By fas[1] was understood the will of the gods, the laws given by heaven for men on earth, much of it regulative of ceremonial, Fas. but a by no means insignificant part embodying rules of conduct. It appears to have had a wider range than jus. It forbade that a war should be undertaken without the prescribed fetial ceremonial, and required that faith should be kept even with an enemy when a promise had been made to him under sanction of an oath. It enjoined hospitality to foreigners, because the stranger guest was presumed, equally with his entertainer, to be an object of solicitude to a higher power. It punished murder, for it was the taking of a god-given life; the sale of a wife by her husband, for she had become his partner in all things human and divine; the lifting of a hand against a parent, for it was subversive of the first bond of society and religion,—the reverence due by a child to those to whom he owed his existence; incestuous connexions, for they defiled the altar; the false oath and the broken vow, for they were an insult to the divinities invoked; the displacement of a boundary or a landmark, not so much because the act was provocative of feud, as because the march-stone itself, as the guarantee of peaceful neighbourhood, was under the guardianship of the gods. Some breaches of fas were expiable, usually by a peace-offering to the offended god; others were inexpiable. When an offence was inexpiable, the punishment was usually what is called sacratio capitis, excommunication and outlawry of the offender. The precepts of the fas therefore were not mere exhortations to a blameless life, but closely approached to laws, whose violation was visited with punishments none the less effective that they were religious rather than civil.
The derivation of the word jus is disputed. The usual derivation is from the Sanskrit, ju, to “join, bind or unite,” from Jus. which some deduce as its signification “that which binds,” “the bond of society,” others “that which is regular, orderly or fitting.” Bréal identifies it with the jos or jaus of the Vedas, and the jaes or jaos of the Zend-Avesta—words whose exact meaning is controverted, but which he interprets as “divine will or power.”[2] If Bréal's definition can be adopted we obtain a very significant interpretation of the words addressed by the presiding magistrate to the assembled comitia in asking them whether they assented to a law proposed by him,—Velitis, jubeatis, Quirites, &c., “Is it your pleasure, Quirites, and do you hold it as the divine will, that,” and so on. As legislation by the comitia of the curies and centuries was regarded as a divine office, and their vote might be nullified by the fathers on the ground that there had been a defect in the auspicia, and the will of the gods consequently not clearly ascertained, this explanation of Bréal's seems not without support,—vox populi vox dei. If it be right, then the main difference between fas and jus was that the will of the gods, which both embodied, was in the one declared by inspired and in the other by merely human agency.
This jus might be the result either of traditional and inveterate custom (jus moribus constitutum) or of statute (lex).[3] As to the customs, it can well be believed that at the outset they were far from uniform; that not only the customs of the three original tribes but those also of the different gentes varied, and that they only gradually approximated, and in course of time consolidated into a general jus Quiritium. Of legislation there was, so far as is known, practically almost nothing.
What went by the name of boni mores (as distinct from jus moribus constitutum) must also be regarded as one of the Boni mores. regulative of public and private order. Part of what fell within their sphere might also be expressly 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. The functions of those who took charge of boni mares were twofold: sometimes they restrained by publicly condemning—though they could not prevent—the ruthless and unnecessary exercise of legal right, as, for example, that of the head of the house over his dependants, and sometimes they supplied deficiencies in the law by requiring observance of duties that could not be enforced by any legal process. 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 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.
That the bulk of the law during the regal period was customary is universally admitted, and that no laws were Leges regiae. committed to writing prior to the XII. Tables is generally believed. Yet the jurist Pomponius, a contemporary of Hadrian, speaks of certain laws enacted by the comitia of the curies, which he calls leges regiae and which, he says, were collected by one Sextus Papirius, a prominent citizen in the reign of Tarquinius Superbus, under the name of Jus Papirianum.[4] We are also told by Paul that this work was commented on by a certain Granius Flaccus,[5] who was, it is supposed, of the time of Julius Caesar or Augustus. No remains of this Jus Papirianum are extant, but we have a considerable number of so-called leges regiae cited by Livy, Dionysius and others, which contain rules of the private law relating almost entirely to matters of fas and which appear to have been enacted under the kings. We are also told by Servius, the commentator on Virgil, that there was a work known to Virgil called de Ritu Sacrorum, in which leges regiae were collected.[6] The authenticity of these laws, however, is disputed, and the question is one of difficulty. Some modern writers of high authority (e.g. Mommsen) hold that the Jus Papirianum is an apocryphal compilation made from pontifical records about the close of the Republic.[7] It has even been attributed (the suggestion was first made apparently by Gibbon) to Granius Flaccus himself. Nevertheless, the internal evidence from the character and language of the laws themselves (apart from the weight that must be given to the testimony of Pomponius, Servius and other ancient writers) is favourable to their great antiquity, and it is best to accept the view that the leges regiae are authentic remains of laws of the regal period. This does not, however, involve the belief that they were collected by Papirius, nor that they were enactments of the comitia curiata, as Pomponius says. They seem rather to have been regulations made by the king at his own hand,
- ↑ Bréal derives fas from the Greek θέμις. It signifies the divinely inspired word. Bréal et Bailly, 101.
- ↑ Nouv. rev. hist. (1883), p. 605. But see J. Schmidt in Mommsen, Staatsrecht, iii. 310 n.
- ↑ For the distinction between jus and lex, see Mitteis, Römisches Privatrecht (1908), i. 30 seq. There is some controversy about the etymology of the word lex. See Bréal, l.c. p. 610; Schmidt in Mommsen, S.R. iii. 308 n. While lex is often used like jus to express law generally, it early acquired two distinct meanings, viz. (1) an obligation of any kind expressly incorporated in a private deed (lex privata), as in the phrases lex mancipii, lex contractus, &c.; (2) a comitial enactment, hence occasionally called lex publica (Gaius, i. 3 and ii. 104). But by the jurists of the Republic this latter meaning was extended so as to cover all laws resulting from the will of the people, including, for example, plebiscites and even senatorial or proconsular ordinances (leges datae).
- ↑ Dig. i. 2. 2, § 2 and § 36. In the latter passage Papirius is given the praenomen Publius.
- ↑ Dig. l. 16, 144.
- ↑ Serv., in Aeneid, 12, 836, cited in Bruns, Fontes, p. 3.
- ↑ It has been suggested that a work of the jurist Manilius mentioned by Pomponius (Dig. i. 2. 2, § 39) is its source (Zeitschrift d. Sav. Stift. xxiv. 420).
