Roman Law Regal Period
family time private servius children death public wife marriage rome
ROMAN LAW REGAL PERIOD - Contributories to People, Customs, and Law. - The union of the Latin, Sabine, and, to a small extent, Etruscan ' bands that, as conquerors or conquered, old settlers or new inunigrants, together constituted the first elements of the Roman people, did not necessarily involve contemporaneous adoption of identical institutions or identical notions of law. Although they were descended from the same Indo-European stock, and inherited the same primitive ideas about religion and government, those ideas must have been modified in the course of centuries of separate and independent development. The characteristics of the Latin race are said to have been its sense of the importance of discipline and the homage it paid to power and might ; those of the Sabines were their religious feeling and their reverence for the gods ; the characteristic of the Etruscans ivas their subservience to forms and ceremonies in matters both divine and human. Corresponding influences are very manifest in the growth of Rome's early public institu-tions, civil, military, and religious. It does not seem too much to say that these same influences are traceable also in the institutions of the private law. The patria 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 ; the right which a creditor had of apprehending and imprisoning his defaulting debtor and 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, to obviate the extinction of a family and to prevent its de-ceased members being deprived of the prayers and sacri-fices 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 pos-sibly be attributed the strict regard that came to be required to the observance of ceremonials and words of style in the more important transactions both of public and private life.
While it can hardly be doubted that the result of the union of Latins and Sabines was that regulations were at once adopted which should apply to their public life as a united people, it is not only conceivable but probable that each tribe, as regarded the private relations of its members, continued for a time to accord a preference to its own ideas and traditions of right and law, and that the amal-gamation was a gradual process, partly silent, partly due to regal or pontifical intervention.
Patricians, Clients, and Plebeians. - There was part of the law of Rome that even in the empire WaS known by the name of As Quiritium, the Law of the Spearmen ; and this in the regal period constituted its main element. The Quirites were the members of the gentile houses, organized in their curies, primarily for military and secondarily for political purposes. They alone of the rapidly increasing population settled round the urbs quad-rata ranked as citizens, down at least to the time of Servius Tullius. They alone could consult the gods through the medium of auspicia, and participate in the services offered to the tutelary deities of Rome. From their number the king drew his council of elders, and they alone could take part in the curiate comitia, the assembly of the warriors. They alone could contract a lawful marriage and make a testament ; in a word, it was they alone that were entitled directly to the benefit of Rome's peculiar.institutions.
These prerogatives they enjoyed as members of the gentile houses. Patrician Rome was a federation of gentes or clans, the clans aggregations of families bearing a common name, and theoretically at least tracing their descent from a common ancestor. Whether or not the traditional account of the numerical proportion of families to clans and of clans to curies has any substantial historical foundation, and whatever may be the explanation of the method by which the symmetry on which the old writers dwell with so much complacency was att,ained, it is beyond doubt thaf the gentile organization was common to the two races at least that contributed most largely to the citizenship of Rome, and that it was made the basis of the new arrangements. Federation necessitated the appoint-ment of a common chieftain and common institutions, religious, military, political, and judicial. But it was long before these displaced entirely the separate institutions of the federated gentes. Every clan had its own cult, peculiar to its own members ; this was the universal bond of association in thoie early times. It had its common pro-perty and its common burial-place. It must have had some common council or assembly, for we read not only of special gentile customs but of gentile statutes and decrees. Instances are on record of wars waged by indi-vidual gentes ; so they must have had the right to require military service alike from their gentiles and gentilicii. 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 clans-man left no heirs, his property passed to his fellow gentiles. Over the morals of its members the gens exercised super-vision and discipline, interfering to prevent prodigality and improvidence, restraining abuses of the domestic authority, and visiting with censure and probably in grave cases vvith punishment any bre'ach of faith or other dis-honourable conduct ; and it is difficult to suppose that, within its own limits, it was not constantly called upon, through the medium of its chief, to act the part of peace-maker and arbiter. Finally, its members were always entitled to rely upon its assistance, to have maintenance when indigent, to be ransomed from captivity, to be upheld in their just disputes and quarrels, and to be avenged when killed or injured.
The successes of the burgesses in one petty war after ( another deprived many small communities of their inde-pendent existence, leaving their members bereft alike of their religion, their territory, and their means of subsist-ence. These had to turn elsewhere for protection, and in large numbers they sought it from their conquerors. To many others, both voluntary immigrants and refugees from other cities, the new settlement proved a centre of attrac-tion. It was quite ready to receive them, but as subjects only, not as citizens. Following a custom familiar to both Latins and Sabines, the new-comers invoked the protection of the heads of patrician families of repute, to whom they attached themselves as free vassals. The relationship was known as that of patron and client. (See PATRON AND CLIENT, VOI. xviii. p. 412.) The client became a dependent member of his patron's clan, - not gentilis, however, but only gentilicius. His patron had to provide him with all that was necessary for his sustenance and that of his wife and children ; and, as private holdings increased in.extent, it was 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, obtain redress for him for his injuries, and represent him before the tribunals when he became involved in litigation. The client, on the other hand, had to maintain his patron's 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.
The plebeians, as distinguished from the clients, must be regarded as a heterogeneous mass of non-gentile freemen, small probably in numbers at first, but augmenting with ever greater rapidity, who had of choice or compulsion made Rome their domicile, but declined to subject them-selves to a patron. That there was any general cohesion amongst theni before the time of Servius there is not the slightest reason to believe. They were of different races, settling in Rome from different motives, practising in many matters different customs. The bulk of them, however, were undoubtedly Latins, with traditions and customs much the same as those of the greater number of the patrician houses ; and this it was that in time caused the triumph of Latinism and the predominance of the master-ful spirit in the jets Quiritium., But by the ruling caste those traditions and customs were simply ignored ; till the time of Servius what protection the plebeians got was simply of the grace of the kings, whose policy it was to conciliate them as a body that in time might be a valuable auxiliary against the pretensions of the patricians.
The Regulatives of Public and Private Order. - We look in vain for, and it would be absurd to expect, any definite system of law in those early times. What passed for it was a composite of fcts, 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 enforced 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 contraven-tion had gone into desuetude, sank to nothing higher than precepts of boni mores.
By fas was understood the will of the gods, the laws given by heaven for men on earth, much of it regulative of ceremonial, but a by no means insignificant part em-bodying rules of conduct. It appears to have had a wider range than jus. There were few of its commands, prohibi-tions, or precepts that were addressed to men as citizens of any particular state ; all mankind came within its scope. It forbade that a war should be 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 sa,nction 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 god-given 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 reli-gion, - the reverence due by a child to those to whom he owed his existence ; incestuous connexions, 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 bec,ause the march-stone itself, as the guarantee of peaceful neighbourhood, was under the guardianship of the gods. When an offence against any of these rules or prohibitions was inexpiable, the punish-ment was usually what is called sacratio capitis, excom-munication and outlawry of the offender. The how) sacer was in every sense of the word an outcast, - one with whom it was pollution to associate, who dared take no part in any of the institutions of the state, civil or reli-gious, whose life the gods would not accept as a sacrifice, but whom, nevertheless, any one might put to death with impunity as no longer god-protected. 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.
Recent philology derives the word jus from the Sanscrit z ju, to "join, bind, or unite," from which some deduce as its signification " that which binds," " the bond of society," others "that which is regular, orderly, or fitting." The latest inquirer (M. Breal) identifies it with the jos, jaos, or jaus of the Vedas, and thejaes of the Zend-Avesta, - words whose exact meaning is controverted, but which he inter-prets as " the divine will." Jubeo is generally allowed to be a contraction of jus hibeo, "hold or take aSi748." If Breal's definition can be adopted we obtain a very significant inter-pretation 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, Sze., "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 Brears seems not without support, - vox populi vox dei. If it be right, then the only 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 con,stitutum) or of statute (lex).' We look in vain for any legislative enactment establishing such an institution, for example, as the patria potestas, or fixing the rules of succession on death. Statute may have regulated some of their details ; but they had taken shape and consistency before Rome had its beginning. It can well be believed, however, that in the outset the customs in observance may have been far from uniform, that not only those of the different race,s but those also of the different gentes may at first have varied in some respects, but undergoing a gradual approximation, and in course of time consolidating into a general jus Quiritium. That the bulk of the law was customary is universally admitted. But Pomponius speaks of certain laws enacted by the comitia of the curies, which he calls leges regiae and which, he says, were collected by one Sext. Papirius in the reign of one of the Tarquins, under the name of JUS Papirianunt. The opinion of the best autho-rities is that it is a mistake to attribute these so-called " royal laws " to that assembly. According to the testi-mony of the old writers it had very little share in the work of legislation. Romulus jura dedit at his own hand, not jura tulit. Mommsen is probably near the mark when he describes the leges regiae as mostly rules of the fas which were of interest not merely for the pontiffs but for the public, with which it was of importance that the latter should be acquainted, that they might know the risks they incurred from their contravention.1 It is not to be assumed that there was no legislation beyond this ; some of the laws of which we have record were of a different character. But on the whole it seems beyond doubt that it was custom rather than statute that was the main factor of the jus of the regal period.
What went by the name of boni mores, quite distinct from the jus moribus constitutum, must also be regarded as one of the regulatives of public and private order. Part of what fell within their sphere might also be ex-pressly regulated by fas 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 censor's regimen morum. Its function was twofold : sometimes it operated in restraint of law by con-demning - though it could not prevent - the ruthless and unnecessary exercise of legal right, as, for example, that of the head of a house over his dependants ; and sometimes it operated supplementarily, by requiring observance of duties that could not be enforced by any compulsitor of law. Dutiful service, respect, and obedience from inferiors to superiors, chastity, and fidelity to engagements, express or implied (fides), were among the otlicia 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 the 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.
The Quiritian Family. - The word familia in Roman law had at once a more extensive and a more limited meaning than it has in its English form.2 Husband, wife, and children did not necessarily constitute an independent family among the Romans, nor were they all necessarily of the same one. Those formed a family who were all subject to the right or power - originally manus,3 but latterly jus - of the same family head (paterfamilias). 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 znanum - and that was common enough even during the republic, and universal in the later empire she did not become a member of his family : she re-mained a member of the family in which she was born, or, if its head WEIS deceased or she had been emancipated, was the sole member of a family of her own. Both sons and daughters on emancipation ceased to be of the family of the paterfamilias who had emancipated them. A daughter's children could never under any circumstances 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. matres-familias.
With the early Romans, as with the Hindus and the Greeks, marriage was a religious duty a man owed alike to his ancestors and to himself. Believing that the happi-ness 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 per-petuate his race and his family cult. In taking to him-self a wife, he was about to detach her from her father's 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 anspicia. His choice was limited to a woman with whom he had conubium Yz-tyaiciu.) or right of intermarriage. This was a matter of state arrangement ; and in the regal period Roman citizens could have it outsida 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. The ceremony was a religious one, conducted by the high priests of the state, in presence of ten witnesses, representatives probably of the ten curies of the bridegroom's tribe, and was known as confarreatio. Its effect was to dissociate the wife entirely from her father's house and to make her a member of her husband's ; for confarreate marriage involved what was called in manum conventio, the passage of the wife into her husband's "hand " or power, provided he was himself paterfamilia,s ; 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 own - which was a possible state of matters only if she had been independent before, marriage - passed to him as a matter of course ; if she had none, her pater-familias provided her a dowry (c/os), which shared the same fate. Whatever she acquired by her industry or otherwise while the marriage lasted also as a matter of course fell to her husband. In fact, so far as her patri-monial interests were concerned, she was in much the same position as her children ; and on her husband's 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 of two or three other very 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.
The patria potestas was the name given to the power I' exercised by a father, or by his paterfamilias if he was P himself in potestate, over the issue of such justae nuptiae.
The Roman jurists boasted that it was a right enjoyed by none but Rotnan citizens; and it certainly was peculiar to them in this sense, that nowhere else, except 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 becaine greatly modified under the empire ; but originally the children, though in public life on an equality with the house father, in private life, and so long as the potestas 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 de facto 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 owner-ship of his field or his house : if they were stolen, he pro-ceeded against the thief by an ordinary action of theft ; if for any reason be had to transfer them to a third party, it Nvas 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 adop-tion known as adrogation, he had over them the power of life and de,ath, jus vitae necisgue. This power Nvas subject to certain restrictions during the infancy of a child ; but, when he had grown up, his father, in the exercise of his domestic jurisdiction, might visit his mis-conduct, not only in private but in public life, with such punishment as he thought fit, even banishment, slavery, or death.
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 extinction of his family and of his own descent to the tomb without posterity to make him blessed. To obviate so dire a misfortune he resorted to the practice of adop-tion, so common in India and Greece. If it was a pater-familias that he adopted the process was called adroga-tion (adrogatio); if it was a filiusfantilias it was simply adoptio. The latter, unknoNvn probably in the earlier regal period, was 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 I 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 brothers enough of the adrogatee to attend to the interests of the ancestors whose cult he was renouncing ; and on their favourable 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. The result was that the adrogatus, from being himself the head of a house, sank to the position of a jiliusfamilicts in the house of his adopting parent ; if he had had wife or child-ren 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 and power of life and death 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 be had been born in it.
The manus and the patria potestas represent the master- I ful aspects of the patrician's domestic establishment. Its r conjugal and parental ones, however, though not so pro-minent in the pages of the jurists, are not to be lost sight of. The Roman family in the early history of the law was governed as much by fas as by jus. It was an associa-tion hallowed by religion, and held together not by might merely but by conjugal affection, parental piety, and filial reverence. The purpose of marriage was to rear sons who might perpetuate the house and the family sarra. In entering into the relationship the wife renounced her rights and privileges as a member of her father's house ; but it was that she might enter into a lifelong partnership with her husband, and be associated with him in all his family interests, sacred and civil. 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, &a-roam, so did the Roman speak of his as materfamilias,2 the house-mother. She was treated as her husband's 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, Nvas guarded against by the rule which required the paterfamilias to consult in the first place the near kinsmen of his child, maternal as well as paternal. Even the incapacity of the subject members of the family to hold 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 house-father yet in truth they Nvere acquired for and belonged to the family as a whole, and he was but a trustee to hold and administer them for the common benefit.
In Greece the patria potestas never reached such dimensions as in Rome, and there it ceased, de farto at least, when a son had grown up to manhood and started a household of his own. But in Rome, unless the pater-familias voluntarily put an end to it, it lasted as long as the latter 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 potestate. 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 grand-father ; and the latter Nvas entitled to exercise over his daughters-in-law and grandchildren the same rights he had over his sons and unmarried daughters. But these was this difference, that, when the paterfamilias died, his sons and daughters who had remained in potestate and his grandchildren by a predeceased son instantly became their own masters (sui juris), where,as 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 guardianship of tutors (tutela) for the potestas that had come to an end. This was so invariably 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 pupil males, however, who re-quired tutors, and their office came to an end when puberty was attained. It is doubtful whether during the regal period a testamentary appdintment of tutors by a husband or parent to wife or children was known in practice, - probably not. If so the office devolved upon the gens to which the deceased paterfamilias belonged ; and it may reasonably be assumed that it delegated the duties to one of its members in particular, retaining in its collective capacity a right of supervision.
The Quiritian Law of Property. - The distribution of ' land amongst the early Romans is one of the puzzling problems of their history. The Servian constitution classi-fied the citizens and determined their privileges, duties, and burdens according to the extent of their freeholds; and yet we know very little with certainty of the way in which these were acquired.' We have indeed a traditional account of a partition by Romulus of the little territory of his original settlement into three parts, not necessarily of equal dimensions, one of which was intended for the maintenance of the state and its institutions, civil and religious, the second (ager publicus) for the use of the citizens and profit of the state, and the third (ager privatus) for subdivision among his followers. Varro and Pliny further relate that to each of them he assigned a home-stead (heredium) of two jugers, equal to about an acre and a quarter, to be held by him and his heirs (quae here-dem sequerentur), - Pliny adding that to none did the king give more. There can be no doubt that a portion of the territory, gradually augmented through new conquests, was reserved as a,ger publicus ; that is sufficiently attested by the complaints made for centuries by the plebeians of its monopolization by the patricians. But it is impossible to admit the accuracy of the account of the mode in which the ayer privatus was dealt with. The fact that the majority of the Servian local tribes bore the names of well-known patrician gentes leads to the conclusion that many at least of the clans held tracts of land in their corporate capacity, and that their constituent families settled alongside each other, each with its own homestead in separate and independent right. It can hardly be assumed, however, that two and a half jugers was its maximum. Seven jugers, about 11- acres, seems to have been the normal extent of royal grants to plebeians, and a patrician's freehold is not likely to have been less ; probably in the ordinary case it was larger, seeing the minimum qualification for the third Servian class was ten jugers, and for the first twenty.2 To enable him to make grants during pleasure to his clients he must have held more than seven. But he did not necessarily hold all his lands by gratuitous assignation either from the state or from his yens; purchase from the former was by no means uncommon ; and it may have been on his purchased lands, outside his heredium proper, that his clients were usually employed. Those dependants were also employed in large numbers upon those parts of the ager publicus which were occupied by the patricians under the name of possessiones, and which really were the source of their wealth. These, however, were not the property of their occupant ; it was the lands acquired by assignation or purchase that were alone regarded as his ex jure Quiritium, - what he held in independent ownership to him and his heirs according to the law and custom of the Quirites.
There are some who maintain that in the regal period, anterior to the reign of Servius Tullius, there was no pri-vate property in movables. The proposition thus broadly a stated is manifestly untenable. If no more be meant by it than this, that movables were not then recognized as objects of quiritarian right that could be vindicated as such by a real action per sacramentum, it may be ad-mitted that down to the time of Servius, with exception perhaps of captured slaves and cattle, there was no pro-perty in movables. But, if it be meant to negative the right of a man to alienate by tradition what he held as his own, and to protect himself, or have protection from the authorities, against any attempt to deprive him of it by theft or violence, then the non-existence of ownership of movables must be emphatically denied. Theft was theft, though the stolen article had been acquired only by natural means, - by barter in the market, by the industry of the maker, or as the product of something already be-longing to its holder.
The Quiritian Law of Succession. - The legal order of ( succession in the regal period was extremely simple. It t was this : on the death of a paterfamilias his patrimony `, devolved upon those of his children in potestate who by that event became sui juris, his widow taking an equal share with them, and no distinction being made between movables and immovables, personalty and realty; and, failing widow and children, it went to his yens. 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 ; they were introduced by the XII. Tables to meet the case of the plebeians, who, having no gentes, were without legal heirs in default of children.3 was more nominal than real. A daughter who had passed into the hand of a husband during her father's lifetime of course could have no share in the latter's inheritance, for she had ceased to be a member of his family. One who was in potestate at his death, and thereby became sui juris, did become his heir, unless he had pre-vented such a result by testamentary arrangernents. But even then it was in the hands of the gens to prevent risk of prejudice to themselves : for she could not marry, and so early her fortune into another family, without their consent 'as her guardians ; neither could she without their consent alienate any of the more valuable items of it ; nor, even with their consent, could she make a testament disposing of it in prospect of death. Her inheritance, therefore, was hers in name only ; in reality it was in the bands of her guardians.
Of primogeniture or legal preference of one member of the family over the others there is not the faintest trace. And yet we find record of hereclia remaining in a family not for generations merely but for centuries, - a state of matters that would have been im-possible had every death of a paterfamilias necessarily involved a splitting up of the family estate. It is conceivable that this was sometimes prevented by arrangement amongst the heirs themselves; had a claim to participate. But the simplest plan of avoiding the difficulty was for the paterfamilias to regulate his succession by testament ; and there can be little doubt that originally such a <Iced was had recourse to,. not so much for instituting a stranger heir when a man had no issue - according to patrician notions his duty then was to perpetuate his family by adopting a son - as for partitioning the succession when he had more children than one.
There were two sorts of testaments made use of by the patricians of the regal perial, - that made in the comitia of the curies (test. calatis comitiis) and that made in the presence of a few comrades on the eve of battle (test. in procinctu factum). The first at le,a,st - and the second was just a, substitute for it on an emergency - was far from being an 'independent exercise of the testator's voluntas. For, though in course of time, and under the sanction of the uti legassit ita jus ego of the XII. Tables, the curies may have become merely the recipients of the oral declara-tion by the testator of his last will, in order that they might testify to it after his death, it is impossible not to see in the comitial testament what must originally have been a legislative act, whereby the testator's peers, for reasons which they and the presiding pontiffs thought sufficient, sanctioned in the particular case a departure from the ordinary rules of succession. The pontiffs were there to protect the interests of religion, and the curies to protect those of the testator's gens ; and it is hardly con-ceivable that a testament could have been sanctioned by them which so far set at nought old traditions as to deprive a .filiusfamilias of his birthright, at least in favour of a stranger.
Family, Property, and Succession amongst the Plebeians. - If perfect identity of law and custom cannot be assumed to have existed amongst the patricians in the earliest years of Rome, far less can it be supposed to have existed a,mongst the heterogeneous population that constituted the plebs. A large proportion of them, it is true, were of Latin descent, to whom gentile institutions and the manus and the patrict potestas of the family were nothing strange; but alongside of them were other tribes that Rome had vanquished, who had very different traditions, and some of whom, as is thought by one or two writers of note, laid more store on female kinship than on that through males. From the moment that any of the former became part of the Roman plebs everything like gentile organiza-tion was of course suppressed; public policy could not suffer the continuance of what might have proved an element of danger to the state. The inevitable consequence was a disturbance of the whole family system. Having no longer any clansmen to stand by them in emergencies, to avenge their quarrels and deaths, and to act as guardians of their widows and orphans, the plebeians of Latin origin seem to have drawn closer in their ideas to their fellows of Etruscan and Hellenic descent, and to have transferred their regards to the circle of their relatives by blood and marriage (cognati et aclfines). It is remarkable that, not-withstanding the pre-eminence given to agnates by the XII. Tables in matters of tutory and succession, the law reserved to the cognates, as distinguished from the agnates, certain rights and duties that in patrician Rome must have belonged to the gens, - for example, the duty of prosecut-ing the murderer (originally of avenging the death) of a kinsman, and the right of appeal against a capital sen-tence pronounced upon a kinsman. This can only have been because in olden times, when agnation was unknown aa distinct from the gems, it was plebeian practice to entrust those rights and duties to the sobrinal circle of cognates.' u.c. it suited the line of argument of patrician orators to decry plebeian unions as something not deserving of the name of nuptiae, and to stigmatize them as mere matri-monia, - relations entered into between men and women for the sake of making the latter mothers, but involving none of those features that characterized patrician mar-riage.2 That there may have been laxity amongst many of the plebeians in their domestic relations is extremely probable. The ceremony of confarre,ation was denied to them, and coemption (as seems likely) was not yet in-vented, so that the only way of contracting a marriage that was open to them was simple interchange of consent, which was not legally creative of manus. 'Whether it was creative of patria potestas over the issue of the union may be doubted. Some of the plebeians may have been of opinion that it did create it and may de facto have ex-ercised the right it conferred, while others may have been indifferent as to whether it did or not ; but vve may be very sure that the patricians denied its possibility, on the ground that it was a prerogative of Roman citizens, amongst whom the plebeians had no claim to rank.
The accounts of the early distributions of land amongst ' the plebeians are even more uncertain than those we have of its distribution amongst the patricians. They had un-doubtedly become freeholders in large numbers before the Servian reforms. But they probably attained that position only by gradual stages. There are indications that their earliest grants from the kings in their character of royal clients (as Cicero calls them) were only during pleasure ; but latterly, as they increased in numbers and importance, they obtained concessions of heredia varying in extent from two to seven jugers. That those who had the nieans also frequently acquired land by purchase from the state may be taken for granted. In fact there is good reason to believe that by the time of Servius the plebeians were as free to hold land in private property as the patricians, although the stages by which they reached equality in this respect are uncertain and difficult to follow. As for movable property their rights in it were presumably the same as those df the patricians.
As regards the law of succe,ssion it may safely be assumed that by custom at all events the children of a plebeian usu-ally took his estate on his death. But, as he was not a member of a gens, there was no provision for the devolu-tion of his succession on failure of children. The want of them he could not supply by adrogation, as he had for long no access to the assembly of the curies ; and it is very doubtful if adoption of a .filiusfamilicts was known before the reforms of Servius Tullius. The same cause that dis-qualified him for adrogating a paterfamilias disqualified him for making a testament calatis comitiis ; and even one in procin,ctu was impossible, since, although before the time of Servius plebeians may occasionally have served in the army, they were not citizens, and so had not the requisite capacity for making a testament. Until there-fore the XII. Tables introduced the succession of agnates a plebeian unsurvived by children was necessarily heirless, - that is to say, heirless in law. But custom seems to have looked without disfavour on the appropriation of his heredium by an outsider : a brother or other near kinsman would have the earliest opportunity, and, if he maintained his possession of it in the character of heir for a reason-able period, fixed by the XII. Tables at a year, the law dealt with him as heir, and in course of tizne the pontiffs imposed upon him the duty of maintaining the family sacra. This was the origin, and a very innocent and laudable one, of the usucapio pro herede, which Gaius condemns as an incomprehensible and infamous institution, and which un-doubtedly lost some of its raison d'gtre once the right of succession of agnates had been introduced.
His reliance in the first place was on the probity of the party with whom he was dealing, - on the latter's reverence for Fides, and the dread he had of the disapprobation of his fellows should he prove false, and of the penalties, social, religious, or pecuniary, that might consequently be imposed on him by his gens in the case of a patrician, by his guild in the case of a craftsman, or by the king in the case of any other plebeian.' If the party who had to rely on the other's good faith was not satisfied with his promise and the grasp of the right hand that was its sea1,2 he might require his solemn oath (jusjurandum); and it can hardly be doubted that, whatever may have been the case at a later period, in the time of the earlier kings he who for-swore himself was amenable to pontifical discipline. If he preferred a more substantial guarantee, he took some-thing in pledge or pawn from the other contractor ; and, though he had no legal title to it, and so could not recover it by judicial process if he lost possession, yet so long as he retained it he had in his own hand a de fa,cto com-pulsitor to 'performance. Upon performance he could be forced to return it or suffer a penalty,not by reason of obligation resulting from a contract of pledge, for the law as yet recognized none, but because, in retaining it after the purpose was served for which he had received it, he was committing theft and liable to its punishment. At this stage breach of contract, as such, does not seem to have legitimated any action for damages or reparation before the civil tribunals ; but it is not improbable that, where actual loss had been sustained, the injured party was permitted to resort immediately to self-redress by seizure of the wrongdoer or his goods. Such self-help was according to the spirit of the time, - not self-defence merely in presence of imminent danger, but active measures for redress of wrongs already completed.
Public and Private Ofences and their Punishment. - For c anything like a clear line of demarcation between crimes, a offences, and civil injuries we look in vain in regal Rome. Pn Offences against the state itself, such as trafficking with an enemy for its overthrow (proditio) or treasonable prac-tices at home (perduellio), were of course matter of state concern, prosecution, and punishment from the first. But in the case of those that primarily affected an individual or his estate there was a halting between, and to some extent a confusion of, the three systems of private venge-ance, sacral atonement, and public or private penalty.3 It has been attempted to explain the coexistence of these systems by reference to the different temperaments of the races that constituted united Rome ; and this certainly is a consideration that cannot be left out of view. But the same sequence is observable in the history of the laws of other nations whose original elements were not so mixed, the later system gradually gaining ground upon the earlier and eventually overwhelming it. The remark-able thing in Rome is that private vengeance should so long not only have left its traces but really continued to be an active power. It must still have been an admitted right of the gens or kinsmen of a murdered man in the days of Numa ; otherwise we should not have had that law of his providing that, where a homicide was due to misadventure, the offering to them of a ram should stay their bands. To avenge the death of a kinsman was more than a right : it was a religious duty, for his manes had to be appeased ; and so strongly was this idea enter-tained that, even long after the state had interfered and made murder a matter of public prosecution, a kinsman was so imperatively bound to set it in motion that if he failed he was not permitted to take anything of the inherit-ance of the deceased. Private vengeance was lawful too at the instance of a husband or father who surprised his wffe or daughter in an act of adultery ; he might kill her and her paramour on the spot, though, if he allowed his wrath to cool, he could afterwards deal with her only judicially in his domestic tribunal. The talion we read of in the XII. Tables is also redolent of the vindicta privata, although practically it had become no more than a compulsitor to reparation. And even the nexal creditor's imprisonment of his defaulting debtor (infra, p. 694), which was not abolished until the fifth century of the city, may not unfittingly, in view of the cruelties that too often attended it, be said to have savoured more of private venge-ance than either punishment or procedure in reparation.
Expiatio, supplicium, sacratio capitis, all suggest offences against the gods rather than against either an individual or the state. But it is difficult to draw the line between different classes of offences, and predicate of one that it was a sin, of another that it was a. crime, and of a third that it Was but civil injury done to an indi-vidual.4 They ran into each other in a way that is somewhat perplexing. Apparently the majority of those specially mentioned in the so-ealled regiae and other records of the reR1 period were regarded as violations of divine law, and the punishments appropriate to them determined upon that footing. Yet in many of them the prosecution was left to the state or to private indi-viduals. It is not clear, indeed, that there was any machinery for public prosecution except in treason and inurder, - the former be-cause it was essentially a state offence, the latter because it was comparatively early deemed expedient to repress the blood-feud, which was apt to lead to deplorable results when friends and neighbours appeared to defend the alleged assassin.' lake some of those offences whose sanction was sacratio capitis. Breach of duty resulting from the fiduciary relation between patron and client, maltreatment of a parent by his child, exposure or kill-ing of a child by its father contrary to the RomuIlan rules, the ploughing up or removal of a boundary stone, the slaughter of a plough-ox, - all these were capital offences ; the offender, by the formula sacer esto, was devoted to the infernal gods. Festus says that, although the rules of divine law did not allow that he should be offered as a sacrifice to the deity he had especially offended (nee fa,s cst eum immolari), yet he was so utterly beyond the pale of the law and its protection that any one might kill him with impunity. But, as the sacratio was usually coupled with forfeiture of the offender's estate or part of it to religious uses, it is probable that steps were taken to have the outlawry or excommunication judi-cially declared, though whether by the pontiffs, the king, or tbe curies does not appear ; such a declaration vvould, besides, relieve the private avenger of the incensed god of the chance of future question as to whether or not the citizen he had slain was saccr in the eye of the law.
That there must have been other wrong,ful acts that were regarded in early Rome as deserving of punishment or penalty of some sort, besides those visited with death, sacration, or forfeiture of estate, total or partial, cannot be doubted ; no community has ever been so happy as to know nothing of thefts, robberies, aud assaults. The XII. Tables contained numerous provisions in reference to them ; but it is extremely probable that, down at least to the time of Servius Tullius, the manner of dealing with them rested on custom, and was in the main self-redress, restrained by the inter-vention of the king when it appeared to him that the injured party was going beyond the bounds of fair reprisal, and frequently bought off with a composition. When the offence was strictly within the family, tbe gem, and perhaps the guild, it was for those who exercised jurisdiction over those corporations to judge of the wTong and prescribe and enforce the penalty.
' Elect of the Servian Reforms on the Private Latr. - The aim of the constitutional, military, and financial reforms be an open question whether the institution of the comitia of the centuries was of his doing, or only a result of his arrangements in after years, it seems clear that he had it in view to admit the plebeians to some at least of the privileges of citizenship, imposing on them at the same time a proportionate share of its duties and its burdens. Privileges, duties, and burdens were alike to be measured by the citizen's position as a freeholder ; the amount of real estate with its appurtenances held by him on quiri-tarian title was to determine the nature of the military service he was to render, the extent to which he was to be liable for tribute, and, assuming Servius to have contemplated the creation of a new assembly, the influence he was to exercise in it.
To facilitate the execution of his scheme it was neces-sary to establish a register of the citizens (census), which should contain, in addition to a record of the strength of genuineness of every alleged change of ownership between two valuations, it was further declared - presumably by Servius - that no alleged transfer would be recognized which had not been effected publicly, with observance of certain prescribed solemnities, or else by surrender in things that were to pass by it came to be known - whether from the first or not is of little moment - as res mancipi. Hence arose in the law of property a distinction of great importance, only abolished by Justinian more than a thousand years later, between res mancipi, which were transferable in quiritarian right only by mancipation or surrender in court, and res nec mancipi, which were trans-ferable by simple delivery.
Mancipation is described by Gains, but with particular reference : to the conveyance of movable res mancipi, as a pretended sale in presence of five citizens as witnesses and a libripens holding a pair of copper scales. The tmnsferee, with one hand on the thing being transferred, and using certain words of style, declared it his by purchase with an as (which he held in his other hand) and the scales (hoc acre aencague libra); and simultaneously he struck the scales with tbe as, which he then handed to the transferrer as figurative of the price. The piincipal 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 sale - hi fact the formal conveyance upon a relative contract - yet it was not always so. Its history is very simple. The use of the scales fixes its introduction to a time when coined money was not yet current, but raw copper nevertheless had become a standard of value and in a manner a medimn of ex-change. 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 sacra-ment° (infra, p. 681) took the same forin. 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 weig,lit, 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 ascer-tain 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 adopted as the basis of his mancipatory conveyance, en-grafting on it one or two new features intended to give it publicity and as it were state sanction, and thus render it mole serviceable in the transfer of censuable property. Instead of the parties them-selves using tbe scales, an impartial balance-holder, probably an official, was required to undertake the duty, and five citizens were required to attend as witnesses, who were to be the vouchers to the census officials of the regularity of the procedure. They are generally supposed to have been intended as representatives of the five classes in which Servius had distributed the population, and thus virtually of the state ; and the fact that, when the parties appealed to them for their testimony, they were addressed not as testes but as Quirites lends some colour to this view. Serving 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 usually supposed to have been intended to take the place of the raw metal (aes 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 ono 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 early in the 4th century, the mctncipium or rnancipation, 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 trans-feree to the transferrer, or what exactly the form of the ceremonial, we know not But, as attendance dining 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 niay be surmised that it early became the 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 repre-sentative of the whole.' Whatever may have, been its form, however, its effect was instant exchange of property aninst 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 mancipii--will be considered in connexion with the provisions of the XII. Tables on the subject (infra, p. 690).
The things included in the class of res mancipi were lands and houses held on ,quintarian title together with rights of way and aqueduct, slaves, and domestic beasts of draught or burden (oxen, horses, mules, and donkeys) ; all others were res nee mancii. In the time of Servius and during the greater part of the republic the domain land (ager publicus) in Italy, until it was appropriated by private owners was also reckoned as res nee mancipi ; like all other things of'the same class, it passed by simple delivery, where-as re,s maneipi could not be transferred in full ownership except by mancipation or surrender in court. Many theories have been propounded to account for the distinction between these two classes of thing,s and to explain the principle of selection that admitted oxen and' horses into the one, but relegated sheep and swine, ships and vehicles, to the other. But there is really little difficulty. Under the arrangement of Servius what was to determine the nature and extent of a citizen's political qualifications, military duties, and financial burdens was the value of his hcredium (and other freeholds, if he had any), and what may be called its appur-tenances - the slaves that worked for the household, the slaves and beasts of draught and burden that worked the farm, and the servi-tudes of way and water that ran with the latter. It may be that in course of time slaves without exception were dealt with as res mancipi, - without consideration, that is to say, whether they were employed on their owner's house or farm or on any part of the public lands in his occupancy - and reasonably, because they were often shifted from the one to the other. But the cattle a man depastured on the public meadows were no more res mancipi than his sheep. 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 in time everything else belonging to the pateifamilias, fell under the. denomination of peeunia. So the words are to be under-stood in the well-known phraseology of a testament, familia pecuniaque meet.
The public solemnity of mancipatio thus sanctioned as estate by a plebeian which in time developed into the testa, ment per aes et libram.
It has been already explained (p. 674) that, prior to the time of t Servius, the matrimonial unions of the plebeians were not, in the estimation of the patricians at least, regarded as lawful marriages (justae nuptiae), although amongst themselves they may have been held effectual and productive, if not of manus, at all events of patria potestas. For this there were two reasons : (1) not being citizens, they did not possess the preliminary qualification for justae n2tptiae, namely, conubium; and (2) not being patricians, the only ceremony of marriage known to the law was incompetent to them. The first obstacle was removed by their admission by Servius to the ordinary rights of citizenship, the second by the in-troduction of the civil ceremony of coemption. Once the efficacy of mancipation as a mode of acquiring manus over things was established, its adoption by the plebeians, now citizens enjoying conubium, as a method of acquinng mantis over their wives was extremely natural. The scales the libripems, and the five wit-nesses were all there ; but, as there v,-as no real price to be paid, the only copper that was needed was a single raudusculum. The words recited in the ceremonial, unfortunately not preserved, were necessarily different trona those in an ordinary mancipation, and, according to the testimony of a considerable number of ancient writers, and as the word eo-emptio itself seems to indicate (though this is disputed by most modern civilians), the nominal purchase was mutual ; the man acquired a mateilamilias who was to bear hirn children and enable him to perpetuate his family, while she ac-quired a paterfamilia,s who was to maintain her while the marriage lasted, and in whose succession she was to share when a widow. It was accompanied with other observances describe,d by many of the lay writers, but these were matters of usage and fashion rather than of law, and it might be, and often was, accompanied also with religious rites, which, however, were private, not public as in confarreation. It is common, but not quite accurate, to speak of coemption as a form of marriage. It was strictly the acquisition of manus by the husband over his wife, and probably in most cases contemporaneous with the marriage ; but they were really distinct, the latter being completed simply by interchanged. consent. That this was so latterly at least is evident from two facts, - (1) that, according to Gaius, the coemptio might follow the marriage at any distance of tinie ; and- (2) that, according, to the same authority, though the marriape was dissolved by divorce, the ?minus still remained until puean end to by remancipation (on which the divorced wife was entitled to insist).
It has also been explained that the plebeians were in a very ' much worse position than the patricians in regard to their power of , disposing of their estates in contemplation of death. Their eleva-tion to the rank of citizens did not apparently give them admission, to the comitia of the curies ; and, as it was many years after the assassination of Servius before the comitia of the centuries was con-1 vcned, they had still no means of making testaments unless perhaps in tbe field on the eve of battle. So here again the expedient of mancipation was taken advantage of, not indeed to make a testa-ment instituting an heir aud to take effect only on the death of the testator, - the form Of the transaction, as an instant acquisition in exchange for a price real or nominal, could not lend itself to that without statutory intervention - but to carry the transferrer's familial to a friend, technically familiete emptor, on trust to let the former have the use of it while he survived,2 and on his death to distribute a,ccording to his instructions whatever the transferee was not authorized to retain for himself. Like so many others of the transactions of the early law, it was legally unprotected so far as the third parties were concerned whom the transferrer meant to benefit ; they had no action against the trustee to enforce the trust ; their sole guarantee was in his integrity and his respect for Fides.
Dionysius credits Servius with the authorship of more than fifty enactments relative to contracts and crimes, which he says were sub-mitted to and approved by the assembly of the curies. The great majority of those so-called enactments were probably nothing more than formularizations of customary law, for the use of the private kidges in civil causes whom the king is said to have instituted. There was one contract, however, notorious in after years under thel name of RaCUM, that manifestly was influenced, either directly or indirectly, by his legislation. In its normal estate it was a loan of money, or rather of the raw copper that as.yet was all that stood for it. Whether before the time of Servius it was accompanied by any formalities beyond the weighing of it in a pair of scales (which v,.as rather substance than form) we know not ; and what right it conferred on the creditor over his debtor who failed to repay can only be matter of speculation. But there are indications that, in the exercise of undefined self-help, defaulters were treated with con-siderable severity, being taken in satisfaction and put in chains by their creditors ; fdr Servius is reported to have promised to pay their debts himself in order to obtain their release, and to pass a law limiting execution by persons lending money at interest to the goods of their debtors. Whether he fulfilled the first part of his promise we are not informed ; but the second part of it was impracticable, since a debtor's failure to repay a loan was in most cases attributable to his insolvency and want of means with which to satisfy his creditor. So, apparently, Servius had to be content with regulating and ensuring the publicity of the contract, and making a creditor's right of self-redress by apprehension (manus injectio) and confinement of his debtor conditional on the obser-vance of the prescribed formalities of the nacuru. These were the weighing of the copper that was being advanced.in a pair of scales held by an official /ibripens ; the reweighing of a single piece in the presence of five citizen witnesses, and its delivery by the lender as representing the whole ; and the simultaneous recital of certain words of style, which had the effect of imposing on the borrower an obligation to repay the loan, usually with interest, by a certain day. The consequence of this, the earliest independent contract of the jus civile, is explained in p. 693.
Servian Amendments on the Course of Astiee. - Of the course of justice in the regal period, whether in criminal or civil matters, before the time of Servius we know little that can be relied on. Antiquity used to speak of the king as having been generally supreme in both. But this can be accepted only with considerable reservation. For the paterfamilias, aided by a council in cases of importance, WiLS judge within the family, - his jurisdiction some-times excluding that of the state, at other times concurring with it, and not to be stayed even by an acquittal pronounced by it. He alone was competent in any charge against a member of the family for a crime or offence against the domestic order, - adultery or unchastity of wife or daughter, immorality of his sons, unduti-ful behaviour of children or clients ; while there are instances on record of his interference judicially where an offence such as murder or theft had been committed by a member of his family against a stranger, and even when his crime Ind been treason against the state. Death, slavery, banishment, expulsion from the family, imprisonment, chains, stripes, withdrawal ofpe,culium, were all at his command as punishments ; and it may readily be assumed that in imposing them he was freer to take account of moral guilt than an outside tribunal. The indications of criminal jurisdiction on the part of the gene are slight ; but its organization was such that it is impossible not to believe that it must occasionally have been called on to exercise such functions. And it must not be lost sight of that, as murder seems to have been the only crime in regard to which private revenge was absolutely excluded, the judicial office of the kings must have been considerably lightened, public opinion approving and not condemning self-redress so long as it was kept within the limits set by usage and custom.
The boundary between civil and criminal jurisdiction, if it ex-isted at all, was extremely shadowy. Theft and robbery, for ex-ample, if one may conclude from the position they held in the later junsprudence, were regarded not as public but as private wrongs ; and yet when a thief was caught plying his trade by night he might be slain, and when taken m the act by day might be sold as a slave. But in both cases it may also be assumed that a practice, aftenvards formally sanctioned by the XII. Tables - that of the thief compounding for his life or freedom - was early admitted, and the right of self-redress thus made much more beneficial to the party wronged than when nothing was attained but vengeance on the wrongdoer. In assaults, non-manifest thefts, and other minor wrongs, self-interest would in like manner soon lead to the general adoption of the practice of compounding ; what was originally a matter of option in time came to be regarded as a right ; and with it there would be occasional difficulty in settling the amount of the composition, and consequent necessity of an appeal to a third party. Here seems to be Vie origin of the king's jurisdiction in matters of this sort. He was the natural person to whom to refer such a dispute ; for he alone, as supreme magistrate, had the power to use coercion to prevent the party wronged insisting on his right of self-redress, in face of a tender by the wrongdoer of what had been de-clared to be sufficient reparation. But that self-redress was not stayed if the reparation found due was withheld ; as the party wronged was still entitled at a much later period to wreak his venge-ance upon the wrongdoer by apprehending and imprisoning him, it cannot reasonably be doubted that such also was the practice of the regal period.