SERVUS HEREDITARIUS.

The slave who forms part of an inheritance on which an extraneus heres has not yet entered, owes his prominence in the texts to the importance of the hereditas iacens whose mouthpiece or agent he is. The hereditas iacens cannot exist where there is no interval between the death and the succession, for instance in the case of institution of a suus heres. Even the development of ius abstinendi does not affect this, and the rules as to the acts of slaves, where there is a suus heres whose taking is still doubtful, are nowhere fully dealt with.

Most of the doubts and difficulties in connexion with serous hereditarius are the outcome of differences of opinion as to the nature of the hereditas iacens. We cannot deal with this in detail, but a few points may be noted. The hereditas is, not exactly a persona ficta, for the Romans never use this conception, but a sort of representation or symbol of the dominus. It is pointed out in several texts that it is not strictly a dominus, but domini loco habetur; sustinet personam domini. In three texts it is actually described as dominus. But of these one says, dominus ergo hereditas habebitur, after having said, cum dominus nullus sit huius servi; in the second the words, hoc est dominae, are, evidently, an insertion; the third, which contains the words hereditatem dominam esse, is as it stands unintelligible: it is clear that they are all interpolated. The hereditas does not however represent the dominus for all purposes: in multis partibus iurispro domino habetur; inplerisque personam domini sustinets.

These intimately connected topics have been the subject of much controversy in recent years. No generally accepted solution of all the problems has been produced. In the following paragraphs space allows of no more than a general account of the matter.

The most accepted view as to formulation is that of Keller. He holds that in the actio de peculio the intentio was in ius, with a fiction of liberty where the contract was by a slave, and assuming of course that the claim is one which ordinarily gave an intentio in ius. This view is adopted with new argument by Lenel. For ordinary formulae in ius the suggested form is the simplest way in which to raise the issue, all that is needed being a change of name in the condemnatio, and the fiction of liberty in the case of a slave. It is clear on the texts that there was a fiction of liberty, and this would not be needed in a formula in factum. And a text dealing with the novation of the obligation strongly suggests that the intentio was in ius. But the chief argument is the ipso iure consumptio which appears in some of the texts.

The intentio thus framed, stating the transaction between the parties, brings into issue the whole obligation, but we know that the defendant could not be condemned beyond the extent of the peculium and any versio. It is not quite clear how this restriction was expressed in the formula.

These cases may be most conveniently discussed under three heads. (i) Cases of reward to slaves. In relation to this matter it should be observed that these are cases in which the State intervenes to give liberty to the slaves of private persons, usually, as a matter of course, compensating the former owners. We have already considered some such cases, and assumed that the effect of the transaction with the owner was to vest the ownership in the State so that the act may be regarded as a manumission. It is not, however, clear that this is in all cases a correct analysis of the transaction. It is possible for the State by an overriding decree to give liberty to a slave who does not belong to it. We have seen such a case in connexion with servi poenae. The cases shortly to be considered in which liberty is given in excess of any possible interpretation of the testator's intent, are not essentially different. The cases in which freedom is given as a punishment to the master can be explained only in the same way. These are of course legislative acts, but it is not clear that such things would have been beyond the administrative powers of the republican Senate and the magistrate even though the slave was not the property of the State. It is true that the Senate cannot make grants of civitas, but this is an equal difficulty if the transaction be regarded as a manumission.

The following chapters are an attempt to state, in systematic form, the most characteristic part of the most characteristic intellectual product of Rome. There is scarcely a problem which can present itself, in any branch of the law, the solution of which may not be affected by the fact that one of the parties to the transaction is a slave, and, outside the region of procedure, there are few branches of the law in which the slave does not prominently appear. Yet, important as the subject is, for the light it might be expected to throw on legal conceptions, there does not exist, so far as I know, any book which aims at stating the principles of the Roman Law of slavery as a whole. Wallon's wellknown book covers so much ground that it cannot treat this subject with fulness, and indeed it is clear that his interest is not mainly in the law of the matter. The same is true of Blair's somewhat antiquated but still readable little book.

But though there exists no general account, there is a large amount of valuable literature, mostly foreign. Much of this I have been unable to see, but without the help of continental writers, chiefly German, I could not possibly have written this book. Indeed there are branches of the subject in which my chapters are little more than compilation. I have endeavoured to acknowledge my indebtedness in footnotes, but in some cases more than this is required.

We have now to consider the rights and liabilities which may be created when a delict is committed by a slave. The general rule is that upon such a delict a noxal action lies against the dominus, under which he must either pay the damages ordinarily due for such a wrong, or hand over the slave to the injured person. We are not directly concerned with the historical origin of this liability: it is enough to say that it has been shewn that the system originated in private vengeance: the money payment, originally an agreed composition, develops into a payment due as of right, with the alternative of surrender: the pecuniary aspect of the liability becomes more and more prominent, till the surrender of the slave loses all trace of its original vindictive purpose, and is regarded as mere emolument, and the money composition comes to be regarded by some of the jurists as the primary liability. But the system as we know it was elaborated by the classical jurists, who give no sign of knowledge of the historical origin of the institution, and whose determinations do not depend thereon.

The XII Tables distinguish between Furtum and Noxa. Furtum here means furtum nee manifestum, (the more serious case was capitally punishable,) and Noxa no doubt refers to the other wrongs—mainly forms of physical damage—for which the Tables gave a money penalty. The provisions of the Tables as to most of these other matters were early superseded, but the verbal distinction between furtum and noxa was long retained in the transactions of everyday life.

Among the surviving creations of Greek religious art the figure of Poseidon is not one of the first importance, perhaps owing to the accident of loss, as we know it was occasionally the theme of the great sculptors and painters. In the anthropomorphic imagination of Homer, the two brother divinities, Zeus and Poseidon, were characteristically distinguished; the latter is marked by a certain ruggedness and violence in demeanour and action, as if his divinity, stately as it appears at times, was usually the manifestation of physical rather than mental power. There is a subtle expression of this distinction in the lines that speak of the countenance and eyes as the salient features of Zeus, but the broad chest as Poseidon's. It is probable that the same idea dominated the types of the advanced periods of art, while a close resemblance was always maintained between the forms of the two personalities. The archaic age could only distinguish them by means of external symbols or inscriptions. The most interesting representations of Poseidon belonging to the art of the sixth century are among the ex-voto terracottas from Corinth in Berlin, some representing him in peaceful attitudes, either driving in a chariot with Amphitrite or standing by her side in hieratic pose before Hermes, holding a tunny-fish and trident (Pl. iii a); one in violent action charging with the trident (Pl. iii b), as we see him, also in a dedicatory bronze of nearly the same period from Chalkis, now in Berlin.

The study of the Poseidon-cult in Hellas is of more value for the Greek historian than for the student of the higher religions of mankind. It lacks the spiritual and ethical interest of some of the Olympian cults, and from the earliest to the latest period Poseidon remains comparatively a backward god, never intimately associated with the nation's intellectual advance. But the ritual presents us with certain facts of great interest. And early Greek ethnography and the history of the earliest migrations of Hellenic tribes can gather much from a minute inquiry into the diffusion of this worship. Modern historians have become accustomed to use the facts of Greek religion as a clue for their researches into the period that precedes recorded history. But the criterion is often misapplied, and the value of it is still occasionally ignored. Much has still to be done in this branch of inquiry, and much may be effected if the evidence is severely scrutinized according to some fixed principles of criticism, and at the outset of this chapter it may be well to state and consider some of these. The historian of the earliest period, if he believes that he can extract anything from the religion and the mythology, has to reckon with three sources of possible evidence: with cult and ritual, with myth pure and simple, and finally with genealogical tables. Now the value of these sources is by no means equal.

The literary records of this cult are in some respects fuller and more explicit than the monuments, and some of the more interesting aspects of the Demeter-Persephone service lack, or almost lack, monumental illustration. The theriomorphic conception, of which we detected a glimpse in the Phigalean legend, can scarcely be said to have left a direct impress upon art; and it is doubtful if even the later aniconic period has left us any representation or ἄγαλμα to which we may with certainty attach Demeter's name. On a few late coins of certain Asia Minor states, of which the earliest is one struck under Demetrius III of Syria in the first century b. c., we find a very rude semblance of a goddess with corn-stalks but with only faint indication of human form. But in spite of the emblems we cannot say that this is a genuine Demeter; it may very probably be merely one of the many forms of the great mother-goddess of Asia Minor, the divine power of fertility and fruits; and it may descend from the same stratum of cult as that to which the type of the Ephesian Artemis belongs, to which it bears an obvious resemblance. Only when Demetrius took it as his badge, he and his people may have regarded it as Demeter's image for his name's sake.