Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/713

Rh JUS CIVILE.] ROMAN LAW 689 phrases legitima cognatio, legitima hereditas, legitimi heredes, tutela legitima, tutores legitimi themselves proclaim the origin of agnation, agnatic inheritance, and agnatic tutory ; for, though the word legitimus might be applied to any in- stitution based on statute, yet in the ordinary case it indi- cated one introduced by the XII. Tables, the law of laws. A man's agnates were those of his kinsmen who were subject to the same patria potestas as himself, or would have been had the common ancestor been still alive. A man's sons and daughters in potestate, therefore, whether the relationship was by birth or adoption, and his wife in manu (being Jiliae loco) were each other's agnates. But a wife not in manu was not their agnate ; nor were children who had been emancipated or otherwise capite minuti the agnates of either their brothers and sisters or their mother in manu. A man was an agnate of his brother's children, assuming always that there had been no capitis deminutio on either side ; but he was not an agnate of his sister's children, for they were not ejusdem familiae : they were agnates of their father's family, not of their mother's. In like manner, and again assuming the absence of minutio capitis, the children of brothers were each other's agnates, but not the children of a brother and a sister or of two sisters. Brothers and sisters were agnates of the second degree; 1 a man and his brother's children were of the third, the children of two brothers (consobrini) of the fourth, and so on, it being a condition, however, that the kinship should always result either from lawful marriage or from adoption in one or other of its forms. When, therefore, a man died leaving pupil male descendants or unmarried female descendants who by his death became sui juris, they got their brothers of lawful age as their tutors ; if he was sur- vived by his wife, and she had been in manu, her sons, or it might be stepsons, acted for her in the same capacity ; in either case they took office as the nearest qualified male agnates. If the widow had no sons or stepsons of full age, and the children consequently no brothers, the tutory devolved on the agnates next in order, i.e., the brothers germane and consanguinean of the deceased husband and father ; for they were agnates of the third degree. And so with agnates of the fourth and remoter degrees. Failing agnates who could demonstrate their propinquity, the tutory probably passed to the gens when the ward happened to belong to one. This is nowhere expressly stated ; but Cicero gives what he represents to be an enactment of the Tables, making the fellow-gentiles of a lunatic his guardians on failure of agnates ; and analogy seems to justify the extension of the same rule to the case of sane pupil and female wards. The curatory of minors above pupilarity was of much later date than the Tables. The only curatories they sanctioned were those of lunatics and spendthrifts. A lunatic (furiosus) was committed to the care of his agnates, and, failing them, of his fellow-gentiles ; and a few words in Festus seem to suggest that arrangements had to be made by them for his safe custody. 'ner- Mancipation and the Law of Property. In the early law P in there was no technical word for ownership of things ; it i and was an e l em ent of the house-father's mamis. In time, nee although it is impossible to say when, the word dominium ncipi. came into use ; but, so far as can be discovered, it did not occur in the XII. Tables, and must have been of later introduction. In those days, when a man asserted owner- ship of a thing, he was content to say, " It is mine," or, "It is mine according to the law of the Quirites." The distinction was this, that, while the first was sufficient to entitle a man de facto holding a thing as his own to pro- tection against a thief or any one attempting forcibly to ance from the XII. Tables was specially noticed by Danz in his Gesch. d. rom. Rechts, 2d ed., Leipsic, 1871-73, vol. ii. p. 95, but is generally ignored. 1 To determine the degree of propinquity between two persons it was necessary to count the generations upwards from the first to the common ancestor and downwards from him to the second. Conse- quently brothers were related in the second degree, uncle and nephew in the third, first cousins in the fourth, and so on : " tot gradus quot generatioues." dispossess him, the second was necessary when he appealed to a court of law to declare the legality of his title and his right to oust an individual withholding the possession neither theftuously nor by force. It is said by some jurists of eminence that under the law of the Tables what after- wards came to be called "dominium ex jure Quiritium" was competent only in the case of res mancipi, of a man's house and farm, and the slaves and animals with which he worked them. But the usucapion (or acquisition by pro- longed possession) which they confirmed and regulated undoubtedly conferred quiritarian right ; and, as it applied to all things ownable without exception, it seems impossible to maintain that res nee mancipi could not then be held in quiritarian ownership as fully as res mancipi. The modes in which these two classes of things might be acquired in property were very various. But there was this important difference, that, while a natural mode of acquisition sufficed in the case of res nee mancipi, some civil one was necessary for the derivative acquisition, at all events, of res mancipi. The most important were mancipation, surrender in court, usucapion, and bequest as singular modes, and inheritance, in manum conventio, adrogation, and purchase of a confiscated estate as univer- sal modes. All these, with the exception of mancipation, applied equally to res nee mancipi. But the commonest of all the modes of transferring things of the latter class was simple tradition. If the transfer was by the owner, with the intention of passing the property, then the simple delivery of possession was enough, unless it was in virtue of a sale ; in such a case, and because a vendor had as yet no action for the price, the Tables provided that the ownership should remain with him, notwithstanding the change of possession, until the price was paid or security given for it. The origin of the distinction between mancipable and non-man- Manci- cipable things, and of the form of conveyance by mancipation pation. applicable to the first, has been explained in connexion with the reforms of Servius Tullius (supra, p. 676). 2 As he introduced it, mancipation (then called mancipium) was not the imaginary sale that Gains speaks of, but as real a sale as could well be conceived, the weighing in scales, held by an official, of the raw metal that was to be the consideration for the transfer of a res mancipi, and the handing of it by the transferee to the transferrer, with the de- claration that thereby and therewith the thing in question became his in quiritary right, and all this in words of style, and in the presence of certain witnesses who represented the people, and thus fortified the conveyance with a public sanction. As already shown, there is some reason to believe that, when large quantities of metal had to be weighed, the practice crept in of having this done before the witnesses had assembled ; and in the formal act only a single pound was weighed as representing the whole amount. This paved the way for the greater change that resulted from the introduction by the decemvirs of coined money. From that moment weighing became unnecessary. The price was counted out before the cere- mony, and sometimes left to be done afterwards ; and, though, in that spirit of conservatism that was so marked in the adhesion to time-honoured forms after their raison d'etre was gone, the scale- bearer and the scales were still retained as indispensable elements of the mancipation, yet the scales were simply touched by the pur- chaser with a single coin, in order that he might be able to recite the old formula "I say that this slave is mine in quiritary right, and that by purchase (for such and such a price ?) with these scales and this bit of copper." And that one coin, says Gaius, was then handed by the transferee to the transferrer, as if it were in fact the price of the purchase (quasi pretii loco). Thus transformed, the mancipation was undoubtedly an imaginary sale ; for the real price might have been paid weeks or months before, or might not be paid until weeks or months afterwards. The mancipation had become nothing more than a conveyance, and in this form it continued down to the end of the 3d century of the empire to be the appro- priate mode of transfer of a res mancipi, or at least of conferring on the transferee of such a thing a complete legal title (dominium ex jure Quiritium). After that, however, it seems gradually to have gone into disuse, being inapplicable to lands out of Italy that did 2 Literature : Leist, Mancipation und Eigenthumstradttion, Jena, 1865 ; Ihering, Geist d. rom. Rechts, vol. ii. 46 ; Bechmann, Geschichte d. Kavfs im rom. Recht, Erlangen, 1876, pp. 47-299 ; Voigt, XII. Tafeln, vol. i. 22, vol. ii. 84-88. XX. 87