Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/698

674 ROMAN LAW [REGAL PERIOD. and the practice of every now and then drafting the younger mem- bers of families to colonies diminished the number of those who had a claim to participate. But the simplest plan of avoiding the difficulty was for the paterfamilias to regulate his succession by testament ; and there can be little doubt that originally such a deed was had recourse to, not so much for instituting a stranger heir when a man had no issue according to patrician notions his duty then was to perpetuate his family by adopting a son as for partitioning the succession when he had more children than one. lesta- There were two sorts of testaments made use of by the meats, patricians of the regal period, that made in the comitia of the curies (test, calatis comitiis) and that made in the presence of a few comrades on the eve of battle (test, in procinctu factum). The first at least and the second was just a substitute for it on an emergency was far from being an independent exercise of the testator's voluntas. For, though in course of time, and under the sanction of the uti legassit ita jus esto of the XII. Tables, the curies may have become merely the recipients of the oral declara- tion by the testator of his last will, in order that they might testify to it after his death, it is impossible not to see in the comitial testament what must originally have been a legislative act, whereby the testator's peers, for reasons which they and the presiding pontiffs thought sufficient, sanctioned in the particular case a departure from the ordinary rules of succession. The pontiffs were there to protect the interests of religion, and the curies to protect those of the testator's gens ; and it is hardly con- ceivable that a testament could have been sanctioned by them which so far set at nought old traditions as to deprive a Jiliusfamilias of his birthright, at least in favour of a stranger. Family, Family, Property, and Succession amongst the Plebeians. If perfect identity of law and custom cannot be assumed to have existed amongst the patricians in the earliest years of Eome, far less can it be supposed to have existed amongst the heterogeneous population that constituted the plebs. A large proportion of them, it is true, were of Latin descent, to whom gentile institutions and the manus and the patria potestas of the family were nothing strange; but alongside of them were other tribes that Rome had vanquished, who had very different traditions, and some of whom, as is thought by one or two writers of note, laid more store on female kinship than on that through males. From the moment that any of the former became part of the Roman plebs everything like gentile organiza- tion was of course suppressed ; public policy could not suffer the continuance of what might have proved an element of danger to the state. The inevitable consequence was a disturbance of the whole family system. Having no longer any clansmen to stand by them in emergencies, to avenge their quarrels and deaths, and to act as guardians of their widows and orphans, the plebeians of Latin origin seem to have drawn closer in their ideas to their fellows of Etruscan and Hellenic descent, and to have transferred their regards to the circle of their relatives by blood and marriage (cognati et adfines}. It is remarkable that, not- withstanding the pre-eminence given to agnates by the XII. Tables in matters of tutory and succession, the law reserved to the cognates, as distinguished from the agnates, certain rights and duties that in patrician Rome must have belonged to the gens, for example, the duty of prosecut- ing the murderer (originally of avenging the death) of a kinsman, and the right of appeal against a capital sen- tence pronounced upon a kinsman. This can only have been because in olden times, when agnation was unknown as distinct from the gens, it was plebeian practice to entrust those rights and duties to the sobrinal circle of cognates. 1 In the discussions on the Canuleian law in the year 309 1 On this subject see Klenze, Das Familienrecht der Cognaten und Affinen nach rSm. u. verwandten Rechten, Berlin, 1828. u.c. it suited the line of argument of patrician orators to decry plebeian unions as something not deserving of the name of nuptiae, and to stigmatize them as mere matri- monia, relations entered into between men and women for the sake of making the latter mothers, but involving none of those features that characterized patrician mar- riage. 2 That there may have been laxity amongst many of the plebeians in their domestic relations is extremely probable. The ceremony of confarreation was denied to them, and coemption (as seems likely) was not yet in- vented, so that the only way of contracting a marriage that was open to them was simple interchange of consent, which was not legally creative of manus. Whether it was creative of patria potestas over the issue of the union may be doubted. Some of the plebeians may have been of opinion that it did create it and may de facto have ex- ercised the right it conferred, while others may have been indifferent as to whether it did or not ; but we may be very sure that the patricians denied its possibility, on the ground that it was a prerogative of Roman citizens, amongst whom the plebeians had no claim to rank. The accounts of the early distributions of land amongst Proper the plebeians are even more uncertain than those we have of its distribution amongst the patricians. They had un- doubtedly become freeholders in large numbers before the Servian reforms. But they probably attained that position only by gradual stages. There are indications that their earliest grants from the kings in their character of royal clients (as Cicero calls them) were only during pleasure ; but latterly, as they increased in numbers and importance, they obtained concessions of keredia varying in extent from two to seven jugers. That those who had the means also frequently acquired land by purchase from the state may be taken for granted. In fact there is good reason to believe that by the time of Servius the plebeians were as free to hold land in private property as the patricians, although the stages by which they reached equality in this respect are uncertain and difficult to follow. As for movable property their rights in it were presumably the same as those of the patricians. As regards the law of succession it may safely be assumed Succes that by custom at all events the children of a plebeian usu- sion ally took his estate on his death. But, as he was not a member of a gens, there was no provision for the devolu- tion of his succession on failure of children. The want of them he could not supply by adrogation, as he had for long no access to the assembly of the curies ; and it is very doubtful if adoption of a Jiliusfamilias was known before the reforms of Servius Tullius. The same cause that dis- qualified him for adrogating a paterfamilias disqualified him for making a testament calatis comitiis ; and even one in procinctu was impossible, since, although before the time of Servius plebeians may occasionally have served in the army, they were not citizens, and so had not the requisite capacity for making a testament. Until there- fore the XII. Tables 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 have the earliest opportunity, and, if he maintained his possession of it in the character of heir for a reason- able 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 the origin, and a very innocent and laudable one, 2 The same notion accounts for the grammatically untenable ex- planation of patricti in Liv., x. 8, 10, "Qui patrem ciere possuut," i.e., patricians were father's sons, while plebeians, before they were admitted to citizenship and conubium, were only reckoned mother's sons.