In his lifetime 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 grown-up 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 first divided and thereby private property generally 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 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 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 This was done, after copper superseded sheep and cattle as the regular standard of value, by weighing out the stipulated quantity of copper in a balance adjusted by a neutral person.(4) These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.

Italian Books
Theodor Mommsen
Classic Literature Library

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