Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/694

Rh 670 ROMAN LAW [REGAL PERIOD. 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. >le- The plebeians, as distinguished from the clients, must >eians. 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 them 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 jus 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 fas, jus, and boni mores, whose several limits and characteristics it is extremely difficult to define. This may to some extent be accounted for by the fact that much of what was originally within the domain of fas, once it had come to be 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. "as. 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 sanction of an oath. It enjoined hospitality to foreigners, because the stranger guest was presumed, equally with his entertainer, to be an object of solicitude to a higher power. It punished murder, for it was the taking of a 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 because 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 homo 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/ws from the Sanscrit ji 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. Bre"al) identifies it with the jos, jaos, or jaus of the Vedas, and ihejaes 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 us jus." 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, &c., "Is it your pleasure, Quirites, and do you hold it as the divine will, that," and so on. As legislation by the comitia of the curies and centuries was regarded as a divine office, and their vote might be nullified by the fathers on the ground that there had been a defect in the auspicia, and the will of the gods consequently not clearly ascertained, this explanation of Breal's seems not without support, voxpopuli vox dti. 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 constitutuiri) or of statute (lex}. 1 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 races 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 Papirianum. 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 1 There is controversy about the etymology of the word lex. It was used by the jurists in two distinct senses (1) as meaning a comi- tial enactment (Gai., i. 3), and hence was occasionally called lexpublica (Gai., ii. 104, iii. 174) ; (2) as meaning an obligation, restriction, con- dition, declaration, or what not, expressly incorporated in a private deed (lex private), as in the phrases lex mancipii, lex coiitractus, lex testamenti, &c. Its most likely derivation is from tyeiv, "to say" or " to speak." The lex publica was always put to the comitia by word of mouth ; and the XII. Tables, in declaring the binding effect of a lex privata when grafted on a conveyance or contract per aes et libram, use in reference to it the phrase uti lingua, nuncupassit (Festus, s.v. Nuncupate ; Bnms, Fontesjur. rom. antiqui, p. 23).