It may safely be assumed that by custom at all events the children of a plebeian usually took his estate on his death Succession amongst the plebeians. intestate. But, as he was not a member of a gens, there was no provision for the devolution of his succession on failure of children. The want of them he could not supply by adrogation, as he had for long, it is thought, no access to the assembly of the curies; and it is doubtful if adoption of a filiusfamilias was known before the XII. Tables. If therefore, as seems probable, the XII. Tables first introduced the succession of agnates, a plebeian unsurvived by children was necessarily heirless, that is to say, heirless in law. But custom seems to have looked without disfavour on the appropriation of his heredium by an outsider: a brother or other near kinsman would naturally have the earliest opportunity, and, if he maintained his possession of it in the character of heir for a reasonable period, fixed by the XII. Tables at a year, the law dealt with him as heir, and in course of time the pontiffs imposed upon him the duty of maintaining the family sacra. This was probably the origin, and a very innocent and laudable one, of the usucapio pro herede, which Gaius condemns as an infamous institution, and which undoubtedly lost some of its raison d'être once the right of succession of agnates had been introduced.
There is no trace of testamentary succession among the plebs prior to the Servian constitution, nor is it in the least Mortis causa conveyance by mancipation. degree likely that there was any such. Primitive communities are slow to realize the conception of private testaments, and the plebeians could not at this period make a public one either calatis comitiis or in procinctu. But not long after their admission to citizenship there is reason to conjecture that mancipation was employed by them, not indeed to make a testament instituting an heir and taking effect only on the testator's death, but to make a conveyance of a whole patrimony mortis causa. The transaction took the form of an absolute acquisition, in exchange for a price (usually nominal), of the transferrer's familia,[1] by a friend, technically called familiae emptor, on trust to distribute, on the transferred's death and according to his instructions, whatever the transferee was not authorized to retain for himself. The transferred may also have had power to reserve in the emancipation a usufruct of the estate while he lived.[2] Like so many other of the transactions of the early law, it was legally unprotected so far as the third parties were concerned whom the transferred meant to benefit; they could only trust to the fides of the transferee. This mortis causa alienation, whatever the date of its introduction, was the forerunner of the so-called testament per aes et libram, to be afterwards described (infra, p. 543).
Contract and its Breach.—To speak of a law of obligations in connexion with the regal period, in the sense in which the Contract and its breach. words were understood in the later jurisprudence, would be a misapplication of language. It would be going too far to say, however, as is sometimes done, that before the time of Servius Rome had no conception of contract; for men must have bought and sold, or at least bartered, from earliest times—must have rented houses, hired labour, made loans, carried goods and been parties to a variety of other transactions inevitable amongst a people engaged to any extent in pastoral, agricultural or trading pursuits. It is true that a patrician family with a good establishment of clients and slaves had within itself ample machinery for supplying its ordinary wants, and was thus to a great extent independent of outside aid. But there were not many such families. There must therefore have been contracts and some customary rules to regulate them, though these were presumably very imperfect. In many cases, such as those alluded to, one of the parties at least must have trusted to the good faith of the other. What was his guarantee, and what remedy had he for breach of engagement?
His reliance in the first place was on the probity of the party with whom he was dealing—on the latter's reverence for Fides, and the dread he had of the disapprobation of his fellows should he prove false, and of the penalties, social, religious or pecuniary, that might consequently be imposed on him by his gens in the case of a patrician, by his gild in the case of a craftsman, or by the king in the case of any other plebeian.[3] If the party who had to rely on the other's good faith was not satisfied with his promise and the grasp of the right hand that was its seal,[4] he might require his solemn oath (jusjurandum); and it can hardly be doubted that, whatever may have been the case at a later period, in the time of the earlier kings he who forswore himself was amenable to pontifical discipline. If he preferred a more substantial guarantee, he took something in pledge or pawn from the other contractor; and, though he had no legal title to it, and so could not recover it by judicial process if he lost possession, yet so long as he retained it he had in his own hand a de facto means of enforcing performance. Upon performance he could be forced to return it or suffer a penalty—not by reason of obligation resulting from a contract of pledge, for the law as yet recognized none, but because, in retaining it after the purpose was served for which he had received it, he was committing theft and liable to its punishment. At this stage breach of contract, as such, does not seem to have founded any action for damages or reparation before the tribunals; but it is not improbable that, where actual loss had been sustained, the injured party was permitted to resort immediately to self-redress by seizure of the wrong-doer or his goods. Self-help was according to the spirit of the time—not self-defence merely in presence of imminent danger, but active measures for redress of wrongs already completed.
There was one contract, however, notorious in after years under the name of nexurn, that must have received legal sanction soon Contract “per aes et libram.” after the Servian reforms, though probably, like mancipation of property itself, known in practice earlier. In the XII. Tables it is apparently referred to as an existing institution. In its normal character it was a loan of money, rather of the raw copper that as yet was all that stood for money. How far in its original use it was accompanied by any formalities beyond the weighing of it in a pair of scales (which was rather substance than form) we know not; and what right it conferred on the creditor over his debtor who failed to repay can be only matter of speculation. Apparently the result of the Servian reforms was the regulating and ensuring the publicity of the contract and making the creditor's right of self-redress by apprehension (manus injectio) and imprisonment, &c., of his debtor conditional on the observance of the prescribed formalities of the nexum. The character and effects, however, of this the earliest independent contract of the jus civile, are much disputed and will be explained below on p. 545 seq.
Public and Private Offences and their Punishment.—For anything like a clear line of demarcation between crimes Offences and their punishment. and civil injuries we look in vain in regal Rome. Offences against the state itself, such as trafficking with an enemy for its overthrow (proditio) or treasonable practices at home (perduellio) were matter of state prosecution and punishment from the first. But in the case of those that primarily affected an individual or his estate there was a halting between, and to some extent a confusion of, the three systems of private vengeance, sacral
- ↑ The familia, as the collective name for a man's lands and mancipable appurtenances, became itself capable of mancipation. The conveyance was universal. There would be, it is thought, nothing discreditable in a man's conveying his heredium in this form.
- ↑ For a different view cf. Maine, Ancient Law, ed. Pollock, pp. 214 seq.
- ↑ Such as debarment from gentile or gild privileges, exclusion from right of burial in the gentile or gild sepulchre, fines in the form of cattle and sheep, &c.
- ↑ Some of the old writers (e.g. Liv. i. 21, § 4, xxiii. 9, § 3; Plin. H.N. xi. 45; Serv. in Aen. iii. 687) say that the seat of Fides was in the right hand, and that to give it (promittere dextram—is this the origin of the word “promise”?) in making an engagement was emphatically a pledge of faith. See a variety of texts illustrating the significance of the practice, and testifying to the regard paid to Fides before foreign influences and example had begun to corrupt men's probity and trustworthiness, in Lasaulx, Ueber d. Eid bei d. Römern (Würzburg, 1844), p. 5 seq.; Danz, Der sacrale Schutz im röm. Rechtsverkehr (Jena, 1857), pp. 139, 140. Cf. Pernice, Labeo, vol. ii. (2nd ed., Halle), p. 459 seq.
