Page images

to a sacred purpose. The receipt of interim possession of a thing to which one was subsequently found not to be entitled, resulted, apparently, in liability for "double fruits." The words are corrupt, but there is a clear reference to some calculation made by three arbitri. This does not, however, necessarily imply a valuation in money; the normal case would be concerned with land, and the duty of the arbitri may have been simply to estimate the amount of fruits gathered by the interim possessor, and double that amount may have been restored in kind. is impossible to build much on the actual words as they appear in the mutilated manuscript of Festus, but so far as they go they are rather in favour of this interpretation, for the most natural meaning to give to fructus duplio is simply "doubling of the fruits," without any reference to valuation.1


The penalty of duplum for dedicating a thing which is the object of a lawsuit to sacred purposes2 need, I think, cause no difficulty. The argument used in the case of theft is peculiarly applicable here. Things valuable enough to be claimed in a lawsuit would, at an early stage of civilisation generally belong to a limited number of classes, so that the duplication of the object in kind would usually give no trouble.

Multiple restitution in kind, if I am right in thinking that it was common in Rome at the time of the Twelve Tables, is already a strong argument for the preponderance of the idea of fittingness over that of reparation in fixing the penalties.

Another point, scarcely less important, is the nonexistence of any right to compensation in the person wronged where the penalty inflicted is not economic

1 Mommsen, Strafrecht, p. 13, n. I, translates the whole phrase fructus duplione damnum decidito, "Mit doppeltem Fruchtersatz die Lösung begleichen."

2 Tab. XII. 4.

but physical. The free man guilty of furtum manifestum is addictus to the owner of the stolen thing.1 In many cases no doubt his value as a slave or bondsman and that of his property would in fact be profitable to the person wronged, but there is no relation between the wrong and the possible profit. The slave, in similar circumstances, is thrown from the Tarpeian rock, and we hear of no right in the party wronged to claim him instead as compensation. The punishment for intentional arson is death by burning2; Mommsen3 supposes that, as this would not provide the person injured with compensation, there must have been some provision for the payment of compensation as well, but there is no evidence for his view. In the case of offences against crops the position is similar, and here again Mommsen, without any evidence, says that there must have been a civil action for compensation. Once one has got away from the idea that the primary idea in fixing penalties was to provide compensation, there is no need for such conjectures as Mommsen's here. Even in the classical law, as Levy has shown, the nature of a delictal action was always "penal," and the only question was whether the penalty inflicted did. or did not also act as compensation. The classical lawyers found the penalties in existence, and, having now evolved the idea of compensation as a separate thing from punishment, had to consider whether these traditional penalties should also be held to fulfil this second function. The idea that in cases where multiple damages are awarded one simplum may be regarded as "rei-persecutory," whereas the remainder alone are "penal," is admittedly late," and probably in some cases interpolated. One

[blocks in formation]

might almost say that it was an accident that certain penalties, being of an economic nature, could also be used to give compensation.

[ocr errors]

For a condition of affairs where punishment is inflicted for offences without any compensation being given to the party wronged, it is easy to find parallels. Very frequently this occurs where the punishment is of an "analogous" sort, the wrong-doer being made to suffer an injury similar to that which he has inflicted. In Hammurabi's code personal injuries to plebeians" are paid for by fixed silver fines; for those inflicted on "patricians" the rule of talion applies, but it is nowhere suggested that the patrician can get compensation as well. More exact parallels to the Roman state of affairs are two cases in the Hittite code, where the damage is definitely of an economic nature, and where, though the code itself fixes a fine, it tells us that this is an innovation. Originally the punishment for theft of a certain article had been some form of torture; the code substituted a penalty of six shekels of silver.1 For stealing two or three beehives the punishment originally inflicted was apparently that the offender was stung to death by bees. The code introduces instead a penalty of three shekels of silver. But this is something new. In earlier times the person injured had to content himself with the appropriately chosen sufferings of the wrongdoer. In other words, the physical punishment and the economic penalty are not concurrent, but alternative, and this is simply because the idea of reparation has not yet emerged as the primary object of the law of tort. If we introduce this idea we are likely to get a false view of the real significance of ancient codes.

1 § 121. Hrozny translates "peasant," but suggests that this is an error for plough. Friedrich and Zimmern (No. II. 18) say "in the original presumably by mistake 'ploughman'."

2 § 92. Literally, according to Hrozny, "He became the food of bees." Friedrich and Zimmern (No. 1, 93) suggest that the offender's own beehives were destroyed.

The Twelve Tables are a really primitive document, and it is only in the light of comparison with other primitive systems that they can be interpreted. I suggest that two definite points become clear when this comparison is made, first that when they were enacted the Romans were still in the stage when there were different media appropriate to penalties for different classes of offences, and secondly that the medium chosen was in many cases that of goods. of the same class as those against which the offence was committed. The principle that the penalty must follow automatically on judgment was also still preserved. The "discretion of the Court," one of the greatest instruments of legal progress, was still in the future.

Acquired and Guaranteed Rights


THE Conception of natural rights is based on the view that man as such has a sphere of activity which is independent of the State and of his standing as a citizen.1 Positive or legal rights, on the other hand, represent advantages accruing to him as a social being, which are recognised and protected by the state as an organised social body. In both cases he is considered as the centre of a province within which his personality is the active vital principle.

Rights can hardly exist, or be conceived to exist, where the individual's whole personality is absorbed in his relations to the State. Thus Gierke says that "to the Greeks the conception of the natural rights of man remained as strange as that of an acquired right." The individual was swallowed up in the citizen and the citizen in the state. This point of view was quite consistent with a large measure of personal liberty and with a comparatively highly developed system of private law. But there seems to have been no clear legal recognition of the principle (which may or may not be a sound one), that the individual has a sphere within which his private interests, guided by his own will, are the primary consideration; there was no juristic as opposed to political theory.

1 "Government is not made in virtue of natural rights, which may and do exist in total independence of it." Burke, Reflections on the French Revolution, p. 70.

2 Das Deutsches Genossenschaftsrecht (D.G.R.), III. 10.

3 As is shown by Vinogradoff, The Jurisprudence of the Greek City.

« PreviousContinue »