Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/701

Rh REGAL PERIOD.] ROMAN LAW G77 ever, its effect was instant exchange of property against a price weighed in the scales. The resulting obligation on the vendor to maintain the title of the vendee, and the qualifications that might be superinduced on the conveyance by agreement of parties the so-called leges mandpii will be considered in connexion with the provisions of the XII. Tables on the subject (infra, p. 690). The things included in the class of res mancipi were lands and icipi. houses held on quiritarian title, together with rights of way and aqueduct, slaves, and domestic beasts of draught or burden (oxen, horses, mules, and donkeys) ; all others were res nee mancipi. In the time of Servius and during the greater part of the republic the domain land (ager publicus) in Italy, until it was appropriated by private owners, was also reckoned as res nee mancifn ; like all other things of the same class, it passed by simple delivery, where- as res mancipi could not be transferred in full ownership except by mancipation or surrender in court. Many theories have been propounded to account for the distinction between these two classes of things, and to explain the principle of selection that admitted oxen and horses into the one, but relegated sheep and swine, ships and vehicles, to the other. But there is really little difficulty. Under the arrangement of Servius what was to determine the nature and extent of a citizen's political qualifications, military duties, and financial burdens was the value of his hcrcdium (and other freeholds, if he had any), and what may be called its appur- tenances the slaves that worked for the household, the slaves and beasts of draught and burden that worked the farm, and the servi- tudes of way and water that ran with the latter. It may be that in course of time slaves without exception were dealt with as res mancipi, without consideration, that is to say, whether they were employed on their owner's house or farm or on any part of the public lands in his occupancy and reasonably, because they were often shifted from the one to the other. But the cattle a man depastured on the public meadows were no more res mancipi than his sheep. To say that the things classed as res mancipi were selected for that distinction by Servius because they were what were essential to a family engaged in agricultural pursuits would be to fall short of the truth. They constituted the familia in the sense of the family estate proper ; whereas the herds and flocks, and in time everything else belonging to the paterfamilias, fell under the denomination of pecunia. So the words are to be under- stood in the well-known phraseology of a testament, familia pecuniaque meet. The public solemnity of mandpatio thus sanctioned as a mode of transferring a quiritarian right of property, for which mamis was probably as yet the only technical descriptive word in use, was not long of being adapted to other transactions in which manus of a different sort was to be acquired, for example, coemption, emancipation, adoption of a Jiliusfamilias, the contract of nexum, release of a nexal debtor, and that mortis causa alienation of his estate by a plebeian which in time developed into the testa- ment per aes et libram. riage It has been already explained (p. 674) that, prior to the time of aes et Servius, the matrimonial unions of the plebeians were not, in the mi. estimation of the patricians at least, regarded as lawful marriages (justae nuptiac], although amongst themselves they may have been held effectual and productive, if not of manus, at all events of patria potestas. For this there were two reasons: (1) not being citizens, they did not possess the preliminary qualification for justae nuptiac, namely, conubium ; and (2) not being patricians, the only ceremony of marriage known to the law was incompetent to them. The first obstacle was removed by their admission by Servius to the ordinary rights of citizenship, the second by the in- troduction of the civil ceremony of coemption. Once the efficacy of mancipation as a mode of acquiring manus over things was established, its adoption by the plebeians, now citizens enjoying conubium, as a method of acquiring manus over their wives was extremely natural. The scales, the libripens, and the five wit- nesses were all there ; but, as there was no real price to be paid, the only copper that was needed was a single raudusculum. The words recited in the ceremonial, unfortunately not preserved, were necessarily different from those in an ordinary mancipation, and, according to the testimony of a considerable number of ancient writers, and as the word co-emptio itself seems to indicate (though this is disputed by most modern civilians), the nominal purchase was mutual ; the man acquired a materfamilias who was to bear him children and enable him to perpetuate his family, while she ac- quired & paterfamilias who was to maintain her while the marriage lasted, and in whose succession she was to share when a widow. It was accompanied with other observances described by many of postremamque expendo ("I weight out to you this the first and the last pound "). The idea is manifestly archaic, and the words, taken strictly, are quite inappropriate to the transaction in the form it had assumed long before the time of Gaius. the lay writers, but these were matters of usage and fashion rather than of law, and it might be, and often was, accompanied also with religious rites, which, however, were private, not public as in confarreation. It is common, but not quite accurate, to speak of coemption as a form of marriage. It was strictly the acquisition of manus by the husband over his wife, and probably in most cases contemporaneous with the marriage ; but they were really distinct, the latter being completed simply by interchanged consent. That this was so latterly at least is evident from two facts, (1) that, according to Gaius, the coemptio might follow the marriage at any distance of time ; and (2) that, according to the same authority, though the marriage was dissolved by divorce, the manus still remained until put an end to by remancipation (on which the divorced wife was entitled to insist). It has also been explained that the plebeians were in a very Mortis much worse position than the patricians in regard to their power of causa disposing of their estates in contemplation of death. Their eleva- convey- tion to the rank of citizens did not apparently give them admission ance per to the comitia of the curies ; and, as it was many years after the aes et assassination of Servius before the comitia of the centuries was con- libram. vened, they had still no means of making testaments unless perhaps in the field on the eve of battle. So here again the expedient of mancipation was taken advantage of, not indeed to make a testa- ment instituting an heir, and to take effect only on the death of the testator, the form of the transaction, as an instant acquisition in exchange for a price real or nominal, could not lend itself to that without statutory intervention but to carry the transferrer's familia 1 to a friend, technically familiae emptor, on trust to let the former have the use of it while he survived, 2 and on his death to distribute according to his instructions whatever the transferee was not authorized to retain for himself. Like so many others of the transactions of the early law, it was legally unprotected so far as the third parties were concerned whom the transferrer meant to benefit ; they had no action against the trustee to enforce the trust ; their sole guarantee was in his integrity and his respect for Fides. Dionysius credits Servius with the authorship of more than fifty enactments relative to contracts and crimes, which he says were sub- mitted to and approved by the assembly of the curies. The great majority of those so-called enactments were probably nothing more than formularizations of customary law, for the use of the private judges in civil causes whom the king is said to have instituted. There was one contract, however, notorious in after years under the Con- name of nexum, that manifestly was influenced, either directly or tract indirectly, by his legislation. In its normal estate it was a loan of per aes money, or rather of the raw copper that as yet was all that stood et libram. for it. Whether before the time of Servius it was accompanied by any formalities beyond the weighing of it in a pair of scales (which was rather substance than form) we know not ; and what right it conferred on the creditor over his debtor who failed to repay can only be matter of speculation. But there are indications that, in the exercise of undefined self-help, defaulters were treated with con- siderable severity, being taken in satisfaction and put in chains by their creditors ; for Servius is reported to have promised to pay their debts himself in order to obtain their release, and to pass a law limiting execution by persons lending money at interest to the goods of their debtors. Whether he fulfilled the first part of his promise we are not informed ; but the second part of it was impracticable, since a debtor's failure to repay a loan was in most cases attributable to his insolvency and want of means with which to satisfy his creditor. So, apparently, Servius had to be content with regulating and ensuring the publicity of the contract, and making a creditor's right of self-redress by apprehension (manus injectio] and confinement of his debtor conditional on the obser- vance of the prescribed formalities of the nexum. These were the weighing of the copper that was being advanced in a pair of scales held by an official libripens ; the reweighing of a single piece in the presence of five citizen witnesses, and its delivery by the lender as representing the whole ; and the simultaneous recital of certain words of style, which had the effect of imposing on the borrower an obligation to repay the loan, usually with interest, by a certain day. The consequence of this, the earliest independent contract of the jus civile, is explained in p. 693. Servian Amendments on the Course of Justice. Of the course of justice in the regal period, whether in criminal or civil matters, 1 The familia was the collective name for a man's heredium and other lands, with their slaves and other mancipable appurtenances an aggregate of res mancipi, and therefore itself capable of mancipa- tion. The conveyance was universal, i.e., the items of the aggregate, even though movable, did not require to be conveyed separately or to be handled in conveying ; and apparently ihepecunia was carried along with the familia as an accessory, at least if expressly mentioned. 2 Sir Henry Maine (Ancient Law, p. 206) is of opinion that, as a mancipation could not be subject to a limitation either of condition or time, there must have been not only instant but total divestiture of the transferrer. But that this was not necessarily the result is shown infra, p. 691.