Page:The history of Rome. Translated with the author's sanction and additions.djvu/188

168 practices were already, under the oldest national law of the Romans, customs legally worthless. In a way entirely analogous to the setting aside of all allegory and with it of all personification in religion, every sort of symbolism was on principle expelled from their law. In like manner that earliest state of things presented to us by the Hellenic as well as the Germanic institutions, wherein the power of the community still conflicts with the authority of those smaller associations of clans or cantons that have arisen within it, is in Roman law wholly superseded. There is no mutual alliance, offensive and defensive, for the vindication of law within the state, to supplement its imperfect power of furnishing redress; nor is there any serious trace of vengeance for bloodshed, or of family property being tied up so as to restrict the individual power of disposal. Such institutions must probably at one time have existed among the Italians; traces of them may perhaps be found in particular institutions of ritual, e. g. in the expiatory goat, which the involuntary homicide was obliged to give to the nearest of kin to the slain; but even at the earliest period of Rome which we can conceive this stage had long been passed. The clan and the family were not annihilated in the Roman community; but the theoretical as well as the practical omnipotence of the state in its own sphere was no more limited by them than by the liberty which the state granted and guaranteed to the burgess. The ultimate foundation of law was in all cases the state; liberty was simply another expression for the right of citizenship in its widest sense; all property was based on express or tacit transference from the community to the individual; a contract was valid only so far as the community by its representatives attested it, a testament only so far as the community confirmed it. The provinces of public and private law were definitely and clearly discriminated, the former having reference to crimes against the state, which immediately called for the interference of the judicatories of the state and always involved capital punishment; the latter having reference to offences against a fellow-burgess or a guest, which were mainly disposed of in the way of compromise by expiation or satisfaction made to the party injured, and were never punished with the forfeit of life, but, at the most, with the loss of liberty. The greatest liberality in the permission of commerce and the most rigorous procedure in execution went hand in hand,