and the index. The tenth and last volume was issued in 1861.
After Romanin's death his lectures on Venetian history were published in two volumes (Florence, 1875). Among his minor works we may mention: Gli Inquisitori di Stato di Venezia (Venice, 1858), Bajamonte Tiepolo e le sue ultime vicende (Venice, 1851), and Venezia nel 1789 (Venice, 1860).
ROMAN LAW.[1] The term “Roman law” is indefinite and ambiguous, being used in more than one sense. First, in a wide sense, it comprehends the totality of the laws of the Roman state, which were observed by its subjects during about thirteen centuries, from Romulus to Justinian. In a second and stricter meaning it indicates the law as consolidated by Justinian or, in other words, the law contained in the Corpus Juris Civilis, which is the name that has been given since the 16th century to Justinian's legislative works as a whole, and distinguishes them from the Corpus Juris Canonici. In this acceptation it is equivalent to, and is often called, “civil law” as contrasted with canon law. In a third and loose sense Roman law embraces, in addition to the Corpus Juris, the interpretations of it after Justinian by medieval and modern courts, jurists and commentators adapting it to the customs and laws of their own countries and times. The German expression, for example, modernes (or heutiges) römisches Recht, indicates the Roman law as it was applied in Germany in modern times. Such medieval and modern interpretation, however, is also sometimes expressed, in English usage at least, by the term “civil law” as contrasted with native or common law; writers in this field being usually styled civilians rather than Romanists. It is to the Roman law in the first of the above-mentioned three significations that the present article is devoted.
To give a proper sketch of Roman law it must be treated historically. Nearly all systems of positive law are the product Necessity for historic treatment. more or less of an historic development, but the Roman has this great advantage over other systems, that it was at all times a homogeneous body complete in itself. For the Romans were comparatively little indebted to other peoples for their jurisprudence, and, when they did borrow legal ideas and institutions from others, they generally transformed or modified these in adapting them to their own native system, so that they became substantially Roman. Moreover, the various stages of progress of the law from its genesis to its maturity and ultimate consolidation can be traced in unbroken continuity. Beginning in 753 B.C., the traditionally accepted date of the foundation of Rome, it continued its course till the death of Justinian in A.D. 565. Allowing for the first three centuries being without historic evidence, we have at least an authenticated evolution of about 1000 years. Of no other system of law, ancient or modern, can anything like the same thing be said.
As to the proper method of historic treatment there have been different opinions. Without going into these, it is enough to say that the subject may be treated from two sides, viz. on the one side in relation to the external sources of the law, including therein the political and social conditions and the various constitutional changes at different periods affecting the development of the law, as well as the modes in which the law manifested itself and the legal literature from which our knowledge of it is derived; on the other side it may be treated in relation to the several departments or institutions of the law in view of their development or changes through time or circumstance, such as marriage, slavery, property, and so forth. This corresponds to what Leibnitz described as external and internal history respectively, terms which are now rather out of vogue. Of course it is possible to treat the historic sources of the law, constitutional and literary, independently of the doctrines, and this is now often done; but unless both are discussed the field of Roman law is not covered. Both the external and the internal history, however, may be treated together or in a measure interwoven, and it is in this way that the subject is treated in the following pages. But constitutional events affecting the law are only noticed very summarily, details about these being given in separate articles.
Modern writers on the history of the Roman law have as a rule, for the purpose of systematic treatment, divided the Division into historic epochs. subject into definite historic periods. Gibbon, in the 44th chapter of his Decline and Fall of the Roman Empire, seems to have been the first to suggest this mode of treatment, though the particular periods of division he selected (being based on an artificial symmetry of about three hundred years each) are not satisfactory.[2] In the present article, the division made by Muirhead in his article in the 9th edition of this Encyclopaedia into five historic epochs has been left unaltered. These are: (1) the regal period; (2) the jus civile, representing the period from the establishment of the Republic until the subjugation of central and southern Italy; (3) the jus gentium and jus honorarium, representing the latter half of the Republic; (4) the jus naturale and maturity of Roman jurisprudence, representing the period of the Empire until the beginning of the reign of Diocletian; (5) the period of codification, i.e. from Diocletian to Justinian. Not that there is any sharp or fundamental division between these or, indeed, between any historic epochs. The law is a unity: it has its roots in the past and grows with the nation itself, and, like it, decays; there is no break in its continuity. The division is made merely for convenient treatment of the subject.
It must be kept in view that our knowledge of Roman customs and laws earlier than the XII. Tables and even for some time after them cannot be based on strict historical evidence; it is almost entirely traditional and conjectural, and different writers will take different views according to the relative value they place upon this or that piece of presumptive evidence.
It is only the private law that is dealt with in the present article.
I. The Regal Period
i. The People and the Law.
The Beginnings of the State.—The early Romans were not different from other Indo-European communities in their essential characteristics. The tribe, the clan, the family, the individual: each of these appears in course of development prior to the XII. Tables. Putting aside much of the traditional accounts of Livy, Dionysius, and other ancient historians, regarding the foundation of Rome and its early political and social life, as mythical, modern critical historians are none the less agreed that in the earliest period of their existence as a settled community the Romans were subjected to the government of a king (rex), with a council of elders (senatus) and an assembly of burghers (comitia curiata).
It used to be a somewhat common opinion that the primitive Romans were a sort of amalgam of three different races—Latin, Sabine and Etruscan. This opinion is mainly based upon the tradition that the state was originally formed by a union of three tribes called Ramnes, Tities and Luceres; the Ramnes being of the Latin race, the Tities of the Sabine and the Luceres of the Etruscan. Attempts have even been made to find in the Roman laws and institutions traces of the influence of each of these races, and especially of the first two—patria potestas and manus, for example, being attributed to the Latin or dominant race; adoption and confarreation to the Sabine; forms and ceremonial (such as lictors, fasces, &c.) to the Etruscan.[3] But this attractive theory of a union of three races, apart from the suspicion of a symbolic trichotomy (tres tribus) due to later times, is based on no substantial evidence;[4] many of the
- ↑ This article represents a recast of the article contributed to the 9th edition of the Encyclopaedia by the late Professor Muirhead. A large part of that article has been retained by the present writer, and the plan of arrangement, though altered in some respects, has been adhered to in the main.
- ↑ See as to historic epochs Muirhead, Hist. Introd. to the Law of Rome (2nd ed. by Goudy, 1899), p. 421.
- ↑ See Muirhead, Historical Introduction (2nd ed., 1899), pp. 3-5, and authorities there cited.
- ↑ Some writers deny the existence of the tribes altogether, but this goes too far. See Bruns-Lenel in Holtzendorff's Encyklopädie d. Rechtswissenschaft, i. p. 86n.
