PREFACE

THis volume is the outcome of a series of lectures given

t<> zx>llege student< <pecializing in
therefore, an ±+tudy and aims
, analytical m>tnn« 4 and develnp~
z.zzz·zzczz.u law in such can ~ maste±+>t>l
by students in course runm<y
throughout the year.
The arrangement facilitates collateral reading and criti-
cism and the use of standard authorities as well as the
sources of information. Texts of the Institutes of Gaius
are plentiful in Latin anY

as this, giving of moder»t»

features of th» ltoman law,
out R<emg too br.ief, together an intnrpretation of
more important laws as found in Gaius and Justinian,
seemed to be necessary. The writer trusts that this book
will be found helpful to many.
ANDREW STEPHENSON.
nzzzzzzz;.z;;;;.::.zz, INDIANA,
1912.

V
CB.&P. I) INTRODUCTION [§2
I

shunning theorit:EL
and clinging
t:ppealed to theiEL CEL:>IDIDOn sense.
of hills rising upon either hank of the river
Tiber about fourteen miles from its mouth has been associated
for more than twenty-six centuries the name of the Romans.
This name is of uncertain origin, but is usually made to stand
for a confederacy of three independent tribes of different,
but Indo-Germanic Sabines,
Cicero subseqnt:ntlh them, Ramnianc,
that Latin ~t:w:cc
settled through=
out the peninsula of Italy. It was not known how or when
these three peoples were united or merged into one nation,
but in the earliest divisions of the citizens of Rome a trace
of this separate origin is discernible, and each seems to have
contributed certain characteristics and institutions toward
thg;; ezf the spirit of the n£;0<:'
State,
that the the oldest of
settle::> they fortified
held some of the hills and occupied the surrounding territory.
They thus had property and antiquity on their side in the ,
confederate State that subsequently arose. They further
had a rare sense of discipline and a respect that came near
to worshih fo:> power and might" Lath£ z:>:>igin can be seen
in a man can call which his stroz£g
in the right had of lab=
his debtor and '"''''''''"'](
th" jus vitre
power that the husband had over his wife.
After the Romans were settled and well in possession,
3
 A HISTORY LAW

and were .....,"''""""'''"'''"'

Sextus Papirius,
ing the title "jus civile Papirianum." It is with the men-
tion of this work that Pomponius begins his account of the
sources of Roman law, and mentions Papirius as the first
of Roman jurists. This work of Papirius seems to have
been about the of tho Republic and was
leges regia! were
lilitentlili:?z:zeoto of law concemeeJ most part with
They probably the time of th*r
t,:utimony to the mua~eue,ee original connme*ffi:neycu
between law and religion.
The question as to the origin and authenticity of these
leges regim was often discussed by the ancient writers
themselves. Livy says that the pontifical writings and other
public and were destroyed
B.C. and that the chief task
e#il,weeeetene was to collect
In this task memurp vo doubt, resortw:l
mr2re common tup22ther with the
Tables may have been reproduced with accuracy. But even
the records made in this manner have been completely lost,
together with the compilation made by Papirius, and we
know little more of the leges regia! than their name.
from the that ....,r,n,"ue
far from definite, of it which §%,,,,,''*,"'*2
fell short of which philosopP*ezfl
conceptions
Priftte There was no smgxe sovereign authority tPat
Order. established it ; its quality was not always the
B&me, and the enforcement was ofttimes left to the in-
10
CIIAP. 11] INSTITUTIONS OF THE PRIVATE LAW [§36

£:jnuld kill her, par£~ill<:tr¥.Ei on the he

must deal with her only judicially in his domestic tribunal.
1 ztere :sure othnr C&SEir where nnngew.~nce trw~
able, especially in talion and the imprisonment of the nexal
debtor who was not able to meet his obligations.

77
CHAP. I] CONCEPTS AND DIVISIONS [i 111
attainment of As a science
<:hra:rreit1tnn!r,r;£5lr between the So the
Pnnrprudence is the just and unjurt~
aims to bring nhich is right
equitable. "Jus est ars boni et aequi." The jurists did not,
however, confuse the two ideas of law and morality, but
rather regarded the purpose of the law to be the moral im-
provement of the individual. Law must be prompted by
perpetual i*':nder to every
it may n":zt the subject a
'"'""'~"'for the rights is, as Cicero
conformable to commands
us to duty, and whose prohibitions restrain us from evil.
Whether it enjoins or forbids, the good respect its injunc-
tions and the wicked treat them with indifference. . . .
In all times and nations, this universal law must forever
reign eternal and imperishable." The Romans, by thus
law an ethical able to constrta<:t

law is consider*£51:1 broad ethical sersz:r

which has been indicated above it is called natural law, or
the law which the natural reason has constituted I m.
Na&aral
for all men (jus naturale or jus gentium), in aad Paid-
opposition to the civil or positive law which dYe Law.
os;:srvsrz its biTI'trding force from the authority of some par-
(jus civile). It the great bodp
in theory drarm sphere of
way the fHnsishes the unPr:r~
positive law, the provisitr:zn£3
may differ in different States, the essential portions of the
law are yet derived from the natural precepts of justice, and
313
Ca.uo. V] CAPUT (STATUS) FAMILIAl: 11129
the purpose of such legislation by bestowing the benefits of
the jus trium liberorum upon persons who had no children,
and even upon those who were not married. Constantine
abolished all the penalties of celibacy, and the rewards to in-
crease the number of children were discontinued.
A Roman marriage was at no time indissoluble, but it
was for life unless one or the other of the contracting parti~
wished to terminate it.1 Divorce was always llurlaae
private and required no legal action whatever. Terml-
However, persons who had been married by aated.
confarreatio had to be divorced by diffarreatio. A man
could be punished if he took advantage of divorce with-
out proper reason, yet his right was never questioned. Cicero
seems to indicate that all that was necessary in his time for
a man to divorce his wife was simply to say, "Take thy goods
and get thee gone." Romans generally took the ground that
as marriage was a mere mutual contract to live together, it
could be terminated by the determination of either party no
longer to live together in the bonds of wedlock. Marriage
could, therefore, be terminated at the will of either party~
.
A marriage could be dissolved by the woman's father if she
had not passed in manum and was still under his potestas.
Cicero in this manner divorced his daughter from her first
husband in order that he might subsequently marry her to
Dolabella. The above methods may be considered as volun-
tary. Marriage may be said to have been involuntarily termi-
nated by the death of either of t e contracting parti or the
los3 of liberty on the part of either. In case ,.. of tb
ties had fallen into a condition lavery and '
elapsed since the captive <l J to be nh
might marry again without h
1169] A HISTORY OF ROMAN LAW 11

were five EI2:Ri'~'ramento {by

postulationeru a jude:;z:),
(by formal J:2:R!Kr manus
(by laying hands on a man), and per pignoris capionem {by
taking a pledge)."
"The proceedings called legis actiones could be conducted
only between Roman citizens ; aliens, unless by special
favor (as some Latins), could neither sue nor be sued.
p&E3rties could not the formalities
but must the:m:;z:~EV%2:Ri'
:JE:ilc£3ther characteristic£
one freeman
resent another in a legal transaction.
" The system was marked by a rigorous pedantry, in which
form was everything and substantial justice nothing." 1
The second stage in the proceedings 'in jure,' the for-
muhe, seems to have owed its origin to the necessity which
method of

complex life brought

"'""'""' v:;z::;z:quest the of providing a
of determining disputes in which an alien was a party. The
pnetor peregrinus devised a scheme to meet this need. He
followed the essential features of the Roman system
(jus civile), but modified it when necessary and thus brought
mform of Rom:J¥:£& by reason of
Ile formulated, the litis conttc££3t£3~tJ&¥£3
the case on P%Gf·GPPPP0n•>Oi in judicio,

tFe chief deparb:&£31¥: <'ld system took

wrote out tim~lli?>:JE:nS to the judex
he appointed instead of merely giving oral directions as
1 Hunter, 979.
476
CITIZEN, 1II,
land rent cla.rged to, 53
privileges of, 43, 46, 48, 137, 337 .
enrollment of, 80, 113, 123
CITIZENSHIP, 48, 80, 187
acquisith:ru 337 seq.
loss of, Hkll
municipllkl,
private, 188
public, 188
CIVES : see Citizen
311
absque 188
frederata rowns,
libera : see Towns, free
libera frederata : see Cities, free
CLANS: see Gens
CllASSES,
if citizeur,
wealth,
according to land, 82
of persons, 192
CLIENTS, 18
s,,,,,,..,: see Afr's'flikJ'lYitions
C<JCE,
Gregorian,
Hermogenian, 23
Napoleonic, 49
Theodosian, 23
em.:#EX: see
COCICILS: .RJ±sJacies
COJ;MPTIO,
COHABITATION: see Usus
COINAGE, 88
COLON!, 330
G0:#,4JNVE: Culonies

lurgess,
Greek, 54, 56
Latin, 56, 189
Phrenician, 55, 56
Roman, 54, 57, 188
C:ii.LONISTS,
Roman,
Latin, 15%J,
492
 INDEX

ESTATE,

24:TI~USCf..:t{8,
EXECUTION, 127
R;~XJ'ANSHJN, e€Jmmer&3Sal
in1luence on Roman Ia.w, 197 seq.
AXPANSILJTW,
title con tract€fi:£' ex lit inris, 460

F
FABIUS, AMBUSTUS, 181
FABUOT,
published the Basilica in 1647, 305
FACTIO TESTAMENT!, 187, 189
uArru : Fi'*""'f?
FAMILY or FAMILIA,
deatr of r&&ter,
change of, 169
,;,wnen~hip of, 68
nFhts, 1::139
FAS, 11
n''A ASJER see P4fitria l'otestmi¥
FICTION, 202
FIDEICOLMIUJU: Le(;sT&&&:ies
FIDAA, 7A, J1
FILIUS F AMILIAS, Filia familias,
J,~,werET Gf pGtnG faffiilias ;,ver, tet,
capacities and incapacities of, 348
x;rope;tu of, :1348
¥4'1NUUCA, 153
FINES, 152
velue &nillJGls in, 64
limit on imposition of, 121
FLA!e!EN CURIALIS, 34, 35
ULAUIUS, GN~US, 15,:y:, 279
FOOD, 62,63
!le&h 65
distribution of, 121
FORAIGN:z,:RS, 153, 19J
punisJment of, 104
title to property, 130
:I!'RA.:&,:Ks, of
FREEDMEN, 19, 20
F'RECDOM, 168
from patria potestas, 128, 139 seq.
496
 INDEX

qu0l4¥tion 1:f'cZ}
1088 of, 169

two oluaee of, '$1.7

F"'u"NERALS,
retrulatiuuV gouuJ:'ning, '£,35

GAIUS, 284 teq.

Commentaries of, 125
"'"uu""'· C, AQUILIU:t, 164
&Jius, 164

inheritance of, 68, 129, 174

criminal jurisdiction of, 94
rigJts of, 138
UENUCIUS, TITUS, 116

GNOMA,66
GUARDIAN: see TZLtor
(fUAGAIANJHIP see NZLtela
GUILDS, 33

HEIR, 171 teq., 202, 423 aeq.

I£ns3RE*7AES SNI,
HEREDITAS, 317
AEREAIUM, 58,
produce of, 38, 432,
arrangement of, 66
HERN!CI, 1ll
HOMICIDE, 105
Zl"ttidentZL,l, 13}
see Murder and ManslZL,ugSter
HOSTIS, 48, 193
Stt Fortigners
HUSBAND,
pouer over wife, 32
HUSBANDRY,
Rmnan pn5toral, 58
1
ICILIHil SEURillS, 11}
Lucius, 117
IMPERATOR,
titles giv45ll Octnvius, 264
497
 INDEX

IMPERI'U'?.f, 1Ic1,
INCANTATION, 132, 134
INHERITANCE, 129
ab intestato, 434 1eq.
children, in XEEtest&te, 68
of plet~ians. 69
~'le SEEtsces'!ion
INJEGTIO MENUS, 71, t4, llc7
INJURY,
civil, , 7t
romoEEunding, 95
persorurul,
self-redJeSS of, 71
006 Ttrrt
INTERCESSIO, 141, 142
INT.:n~RlliGT, iilt1
INTERMARRIIAGE,
patEcian.r and p!eEEEEU~EEEE, 136, 155
IRNERIUS, 308

J
1UDiiX,
JUDGMENT,
rrnecu<,ion &.gEEinst 1r1rsm:t, 48=t
execution of, against property, 485
,lUDIGIUGl, Hi:%
JUGERUM,
1EEfin2tion 66
produce per, 60, 61
llJ'LJANUl, 8ALVHJS, 1114
JURA,
re ruliena £n gEEner4'J, 40! 4'eq.
JURISPRUDENCE, Roman,
tr~tm±ngs Elf, 218
definition of, 311 seq.
m,maimr ot 289 rs/Yq.
rival schools of, 281
,JURinTS, 164
JUS, 11, 12, 143
m'rereE*uJenJi titk of m:nile,
JElianum vel Tripertita, 274
rsivile, T7, 4t, 148, 187
Papirianum, 10
Flnviur:num : see 1us Flfrvivnum
civitatis, 190-194
198
 INDEX

burial, 7, 135
<I5sJ0:llilrilfir,ion uf, 121
<sr,;mnil""'- 71
aubsta.ntive changes in, 246
Y~5m¥ira.l : T((¥lve drbles
Entlisli. Common, 124
f¥(&tors in irter 243
justice and,
natural and positive, 313 aeq.
apJ~¥ir, led, 131
exceptions to, 104, 105
citati,rns,
of contract, 253 seq.
of prooodure, 318
iffl&l truperty, 1Yl
substantive changes in, 250
su<>'r"rusion, ~ 70, Bfli£-
of the Twelve Tables : see Twelve Tables
t;rivate, 24, 162, 187, 243, 316
diviisionEi 35b seq.
see Commercium, Connubium, Factio, Testamenti
Bt, 16Y, :US
quiritaria.n: see Jus Civile
'±05¥8&1 ut 137
i~umail,
civil, 42, 148
eJ'({']y{' 1 131£
fate in the East, 305
fat,; in th'" We;t, 306 idi'iq.
revival tlur£i'Y''• 30t £ieq.
sacred, 24, 135
f'l'"r~es 2fBt
study of, 163 aeq., 304
of, sea-
:LAWYERS: see Jurists
LEASE,
500 ES<rr,nhVhill
quinquennial, 52
SEGACIES, 137
:LEGAS'I
LEGES,
xn. tahslarum : TWiiL¥e 'fvbles
regim, 10, 12
dilleriJ0,, 103
sa.cne,
500
 INDEX

TORT, 71 •eq., 132

TOWNS,
free, 189
;Bsllied, 189
TRADITIO, 388
TREASON,
punishrl'lAsnt 51, 72, 77
TREBONIUS, LUCIUS, 151
TRIALS, 127
l'lf>joUU;Bs~ent 1L7
before centUriat&, 144
nccw, seq,
preliminary proceedings in, 126, 145
TRIOt~S. 14~+, 157
!l!l7&n, 157
rural, 85, 157
LRIBsJNES,
urllitar,y,99, 156,178,181
the slebs, 108, 141, 148 £%£?q.
number increaaed, lS1
TRINOCTIUM, 91, 130, 138
TRILTRTlTA,
TRIUMVIRI, 188
TUTt:LA, 37tlseq,
excuses from, 366
impuberum, 32, 362
mulierum, 29, :~2, 129, 761
powers and duties of, 364 1eq.
t,;umiuuted,
TUTOR,365
uumoval of, 134, 367
TWELVE TABI,:~S, •esz,
burial laws of, 9
'!haractACu ot 1:~7
copies made of, 9, 10
forcciA!'·'ers, 48
u!igin BJ
reconstruction of, 124
t:~!J5Ue!lc!u of, s,q,
·sources of, 123
tul'lt of, l26

u
ULt'IANUS;!DOM'ITLhNUS, 23,
URBS, 42
511
 INDEX

USUCAPIO, 136, 175, 390 aeq.

title ot jus civile, 148, 187
USURY, 1:H
usus, 91
UTILITAS PUBLICA, 203

V
jWSR!US, 3Cm8
VADES, 127
VALENTr.NIAN,
RE%;W£3 of ziit<t.tion of, 219
VALERIUS, 1£6
VARUS, ALFENUS, 1M
VECTIGAL, 204
EEH, wz,r ¥TitS, U.6
VENGEANCE, private: 1!00 Se6-reJre±'cS
VETO, 141
ol tribunes, 98, 108, 115, 180
ACNDEX, 126
VIRGINS, Ve,tal, 129
VISIGOTHS, Kingdom of, 306
log¥! code of, 306
SOCATIO IN JIJS se'' Szsmmonts
VOTING,
by the Servian reforms, 79
in oon±,?n, 150
in o'tsmitia oont,urizzt,, 83, lf¥1
in comitia curiata, 34
in comitia tributa, 155, 193
in t±<mzzt"', dO
e,ee Ju57 suliragii

w
WAGES: see Sacramentum
WAl~.
!'s&n,stiosred by cusiatn, 3ii
summons to, 84
WEALGI:I, 57, 68
WEIGHTt~ AND ME.Af>UitES,
supervision of, liit£
WIDOW,
llUCces.rion of, 68
WlliE,
status of, 31 4Fe,q.
512