Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/697

Rh REGAL PERIOD.] ROMAN LAW 673 was attained. It is doubtful whether during the regal period a testamentary appointment 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. iri- The Quiritian Law of Property. The distribution of lllaw land amongst the early Romans is one of the puzzling ,' ro " problems of their history. The Servian constitution classi- laud. fi 6 ^ 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. 1 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 ager 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 ager 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 4| 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 gens; 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, 1 See Giraurl, Recherches siir le droit de propriete chez les Remains, Aix, 1838 (oiily first vol. published); Mace, Histoire de la propriety du domaine public, et des lots agraires chez les Remains, Paris, 1851; Hildebrand, De antiquissimae agris Romani distributionis fide, Jena, 1862; Voigt, " Ueber die bina jugera d. altesten rom. Agrarverfass- ung," in Rhein. Mus.f. Phil., vol. xxiv. (1869), p. 52 sq., the opinions in which are somewhat modified in his XII. Ta/eln, Leipsic, 1883, vol. i. 102; Karlowa, Rom. Rechtsgcschichte, Leipsic, 1885, vol. i. 15. 2 At the same time the writers of the empire frequently refer to the early heredium of seven jugers as having been amply sufficient for its frugal owner, content to till it himself with the aid of his sons. The case of Cincinnatus in the year 293 u.c. is often mentioned : having a freehold of just that extent, he had to sell three jugers to meet engagements for which he believed himself in honour respon- sible, and yet found the remaining four ample enough to maintain him with all the dignity of a man who had been consul and who be- came dictator. 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, Property anterior to the reign of Servius Tullius, there was no pri- in mov- vate property in movables. The proposition thus broadly a es< 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 Quiri- succession in the regal period was extremely simple. It tian law was this : on the death of a paterfamilias his patrimony 8 V C " 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 gens. 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 The later jurists more than once refer to the perfect equality of the sexes in the matter of succession in the ancient law.* But it 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 arrangements. 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 carry 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 hands 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 heredia 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; 3 It is quite true, however, that from the first the order of suc- cession was agnatic; for it -was those only of a man's children who were agnate as well as cognate that had any claim to his inheritance; and the gens was, theoretically at least, just a body of agnates. The supposed mention of agnates in a law attributed to Numa rests sim- ply on a conjecture of I. G. Huschke's (Analecta litteraria, Leipsic, 1826, p. 375). The law, which is preserved in narrative by Servius, In Virg. Eclog.,iv. 43, runs thus: "In Numae legibus cautum est, ut si qnis imprudens occidisset hominem, pro capite occisi et natis ejus in cautione (Scalig., concione) offerret arietem." Huschke's substitu- tion of agnatis for et natis is all but universally adopted; but, even were it necessary, it need mean nothing more than his children in potestate or his gens. 4 The Voconian law of 585 u.c. avowedly introduced something new in prohibiting a man of fortune from instituting a woman, even his only daughter, as his testamentary heir; but even it did not touch the law of intestacy. XX. 85