or perhaps old-established customs formulated by the higher pontiffs and ascribed to the kings.[1]
It is also stated by Dionysius that under Servius Tullius various laws, fifty in number, dealing with contracts and delicts, were enacted in the comitia of the curies.[2] But we have no corroboration of this, and recent writers are now generally agreed in regarding the statement as a legend.
ii. Reforms of Servius Tullius.
It is generally agreed that towards the end of the regal period, and connected with the king traditionally called Servius Tullius, a great reform of the constitution took place, which exercised much influence on the subsequent development of the law. No doubt there is a good deal of myth attached to the name of Servius, who seems to have been regarded by later Romans as a popular monarch, like Alfred by the English, but the main features of the traditional account of the constitutional reforms of this period may be taken as based on fair presumptive evidence. That all of them indeed were evolved from one brain is hardly credible, and that some of them were in observance de facto before being made constitutionally binding is very likely.
The design attributed to Servius was that of altering the old constitution in order to promote an advance towards equality between patricians and plebeians. He is credited with having desired, on the one hand, to ameliorate the position of the plebs and, on the other, to make them bear a proportionate share of the burdens of the state—in particular, to serve in the army and contribute to the war tax (tributum). He effected this by giving them qualified rights of citizenship, not indeed by admitting them into the gentile organizations, but by creating a new political assembly of a distinctly military character in which they as well as the gentiles could take part. The so-called Servian reforms may be roughly summarized under the following four heads, viz. (1) a division of the Roman territory within the city walls into four local wards called tribus (to which a number of tribes outside the city—tribus rusticae—were afterwards in course of time added); (2) the establishment of a register of the citizens (census) which was to contain, in addition to a record of the strength of their families, a statement of the value of their lands, with the slaves and cattle employed in their cultivation, and which was to be revised periodically; (3) a division of the people, as appearing in the census, into five classes for military purposes, determined by the value of their holdings in land and its appurtenances, with a subdivision of each class into so-called centuriae; (4) the creation of a new assembly with legislative power called comitia centuriata, in which the vote was to be taken by centuriae. While it may be an open question how far these reforms, and particularly the institution of the centuriate comitia, were actually due to Servius, or only a result of his arrangements, the whole conception of the new constitution is obviously of early date and indicative of considerable statesmanship.
The plebeians were thereby made constitutionally part of the populus Romanus; they became citizens (Quirites).[3] They got commercium and also connubium so far that their marriages inter se were recognized as legal marriages. Rights and duties were so far to be measured by each citizen's position as a holder of lands; the amount of land (including slaves and cattle appurtenant thereto)[4] held by him on quiritarian title was to determine the nature of the military service he was to render, the tribute he was to pay, and his right to take part in the new political assembly. It is indeed probable that a good while before Servius the conception of individual ownership of lands and things necessary for their cultivation had been reached, and that such ownership was recognized not only among the gentiles, but also de facto even more largely among the plebeians. The common lands of the gentes had become split up, to a considerable extent, among families and individuals. However this be, the creation of the census ensured, as far as possible, certainty of title, as it was declared that no transfers of property enrolled in it would be recognized unless made by public conveyance with observance of certain prescribed formalities.[5] The form of conveyance thus legally sanctioned was called originally mancupium, afterwards mancipium, and at a still later period mancipatio, while the lands and other things that were to pass by it came to be known as res mancipii (or mancipi). Hence arose a distinction of great importance in the law of property (which lasted till Justinian formally abolished it), between res mancipi and res nec mancipi; the former being transferable only by emancipation or surrender in court, the latter by simple delivery (see infra, p. 541).
iii. Institutions of the Private Law.
Law of the Family.[6]—The word familia in Roman law had at once a more extensive and a more limited meaning than The patrician family. it has in its English form. Husband, wife and children did not necessarily constitute an independent family among the Romans, as with us, nor were they all necessarily of the same one. Those formed a family who were all subject to the power—originally manus,[7] later potestas or jus—of the same head (paterfamilias). The paterfamilias was himself a member of the family only in the sense in which a king is a member of the community over which he rules. He might have a whole host dependent on him, wife and sons and daughters, and daughters-in-law and grandchildren by his sons, and possibly remoter descendants related through males; so long as they remained subject to him they constituted but one family, that was split up only on his death or loss of citizenship. But if his wife had not passed in manum (a result apparently unknown among the patricians at this period), she did not become a member of his family: she remained a member of the family in which she was born, or, if its head were deceased or she had been emancipated, she constituted a family in her own person. Both sons and
- ↑ See Clark, Hist. of Rom. Law (1906), i. 16-19; Kipp, Geschichte d. Quellen (1903), pp. 24-25. The most comprehensive treatise on these royal laws, which also contains references to the earlier literature, is that of Voigt, Über die Leges Regiae (Leipzig, 1876). An exhaustive collection of them, including numerous references to royal institutions by Livy, Dionysius and others, is given in Bruns, Fontes Juris, 6th ed. i. 1 seq. Another collection is in Girard, Textes, 3rd ed. pp. 3 seq.
- ↑ Dion. iv. 10, 13.
- ↑ The view of some recent writers that the plebeians had at all times participated in the jus Quiritium and were admitted to the curiate comitia and even had gentile rights (see Lenel in Holtzendorff's Encyklopädie d. Rechtswissenschaft, 6th ed. i. 90 nn. 1, 2, and authorities there cited), must be decidedly negatived. Not only does it render the whole tradition about the Servian reforms untrustworthy, but the accounts of the struggles between patricians and plebs in the early Republic are left largely without meaning.
- ↑ Modern writers are not agreed as to whether movable res mancipi were included with lands in the valuation of property for fixing the classes.
- ↑ Or else by cessio in jure, though this may not have been before the Xll. Tables, and it was in any case of very limited operation.
- ↑ On tribal family and matriarch ate among the Romans in prehistoric times, consult Westermarck, History of Human Marriage (London, 1891); Post, Grundriss der ethnologischen Jurisprudenz (1894), i. 15-160. Familia and family are used in this section. solely to designate the group of free persons subject by birth, marriage or adoption to the same paterfamilias. Strictly the word familia meant the household and all belonging to it. It had also the following principal meanings: (1) a gens or branch of a gens (group of families in the stricter sense); (2) the whole body of agnatic kinsmen (familia communi jure); (3) the family estate or patrimonium, as in the provisions of the XII. Tables about intestate succession, e.g. adgnatus proximus familiam habeto; (4) the family slaves collectively, as in the phrase familia rustica. See Mommsen, Staatsr. iii. 10 n. 16 n. 22; Rivier, Précis du droit de famille romain (Paris, 1891), § 1.
- ↑ This word manus, though in progress of time used technically to express the power (hand) of a husband over his wife in familia, was originally the generic term for all the rights exercised, not only over the things belonging but also over the persons subject to the head of the house—as seen, for example, in the words “manumission” and “emancipation." Cf. Inst. i. 5 pr. It should be observed that among uncivilized peoples there is always a very small vocabulary, and the same word often has to do duty in several senses—e.g. familia, mancipium, nexum, caput.
