Historical introduction to the private law of Rome

Front matter

I

O^CC^c '

f iff 6^3 .

Preface To Second Edition

In preparing a new edition of this book my principal object has been to supplement the author's notes by references to the most recent authorities, viz. to such works of importance dealing with the history of Roman Law as have been published since the date of the first edition, and have come within my reach. No alteration has been made in the text, except by way of correcting a few verbal inaccuracies. Neither has any attempt been made to critically examine certain theories propounded by the author regarding primitive Roman institutions, such as the origin and effects of mancipation and nexum, even where I might not be disposed to accept all his conclusions. To have done so in detail would have swollen the notes and increased the size of the book to an inconvenient extent. It must always be kept in view that our knowledge of early Roman customs, at least till after the XII. Tables, cannot be based upon historical evidence ; it is almost entirely conjectural, and different writers will take different views according to the value they attach to this or that piece of presumptive evidence.

Among the works that I have consulted, I am specially indebted to the valuable and comprehensive treatises of Cuq, Les Institutions juridiques des Romains, Uancien droit ; and P. F. Girard, Manuel elementaire de droit romain. I have also consulted with advantage the useful notes appended to the French translation of this work by G. Bourcart of Nancy, and the Italian translation by L. Gaddi.

vu viii PREFACE

The notes I have made throughout the book are contained in square brackets. It has been thought advisable to insert in the appendix the conjecturally restored text of the XII. Tables, along with a few notes. In doing so, the arrangement of the fragments made by Schoell, and adopted by Bruns in his Forties Juris, has been followed, as it is the one with reference to which the laws are now usually cited. One or two notes on special topics have also been added to the appendix, and the index has been slightly enlarged.

For several useful suggestions, which have been given effect to in the notes, I have to thank Dr Emerton of Christ Church, and Dr. Williams of Lincoln College, Oxford. I have also to express my grateful acknowledgments to Mr. W. M. Harrison, Fellow of All Souls College, who kindly read the whole of the proofs, and gave me much assistance by his valuable criticisms.

HENRY GOUDY.

Oxford, December 1898.

Preface To First Edition

The following pages were written originally for the Encyclopaedia Britannica, but had to be very much abridged in order to bring them within the limits of space the Editor could afford to devote to their subject. He did me the honour to express the opinion that their publication in extemo would prove of service to various classes of readers ; and the Publishers of the Encyclopaedia were so good as to urge me to adopt his suggestion. This book is the result.

I think it right to prefix this explanation ; for the plan and execution might have been somewhat different had an independent volume been in contemplation from the first.

JAMES MUIRHEAD.

Edinburgh, Ul October 1880.

IX

CONTENTS PART I

THE REGAL PERIOD CHAPTER I

SOCIAL AND POLITICAL CONDITION OF ROME AND ITS POPULATION DOWN TO THE TIME OF SERVIUS TULLIUS

Sect. 1. Genesis of the Roman State. — Different races. Different customs. Dualistic result . . . . . . . 3-6

Sect. 2. The Patricians. — They alone ranked as citizens or Quirites. Their gentes or clans. Gentile organisation. Relation between the gentes and their constituent families ...... 6-8

Sect. 3. The Clients. — How clientage arose. Relation between patron and client ......... 8, 9

Sect. 4. The Plebeians. — Origin of the plebs. Accessions to its ranks. Different races and customs represented. Some of the plebeians belonged to guilds of craftsmen. The greater number engaged in agriculture. Had no gentile institutions and no share in government . . 9-12

REGULATIVES OF PUBLIC AND PRIVATE ORDER

Sect. 5. Absence of any Definite System of Law. — Pomponius' account of the early law. Errors in it. Fas, jus, and boni mores . 13, 14

Sect. 6. Fas. — What understood by it. Its behests. Their enforcement.

The homo sacer ....... 1 1-17

Sect. 7. Jus. — Meaning and etymology. Its sources : custom and statute.

The leges regiae . . . . . . . 17-20

Sect. 8. Boni Mores. — Their function ; restraining jus and supplementing

it. Illustration : influencing faithfulness to engagements . 20, 21

xi xii COXTENTS

INSTITUTIONS OF THE PRIVATE LAW

Sect. 9. The Family Organisation. — The familia and its head and members. The patrician family. Its perpetuation a religious duty. Confarreate marriage. The husband's resulting manus over his wife. His patria potestas over issue of the marriage. Recruitment of a family by adoption when marriage fruitless. Conjugal and parental (as distinguished from dominical) position of the paterfamilias. How and when the patria potestas came to an end. Guardianship of wife, daughters, and pupil sons on death of paterfamilias. The family clients and slaves. Plebeian family relationships. No justae nuptiae. Their formless unions only matrimonia. Exercised a de facto patria potestas. Having no gentes, set more store than the patricians on cognati and adfines .... 22-33

Sect. 10. Distribution of Land and Law of Property. — Varro's bina jugera. Gentile settlements. Possessiones in ager publicus. Grants of land to plebeians. Were the heredia inalienable ? Dominium ex jure Quiritium. Property in movables ..... 33-39

Sect. 11. The Order of Succession. — Patrician practice. By law a man's wife and children, if in manu and in potestate at his death, were his proper heirs (sui heredes) ; failing them his gens succeeded. Children who had quitted the family by marriage or otherwise were not sui heredes. By law no preference of sex or age. Splitting up of a heredium avoided by testamentary arrangement. Testaments made with sanction of curies. Plebeian order of succession. De facto a plebeian's children in potestate succeeded. Having no gentiles, and being unable to make a testament, his succession was de jure vacant on failure of children. Its de facto appropriation by a kinsman, — the foundation of the later usucapio pro herede ......... 39-45

Sect. 12. Breach of Contract, and Private and Public Offences. — Social arrangements left narrow range for contractual engagement. The guarantees for good faith : invocation of Fides, jusjurandu?n, and de facto pledge. Redress for breach. Redress for wrongs outside contract. Private vengeance. Expiatio, supplicium, sacratio capitis. Compositions

46-51 the servian reforms

Sect. 13. Effect of the Reforms of Servtus Tullius on the Law of Property. — The census, and the necessity for regulating conveyances of censuable property. Mancipium or mancipation, — its origin and reformation by Servius. Meaning of mancipium. Res mancipi and nee mancipi

52-59

CONTEXTS xin

Sect. 14. Their Incidental Effects on tin: Law Of tiii: FAMILY, 01

0188IOV, and of Contract. — Employment by plebeians of wtancipium,

rw under the name of coemptio, as a civil form of marriage Hid DIMM of acquiring manus over their wives. '1'lieir employment of it for trio/ causa disposal of their estates as a makeshift for a testament . Itemployment, under the name of nexum, in contracting money loeilfl. Its employment in emancipation and adoption of a filiu<familias, and in release of a nexal debtor. In all those applications it involved acquisition of manus ........ 59-64

Sect. 15. Servian Amendments on the Course of Justice. — The state of matters before Servius. The king's criminal jurisdiction. Those of the paterfamilias and the gens. Origin of the king's jurisdiction inter privates. Servian reforms. The centum viral court. The unus judex

04-71

PART II THE JUS CIVILE (From the Establishment of the Republic till the Subjugation of

Central and Southern Italy)

historical events that influenced the law

Sect. 16. The Change from King to Consuls. — The strife between patricians and plebeians and its causes ..... 75-77

Sect. 17. Political Inequalities Removed. — The first secession and the tribunate. The concilium plebis and its plebiscite. The second secession and the comitia of the tribes. The third secession and the Hortensian law. The Canuleian law and repeal of the prohibition of intermarriage of patricians and plebeians. The Licinian laws, admission of the plebeians to the consulate, and institution of the praetorship. Plebeians in all the magistracies ........ 77-81

Sect. 18. Uncertainty of the Law. — The Terentilian rogation, the Decern - virate, and the XII. Tables . . . . . . 81, 82

Sect. 19. The Public Lands. — How these were dealt with. Patrician monopoly. The Cassian law of 268 (468) u.c. The Licinian laws. Later agrarian legislation . . . . . . .82-84

Sect. 20. The Law of Debt. — Causes of plebeian poverty and patrician wealth. Nexal loans and sufferings of the nexi. Measures in relief. Poetilian law abolishing nexum. Subsequent enactments in aid of debtors xiv CONTENTS the twelve tables

Sect. 21. Their Compilation . . . 89, 90

Sect. 22. Their Sources . . . . . 90, 91

Sect. 23. Their Remains and Reconstruction . . . 92-94

Sect. 24. General Characteristics of the Laws contained in them 95-97 the private law within and beyond the tables

Sect. 25. Citizen and Non-Citizen. — Early law personal, not territorial. Position of foreigners. Conubium, commercium, actio. Amicitia and hospitium. Conubium, commercium, and recuperatio under treaty arrangements ......... 98-103

Sect. 26. The Gens or Clan. — Effect of the XII. Tables on gentile institutions

103-105

Sect. 27. The Family Relations Proper. — Husband and wife. Manus-less marriage, and manus superinduced by a year's usus. The wife's dos or dowry. Divorce. Parent and child. Patria potestas. " Si paterfamilias ter filiumvenum duuit, filius a patre liber esto." Adoption. Master and slave. Statu liberi. Noxae deditio . . . 105-111

Sect. 28. Guardianship and Introduction of the Order of Agnates. — Impossibility of extending the gentile guardianships of the patricians to the citizens generally. Agnatic guardianship substituted by the Decemvirs. Agnation defined and illustrated. Order of devolution of tutory over females and male pupils under the Tables. The office of a tutor. Curatory of lunatics and spendthrifts . . . . .111-115

Sect. 29. Capitis Deminutio. — Caput and capitis deminutio — what ? Various degrees of capitis deminutio. Cap. dem. minima in particular. It was change of family, but not necessarity of status in the family. It dissolved patria potestas and agnation, and extinguished claims of creditors of the capite minutus ....... 115-120

Sect. 30. Mancipation and the Law of Property. — Was there under the Tables any quiritarian ownership (manus) of res nee mancipi ? Natural and civil modes of acquiring property. Mancipation of res mancipi. Changes on the Servian mancipium consequent on the introduction of coined money. Effect of mancipation in passing property. Transferrer's auctoritas or obligation to maintain his title. Statutory limitation of the auctoritas. Leges mancipii or concurrent engagements of transferrer and transferee. Fiducia or lex fiduciae in particular. Usureceptio fiduciae. Did mancipation avail to transfer ownership of res nee mancipi ? In jure cessio. Adjudication. Usucapion. Offences against property. Jura in re aliena

120-136 f

•f

CONTENTS xv

Sect. 31. Nexum and the Law. of Obligations. — Sources of obligation, and preponderance in the XII. Tables of obligations txddieto. Men agreement, unclothed in legal word and form, not creative of civil obligation. Conservatism in matters of form. The contracts of the earliest jus cirile. Ntacmm in particular. Its origin. The ceremonial. Effects of the mxal contract. The creditor's right of manus injeclio under the XII. Tab! The nexus (or nexal debtor) in detention. Abuses of the system. Its practical abolition by the Poetilian law. Ordinary engagements, — how their fulfilment was guaranteed. Obligations ex re . 136-151

Sect. 32. The Law of Succession. — Testamentary succession. The old forms of testament and the " uti legassit " of the Tables. The testament per aes ei libram in its inchoate condition. Its second and third stages. Application to it of the " uti legassit." Necessity of institution or disherison of the testator's sui heredes. Intestate succession, — sui keredes, adgnati, gentiles. Succession of agnates introduced by the Decemvirs to meet the case of non-patrician citizens. Limitations. Resume. Necessary and voluntary heirs, and how an inheritance vested in them. Representation, consortium, and accrual. " Heres eadem persona cum defuncto." The heir and the family sacra. Usucapio pro herede . . . 1.51-164 judicial procedure under the decemviral system

Sect. 33. The Legis Actiones generally — Gaius's account of them. The five genera agendi. Preliminary in jus vocatio. Proceedings injure and in judicio. Centumviral court, unus judex, and tres arbitri . 165-169

Sect. 34. The Legis Actio Sacramento. — General idea. The procedure in vindication of land. The manus consertio. The sacramento prococatio, etc. The judgment. What did it all mean ? Effect of the judgment. Application of the sacramental action in other cases . . 170-179

Sect. 35. The Legis Actio per Judicis Postulationem . . 179-182

Sect. 36. The Legis Actio per Manus Injectionem. — Gellius' description of it. Against whom employed. Procedure when against a judgment-debtor. " Capite poenas dabat " and " partis secanto," — meaning. Attempted reconstruction of provisions of XII. Tables on subject. Effect of the Poetilian law. Manus injeclio pro judicato and pura . 182-194

Sect. 37. The Legis Actio per Pignoris Capionem . . 194-197

Sect. 38. Judicial and Quasi-Judicial Procedure outside the Legis

Actiones. — Magisterial intervention in exercise of the imperium. Plebeian

processes before the judices decemviri. Pontifical jurisdiction. Censorial,

familiar, and gentile intervention. International recuperatio . 197-203

CHAPTER V

THE STIPULATION AND THE LEGIS ACTIO PER CONDICTIONEM

Sect. 39. Introduction of the Stipulation. — Its importance in the history of the law. Theories as to its origin. Its forms — sponsio (crirtvdeiv and (TirovSri), promissio, etc. A formal contract . . . 204-207 xvi CONTENTS

.Sect. 40. Tin: Silian and Calpurnian Laws. — The Silian law apparently a suit of the Poetilian. Its sponsio et resHpulatio tertiae partis the earliest

statutory sanction of stipulation. The Calpurnian law . . 207-210

Sect. 41. The Legis Actio per Condictionem. — Introduced by the Silian and

Calpurnian laws. Its advantages. Procedure . . . 210-212

Part III The Jus Gentium And Jus Honorarium

(Latter Half of the Republic)

THE INFLUENCES THAT OPERATED ON THE LAW

Sect. 42. Growth of Commerce and Influx of Foreigners. — Necessary consequence, — commencement of a jus gentium. This chiefly in contract, but more or less affected all branches of the law. Illustrations 215-218

Sect. 43. Institution of the Peregrin Praetorship. — The urban praetorship. Date of, and reasons for, the introduction of the peregrin praetorship. Relation of the new magistrate to his urban colleague . . 218, 219

Sect. 44. Simplification of Procedure and Introduction of New Remedies under the Aebutian Law. — Probable purpose of the Aebutian Law. Result, — the formular system of procedure. Characteristic of the new system ........ 219-221

Sect. 45. Provincial Conquests. — Roman officials brought face to face with new institutions. Some of these imported to Rome . . 221, 222

Sect. 46. Spread of Literature and Philosophy. — Aided equity. This not confined to praetors and their edict .... 222, 223

Sect. 47. Decline of Religion and Morals. — Effects on domestic relations. Divorce and judicium de moribus. Inofficious testaments and introduction of the law of legitim. Effects in social and mercantile life. New guarantees in contracting. Bankruptcy arrangements. Measures for repressing fraudulent dealings ....... 223-226

FACTORS OF THE LAW

Sect. 48. Legislation. — Paucity of legislative enactments affecting the private law. Some of the more important (in footnote) . . . . 227

Sect. 49. Edicts of the Magistrates. — Antiquity of practice of publishing edicts. The urban praetor's edict. Edicta repentina and perpetua. Edictum tralaticium. Its gradual enlargement. Edict proper and appendix of styles. Forms of the edictal provisions. The edicts of the peregrin praetor, the provincial governors, and the curule aediles . 228-232

CONTEXTS xvii

Sect. 50. Consuetude, Professional Jurisprudence, and Res Judicata k. — The making of custom. The pontiffs and their " intrrpn t;itio." The Jus Fluridinun, Tiberius Coruncanius, and the Jut A< li'imtm. Tinveteres " of the later republic ..... 232-238

..

substantive changes in the law during the period

Sect. 51. Citizens, Latins, and Peregrins. Jus Latii and colonial latins. Peregrins of lower grade ...... 239, 240

Sect. 52. The Law of Property and the Publician Edict. — Changes in the law of property and of jura in re aliena generally. The Publician edict and the defects it was introduced to remove. Results, — the introduction of M bonis (or bonitarian) tenure of res mancipi, and of bonae fidei posses* io as a fictitious property ...... 240-245

Sect. 53. Development of the Law of Contract. — Development of the law of obligation generally. Popularisation of the stipulation. Indefinite stipulations, the stipulatio Aquiliana, and praetorian and judicial stipulations. The noinen transscripticium or literarum obligatio Evolution of the purely consensual contracts. Sale as an example : its beginnings. Sale in the XII. Tables. How aided per aes et libra m. How aided by nomina transscripticia, ancillary stipulations, etc. The actio empti originally an actio ex stipulatu. It becomes a bonae fidei action. Thereby sale becomes an independent consensual contract. The real contracts 245-259 >■ Sect. 54. Amendments on the Law of Succession. — Changes effected by legislation, interpretatio, and practice of the centumviral court. Praetorian bonoruyn possessio. Nature and probable origin. Bonorum j^osssessio secundum tabulas. Bonorum possessio contra tabulas. Bonorum possessio ab intestato. Praetorian order of intestate succession. Admission of cognati. How bonorum possessio obtained. Its immediate effect . . 259-265

Part IV The Jus Natueale And Maturity Of Roman

JURISPRUDENCE

(The Empire until the Time of Diocletian)

characteristics and formative agencies of the law

during the period

Sect. 55. Characteristics Generally, and Recognition of a " Jus Naturale " in Particular. — Nature of the changes on the law during xviii CONTENTS

the period. Many of them not to be accounted for by advance of jus gentium, but due to growth of jus natarale. Characteristics and fundamental principles of latter. Naturalis ratio . . . 269-273

Sect. 56. Influence of Constitutional Changes . . . 273, 274

Sect. 57. Legislation of Comitia and Senate. — Comitial legislation of

Augustus regarding marriage (and herein of the lex Julia et Papia Poppaea),

manumission, and judicial procedure. Legislation of the senate from time

of Tiberius onwards ....... 274-278

Sect. 58. The Consolidated Edictum Perpetuum. — History of the Julian consolidation. Its contents and arrangement . . . 278-281

Sect. 59. Responses of Patented Counsel. — Origin of the jus respondendi. Value of the responsa. Their regulation by Hadrian . . 281-283

Sect. 60. Constitutions of the Emperors. — Edicta, their character at this time. Rescripta and decreta ...... 283-285 jurisprudence

Sect. 61. Labeo and Capito, and the Schools of the Proculians and Sabinians ........ 286-288

Sect. 62. Julian, Gaius, and the Antoninian Jurists. — Salvius Julianua. Sextus Pomponius. Sextus Caecilius Africanus. Gaius. Q. Cervidius Scaevola ........ 288-293

Sect. 63. Papinian, Ulpian, and Paul. — Aemilius Papinianus. Domitius Ulpianus. Julius Paulus ...... 293-296

Sect. 64. Modestine and the Post-Severan Jurists. — Herennius Modestinus. Paucity of jurisprudential literature after reign of Severus Alexander. Excellence of many of the rescripts of Gordian and Diocletian . 296, 297

Sect. 65. Remains of the Jurisprudence of the Period. — The Institutes of Gaius and the Verona Codex. Part of Ulpian's Liber Regularum. Paul's " Sentences." The Notae Juris of Valerius Probus, the Assis distributio of Maecianus, the Dosithean fragment on manumissions, and the Fragmentum de jure fisci. Minor fragments .... 297-303 substantive changes in the law during the period

Sect. 66. Citizenship, Junian Latinity, and Peregrinity. — The inductive cause of the Aelia-Sentian law. Its provisions. The Junia-Norban law and the Junian latins. Caracalla's grant of citizenship to all his free subjects . . . . . . . . 304-308

Sect. 67. Concession of Peculiar Privileges to Soldiers. — Exceptional position of soldiers. The testamentum militare. The peculium castrense

308-312 t

CONTEXTS xix

Sect. 68. The Family. — Husband and wife, and the disappearance of marital rnanus. Parent and child, and relaxation of patria potest'/ i. Tut<»rv. Disappearance of tutory of women. Curatory. Institution of curatory of minors ........ 312-315

Sect. 69. Possession, Property, Real Rights, and Obligations . 315-317 Sect. 70. The Law of Succession and particularly Testamentary Trusts. — Testamentary succession. Legacies and the Senatusconsultum Neronianum. Fideicommissa {mortis causa trusts), universal and singular. Codicils. Intestate succession and the Tertullian and Orphitian senatusconsults ........ 317-322

JUDICIAL PROCEDURE

Sect. 71. The Formular System. — Characteristics. The Aebutian and Julian laws. Transition from earlier systems, — in personal actions by simplifica tion of the procedure per condictionem, and in vindicationes by the introduc tion of that per sponsionem, paving the way for the formula petitoria Formulae in jus and in factum conceptae. Acliones utiles. Actiones ficti ciae. Actiones in factum. Actiones arbitrariae. Exceptiones, etc. Elas ticity of the formula ....... 323-332

Sect. 72. Procedure " Extra Ordinem." — The extraordinaria cognitio and what occasioned it . . . . . . 332-334

Sect. 73. Jural Remedies Flowing Directly from the Magistrate's Imperium. — Interdicts. Uti possidetis and utrubi in particular. Praetorian stipulations. Missio in possessionem. In integrum restitutio . 334-339

Part V The Period Of Codification

(Diocletian to Justinian)

historical events that influenced the law

Sect. 74. Supremacy of the Emperors as Sole Legislators. — The leges generates or edictales of the later empire .... 343, 344

Sect. 75. Establishment of Christianity as the State Religion. — Its influence generally. Repeal of the caduciary provisions of the Julian and Papia-Poppaean law. Legislation about divorce. Institution of the bishop's courts ....... 345-347 xx CONTENTS

Sect. 76. Social and Agrarian Changes. — In particular, the recognition and regulation of the colonate (or servitude of the glebe) . 347-350

Sect. 77. Abandonment of the " Formclar " System of Procedure. — Abolition of the two-staged procedure (1) injure and (2) in judicio, and remit to a judex allowed only exceptionally. The ordinary fora. The new procedure per libellum conventionis, etc. Execution . . 350-352

Sect. 78. The Valentinianian " Law of Citations." — Scientific jurisprudence gives place to mechanical ..... 352-354 ante-justinianian collections of statute and jurisprudence

Sect. 79. The Gregorian and Hermogenian Codes . . 355, 356

Sect. 80. The Theodosian Code and Post-Theodosian Novels 356-358

Sect. 81. The " Collatio," the Vatican Fragments, and the " Consultatio." — The Collatio Legum Mosaicarum et Romanarum. The Vatican Fragments. The Consultatio veteris jurisconsulti . . . 358, 359

Sect. 82. The Romano-Barbarian Codes. — The Edictum Theodorici. The Breviarium Alaricianum or Lex Romana Visigothorum. The Lex Romana Burgundionum ........ 360-362

Sect. 83. Oriental Collections. — Bernardakis' Sinaitic papyri. The Syrian " Leges Constantini, Theodosii, et Leonis " ... 362, 363

THE JUSTINIANIAN LAW

Sect. 84. Justinian's Collections and his own Legislation. — Justinian. Chronology of his collections. His first Code of statute-law. His commission for preparation of the Digest. The Quinquaginta Decisiones. The Institutes. Publication of the Digest. Its divisions, and the sources drawn upon. The order of sequence of books, titles, and fragments. The Codex Repetitae Praelectionis or second edition of his Code of statute-law. Its relation to the Digest. Its sources. The Novels. Characteristics of Justinian's own enactments ...... 364-375

Sect. 85. Changes in the Law of the Family. — Husband and wife — marriage, divorce, dos and donatio propter nuptias. Parent and child — still greater relaxation of patria potestas, personally and patrimonially. Amendments in other branches of the law of the family — adoption, legitimation, emancipation, tutory, slavery, manumission . . 375-379

Sect. 86. Changes in the Law of Property and Obligation. — Abolition of distinction between res mancipi and nee mancipi and quiritarian and bonitarian ownership, and simple tradition made the universal mode of conveyance. Usucapion and long possession remodelled. Emphyteusis sanctioned and regulated. Changes in the law of obligation . 379-381

CONTEXTS xxi

Sect. 87. Changes in the Law- of Succession. — Testaments and codicils. Amendments in the law of intestate succession prior to the publication of the Code. The 118th and 127th Novels, eradicating agnation and « ttling a new order of succession on intestacy. Declaration of a child's right to be his parent's heir in a certain share of his estate, and practical abolition of bonorum possessio contra tabulas. Other amendments . 381-385

THE JUSTINTANIAN LAW-BOOKS

Sect. 88. Their Use in the Courts and the Schools. — Translations, abridgements, etc., of Digest and Code. New course of study for the law-schools. Greek paraphrase of the Institutes imputed to Theophilus

386-388

Sect. 89. Their Fate in the East. — The Byzantine jurisprudence, and particularly the Basilica ...... 389, 390

Sect. 90. Their Fate in the West. — The Romano-Barbarian Codes the earliest instructors of Central and Western Europe in Roman law. Transmission of Justinian's collections to Italy. Literary indications of their currency there and elsewhere in Southern Europe between the sixth and eleventh centuries. Revival of their study at Bologna, and their treatment by the Glossarists ....... 390-393

Sect. 91. The Principal Manuscripts, Texts, and Editions of the Justinianian Books ...... 393-397

Appendix

Note A. On the use of the word cognati by the lay writers . . 399

Note B. On coemptio ....... 399-401

Note C. On the definitions of nexum by Mamilius, Quint. Mucius Scaevola

and Ael. Gallus 401, 402

Note D. Jhering on the effect of the lex Papiria (de sacramentis exigundis) on the sacramental procedure ...... 402, 403

Note E. On the deposit of the sacramental sheep, cattle, or money ad pontem ......... 403

Note F. Argument from the Lex coloniae Juliae Genetivae that the aes confession of the XII. Tables meant nexal loan . . . 403, 404 Note G. Kohler on the partis secanto of the XII. Tables . . 404, 405 Note H. Cicero's anecdote of Canius and Pythius, as illustrative of the operation of the nomen transscripticium ..... 405, 406

XXH

Contents

ADDITIONAL BY EDITOR OF SECOND EDITION

Note a. Epochs in History of Roman Law

Note 6. On capitis deminutio .

Section 1. — Genesis of the Roman State

The union of the Latin, Sabine, and, to a small extent, Etruscan bands that, as conquerors or conquered, old settlers or new immigrants, together constituted the first elements of the Roman people, did not necessarily involve contemporaneous adoption of identical institutions or identical notions of law. Though descended from the same Indo-European stock, and inheriting the same primitive ideas about religion and government, yet those ideas must have been more or less modified in the course of centuries of separate and independent development.2 It is said

1 See especially Puchta, Cursus der Institutionen d. rom. Rechts (1st ed. Leipsig, 1841), 10th ed. by Kriiger, Leipsig, 1893, vol. i. §§ 36-50 ; Clark, h'urly Roman Law: Regal Period, London, 1872; Genz, Das patricische Rom, Berlin, 1878; Kuntze, Guraus der Itutittstionen, 2nd ed. Leipsig, 1879, §§ 47-68 ; Bernhofl, Staat und Rccht der rom. Konigszeit im Verhiiltniss zu verwandtcn Rcchten, Stuttgart, 1882. [Among the more recent treatises attempting to throw light on this period may be specially mentioned Carle, Le Origini del diritto romano, Turin, 1888 ; Padelletti-Cogliolo, Storia del diritto romano, Florence, 1886 ; Cuq, Institutions

juridiques des Roma ins (Uancien droit), Paris, 1891 ; Bruns, deschichte und Quellen in Holtzendorff, re-edited by Lenel. As to the author's arrangement of the subject matter into periods, see Appendix, note a, p. 407.] (Girard, Histoire de Vorganisation judiciaire des Romuins, 1901 (I. : Les six premiers siecles de Rome) ; Cuq, 1902, vol. i. ed. 2 (1904).)

2 The Aryan origin of several of the most important religious notions and public and private institutions of early Rome, and their resemblance to corresponding ones in India and Greece, have been shown by Fust el de Coulanaes, La Cite antique (1st ed. Paris, 1857), 7th ed. 1879 (9th ed. 1905); Sir H~ S.

that the characteristic of the Latin race was its sense of the importance of discipline, and the homage it paid to power and might ; that of the Sabines, their religious feeling and their reverence for the gods ; that of the Etruscans, their subservience to forms and ceremonies in matters both divine and human. Corresponding influences are very manifest in the growth of Home's early public institutions, civil, military, and religious. It does not seem too much to say that they are traceable also in the institutions of the private law. The jpatria potestas, with the father's power of life and death over his children ; the manus and the husband's power over his wife ; the doctrine that those things chiefly was a man entitled to call his own which he had taken by the strength of his arm ; 3 the right which a creditor had of apprehending and imprisoning his defaulting debtor, and, if need were, reducing him to slavery, — all these seem to point to a persuasion that might made right. The religious marriage ceremony, and the recognition of the wife as mistress of the household and participant in its sacred offices as well as its domestic cares ; the family council of kinsmen, maternal as well as paternal, who advised the paterfamilias in the exercise of the domestic jurisdiction ; the practice of adoption, on purpose to prevent the extinction of a family and deprivation of its deceased members of the prayers and sacrifices necessary for the repose of their souls, — these seem to have flowed from a different order of ideas, and to bear evidence of Sabine descent. Etruscan influence could make itself felt only at a later date ; but to it may

Maine, Ancient Law (1st ed. London, 1862), 9th ed. 1883 ; Bernhoft, as above ; Leist, Gracoitalische Rechtsgeschichte, Jena, 1884. [Add Jhering, Vorgeschichte der Indoeuropaer, 1894 ; Bernhoft, " Zur Geschichte des europaischen Familienrechts," ZSchr. f. vergl. Rechtsw. vol. viii. (1889) p. 1 sq.f p. 161 sq. and p. 384 sq.] (M. Eugene Revillout in Les Origines egyptiennes du droit civil romain, Paris, 1912, pleads strongly that Egypt gave birth to and continually influenced Roman Law. He asserts the identity of Mancipation, Nexus, Confarreatio (possibly even Coemptio) and the law of contracts in Egyptian and Roman Law. He declares that the XII. Tables had two sources : " Le droit egyptien, surtout sous la forme que lui a donnee Amasis ; et le droit athenien, surtout sous la forme que lui a donnee Solon (p. 42)." M. Revillout's theory is based on parallelisms between the two systems of law which may possibly show a common source but do not appear to establish his theory. As to the vitality of Greco - Egyptian law see M. Louis Boulard, La Vente dans les actes copies ; Girard, Etudes d'histoire juridique, vol. ii. (1913) pp. 1-94. See also L'Egypte romdine : Nicolas Hohlwein, Brussels, 1912.)