males required tutors, and their office came to an end when puberty was attained. It is improbable that during the regal period a testamentary appointment of tutors by a husband or parent to wife or children was known in practice. In the absence of it the office devolved upon the gens to which the deceased paterfamilias belonged.
Family Organization among the Plebeians.If perfect identity of customs cannot be assumed to have existed amongst the patrician gentes in the regal period of Rome, far less can it be supposed to have existed amongst the heterogeneous population (Latins, Etruscans, Greeks, &c.)
of which the plebs was constituted. Nevertheless, contiguity of residence and community of interests tend inevitably to unify customs and cause dissimilarities to disappear, and the plebeians must have not only gradually brought their own customs into unison inter se, but adapted them at the same time in many respects to those of the patricians. Even to those of non-Latin race manus over their wives and potestas over their children would become a desideratum. Though the plebeians seem to have been always excluded from confarreation, and their matrimonial unions must have been at first informal and irregular from the point of view of the Quirites, two civil modes of acquiring marital manus were available to them after they obtained citizenship, viz. coemptio and usus. Some writers hold that neither of these modes was legally recognized prior to the XII. Tables.1 This may be so, but it is improbable. As the pleheians obtained by the Servian constitution full capacity for quiritarian ownership, it was at once open to them to adapt the modes sanctioned for acquiring property to the acquisition of marital manus. Coemptio was just a simple adaptation of mancipation above referred to (see also infra, p. 540). It was, as we may infer from what we know of it at a later time, a sale of the woman to the man per aes et libram for a nominal price. The price being fictitious, a piece of copper (raudusculum) was used to represent it, and this was handed over to the seller, who would ordinarily be the womans paterfamilias, or, if she were sui juris, her gentile tutor. The nuncupatory words used in the ceremony have unfortunately not been preserved; necessarily, of course, they varied from those of an ordinary mancipation of property.2 Though called by the jurists a mode of constituting marriage, coemptio, as we know it, was strictly a mode of creating manus; for, though usually contemporaneous with, it might, as Gaius informs us, follow the marriage at any distance of time, and was not dissolved by divorce, but required a separate act of remancipation. Students of comparative law have observed that in coemptio there are clear traces of earlier bride purchase, so common even nowadays among uncivilized tribes, where a real price in cattle or sheep, and not a mere nominal one, has to be paid for the b:ide. Usus, on the other hand, was a mode of acquiring marital manus by possession of the woman as wife for a certain period of timelong cohabitation.3 Whether this was recognized by the law prior to the XII. Tables depends probably upon whether usucaption, as. a mode of acquiring property, was settled by custom earlier than the Tables. Some writers, however, think it older than coemptio, and as a de facto relation prolonged cohabitation as man and wife must have existed from very early times. Comparative historians with good reason trace in usus the relics of primitive bride capture. Both coemption and usus, from the time they were first recognized by the jus Quiritium, undoubtedly created patria potestas and agnatic rights.
Law of Pro perty.4The history of the early Roman community, like many other primitive communities, is marked by the disintegration of the gentes and the growth of individual property. Yet the distribution of land in land. amongst the early Romans is one of the puzzling Patriproblems of their history. The Sexvian constitution ciai,s. apparently classified the citizens and determined their privileges, duties and burdens according to the extent of their lands; and yet we know nothing for certain of the way in which these were acquired. All is conjectural. We have indeed a traditional account of a partition by Romulus of the little territory of his original settlement into three parts, one of which was devoted to the maintenance of the state and its institutions, civil and religious, the second (ager publicus) to the use of the citizens and profit of the state, and the third (ager privatus) subdivided among his followers. Varro and Pliny relate that to each paterfarnilias among his followers he assigned a homestead (heredium) of two jugera, equal to about an acre and a quarter. These heredia were to be held by him and his heirs for ever (quae heredem sequerentur); Pliny adding that to none did the king give more. This can only be accepted as a partially correct account of what may have taken place at some early period during the kingly rgime. There can be little doubt that a portion of the Roman territory, gradually augmented through new conquests, was early reserved by the state as ager publicus; that is sufficiently attested by the complaints made for centuries by the plebeians of its monopolization by the patricians. It is also probable that heredia (i.e. plots of land within the city) may have been granted to the heads of the gentile families, many of whom would be living in pagi on their respective gentile lands outside the city. Such heredia became family property, administered, as such by the paterfamilias, but inalienable by him. In this respect the position would be very similar to what existed among the an.cient Germans and exists to-day in India among the Hindus. Even late in the Republic, when the idea of It would thus ctire defects in a coemption just as usucaption did defects in mancipation.
See Giraud, Recherches sur le droit de pro priit chez les Romains (Aix, 1838); Mace, Histoire de la propriite &c., chez les Romains (Paris, 1851); Hildebrand, De antiquissimae agri Romani distributionis fide (Jena, 1862); Cuq, Instit. jurid., 2nd ed., vol. i. pp. 72 seq.; Beaudouin, La Limitation desfondsde terre (1894), pp. 259 seq.
individual ownership was paramount, it was still considered a disgrace for a man to alienate his heredium. But though the existence of monogamous families seems to imply private ownership to some extent, yet, as formerly indicated, a large part of the Roman territory at, and for a good while after, the foundation of the city must have been gentile lands held by the separate clans for the use of their members. 1~he fact that the majority of the rural tribes bore the names of wellknown patrician gentes favors the conclusion that even in the later regal period a good many of the clans still held lands in their collective capacity. It was at some uncertain time before Servius that there began to be a break-up of these gentile lands and their appropriation by individual members. Under the influence of this movement lands were acquired and held by families and individuals to a large extent. A patricians holding must have been sometimes pretty large so as to enable him to make grants (so often alluded to by ancient writers) to his clients, but we have no means of estimating the normal size. The heredia were small; even during the Republic there is some evidence (e.g. the traditional story about Cincinnatus) that seven jugera were regarded as the normal extent of a patricians holding for his own and his familys use. On the other hand, twenty jugera are commonly supposed to have been the qualification for enrolment in the first of the Servian classes. Of course it must be kept in view that a patrician did not necessarily hold all his lands by gratuitous assignation or concession either from the state or from his gens; purchase from the former was by no means uncommon, and it may have been on his purchased lands that his clients were usually placed. Those dependants were also probably employed in large numbers upon those parts of the ager publicus which were occupied by the patricians and were in historic times known as possessiones. These, of course, were not the property of their occupants; it was the lands acquired by assignation or purchase that were alone, apart from the heredia, regarded as theirs exjure Quiritium.
The traditional accounts of the early distribution of lands among the plebeians are even, if possible, more vague than those property regarding the patricians. They had apparently become In land holders de facto of land in large numbers before the among Servian reforms. But they can have attained that plebelan& position only by gradual stages. While their earliest grants of land, probably from the kings, can only have been during pleasure, latterly, as they increased in number and importance, they were allowed to have permanent possession. That those who had means also acquired lands by purchase from the state may be taken for granted. The distinction between de facto possession and ownership was at best a very vague one at this period, and, like the holders of provincial lands in later times, the plebeians might have the benefits of ownership without ownership. The result of the Servian constitution was to convert this de facto property or permanent possession into quiritarian ownership.1
There are some writers who maintain that in the regal period, prior to the Servian reforms, though after the collective ownerProperty ship of the gentes had begun to disintegrate, there in mov- was no private property in movables. This proposiableL tion can at most be accepted only in a qualified sense. If it be meant that movables generally were not then recognized as objects of quiritarian dominium which could be vindicated by any real action, it may be admitted. But otherwise the distinction between meum and tuum must have been well recognized, de facto at least. Men must have been in the habit of transferring things from one to another by simple delivery in respect of barter, sale or otherwise, and any violent or theftuous appropriation of things in a mans occupation would be punished by magisterial authority or by ordinary sell-redress by the injured party. A sort of ownership in possession must at least have been recognized for movables generally.2
But apart from this, we must believe that certaiIi kinds of movables, viz, those which have been described as appurtenant to land and necessary for its cultivationwhich with land formed the real objects, as distinct from the personal subjects, of the familiawere treated from the time of Romulus downwards, as in manu of the patresfamilias. These were the res mancipi already referred to. Quiritarian ownership in them, as we have seen, was recognized both for patricians and plebs by the Servian constitution, periodical registration of them in the census and transference by the quasi-public act of mancipation being probably required. Earlier even than with lands, the conception of private ownership, it has been said, connected itself with them.3
A short explanation may now be given of the ceremony of mancipation and the nature of res mancipi.
Mancipation is described by Gaius, with particular reference to the conveyance of movable res mancipi, as a pretended sale in presence of not less than five citizens as witnesses and a libri pens holding a pair of copper scales. The transferee, Manalpawith one hand on the thing being transferred, and using ~
certain words of style, declared it his by purchase with a piece of copper (which he held in his other hand) and the scales (hoc aere aeneaque libra); and simultaneously he struck the scales with the as, which he then handed to the transferrer as figurative of the price. The principal variation when it was an immovable that was being transferred was that the mancipation did not require to be on the spot: the land was simply described by its known name in the valuation roll. Although in the time of Gaius only a fictitious salein fact the formal conveyance upon a relative contractyet it was not always so. Its history is very simple. The use of the scales fixes its introduction at a time when coined money was not yet current, but raw copper nevertheless had become a standard of value and in a manner a medium of exchange. That, however, was not in the first days of Rome. Then, and for a long time, values were estimated in cattle or sheep, fines were imposed in them, and the deposits in the legis actio sacramento (infra, p. 549) took the same form. The use of copper, as a substitute for them in private transactions was probably derived from Etruria. But, being only raw metal or foreign coins, it could be made available for loans or payments only when weighed in the scales: it passed by weight, not by tale. There is no reason for supposing that the weighing was a solemnity, that it had any significance beyond its obvious purpose of enabling parties to ascertain that a vendor or borrower was getting the amount of copper for which he had bargained.
It was this practice of everyday life in private transactions that Servius apparently adopted as the basis of his mancipatory conveyance, engrafting on it one or two new features intended to give it publicity and, as it were, state sanction, and thus render it more serviceable in the transfer of censuable property. Instead of the parties themselves using the scales, an impartial balance-holder, probably an official, was required to undertake the duty, and at least five citizens were required to attend as witnesses, who were to be the vouchers to the census officials of the regularity of the procedure. Whether they were intended as representatives of the five classes in which Servius had distributed the population, and thus virtually of the state, is disputed, though the fact that, when the parties appealed to them for their testimony, they were addressed not as testes but as Quirites lends some color to this view.4 Servius is also credited with the introduction of rectangular pieces of copper of different but carefully adjusted weights, stamped by his authority with various devices (aes signatum), which are i Mancipation seems to have been a very ancient mode of conveyance. The use of the balance in barter or sale was known to the ancient Egyptians at least as early as 2000 B.C., as may be seen on reliefs in the temple of Dehr-el-Bahri in Upper Egypt. The derivation of mancipium (mancipatio) from manu capere, to seize with the hand, is given by Gaius and is confirmed by the fact that at all times in its history the acquirer had to lay his hand on the thing being acquired, during the ceremony, if a movable. So where several things were being mancipated in a lot, this had to be done to each separately. With lands and other immovables it was different: they might be mancipated in absence, which goes some way to prove that mancipation must have been extended to them at a later period. The derivation of mancipatso given by Muirhead (Historical Introduction, 2nd ed., pp. 59 seq.) from manum capere, i.e. to acquire power (manus), is open to the objection that it places the abstract idea of power before the concrete symbol of it. Cf. Cuq, Institutions juridiques, 2nd ed., i. p. 80 n. See Gai. ii. 104.
usually supposed to have been. intended to take the place of the raw metal (ass rude) formerly in use, and so facilitate the process of weighing; but there is more reason for thinking they were cast and stamped as standards to be put into one scale, while the raw metal whose weight was to be ascertained was put into the other.
Instead, therefore, of being a fictitious sale, as Gaius describes It, and as it became after the introduction of coined money in the 4th century of the city, the mancipation, as regulated by Servius, was an actual completed sale in the strictest sense of the term. What were the precise words of style addressed by the transferee to the transferrer, or what exactly the form of the ceremonial, we know not. But, as attendance during all the time that some thousands of pounds, perhaps of copper, were being weighed would have been an intolerable burden upon the five citizens convoked to discharge a public duty, it may be surmised that it early became a common practice to have the price weighed beforehand, and then to reweigh, or pretend to reweigh, before the witnesses only a single little bit of metal (raudusculum), which the transferee then handed to the transferrer as the first pound and the last, and thus representative of the whole.i And where no real price was intended, as in constituting a dos or in coemption, a raudusculum would also be employed. Whatever may have been. its form, however, its effect was instant exchange of property against a price weighed in the scales. The resulting obligation on the vendor to maintain the title of the vendee, and the qualifications that might be superinduced on the conveyance by agreement of parties the so-called leges mancipiiwill be considered below in connection with the provisions of the XII. Tables on the subject (infra, p. 542).
The things included in the class of res mancipi were lands and houses held on Quiritarian title, together with rights of way and aqueduct, slaves, and the following domestic beasts of draught or burden, viz. oxen, horses, mules and donkeys; all others were res nec mancipi. Many theories have been propounded Rmeasnc,p, to account for the distinction between these two classes of things, and to explain the principle of selection that admitted oxen and horses into the one, but relegated such animals as sheep and swine to the other. But there is really little difficulty. Under the arrangement of Servius, what was to determine the nature and extent of a citizens political qualifications, military duties and financial burdens was apparently the value of his heredium (and other lands, if he had any), and what may be called its appurtenancesthe slaves that worked for the household, the slaves and beasts of draught and burden that worked the farm, all of which lived and worked in common with the free members of the familia. But the cattle a man depastured on the public meadows were no more res mancipi than his sheep, a fact which, though ultimately in., the later Empire lost sight of, was still understood in the time of Gaius,2 To say that the things classed as res mancipi were selected for that distinction by Servius because they were what were essential to a family engaged in agricultural pursuits would be to fall short of the truth. They constituted the familia in the sense of the family estate proper; whereas the herds and flocks, and everything else belonging to the paterfcfmilia-s, fell under the denomination of pecunia. So the words are to be understood perhaps in the well-known phraseology of the mancipatory testament, familia pecuniaque mea.3 The public solemnity of manci patio thus sanctioned as a mode of transferring a Quiritarian right of property, for which manus was probably as yet the only descriptive word in use, was not long in being adapted to and utilized for other transactions in which other kinds of manus were sought to be acquired. These new adaptations, if confined at first for the most part to plebeians, were also soon made use of by the patricians, perhaps before as well as after the XII. Tables, and became by custom part of the common law. Such were, for example, coemption (as explained above), emancipation and adoption of fihiifamilias, and mortis causa alienation of a familia and nexum.
Law of SuccessionThe legal order of succession during the regal period was extremely simple. It was this. on the death Sgjcces- of a paterfamiias his patrimony devolved upon those slon of his descendants in polestate who by that event amongst became sui juris, his widow (being loco fihiae) taking the patri an equal share with them, and no distinction being ~ made between movables and immovables. Such persons were styled self-heirs (sui heredes). Failing widow and children, The conjecture is suggested by the words of style in the solutio per aes et tibram, Gai. iii. ~ 173, 174. There were some debts from which a man could be effectually discharged only by payment (latterly fictitious) by copper and scales in the presence of a libripens and the usual five witnesses. In the words addressed to the creditor by the debtor making payment these occurredhanc tibi libram primam posiremamque expendo (I weigh out to you this the first and the last pound). The idea is manifestly archaic, and the words, taken strictly, are quite inappropriate to the transaction in the form it had assumed long before the time of Gaius.
~ Gai. ii. i5; Ulpian, Frag. xix. 1.
Gai. ii~ 104~ By the time of the XII. Tables the sharp distinction between these two terms is tending to disappear.
his patrimony went to his gens. The notion that between the descendants and the gens came an intermediate class under the name of agnates does not seem well founded as regards the regal period; the succession of agnates as such seems to have been first legally recognized by the XII. Tables, probably to meet the case of the plebeians, who, having no genies, were without legal heirs in default of children.4
The later jurists more than once refer to the perfect e
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Chisholm, Hugh, General Editor. Entry for 'Roman Law'. 1911 Encyclopedia Britanica. https://www.studylight.org/encyclopedias/eng/bri/r/roman-law.html. 1910.
