Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/702

Rh 678 ROMAN LAW [JUS CIVILE. Early before the time of Servius we know little that can be relied on. course Antiquity used to speak of the king as having been generally of justice, supreme in both. But this can be accepted only with considerable reservation. For the paterfamilias, aided by a council in cases of importance, was 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 had been treason against the state. Death, slavery, banishment, expulsion from the family, imprisonment, chains, stripes, withdrawal ofpeculium, 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 gens 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 jurisprudence, 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 in the act by day might be sold as a slave. But in both cases it may also be assumed that a practice, afterwards 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. The king Here seems to be the origin of the king's jurisdiction in matters of as judge, 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. How the kings acquired jurisdiction in questions of quiritarian right, such as disputes about property or inheritance, is by no means so obvious. Within the family, of course, such questions were impossible, though between clansmen they may have been settled by the gens or its chief. The words of style used in the sacramental real action (infra, p. 682) suggest that there must have been a time when the spear was the arbiter, and when the con- tending parties, backed possibly by their clansmen or friends, were actual combatants, and victory decided the right. Such a pro- cedure could not long survive the institution of a state. In Rome there seems to have been very early substituted for it what from its general complexion one would infer was a submission of the question of right to the pontiffs as the repositories of legal lore. Their proper functions, however, were sacred. So, to bring what was a question of purely civil right within their jurisdiction, they engrafted on it a sacral element, by requiring each of the parties to make oath to the verity of his contention ; and the point that in form they decided was which of the two oaths was false and there- fore to be made atonement for. In substance, however, it was a finding on the real question at issue ; and the party in whose favour it was pronounced was free to make it effectual if necessary by self-redress in the ordinary way. Servian Of Servius, Dionysius says using, as he often does, language reforms, more appropriate to the republican than to the regal period that he drew a line of separation between public and private judicial processes, and that, while he retained the former in his own hands, he referred the latter to private judges, and regulated the procedure to be followed in causes brought before them. Something of the sort was absolutely necessary. He was enormously increasing the number of the citizens, that is to say, of those who were to enjoy in future the privileges of quiritarian right, and multiplying the sources of future disputes that would have to be determined by the tribunals. The nature of the provision made by him to meet the new aspect of things is much controverted ; but we are disposed to credit him alike with the establishment of the collegiate court of the centumvirs and the institution of the single judge (unusjudex). The centumviral court and centumviral causes are often referred Centi to by Cicero, and the .inge of their jurisdiction seems to have viral included every possible question of manus in the old sense ofco the word, status of individuals, property and its easements and burdens, inheritance whether testate or intestate, in other words, all questions of quiritarian right. By the time of Gaius the only matters apparently that were brought before it were questions of right to an inheritance of thefts civile ; but the spear, the emblem of quiritarian right generally, was still its ensign. That Servius should substitute for king and pontiffs a numerous court of citizens, originally, as there is reason to assume, all patri- cians, to try questions of quiritarian right on remit from himself, was quite in accordance with the general spirit of his reforms. It was not mere matters of personal dispute they had to decide, but they had to build up by their judgments a law which was to be of general and permanent application ; and, as it was beyond the power of the king to overtake the task, what could be a more ap- propriate substitute than a court of his counsellors acting under pontifical guidance ? But there were many cases requiring judicial assistance in which Unu. 1 no question of quiritarian right had to be determined, but only jude: one of personal claim of alleged indebtedness, whether arising out of a legal or illegal act, denied either in toto or only as to its amount. Matters of that sort were supposed to involve no general principle of law, but to be rather mere disputes or differences about facts, which could well be decided by a single judge. To meet their case the unus judex was introduced ; he was appointed for each case as it arose, and acted really as the king's commissioner. This was the beginning of a system that bore wondrous fruit in after years, and that, as will be shown in the sequel, eventually displaced altogether the more imposing court of the centumvirs. CHAPTER II. -THE JUS CIVILE. (From the Establishment of the Republic until the Subjuga- tion of Central and Southern Italy.) I. FORMATIVE AGENCIES OF THE LAW. The Legislative Bodies of the Period. The limits and Pie- scope of this article do not permit of any detailed account beia of the consequences of the change from kings to consuls, '! or of the tribulations of the plebeians during the first two j ty- centuries of the republic. Stage by stage they fought and conquered in the uphill battle for social and political equality. In 260 TJ.C. they got their own special protectors in their tribunes, with the sediles as their assistants, and judices decemviri to act under their instructions as arbiters in disputes amongst themselves. In 283 they obtained state sanction for their concilium, and recognition of its power to regulate purely plebeian interests. The XII. Tables of 303 were the fruit of their agitation for a revision and written embodiment of the law. It was in deference to their complaints of their practical disfranchisement through the unduly preponderating influence of the patri- cians in the comitia of the centuries that in 305 the comitia of the tribes was instituted. Their repeated pro- tests against the monopolization of the public domain land by members of the higher order resulted at last in the definite recognition of their right to participate in its occupation by one of the Licinian laws of 387. The long course of cruel oppression of plebeian insolvents by their patrician creditors was put an end to by the Poetilian law of 428 abolishing nexal contract, and prohibiting the use of chains and fetters on persons incarcerated for purely civil debt. By the Hortensian law of 467 the resolutions of the plebeian council (plebiscita) were declared binding not only on the plebeians themselves but on the whole body of the citizens. And from 333, when a plebeian first reached the magistracy through the quaestorship, down to 502, when they attained to the supreme pontificate, they gradually vindicated their right as citizens to share in all the honours and dignities of the state. The legislative bodies were thus three in number, the comitia of the centuries, the concilium plebis, and the