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ROMAN LAW
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See also:ROMAN See also:LAW .' The See also: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 See also:laws of the Roman See also:state, which were observed by its subjects during about thirteen centuries, from See also: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 See also:Juris See also:Civilis, which is the name that has been given since the 16th See also:century to Justinian's legislative See also:works as a whole, and distinguishes them from the Corpus Juris Canonici. In this acceptation it is See also:equivalent to, and is often called, " See also:civil law " as contrasted with See also:canon law. In a third and loose sense Roman law em-braces, in addition to the Corpus Juris, the interpretations of it after Justinian by See also:medieval and See also:modern courts, jurists and commentators adapting it to the customs and laws of their own countries and times. The See also:German expression, for example, modernes (or heutiges) romisches Recht, indicates the Roman law as it was applied in See also:Germany in modern times. Such medieval and modern See also:interpretation, however, is also some-times expressed, in See also:English usage at least, by the term "civil law " as contrasted with native or See also:common law; writers in this See also: Beginning in 753 B.C., the traditionally accepted date of the See also:foundation of See also:Rome, it continued its course till the See also:death of Justinian in A.D. 565. Allowing for the first three centuries being without historic See also:evidence, we have at least an authenticated See also:evolution of about woo years. Of no other system of law, See also: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 See also:side in relation to the See also:external See also:sources of the law, including therein the See also: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 See also:time or circumstance, such as See also:marriage, See also:slavery, See also:property, and so forth. This corresponds to what See also:Leibnitz described as external and See also:internal See also:history respectively, terms which are now rather out of See also:vogue. Of course it is possible to treat the historic sources of the law, constitutional and See also: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 ' This article represents a recast of the article contributed to the 9th edition of the See also:Encyclopaedia by the See also:late See also:Professor See also:Muir-See also:head. A large See also:part of that article has been retained by the present writer, and the See also:plan of arrangement, though altered in some respects, has been adhered to in the See also:main.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 See also:separate articles. Modern writers on the history of the Roman law have as a See also:rule, for the purpose of systematic treatment, divided the subject into definite historic periods. See also:Gibbon, in the See also:Division 44th See also:chapter of his Decline and Fall of the Roman into See also: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 See also:hundred years each) are not satisfactory.' 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 See also:left unaltered. These are: (1) the See also:regal See also:period; (2) the See also:jus civile, representing the period from the See also:establishment of the See also:Republic until the subjugation of central and See also:southern See also:Italy; (3) the jus gentium and jus honorarium, representing the latter See also:half of the Republic; (4) the jus maturate and maturity of Roman jurisprudence, representing the period of the Empire until the beginning of the reign of See also:Diocletian; (5) the period of codification, i.e. from Diocletian to Justinian. Not that there is any See also: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 See also:historical evidence; it is almost entirely traditional and conjectural, and different writers will take different views according to the relative value they See also: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 See also:People and the Law. The Beginnings of the State,—The See also:early Romans were not different from other Indo-See also:European communities in their essential characteristics. The tribe, the See also:clan, the See also:family, the individual: each of these appears in course of development See also:prior to the XII. Tables. Putting aside much of the traditional accounts of See also:Livy, See also:Dionysius, and other ancient historians, regarding the foundation of Rome and its early political and social See also:life, as mythical, modern See also: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 See also:government of a See also: Rechtswissenschaft, i. p. 86'. institutions attributed to the Sabines and Etruscans were, as See also:Mommsen and others have shown, common to all peoples of See also:Greek-See also:Italian stock, and could not be See also: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). See also:Patricians, Clients and Plebeians.—But whatever their ethnographic descent, it is See also: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 See also:hand, a dominant class enjoying all the rights of citizenship, and, on the other, a semi-servile or quasi-See also:vassal class excluded from such rights. The former class were called patricii or See also:Quirites;' the latter were called clientes and (later) plebeii. Patricians.—There was part of the law of Rome that even in the Empire was known by the name of jus Quiritium, and this in the regal period was the only law. The patricians at Paid- first were the Quirites, and prior at least to the time of clans. 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 See also:contract a lawful marriage and make a testament; in a word, all the See also: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 See also:bear- See also:ing a common name and theoretically at least tracing The their descent from a common ancestor. These clans, of genies. which there were normally three hundred altogether according to a rather doubtful tradition, were organized constitutionally in curies. Of the curies, again, there were See also: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 genies Rome required a common ruler and common institutions, religious, military and political, yet it was See also: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 See also:burial-place. It probably had some common council or assembly, for we read not only of See also:special See also:gentile customs, but of gentile statutes and decrees. Tradition records instances of See also:wars waged by individual genies, 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 See also:trust was specially confided. If a clansman left no descendants, his property passed to his See also:fellow-gentiles. Finally, its members were always entitled to rely upon its assistance, to have See also: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). Clients. Their origin is wholly unknown. Some of them may have been the See also: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 See also:liberty de facto had been given. Following a See also:custom See also:familiar both to Latins and Sabines, such persons were placed under the See also:protection of the heads of patrician families. The relationship was hereditary on both sides, and known as that of See also:patron and client. The client 2 t The derivation of the name is uncertain, and ancient writers differed about it. It probably comes either from quiris, a Sabine word for a See also:spear, or from See also:curia. The derivation from See also:Cures is inadmissible. See Mommsen, Rom. Staatsrecht (1887, 1888), iii. 1, p. n. 2.The derivation of cliens from cluere indicates the relationship—one who is called on, who hearkens. The theory that clientagebecame a dependent member of his patron's clan—not 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 See also:possession of lands increased in extent, it was probably not unusual for the patron or his gens to give him during See also:pleasure a See also:plot of See also: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 patron's interests by every means in his See also:power. But the advantage must have been chiefly ,on the side of the client, who, without becoming a See also: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 See also:Cicero calls them. The plebeians (See also:plebs, from 7rAi Dos, meaning See also:crowd), as distinguished from the clients, must be regarded as a heterogeneous See also:mass of non-gentile freemen. It used to be Plebeians. the prevailing opinion among modern writers, following the Roman historians, that the plebeians existed as a body since the very beginning of the See also:city. They were thought to be mainly composed of immigrants and ref ugees who, while being allowed See also: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 See also:adhesion and tends to become the dominant one. Mommsen's 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 clientage began to decay and the class of plebeian freemen arose. This was partly due to genies dying out, so that the clients attached to them were left without patrons; partly to the See also:numbers of foreigners at Rome (through transplantation of the inhabitants of conquered cities and otherwise) having become so large that they See also:felt themselves sufficiently powerful to do without protection; and partly to other causes? However this be, it is generally admitted that, during the latter part of the present , See also:epoch at least, plebeians existed as a body composed of individuals of mixed races not See also:united by any gentile organizations of their own nor attached to any Roman genies. Tradition attributes to Numa the formation of See also:gilds or See also:societies of craftsmen, such as potters, carpenters, See also:gold- and See also: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 See also: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 (sedales) there was a See also:bond of See also:close See also:alliance and interdependence, each owing See also:duty to the other similar to what might be claimed from a See also:guest or a kinsman. The Regulatives of Public and Private See also: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 See also: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 enforced by See also:secular tribunals, and thus had the See also: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 See also:rich is an See also:hypothesis supported by no satisfactory authority. 3 Mommsen, Staatsrecht, iii. 1, pp. 66 seq. and pp. 127 seq. For a different view, Karlowa, See also:Ram. Rechtsgeschichte, i. 62. Cf. Cuq, Instil. jurid. See also:des Remains (2nd ed., 1904-8), i. 11-12.
By fas' was understood the will of the gods, the laws given by See also:heaven for men on See also:earth, much of it regulative of ceremonial, 1 as. but a by no means insignificant part embodying rules
of conduct. It appears to have had a wider range than jus. It forbade that a See also: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 See also:oath. It enjoined hospitality to foreigners, because the stranger guest was presumed, equally with his entertainer, to be an See also:object of solicitude to a higher power. It punished See also:murder, for it was the taking of a See also:god-given life; the See also:sale of a wife by her See also:husband, for she had become his partner in all things human and divine; the lifting of a hand against a See also:parent, for it was subversive of the first bond of society and See also:religion,—the reverence due by a See also:child to those to whom he owed his existence; incestuous connexions, for they defiled the See also:altar; the false oath and the broken See also:vow, for they were an insult to the divinities invoked; the displacement of a boundary or a landmark, not so much because the See also:act was provocative of See also:feud, as because the See also: Some breaches of fas were expiable, usually by a See also:peace-offering to the offended god; others were inexpiable. When an offence was inexpiable, the See also:punishment was usually what is called sacratio capitis, See also:excommunication and See also:outlawry of the offender. The precepts of the fas therefore were not See also: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 See also:Sanskrit, ju, to " join, bind or unite," from Jus which some deduce as its signification " that which binds," " the bond of society," others " that which is See also:regular, orderly or fitting." Brgal identifies it with the jos or jaus of the Vedas, and the jaes or jaos of the Zend-Avesta—words whose exact meaning is controverted, but which he interprets as " divine will or power." 2 If See also:Breal's See also:definition can be adopted we obtain a very significant interpretation of the words addressed by the presiding See also: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 See also:office, and their . See also: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 Breal's seems not without support,—vox populi vox dei. 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 See also:statute (lex).3 As to the customs, it can well be believed that at the outset they were far from See also:uniform; that not only the customs of the three original tribes but those also of the different genies varied, 1 Breal derives fas from the Greek O us. It signifies the divinely inspired word. Breal et See also:Bailly, 101. s Nouv. rev. hist. (1883), p. 6o5. But see J. See also:Schmidt in Mommsen, Staatsrecht, iii. 310 n. ' For the distinction between jus and lex, see Mitteis, Romisches Privatrecht (1908), i. 30 seq. There is some controversy about the See also:etymology of the word lex. See Brbal, 1.c. p. 61o; Schmidt in Mommsen, S.R. iii. 308 n. While lex is often used like jus to See also:express law generally, it early acquired two distinct meanings, viz. (i) an See also:obligation of any See also:kind expressly incorporated in a private See also:deed (lex privata), as in the phrases lex mancipii, lex contractus, &c.; (2) a comitial enactment, hence occasionally called lex publics (Gains, i. 3 and ii. 104). But by the jurists of the Republic this latter meaning was extended so as to See also:cover all laws resulting from the will of the people, including, for example, plebiscites and even senatorial or proconsular ordinances (leges datae).and that they only gradually approximated, and in course of time consolidated into a See also:general jus Quiritium. Of legislation there was, so far as is known, practically almost nothing What went by the name of boni mores (as distinct from bus moribus constitutum) must also be regarded as one of the regulatives of public and private order Part of what Boni See also:fell within their See also:sphere might also be expressly mares 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 See also:censor's regimen morum. The functions of those who took See also:charge of boni mores were twofold: sometimes they restrained by publicly condemning—though they could not prevent—the ruthless and unnecessary exercise of legal right, as, for example, that of the head of the See also:house over his depend-ants, and sometimes they supplied deficiencies in the law by requiring observance of duties that could not be enforced by any legal See also:process. Dutiful service, respect and obedience from inferiors to superiors, chastity, and fidelity to engagements, express or implied (fides), were among the officia 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 authority to enforce their observance by such animadversio as they thought proper—the 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 See also:writing prior to the XII. Tables is generally believed. Yet the jurist See also:Pomponius, a Legea contemporary of See also:Hadrian, speaks of certain laws fegt8e. 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.' We are also told by See also:Paul that this See also:work was commented on by a certain Granius See also:Flaccus,5 who was, it is supposed, of the time of See also:Julius See also:Caesar or See also: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 See also:relating.,almost entirely to matters of fas and which appear to have been enacted under the See also:kings We are also told by Servius, the commentator on See also: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.' It has even been attributed (the See also:suggestion was first made apparently by Gibbon) to Granius Flaccus himself. Nevertheless, the internal evidence from the See also:character and See also:language of the laws them-selves (apart from the See also:weight that must be given to the testimony of Pomponius, Servius and other ancient writers) is favourable to their great antiquity, and it is best to accept the view that the leges regiae are See also: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. 4 Dig. i. 2. 2, § 2 and § 36. In the latter passage Papirius is given the praenomen Publius. 3 Dig. 1. 16, 144. ' Serv., in Aeneid, 12, 836, cited in Bruns, Fontes, p. 3. It has been suggested that a work of the jurist See also:Manilius mentioned by Pomponius (Dig. i. 2. 2, § 39) is its source (Zeitsehrift d. Sag. Stitt. See also:xxiv. Additional information and CommentsThere are no comments yet for this article.
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