Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/693

Rh 669 KOMAN LAW CHAPTEE I. THE REGAL PERIOD. i-iginal C ontributories to People, Customs, and Law. The union iments O f the Latin, Sabine, and, to a small extent, Etruscan Roman ]- )an( j s 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. 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 was 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. atri- Patricians, Clients, and Plebeians. There was part of ans - the law of Rome that even in the empire was known by the name of Jus 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 attained, it is beyond doubt that 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 those 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 with punishment any breach 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 Clients, 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, vol. 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