The History of Rome (Volumes 1-5). Theodor Mommsen
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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 its purchaser, who thereupon gave his word of honour (-fiducia-) that he would not alienate the object pledged until the payment fell due, and would restore it to his debtor when the sum advanced had been repaid.
Contracts
Contracts concluded between the state and a burgess, particularly the obligation given by those who became sureties for a payment to the state (-praevides-, -praedes-), were valid without further formality. On the other hand, contracts between private persons under ordinary circumstances gave no claim for legal aid on the part of the state. The only protection of the creditor was the debtor's word of honour which was held in high esteem after the wont of merchants, and possibly also, in those frequent cases where an oath had been added, the fear of the gods who avenged perjury. The only contracts legally actionable were those of betrothal (the effect of which was that the father, in the event of his failing to give the promised bride, had to furnish satisfaction and compensation), of purchase (-mancipatio-), and of loan (-nexum-). A purchase was held to be legally concluded when the seller delivered the article purchased into the hand of the buyer (-mancipare-) and the buyer at the same time paid to the seller the stipulated price in presence of witnesses. This was done, after copper superseded sheep and cattle as the regular standard of value, by weighing out the stipulated quantity of copper in a balance adjusted by a neutral person.(4) These conditions having been complied with, the seller had to answer for his being the owner, and in addition seller and purchaser had to fulfil every stipulation specially agreed on; the party failing to do so made reparation to the other, just as if he had deprived him of the article in question. But a purchase only founded an action in the event of its being a transaction for ready money: a purchase on credit neither gave nor took away the right of property, and constituted no ground of action. A loan was negotiated in a similar way; the creditor weighed over to the debtor in presence of witnesses the stipulated quantity of copper under the obligation (-nexum-) of repayment. In addition to the capital the debtor had to pay interest, which under ordinary circumstances probably amounted to ten per cent per annum.(5) The repayment of the loan took place, when the time came, with similar forms.
Private Process
If a debtor to the state did not fulfil his obligations, he was without further ceremony sold with all that he had; the simple demand on the part of the state was sufficient to establish the debt. If on the other hand a private person informed the king of any violation of his property (-vindiciae-) or if repayment of the loan received did not duly take place, the procedure depended on whether the facts relating to the cause needed to be established, which was ordinarily the case with actions as to property, or were already clearly apparent, which in the case of actions as to loans could easily be accomplished according to the current rules of law by means of the witnesses. The establishment of the facts assumed the form of a wager, in which each party made a deposit (-sacramentum-) against the contingency of his being worsted; in important causes when the value involved was greater than ten oxen, a deposit of five oxen, in causes of less amount, a deposit of five sheep. The judge then decided who had gained the wager, whereupon the deposit of the losing party fell to the priests for behoof of the public sacrifices. The party who lost the wager and allowed thirty days to elapse without giving due satisfaction to his opponent, and the party whose obligation to pay was established from the first—consequently, as a rule, the debtor who had got a loan and had not witnesses to attest its repayment—became liable to proceedings in execution "by laying on of hands" (-manus iniectio-); the plaintiff seized him wherever he found him, and brought him to the bar of the judge simply to satisfy the acknowledged debt. The party seized was not allowed to defend himself; a third person might indeed intercede for him and represent this act of violence as unwarranted (-vindex-), in which case the proceedings were stayed; but such an intercession rendered the intercessor personally responsible, for which reason the proletarian could not be intercessor for the tribute-paying burgess. If neither satisfaction nor intercession took place, the king adjudged the party seized to his creditor, so that the latter could lead him away and keep him like a slave. After the expiry of sixty days during which the debtor had been three times exposed in the market-place and proclamation had been made to ascertain whether any one would have compassion upon him, if these steps were without effect, his creditors had the right to put him to death and to divide his carcase, or to sell him with his children and his effects into foreign slavery, or to keep him at home in a slave's stead; for such an one could not by the Roman law, so long as he remained within the bounds of the Roman community, become completely a slave.(6) Thus the Roman community protected every man's estate and effects with unrelenting rigour as well from the thief and the injurer, as from the unauthorized possessor and the insolvent debtor.
Guardianship
Protection was in like manner provided for the estate of persons not capable of bearing arms and therefore not capable of protecting their own property, such as minors and lunatics, and above all for that of women; in these cases the nearest heirs were called to undertake the guardianship.
Law of Inheritance
After a man's death his property fell to the nearest heirs: in the division all who were equal in proximity of relationship—women included—shared alike, and the widow along with her children was admitted to her proportional share. A dispensation from the legal order of succession could only be granted by the assembly of the people; previous to which the consent of the priests had to be obtained on account of the ritual obligations attaching to succession. Such dispensations appear nevertheless to have become at an early period very frequent. In the event of a dispensation not being procured, the want of it might be in some measure remedied by means of the completely free control which every one had over his property during his lifetime. His whole property was transferred to a friend, who distributed it after death according to the wishes of the deceased.
Manumission
Manumission was unknown to the law of very early times. The owner might indeed refrain from exercising his proprietary rights; but this did not cancel the existing impossibility of master and slave coming under mutual obligations; still less did it enable the slave to acquire, in relation to the community, the rights of a guest or of a burgess. Accordingly manumission must have been at first simply -de facto-, not -de jure-; and the master cannot have been debarred from the possibility of again at pleasure treating the freedman as a slave. But there was a departure from this principle in cases where the master came under obligation not merely towards the slave, but towards the community, to leave him in possession of freedom. There was no special legal form, however, for thus binding the master—the best proof that there was at first no such thing as a manumission—but those methods were employed for this object which the law otherwise presented, testament, action, or census. If the master had either declared his slave free when executing his last will in the assembly of the people, or had allowed his slave to claim freedom in his own presence before a judge or to get his name inscribed in the valuation-roll, the freedman was regarded not indeed as a burgess, but as personally free in relation to his former master and his heirs, and was accordingly looked upon at first as a client, and in later times as a plebeian.(7)
The emancipation of a son encountered greater difficulties than that of a slave; for while the relation of master to slave was accidental and therefore capable of being dissolved at will, the father could never cease to be father. Accordingly in later times the son was obliged, in order to get free from the father, first to enter into slavery and then to be set free out of this latter state; but in the period now before us no emancipation of sons can have as yet existed.
Clients and Foreigners
Such were the laws under which burgesses and clients lived in Rome. Between these two classes, so far as we can see, there subsisted from the beginning complete equality of private rights. The foreigner on the other hand, if he had not submitted to a Roman patron and thus lived as a client, was beyond the pale of the law both in person and in property. Whatever the Roman burgess took from him was as rightfully acquired as was the shellfish, belonging to nobody, which was picked up by the sea-shore; but in the case of ground lying beyond the Roman bounds, while the Roman burgess might take practical possession, he could not be regarded as in a legal sense its proprietor; for the individual burgess