CHAPTER XI

Law and Justice

Modern Character of Italian Culture

History, as such, cannot reproduce the life of a people in the

infinite variety of its details; it must be content with exhibiting

the development of that life as a whole. The doings and dealings,

the thoughts and imaginings of the individual, however strongly

they may reflect the characteristics of the national mind, form

no part of history. Nevertheless it seems necessary to make some

attempt to indicate--only in the most general outlines--the features

of individual life in the case of those earlier ages which are,

so far as history is concerned, all but lost in oblivion; for it

is in this field of research alone that we acquire some idea of

the breadth of the gulf which separates our modes of thinking and

feeling from those of the civilized nations of antiquity. Tradition,

with its confused mass of national names and its dim legends,

resembles withered leaves which with difficulty we recognize to

have once been green. Instead of threading that dreary maze and

attempting to classify those shreds of humanity, the Chones and

Oenotrians, the Siculi and the Pelasgi, it will be more to the

purpose to inquire how the real life of the people in ancient Italy

expressed itself in their law, and their ideal life in religion;

how they farmed and how they traded; and whence the several nations

derived the art of writing and other elements of culture. Scanty

as our knowledge in this respect is in reference to the Roman people

and still more so in reference to the Sabellians and Etruscans,

even the slight and very defective information which is attainable

will enable the mind to associate with these names some more or

less clear glimpse of the once living reality. The chief result of

such a view (as we may here mention by way of anticipation) may be

summed up in saying that fewer traces comparatively of the primitive

state of things have been preserved in the case of the Italians,

and of the Romans in particular, than in the case of any other

Indo-Germanic race. The bow and arrow, the war-chariot, the incapacity

of women to hold property, the acquiring of wives by purchase,

the primitive form of burial, blood-revenge, the clan-constitution

conflicting with the authority of the community, a vivid natural

symbolism --all these, and numerous phenomena of a kindred character,

must be presumed to have lain at the foundation of civilization in

Italy as well as elsewhere; but at the epoch when that civilization

comes clearly into view they have already wholly disappeared, and

only the comparison of kindred races informs us that such things

once existed. In this respect Italian history begins at a far

later stage of civilization than e.g. the Greek or the Germanic,

and from the first it exhibits a comparatively modern character.

The laws of most of the Italian stocks are lost in oblivion. Some

information regarding the law of the Latin land alone has survived

in Roman tradition.

Jurisdiction

All jurisdiction was vested in the community or, in other words,

in the king, who administered justice or "command" (-ius-) on

the "days of utterance" (-dies fasti-) at the "judgment platform"

(-tribunal-) in the place of public assembly, sitting on the

"chariot-seat" (-sella curulis-);(1) by his side stood his "messengers"

(-lictores-), and before him the person accused or the "parties"

(-rei-). No doubt in the case of slaves the decision lay primarily

with the master, and in the case of women with the father, husband,

or nearest male relative;(2) but slaves and women were not primarily

reckoned as members of the community. Over sons and grandsons who

were -in potestate- the power of the -pater familias- subsisted

concurrently with the royal jurisdiction; that power, however,

was not a jurisdiction in the proper sense of the term, but simply

a consequence of the father's inherent right of property in his

children. We find no traces of any jurisdiction appertaining to

the clans as such, or of any judicature at all that did not derive

its authority from the king. As regards the right of self-redress

and in particular the avenging of blood, we still find perhaps in

legends an echo of the original principle that a murderer, or any

one who should illegally protect a murderer, might justifiably be

slain by the kinsmen of the person murdered; but these very legends

characterize this principle as objectionable,(3) and from their

statements blood-revenge would appear to have been very early

suppressed in Rome through the energetic assertion of the authority

of the community. In like manner we perceive in the earliest Roman

law no trace of that influence which under the oldest Germanic

institutions the comrades of the accused and the people present

were entitled to exercise over the pronouncing of judgment; nor

do we find in the former any evidence of the usage so frequent in

the latter, by which the mere will and power to maintain a claim

with arms in hand were treated as judicially necessary or at any

rate admissible.

Crimes

Judicial procedure took the form of a public or a private process,

according as the king interposed of his own motion or only when

appealed to by the injured party. The former course was taken

only in cases which involved a breach of the public peace. First

of all, therefore, it was applicable in the case of public treason

or communion with the public enemy (-proditio-), and in that of

violent rebellion against the magistracy (-perduellio-). But the

public peace was also broken by the foul murderer (-parricida-),

the sodomite, the violator of a maiden's or matron's chastity, the

incendiary, the false witness, by those, moreover, who with evil

spells conjured away the harvest, or who without due title cut

the corn by night in the field entrusted to the protection of the

gods and of the people; all of these were therefore dealt with as

though they had been guilty of high treason. The king opened and

conducted the process, and pronounced sentence after conferring with

the senators whom he had called in to advise with him. He was at

liberty, however, after he had initiated the process, to commit

the further handling and the adjudication of the matter to deputies

who were, as a rule, taken from the senate. The later extraordinary

deputies, the two men for adjudicating on rebellion (-duoviri

perduellionis-) and the later standing deputies the "trackers of

murder" (-quaestores parricidii-) whose primary duty was to search

out and arrest murderers, and who therefore exercised in some

measure police functions, do not belong to the regal period, but may

probably have sprung out of, or been suggested by, certain of its

institutions. Imprisonment while the case was undergoing investigation

was the rule; the accused might, however, be released on bail.

Torture to compel confession was only applied to slaves. Every one

convicted of having broken the public peace expiated his offence with

his life. The modes of inflicting capital punishment were various:

the false witness, for example, was hurled from the stronghold-rock;

the harvest-thief was hanged; the incendiary was burnt. The king

could not grant pardon, for that power was vested in the community

alone; but the king might grant or refuse to the condemned permission

to appeal for mercy (-provocatio-). In addition to this, the law

recognized an intervention of the gods in favour of the condemned

criminal. He who had made a genuflection before the priest of

Jupiter might not be scourged on the same day; any one under fetters

who set foot in his house had to be released from his bonds; and

the life of a criminal was spared, if on his way to execution he

accidentally met one of the sacred virgins of Vesta.

Punishment of Offenses against Order

The king inflicted at his discretion fines payable to the state for

trespasses against order and for police offences; they consisted

in a definite number (hence the name -multa-) of cattle or sheep.

It was in his power also to pronounce sentence of scourging.

Law of Private Offenses

In all other cases, where the individual alone was injured and

not the public peace, the state only interposed upon the appeal of

the party injured, who caused his opponent, or in case of need by

laying violent hands on him compelled him, to appear personally along

with himself before the king. When both parties had appeared and

the plaintiff had orally stated his demand, while the defendant had

in similar fashion refused to comply with it, the king might either

investigate the cause himself or have it disposed of by a deputy

acting in his name. The regular form of satisfaction for such an

injury was a compromise arranged between the injurer and the injured;

the state only interfered supplementarily, when the aggressor did

not satisfy the party aggrieved by an adequate expiation (-poena-),

when any one had his property detained or his just demand was not

fulfilled.

Theft

Under what circumstances during this epoch theft was regarded as

at all expiable, and what in such an event the person injured was

entitled to demand from the thief, cannot be ascertained. But

the injured party with reason demanded heavier compensation from

a thief caught in the very act than from one detected afterwards,

since the feeling of exasperation which had to be appeased was more

vehement in the case of the former than in that of the latter. If

the theft appeared incapable of expiation, or if the thief was not

in a position to pay the value demanded by the injured party and

approved by the judge, he was by the judge assigned as a bondsman

to the person from whom he had stolen.

Injuries

In cases of damage (-iniuria-) to person or to property, where the

injury was not of a very serious description, the aggrieved party

was probably obliged unconditionally to accept compensation; if,

on the other hand, any member was lost in consequence of it, the

maimed person could demand eye for eye and tooth for tooth.

Property

Since the arable land among the Romans was long cultivated upon

the system of joint possession and was not distributed until a

comparatively late age, the idea of property was primarily associated

not with immoveable estate, but with "estate in slaves and cattle"

(-familia pecuniaque-). It was not the right of the stronger that

was regarded as the foundation of a title to it; on the contrary,

all property was considered as conferred by the community upon the

individual burgess for his exclusive possession and use; and therefore

it was only the burgess, and such as the community accounted in

this respect as equal to burgesses, that were capable of holding

property. All property passed freely from hand to hand. The Roman

law made no substantial distinction between moveable and immoveable

estate (from the time that the latter was regarded as private

property at all), and recognized no absolute vested interest of

children or other relatives in the paternal or family property.

Nevertheless it was not in the power of the father arbitrarily

to deprive his children of their right of inheritance, because he

could neither dissolve the paternal power nor execute a testament

except with consent of the whole community, which might be, and

certainly under such circumstances often was, refused. In his

lifetime no doubt the father might make dispositions disadvantageous

to his children; for the law was sparing of personal restrictions

on the proprietor and allowed, upon the whole, every grown-up

man freely to dispose of his property. The regulation, however,

under which he who alienated his hereditary property and deprived

his children of it was placed by order of the magistrate under

guardianship like a lunatic, was probably as ancient as the period

when the arable land was first divided and thereby private property

generally acquired greater importance for the commonwealth. In

this way the two antagonistic principles--the unlimited right of

the owner to dispose of his own, and the preservation of the family

property unbroken--were as far as possible harmonized in the Roman

law. Permanent restrictions on property were in no case allowed,

with the exception of servitudes such as those indispensable in

husbandry. Heritable leases and ground-rents charged upon property

could not legally exist. The law as little recognized mortgaging;

but the same purpose was served by the immediate delivery of the

property in pledge to the creditor as if he were its purchaser,

who thereupon gave his word of honour (-fiducia-) that he would not

alienate the object pledged until the payment fell due, and would

restore it to his debtor when the sum advanced had been repaid.

Contracts

Contracts concluded between the state and a burgess, particularly

the obligation given by those who became sureties for a payment

to the state (-praevides-, -praedes-), were valid without further

formality. On the other hand, contracts between private persons

under ordinary circumstances gave no claim for legal aid on the

part of the state. The only protection of the creditor was the

debtor's word of honour which was held in high esteem after the

wont of merchants, and possibly also, in those frequent cases where

an oath had been added, the fear of the gods who avenged perjury.

The only contracts legally actionable were those of betrothal (the

effect of which was that the father, in the event of his failing

to give the promised bride, had to furnish satisfaction and

compensation), of purchase (-mancipatio-), and of loan (-nexum-).

A purchase was held to be legally concluded when the seller delivered

the article purchased into the hand of the buyer (-mancipare-) and

the buyer at the same time paid to the seller the stipulated price

in presence of witnesses. This was done, after copper superseded

sheep and cattle as the regular standard of value, by weighing out

the stipulated quantity of copper in a balance adjusted by a neutral

person.(4) These conditions having been complied with, the seller

had to answer for his being the owner, and in addition seller and

purchaser had to fulfil every stipulation specially agreed on; the

party failing to do so made reparation to the other, just as if he

had deprived him of the article in question. But a purchase only

founded an action in the event of its being a transaction for

ready money: a purchase on credit neither gave nor took away the

right of property, and constituted no ground of action. A loan

was negotiated in a similar way; the creditor weighed over to the

debtor in presence of witnesses the stipulated quantity of copper

under the obligation (-nexum-) of repayment. In addition to

the capital the debtor had to pay interest, which under ordinary

circumstances probably amounted to ten per cent per annum.(5) The

repayment of the loan took place, when the time came, with similar

forms.

Private Process

If a debtor to the state did not fulfil his obligations, he was

without further ceremony sold with all that he had; the simple

demand on the part of the state was sufficient to establish the

debt. If on the other hand a private person informed the king of

any violation of his property (-vindiciae-) or if repayment of the

loan received did not duly take place, the procedure depended on

whether the facts relating to the cause needed to be established,

which was ordinarily the case with actions as to property, or were

already clearly apparent, which in the case of actions as to loans

could easily be accomplished according to the current rules of law

by means of the witnesses. The establishment of the facts assumed

the form of a wager, in which each party made a deposit (-sacramentum-)

against the contingency of his being worsted; in important causes

when the value involved was greater than ten oxen, a deposit of

five oxen, in causes of less amount, a deposit of five sheep. The

judge then decided who had gained the wager, whereupon the deposit

of the losing party fell to the priests for behoof of the public

sacrifices. The party who lost the wager and allowed thirty days

to elapse without giving due satisfaction to his opponent, and the

party whose obligation to pay was established from the first--consequently,

as a rule, the debtor who had got a loan and had not witnesses to

attest its repayment--became liable to proceedings in execution

"by laying on of hands" (-manus iniectio-); the plaintiff seized

him wherever he found him, and brought him to the bar of the judge

simply to satisfy the acknowledged debt. The party seized was not

allowed to defend himself; a third person might indeed intercede for

him and represent this act of violence as unwarranted (-vindex-),

in which case the proceedings were stayed; but such an intercession

rendered the intercessor personally responsible, for which reason

the proletarian could not be intercessor for the tribute-paying

burgess. If neither satisfaction nor intercession took place, the

king adjudged the party seized to his creditor, so that the latter

could lead him away and keep him like a slave. After the expiry

of sixty days during which the debtor had been three times exposed

in the market-place and proclamation had been made to ascertain

whether any one would have compassion upon him, if these steps were

without effect, his creditors had the right to put him to death

and to divide his carcase, or to sell him with his children and his

effects into foreign slavery, or to keep him at home in a slave's

stead; for such an one could not by the Roman law, so long as he

remained within the bounds of the Roman community, become completely

a slave.(6) Thus the Roman community protected every man's estate

and effects with unrelenting rigour as well from the thief and

the injurer, as from the unauthorized possessor and the insolvent

debtor.

Guardianship

Protection was in like manner provided for the estate of persons

not capable of bearing arms and therefore not capable of protecting

their own property, such as minors and lunatics, and above all

for that of women; in these cases the nearest heirs were called to

undertake the guardianship.

Law of Inheritance

After a man's death his property fell to the nearest heirs: in the

division all who were equal in proximity of relationship--women

included--shared alike, and the widow along with her children was

admitted to her proportional share. A dispensation from the legal

order of succession could only be granted by the assembly of the

people; previous to which the consent of the priests had to be

obtained on account of the ritual obligations attaching to succession.

Such dispensations appear nevertheless to have become at an early

period very frequent. In the event of a dispensation not being

procured, the want of it might be in some measure remedied by

means of the completely free control which every one had over his

property during his lifetime. His whole property was transferred

to a friend, who distributed it after death according to the wishes

of the deceased.

Manumission

Manumission was unknown to the law of very early times. The owner

might indeed refrain from exercising his proprietary rights; but

this did not cancel the existing impossibility of master and slave

coming under mutual obligations; still less did it enable the slave

to acquire, in relation to the community, the rights of a guest

or of a burgess. Accordingly manumission must have been at first

simply -de facto-, not -de jure-; and the master cannot have been

debarred from the possibility of again at pleasure treating the

freedman as a slave. But there was a departure from this principle

in cases where the master came under obligation not merely towards

the slave, but towards the community, to leave him in possession

of freedom. There was no special legal form, however, for thus

binding the master--the best proof that there was at first no

such thing as a manumission,--but those methods were employed for

this object which the law otherwise presented, testament, action,

or census. If the master had either declared his slave free when

executing his last will in the assembly of the people, or had allowed

his slave to claim freedom in his own presence before a judge or

to get his name inscribed in the valuation-roll, the freedman was

regarded not indeed as a burgess, but as personally free in relation

to his former master and his heirs, and was accordingly looked upon

at first as a client, and in later times as a plebeian.(7)

The emancipation of a son encountered greater difficulties than

that of a slave; for while the relation of master to slave was

accidental and therefore capable of being dissolved at will, the

father could never cease to be father. Accordingly in later times

the son was obliged, in order to get free from the father, first

to enter into slavery and then to be set free out of this latter

state; but in the period now before us no emancipation of sons can

have as yet existed.

Clients and Foreigners

Such were the laws under which burgesses and clients lived in Rome.

Between these two classes, so far as we can see, there subsisted from

the beginning complete equality of private rights. The foreigner

on the other hand, if he had not submitted to a Roman patron and thus

lived as a client, was beyond the pale of the law both in person

and in property. Whatever the Roman burgess took from him was

as rightfully acquired as was the shellfish, belonging to nobody,

which was picked up by the sea-shore; but in the case of ground

lying beyond the Roman bounds, while the Roman burgess might take

practical possession, he could not be regarded as in a legal sense

its proprietor; for the individual burgess was not entitled to

advance the bounds of the community. The case was different in

war: whatever the soldier who was fighting in the ranks of the levy

gained, whether moveable or immoveable property, fell not to him,

but to the state, and accordingly here too it depended upon the

state whether it would advance or contract its bounds.

Exceptions from these general rules were created by special

state-treaties, which secured certain rights to the members of

foreign communities within the Roman state. In particular, the

perpetual league between Rome and Latium declared all contracts

between Romans and Latins to be valid in law, and at the same time

instituted in their case an accelerated civil process before sworn

"recoverers" (-reciperatores-). As, contrary to Roman usage,

which in other instances committed the decision to a single judge,

these always sat in plural number and that number uneven, they are

probably to be conceived as a court for the cognizance of commercial

dealings, composed of arbiters from both nations and an umpire.

They sat in judgment at the place where the contract was entered

into, and were obliged to have the process terminated at latest

in ten days. The forms, under which the dealings between Romans

and Latins were conducted, were of course the general forms which

regulated the mutual dealings of patricians and plebeians; for

the -mancipatio- and the -nexum- were originally not at all formal

acts, but the significant expression of legal ideas which held a

sway at least as extensive as the range of the Latin language.

Dealings with countries strictly foreign were carried on in a

different fashion and by means of other forms. In very early times

treaties as to commerce and legal redress must have been entered

into with the Caerites and other friendly peoples, and must have

formed the basis of the international private law (-ius gentium-),

which gradually became developed in Rome alongside of the law of

the land. An indication of the formation of such a law is found

in the remarkable -mutuum-, "the exchange" (from -mutare- like

-dividuus-)--a form of loan, which was not based like the -nexum-

upon a binding declaration of the debtor expressly emitted before

witnesses, but upon the mere transit of the money from one hand

to another, and which as evidently originated in dealings with

foreigners as the -nexum- in business dealings at home. It is

accordingly a significant fact that the word reappears in Sicilian

Greek as --moiton--; and with this is to be connected the reappearance

of the Latin -carcer- in the Sicilian --karkaron--. Since it is

philologically certain that both words were originally Latin, their

occurrence in the local dialect of Sicily becomes an important

testimony to the frequency of the dealings of Latin traders in

the island, which led to their borrowing money there and becoming

liable to that imprisonment for debt, which was everywhere in the

earlier systems of law the consequence of the non-repayment of a

loan. Conversely, the name of the Syracusan prison, "stone-quarries"

or --latomiai--, was transferred at an early period to the enlarged

Roman state-prison, the -lautumiae-.

Character of the Roman Law

We have derived our outline of these institutions mainly from

the earliest record of the Roman common law prepared about half a

century after the abolition of the monarchy; and their existence in

the regal period, while doubtful perhaps as to particular points of

detail, cannot be doubted in the main. Surveying them as a whole,

we recognize the law of a far-advanced agricultural and mercantile

city, marked alike by its liberality and its consistency. In

its case the conventional language of symbols, such as e. g. the

Germanic laws exhibit, has already quite disappeared. There is no

doubt that such a symbolic language must have existed at one time

among the Italians. Remarkable instances of it are to be found in

the form of searching a house, wherein the searcher must, according

to the Roman as well as the Germanic custom, appear without upper

garment merely in his shirt; and especially in the primitive

Latin formula for declaring war, in which we meet with two symbols

occurring at least also among the Celts and the Germans--the "pure

herb" (-herba pura-, Franconian -chrene chruda-) as a symbol of

the native soil, and the singed bloody staff as a sign of commencing

war. But with a few exceptions, in which reasons of religion

protected the ancient usages--to which class the -confarreatio-

as well as the declaration of war by the college of Fetiales

belonged--the Roman law, as we know it, uniformly and on principle

rejects the symbol, and requires in all cases neither more nor

less than the full and pure expression of will. The delivery of an

article, the summons to bear witness, the conclusion of marriage,

were complete as soon as the parties had in an intelligible manner

declared their purpose; it was usual, indeed, to deliver the article

into the hand of the new owner, to pull the person summoned as

a witness by the ear, to veil the bride's head and to lead her in

solemn procession to her husband's house; but all these primitive

practices were already, under the oldest national law of the

Romans, customs legally worthless. In a way entirely analogous to

the setting aside of allegory and along with it of 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 contends with the authority of

the smaller associations of clans or cantons that are merged in

it, is in Roman law wholly superseded; there is no alliance for the

vindication of rights within the state, to supplement the state's

imperfect aid, by mutual offence and defence; nor is there any

serious trace of vengeance for bloodshed, or of the family property

restricting the individual's 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 transcended. The clan and the family doubtless 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 freedom which the state granted

and guaranteed to the burgess. The ultimate foundation of law was

in all cases the state; freedom was simply another expression for

the right of citizenship in its widest sense; all property was

based on express or tacit transference by 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

judgment 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 most, with the loss of

freedom. The greatest liberality in the permission of commerce and

the most rigorous procedure in execution went hand in hand; just

as in commercial states at the present day the universal right to

draw bills of exchange appears in conjunction with a strict procedure

in regard to them. The burgess and the client stood in their

dealings on a footing of entire equality; state-treaties conceded

a comprehensive equality of rights also to the guest; women were

placed completely on a level in point of legal capacity with men,

although restricted in action; the boy had scarcely grown up when

he received at once the most comprehensive powers in the disposal

of his estate, and every one who could dispose at all was as

sovereign in his own sphere as was the state in public affairs. A

feature eminently characteristic was the system of credit. There

did not exist any credit on landed security, but instead of a debt

on mortgage the step which constitutes at present the final stage

in mortgage-procedure --the delivery of the property from the debtor

to the creditor--took place at once. On the other hand personal

credit was guaranteed in the most summary, not to say extravagant

fashion; for the lawgiver entitled the creditor to treat his insolvent

debtor like a thief, and granted to him in entire legislative earnest

what Shylock, half in jest, stipulated for from his mortal enemy,

guarding indeed by special clauses the point as to the cutting off

too much more carefully than did the Jew. The law could not have

more clearly expressed its design, which was to establish at once

an independent agriculture free of debt and a mercantile credit,

and to suppress with stringent energy all merely nominal ownership

and all breaches of fidelity. If we further take into consideration

the right of settlement recognized at an early date as belonging

to all the Latins,(8) and the validity which was likewise early

pronounced to belong to civil marriage,(9) we shall perceive that

this state, which made the highest demands on its burgesses and

carried the idea of subordinating the individual to the interest of

the whole further than any state before or since has done, only did

and only could do so by itself removing the barriers to intercourse

and unshackling liberty quite as much as it subjected it to

restriction. In permission or in prohibition the law was always

absolute. As the foreigner who had none to intercede for him was

like the hunted deer, so the guest was on a footing of equality

with the burgess. A contract did not ordinarily furnish a ground

of action, but where the right of the creditor was acknowledged,

it was so all-powerful that there was no deliverance for the poor

debtor, and no humane or equitable consideration was shown towards

him. It seemed as if the law found a pleasure in presenting on all

sides its sharpest spikes, in drawing the most extreme consequences,

in forcibly obtruding on the bluntest understanding the tyrannic

nature of the idea of right. The poetical form and the genial

symbolism, which so pleasingly prevail in the Germanic legal

ordinances, were foreign to the Roman; in his law all was clear and

precise; no symbol was employed, no institution was superfluous.

It was not cruel; everything necessary was performed without much

ceremony, even the punishment of death; that a free man could not

be tortured was a primitive maxim of Roman law, to obtain which

other peoples have had to struggle for thousands of years. Yet this

law was frightful in its inexorable severity, which we cannot suppose

to have been very greatly mitigated by humanity in practice, for

it was really the law of the people; more terrible than Venetian

-piombi- and chambers of torture was that series of living entombments

which the poor man saw yawning before him in the debtors' towers

of the rich. But the greatness of Rome was involved in, and was

based upon, the fact that the Roman people ordained for itself and

endured a system of law, in which the eternal principles of freedom

and of subordination, of property and of legal redress, reigned

and still at the present day reign unadulterated and unmodified.

Notes for Book I Chapter XI

1. This "chariot-seat"--philologically no other explanation can

well be given (comp. Servius ad Aen. i. 16)--is most simply explained

by supposing that the king alone was entitled to ride in a chariot

within the city (v. The King)--whence originated the privilege

subsequently accorded to the chief magistrate on solemn occasions--and

that originally, so long as there was no elevated tribunal, he

gave judgment, at the comitium or wherever else he wished, from

the chariot-seat.

2. I. V. The Housefather and His Household

3. The story of the death of king Tatius, as given by Plutarch

(Rom. 23, 24), viz. that kinsmen of Tatius had killed envoys from

Laurentum; that Tatius had refused the complaint of the kinsmen

of the slain for redress; that they then put Tatius to death; that

Romulus acquitted the murderers of Tatius, on the ground that murder

had been expiated by murder; but that, in consequence of the penal

judgments of the gods that simultaneously fell upon Rome and

Laurentum, the perpetrators of both murders were in the sequel

subjected to righteous punishment--this story looks quite like a

historical version of the abolition of blood-revenge, just as the

introduction of the -provocatio- lies at the foundation of the myth

of the Horatii. The versions of the same story that occur elsewhere

certainly present considerable variations, but they seem to be

confused or dressed up.

4. The -mancipatio- in its developed form must have been more recent

than the Servian reform, as the selection of mancipable objects,

which had for its aim the fixing of agricultural property, shows,

and as even tradition must have assumed, for it makes Servius the

inventor of the balance. But in its origin the -mancipatio- must

be far more ancient; for it primarily applies only to objects which

are acquired by grasping with the hand, and must therefore in its

earliest form have belonged to the epoch when property consisted

essentially in slaves and cattle (-familia pecuniaque-). The enumeration

of those objects which had to be acquired by -mancipatio-, falls

accordingly to be ranked as a Servian innovation; the -mancipatio-

itself, and consequently the use also of the balance and of copper,

are older. Beyond doubt -mancipatio- was originally the universal

form of purchase, and occurred in the case of all articles even

after the Servian reform; it was only a misunderstanding of later

ages which put upon the rule, that certain articles had to be

transferred by -mancipatio-, the construction that these articles

only and no others could be so transferred.

5. Viz. for the year of ten months one twelfth part of the capital

(-uncia-), which amounts to 8 1/3 per cent for the year of ten,

and 10 per cent for the fear of twelve, months.

6. I. VII. Relation of Rome to Latium

7. I. VI. Dependents and Guests.

8. I. VII. Relation of Rome to Latium

9. I. VI. Class of --Metoeci-- Subsisting by the Side of the

Community

The History of Rome (Volumes 1-5) · 第 11 / 54 章