The History of Rome (Volumes 1-5). Theodor Mommsen
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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