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Finally, the legislative work of Justinian will be described with tolerable fullness, concluding, in particular, with an examination of the scope and system of the Institutes.
Of the form of the earliest Roinan law it is possible to speak more positively than of its matter and contents. The first trace of genuine legislation is to be found in the Twelve Tables, which the mythical founding of the city preceded by more than three hundred years. During these three centuries, the law by which the Romans were governed was unwritten; it was pure custom handed down by tradition from past generations, and doubtless identical in origin with the usages of the primitive Aryan stock. Modern comparative jurisprudence has established resemblances so striking between the earliest known inhabitants of Rome, the usages of the primitive Irish, and those of the Asiatic Aryan peoples which have been most open to observation, that (while admitting that it was modified on every side by such agencies as climate and the circumstances of a military people ever in arms) we must allow that the customary law of Rome, from which a new departure was taken at the time of the Twelve Tables, was of very great antiquity, though conjectures as to its age are no less unprofitable than idle. How the custom was preserved, and protected from contamination by foreign elements, we know from writers on the early history of Rome; it was jealously treasured up by the college of Pontifices, who were the first judges in all matters relating to the family and property, and who thereby acquired the title of guardians of the law;' 'omnium tamen harum (legum) et interpretandi scientia et actiones apud collegium pontificum erant, ex quibus constituebatur, quis quoque anno praeesset privatis' (Dig. 1. 2. 2. 6).
The statement that there was nothing in the nature of statute law until the enactment of the Twelve Tables may seem to be contradicted by the existence of the so-called 'leges regiae,' of which however we know little that is certain. 'Leges quasdam et ipse (Romulus) curiatas ad populum tulit. Tulerunt et sequentes reges, quae omnes conscriptae extant in libro Sexti Papirii, qui fuit illis temporibus ... Is liber, ut diximus, appellatur ius civile Papirianum, non quia Papirius de suo quidquam ibi adiecit, sed quod leges sine ordine latas in unum composuit’ (Pomponius in Dig. 1. 2. 2. 2). From this it would appear that Sextus Papirius, who, according to Dionysius (iii. 36), was a pontifex, made a compilation of these leges regiae in the reign of the last of the kings. Dionysius also tells us that, after the expulsion of the kings, Papirius re-established those of them of which Numa was said to be the author; and we know a commentary to have been written on his compilation towards the end of the republic by Granius Flaccus, which is quoted in Dig. 50. 16. 144. It is clear, from the passage cited above from the Digest, that the jurist Pomponius assumed the identity of the work, on which Flaccus based his commentary, with the original ius civile Papirianum; but the truth of his assumption is much doubted by later historians. However, even if we allow that the leges regiae were genuine enactments, introduced, on the motion of the king, by the senate into the comitia curiata, and there clothed with the force of law, they were probably not more than formal restatements of customary law already binding. That Papirius, a pontifex, was so familiar with their contents may possibly be taken to show that they were merely of sacerdotal import; and if in fact his collection of them survived to the time of Granius Flaccus, it is probable that it was used by the later pontifices only to enforce religious forms of observance through its assumed derivation from the consecrated figures of the mythical kings of Roman antiquity. Nothing of these leges has been preserved, in its original shape, to our own time, though some of their substance has been collected in a fragmentary form by earlier writers, whose names are enumerated in the critique of a modern civilian on this subject
The application of the word “curiatae ' to these leges in the passage last cited from the Digest leads one on to describe the origin and early history of the comitia or legislative assemblies of Rome. The earliest of these was the comitia curiata, which, when convoked for certain kinds of business, such as the sanctioning of testaments (Inst. ii. 10. 1), was called 'comitia calata.' Whatever opinion may be held as to the names and ethnic origin of the three tribes (Ramnes, Luceres, and Tities or Quirites) from whose union the Roman state is mythically said to have sprung, it cannot be denied that the populus Romanus, when we first know anything certain about it, was actually divided into three tribes, each of which, with its distinct territory, comprised ten curiae, while each curia consisted of ten decuriae or gentes, and each gens of an indefinite number of families, between which there was originally perhaps a genuine tie of blood, which gradually became a mere fiction, respected and supported for the sake of the ancient family worship and religious rites. The family was thus not merely a microcosm of the state; it was the foundation on which were based all the privileges which the Roman citizen enjoyed within the state; the populus contained the tribe, the tribe the curia, the curia
* H. E. Dirksen, Versuche zur Kritik und Auslegung (Leipzig 1823).
the gens, the gens the family, the family the individual; to belong to the first a man must also belong to the last member of the series; or rather we should say that primitive law takes little account of individuals, but of groups, that is to say, of families or gentes only.
The comitia curiata, and in fact the whole constitution, was based on this family, gentile, and tribal organization. The comitia curiata, which was the popular assembly, was composed of all the patres familias of the gentes; it was thus a gathering of the heads of families arranged on the principle of real or fictitious relationship (Gellius xv, 27 quum ex generibus hominum suffragium feratur, curiata comitia esse'). But the services of the great majority of ablebodied citizens were constantly required by the military exigencies of a state which as yet drew no distinction between a stranger and an enemy; consequently, to superintend the general conduct of affairs, there was a council or senatus consisting, after Tarquinius Priscus, of three hundred of the patres gentium, a hundred from each tribe. The principles of democracy and oligarchy were thus both represented, and two examples may be illustrated to quote the system of checks and balances' by which harmony was preserved between them. The nomination of the king, or supreme executive magistrate, lay with the senate, but required confirmation by the comitia, which, by a lex curiata (Inst. i. 2. 6), invested him with an imperium of life-long duration, whereby he became, externally, the leader of the host in arms, internally, the depositary of the highest administrative functions of government. On the other hand, it was to the populus alone, assembled in its comitia, that the legislative function belonged, though this function could not be called into action without the authority of the senate, which alone possessed the right of submitting subjects for deliberation, and of initiating changes of law; it was the populus which decided upon war and peace, and which chose the king nominally, and the senators actually: but in the exercise of all these rights it had to wait for action to be first taken by the probouleutic body, whose members it chose itself, but whose personal constitution, when once selected, it could modify only in a constitutional manner.
The origin of the other comitia was later in date. So far nothing has been said to suggest that there were any inhabitants of Roman territory who were not citizens either themselves heads of families, or subject to the potestas of a paterfamilias. From the very first, however, there seems to have been a number of free persons dwelling around the three tribes, and yet not belonging to them; abiding on Roman soil, and therefore subject to the dominion of Rome, yet possessed of no civil rights whatever. Some sort of legal status it was deemed requisite to give them, and this was done by placing them in immediate relation to some paterfamilias, whereby he became their patron, they his clients. But with the family of their patron they had no connection; their connection was with his gens; they took the gentile name, and became his 'gentiles. In this way they were brought within the protection of the law, as dependents of a citizen ; an object which could not have been secured except by some such device, for the primitive Roman law recognised no claim to its support unless the claimant could in some way show that he was within the pale of the tribal constitution. But the clientes acquired no political rights, though the public duty of military service was imposed upon them, and a considerable force of infantry was thus added to the resources of the state.
This process, however, of attaching all peregrini residing on Roman soil to the populus by the tie of clientela could not be prolonged indefinitely. Circumstances were gradually augmenting the number of non-citizens so largely as to necessitate some new mode of dealing with these classes. The military temper and strong organization of the Roman people resulted in a continuous addition of territory to the domains of the city ; little districts, principally of Latin population, were constantly being annexed, and their villages razed, the inhabitants being encouraged to flock towards Rome, because thus they could be most easily cowed into obedience and hindered from rebellion. These immigrants were at first settled on the stretch of land, bordering the three hills of the populus, known from them as esquiliae ; as their numbers swelled, king Ancus, who was afterwards honoured as the founder of the plebs ("Romuli Ancique gentem 'Catullus 34), assigned them the Aventine as a dwelling-place. This was the population which became the plebs, and which played so important a part in the strictly legal, no less than in the constitutional, history of Rome. The question how to deal with them became daily a more pressing political problem. To incorporate them into the existing tribe-economy was, to Roman ideas, quite out of the question; the populus, being based upon the gentes, was a kind of close corporation whose constitution was limited by the definite number of gentile aggregates. The plebs then must remain a body apart from the populus, and therefore its members could have no political rights. But there seemed no reason why the private should not be separated from the public elements of the law; and the result—whether it should be ascribed to a happy accident, or to the deep-seated legal instincts of the Roman race
was that the plebs was made a participator in all those rights which, in the later law, are usually described as the private rights involved in the Roman civitas. Thus the plebeians had the commercium, and could acquire property by mancipatio; they shared the family law of Rome, except so far as this was of a public character; that is to say, such parts of family law as preserved and perpetuated the tie between family and populus had no relation to them whatever. The Roman principle of political exclusion led to considerable results in the field of pure law; it produced a duplication of institutions. Thus, the wife of a plebeian could be in his manus, but they could not be married by confarreatio, which was publici juris (see Commentary on i. 10 pr.): hence the two other modes in which manus could be produced, coemptio and usus (Gaius i. 110), may be conjectured to have been of plebeian origin. Again, the plebeian could have his children under his potestas, but it may be doubted whether he could adopt by adrogation, which was an act of high political significance, effected in the comitia ; hence it is probably to the plebs that we should ascribe the form of adoption imperio magistratus (Inst. i. 11. I); finally, as a plebeian could not, at any rate personally, submit his testament to the comitia calata for legislative sanction, we may suppose that this was the origin of the will 'per aes et libram' (Gaius ii. 102), the validity of which was expressly confirmed by the Twelve Tables. In fact, the communication of private rights to the plebs led to a vast development of private law. Had the Roman populus contrived to live apart by itself in arrogant isolation; had it stubbornly refused to recognise a tittle of right in any man who was not a member of itself; had it, in short, not happily hit upon the device of separating the public from the private portion of the ius Romanum, the history of Roman jurisprudence would in all probability have been far different from what it has been.
Under Servius Tullius, the constitution was to a great degree revolutionised by two reforms, which in the end completely altered the political centre of gravity. The importance of the plebs, on account no less of its wealth and military use as infantry than of its numbers, became daily more obvious; it was clear that the time at which its political position should be recognised could not be long deferred. It was Servius, of whom it is related (Cic. de Repı bl. ii. 21) that he attained the royal dignity by plebeian support, who practically effected its recognition. It has been already said that the plebs could not possibly be brought within the political constitution by means of the personal principle of family, gentile, and tribal connection. Servius