Page:The history of Rome. Translated with the author's sanction and additions.djvu/181

Rh conferred by the community upon the individual burgess for his exclusive possession and use; accordingly, it was only the burgesses and such as the community treated in this respect as equal to burgesses that were capable of holding property. All property passed freely from hand to hand. The Roman law made no substantial distinction between moveable and inmoveable estate, and recognized no absolute vested interest of children or other relatives in the paternal or family property. Nevertheless, it was not in the power of the father arbitrarily to deprive his children of their hereditary rights, because he could neither dissolve the paternal power nor execute a testament except with consent of the whole community, which might be, and certainly under such circumstances often was, refused. In his life-time no doubt the father might make dispositions disadvantageous to his children; for the law was sparing of personal restrictions on the proprietor, and allowed, upon the whole, every grownup man freely to dispose of his property. The regulation, however, under which he who alienated his hereditary property and deprived his children of it was placed by order of the magistrate under guardianship like a lunatic, was probably as ancient as the period when the arable land was divided and in consequence private property in general acquired greater importance for the commonwealth. In this way the two antagonistic principles, the unlimited right of the owner to dispose of his own and the preservation of the family property unbroken, were as far as possible harmonized in the Roman law. Permanent restrictions on property were in no case allowed, with the exception of servitudes such as those indispensable in husbandry. Heritable leases and ground-rents charged upon property could not legally exist. The law as little recognized mortgaging, but the same purpose was served by the immediate delivery of the property in pledge to the creditor as if he were a purchaser, who thereupon gave his word of honour (fiducia) that he would not alienate the pledge until the payment fell due, and would restore it to his debtor when the sum advanced had been repaid.

Contracts concluded between the state and a burgess, particularly the obligation given by those who became sureties for a payment to the state (prævides, prædes), were valid without further formality. On the other hand, contracts between private persous under ordinary circumstances