Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/695

REGAL PERIOD.] ROMAN LAW 671 of legislation. Romulus jura dedit at his own hand, not jura tulit. Mommsen is probably near the mark when he describes the leges regiae as mostly rules of the fas which were of interest not merely for the pontiffs but for the public, with which it was of importance that the latter should be acquainted, that they might know the risks they incurred from their contravention. 1 It is not to be assumed that there was no legislation beyond this ; some of the laws of which we have record were of a different character. But on the whole it seems beyond doubt that it was custom rather than statute that was the main factor of the jus of the regal period. mi What went by the name of boni mores, quite distinct )res. from the jus moribus constitutum, must also be regarded as one of the regulatives of public and private order. Part of what fell within their sphere might also be ex- pressly regulated by fas or jus ; but there was much that was only gradually brought within the domain of these last, and even down to the end of the republic not a little that remained solely under the guardianship of the family tribunal or the censor's regimen morum. Its function was twofold : sometimes it operated in restraint of law by con- demning though it could not prevent the ruthless and unnecessary exercise of legal right, as, for example, that of the head of a house over his dependants ; and sometimes it operated supplementarily, by requiring observance of duties that could not be enforced by any compulsitor of law. Dutiful service, respect, and obedience from inferiors to superiors, chastity, and fidelity to engagements, express or implied (fides), were among the officia that were thus inculcated, and whose neglect or contravention not only affected the reputation but often entailed punishments and disabilities, social, political, or religious. It was the duty of those in authority to enforce their observance by such animadversio as they thought proper, the paterfamilias in his family, the gens among its members, the king in relation to the citizens generally ; and many a wrong was prevented not by the fear of having to make reparation to the party injured but by the dread of the penalties that would follow conduct unbecoming an upright citizen. iiri- The Quiritian Family. The word familia in Roman ' n law had at once a more extensive and a more limited 11 y> meaning than it has in its English form. 2 Husband, wife, and children did not necessarily constitute an independent family among the Romans, nor were they all necessarily of the same one. Those formed a family who were all subject to the right or power originally manus, 3 but latterly jus of the same family head (paterfamilias). He might have a whole host dependent on him, wife and sons and daughters, and daughters-in-law, and grand- 1 The most recent and comprehensive treatise on the subject of the Royal Laws, which also contains references to the earlier literature, is that of Voigt, Ueber die Leges Regiae, Leipsic, 1876, 1877 (republished from the Transactions of the Saxon Academy). A collection of them from Livy, Dionysius, Plutarch, Servius, Macrobius, &c., will be found in Bruns, p. 1 sq. Of the Jus Papirianum referred to by Pomponius no remains are extant; but Paul (Dig. 1. 16, fr. 144) mentions inci- dentally that it was commented on by one Granius Flaccus, who was of the time of Julius Caesar. 2 Familia and "family" are used in this section solely to designate the group of persons subject to the same paterfamilias. Occasionally the word meant (1) a gens (or group of families in the stricter sense) ; or (2) the family estate proper, as in the provisions of the XII. Tables about succession adgnatus proximus familiam kabeto ; or (3) the family slaves collectively, as in the phrases familia urbana, familia, rustica. 3 This word manus, though in progress of time used chiefly to express the power a husband had over the wife who had become a member of his family, was originally the generic term for all the rights exercised not only over the things belonging but also the persons subject to the head of the house; for a slave when enfranchised was said to be "manumitted," and the same phrase was also employed occasionally to express the condition of a filiusfamilias released from the potestas, although " emancipated " was the usual one. children 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 and that was common enough even during the republic, and universal in the later empire she did not become a member of his family : she re- mained a member of the family in which she was born, or, if its head was deceased or she had been emancipated, was the sole member of a family of her own. Both sons and daughters on emancipation ceased to be of the family of the paterfamilias who had emancipated them. A daughter's children could never under any circumstances be members of the family of their maternal grandfather ; for children born in lawful marriage followed the family of their father, while those who were illegitimate ranked from the moment of birth as patresfamilias and matres- familias. With the early Romans, as with the Hindus and the Marriage Greeks, marriage was a religious duty a man owed alike to his ancestors and to himself. Believing that the happi- ness of the dead in another world depended on their proper burial and on the periodical renewal by their descendants of prayers and feasts and offerings for the repose of their souls, it was incumbent upon him above all things to per- petuate his race and his family cult. In taking to him- self a wife, he was about to detach her from her father's house and make her a partner of his family mysteries. With the patrician at least this was to be done only with divine approval, ascertained by anspicia. His choice was limited to a woman with whom he had conubium (eTriya/u'a) or right of intermarriage. This was a matter of state arrangement; and in the regal period Roman citizens could have it outside their own bounds only with members of .states with which they were in alliance, and with which they were connected by the bond of common religious observances. A patrician citizen, therefore, if his marriage was to be reckoned lawful (justae nuptiae), had to wed either a fellow-patrician or a woman who was a member of an allied community. The ceremony was a religious one, conducted by the high priests of the state, in presence of ten witnesses, representatives probably of the ten curies of the bridegroom's tribe, and was known as confarreatio. Its effect was to dissociate the wife entirely from her father's house and to make her a member of her husband's ; for confarreate marriage involved what was called in manum convent^ the passage of the wife into her husband's " hand " or power, provided he was himself paterfamilias ; if he was not, then, though nominally in his hand, she was really subject like him to his family head. Any property she had of her own which was a possible state of matters only if she had been independent before marriage passed to him as a matter of course ; if she had none, her pater- familias provided her a dowry (dos which shared the same fate. Whatever she acquired by her industry or otherwise while the marriage lasted also as a matter of course fell to her husband. In fact, so far as her patri- monial interests were concerned, she was in much the same position as her children ; and on her husband's death she had a share with them in his inheritance as if she had been one of his daughters. In other respects manus conferred more limited rights than patria potestas; for Romulus is said to have ordained that, if a man put away his wife except for adultery or one of two or three other very grave offences, he forfeited his estate half to her and half to Ceres, while if he sold her he was to be given over to the infernal gods. The patria potestas was the name given to the power Patria exercised by a father, or by his paterfamilias if he was potestas. himself in potestate, over the issue of such justae nuptiae.