Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/699

Rh REGAL PERIOD.] ROMAN LAW 675 of the usucapio pro herede, which Gaius condemns as an incomprehensible and infamous institution, and which un- doubtedly lost some of its raison d'etre once the right of succession of agnates had been introduced, tract Contract and its Breach. To speak of a law of obliga- its tions in connexion with the regal period, in the sense in which the words were understood in the later jurispru- dence, would be a misapplication of language. It would be going too far to say, however, as is sometimes done, that before the time of Servius Rome had no law of con- tract ; for men must have bought and sold, or at least bartered, from earliest times, must have rented houses, hired labour, made loans, carried goods, and been parties to a variety of other transactions inevitable amongst a people engaged to any extent in pastoral, agricultural, or trading pursuits. It is true that a patrician family with a good establishment of clients and slaves had within itself ample machinery for supplying its ordinary wants, and was thus to a great extent independent of outside aid. But there were not many such families ; and the plebeian farmers and the artisans of the guilds were in no such for- tunate position. There must therefore have been contracts and a law of contract ; but the latter was very imperfect. In barter for at that time money was not yet in use with instant exchange and delivery of one commodity against another, the transaction was complete at once without the creation of any obligation. But in other cases, such as those alluded to, one of the parties at least must have trusted to the good faith of the other. What was his guarantee, and what remedy had he for breach of engage- ment 1 ? 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. 1 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 seal, 2 he might require his solemn oath (jusjuranduni) 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 facto 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 1 Such as debarment from gentile or guild privileges, exclusion from right of burial in the gentile or guild sepulchre, fines in the form of cattle and sheep, &c. 2 Some of the old writers (e.g., Liv., i. 21, 4, xxiii. 9, 3 ; Plin., H.N., xi. 45 ; Serv., In Aen., iii. 687) say that the seat of Fides was in the right hand, and that to give it (promittere dextram, is this the origin of the word "promise"?) in making an engagement was empha- tically a pledge of faith. See a variety of texts illustrating the signifi- cance of the practice, and testifying to the regard paid to Fides before foreign influences and example had begun to corrupt men's probity and trustworthiness, in Lasaulx, Ueber d. Eid bei d. Ro'mern, Wiirz- burg, 1844, p. 5 sq. ; Danz, Der sacrale Schutz im rom. Rechtsver- kehr, Jena, 1857, pp. 139, 140; Pernice, Labeo, vol. ii., Halle, 1878, p. 408 sq. 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 Offences and their Punishment. For Offences anything like a clear line of demarcation between crimes, and their offences, and civil injuries we look in vain in regal Rome. 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 hands. 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 wife 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 3 See Abegg, De antiqiiissimo Romanorum jure criminali, Ktinigs- berg, 1823, p. 36 sq. ; Rein, Das Criminalrecht der Romer, Leipsic, 1844, p. 24 sq. ; Clark, Early Roman Law: Regal Period, London, 1872, p. 34 sq. upon every offence as committed at once against gods and men, and held that the punishment should be one that satisfied both ; hence the deo necari, sacratio capitis, and consecratio bonorum. The plebeians regarded its two moments as separable, and (as appears from the spirit of the XII. Tables) left it to the pontiffs to protect the gods, putting it on the state to protect itself by ordinary death punishment, addiction into slavery, declaration of improbitas or intestability, talion, and pecuniary penalties.
 * Voigt ( XII. Tafeln, vol. i. p. 484) observes that the patrician looked