the sovereign to the whole members of the
community, but primarily a contract concluded between the constitutive
powers of the state by address and counter-address.(14) Such
a legislative contract was -de jure- requisite in all cases which
involved a deviation from the ordinary consistency of the legal
system. In the ordinary course of law any one might without
restriction give away his property to whom he would, but only
upon condition of its immediate transfer: that the property should
continue for the time being with the owner, and at his death pass
over to another, was a legal impossibility--unless the community
should allow it; a permission which in this case the burgesses
could grant not only when assembled in their curies, but also when
drawn up for battle. This was the origin of testaments. In the
ordinary course of law the freeman could not lose or surrender the
inalienable blessing of freedom, and therefore one who was subject
to no housemaster could not subject himself to another in the place
of a son--unless the community should grant him leave to do so. This
was the -abrogatio-. In the ordinary course of law burgess-rights
could only be acquired by birth and could never be lost--unless
the community should confer the patriciate or allow its surrender;
neither of which acts, doubtless, could be validly done originally
without a decree of the curies. In the ordinary course of law
the criminal whose crime deserved death, when once the king or his
deputy had pronounced sentence according to judgment and justice,
was inexorably executed; for the king could only judge, not
pardon--unless the condemned burgess appealed to the mercy of the
community and the judge allowed him the opportunity of pleading
for pardon. This was the beginning of the -provocatio-, which for
that reason was especially permitted not to the transgressor who
had refused to plead guilty and had been convicted, but to him
who confessed his crime and urged reasons in palliation of it. In
the ordinary course of law the perpetual treaty concluded with a
neighbouring state might not be broken--unless the burgesses deemed
themselves released from it on account of injuries inflicted on
them. Hence it was necessary that they should be consulted when an
aggressive war was contemplated, but not on occasion of a defensive
war, where the other state had broken the treaty, nor on the
conclusion of peace; it appears, however, that the question was