quam quinque testibus civibus Romanis puberibus et prae- § 10. Before the Twelve Tables, when there was as yet no coined money, the weighing out of the aes by the libripens constituted or, at any rate, might constitute the actual payment of the purchasemoney. Mancipatio was not an 'imaginaria venditio,' but a genuine sale. But the decemviri introduced coined money into Rome. The first coin used was the copper 'as,' the silver denarius not being introduced till 269 B.C. These changes, however, did not affect the formalism of mancipatio. The libripens and the weighing still remained, in spite of the fact that the weighing out of uncoined aes had ceased to constitute payment. For the payment implied in the ceremonial of mancipatio was now a purely fictitious one, and the actual payment was a matter quite independent of the mancipatio. Hence the enactment of the Twelve Tables that no mancipatio should be legally operative unless the price were actually paid or, at least, security given for it. Thus mancipatio continued to be a real sale, and on principle it was a sale for ready money, a narrowly circumscribed transaction clothed in rigid formalities and only available for a single economic purpose. The mancipatory sale was the only valid form of sale which was known, and was thus at the same time the only private legal transaction by which, at this stage of the jus civile, property could be conveyed. 2 Cp. § 41 I. de rer. div. (2, 1): Venditae vero et traditae (res) non aliter emptori adquiruntur, quam si is venditori pretium solverit vel alio modo ei satisfecerit, veluti expromissore vel pignore dato. Quod cavetur quidem etiam lege duodecim tabularum. - It seems certain that the text which the framers of this passage in the Institutes had before them, contained the words: venditae vero et mancipatae (not tra ditae) res. It was only in the course § 10. No alienation of property, therefore, was legally valid unless it satisfied the following conditions: it must be for valuable consideration; it must be done in the presence of five witnesses and the libripens; the thing to be alienated must be before the parties, and only so many things can be alienated in any one transaction as the purchaser can take hold of (manu capere) at one and the same time. Thus if more things are to be mancipated than the alienee can take hold of at once, the whole ceremony of mancipatio must be repeated anew each time 3. Such was as yet the clumsy and backward condition of the law which governed the ordinary dealings between man and man. 2. Nexum. Next to mancipatio we have, in the second place, the 'nexum,' or solemn loan. In the presence of five witnesses the libripens weighs out to the borrower the corresponding amount of raw metal, and the lender at the same time declares in solemn words that the borrower is now in his debt (dare damnas esto). The borrower is now under an obligation to repay. He is said to be 'nexus' to his creditor, i. e. he has directly pledged his own person for repayment of the loan, and thus stands already in precisely the same position as a judgment debtor. Here, again, the effect of the introduction of coined money is that the loan, as executed in the nexum itself, is a mere form, the actual loan being an independent matter. Nevertheless, as in the case of mancipatio, so here, the material character of nexum as a transaction subserving one definite purpose only, remains intact. For nexum cannot be employed to create any kind of debt, but solely a debt based on a loan. Thus we see that the law of contract, too, is narrow and meagre, like the whole life of this early period. It appears from a document recently discovered in Pompeii that even in the first century of our era it was necessary, in mancipating several slaves, to repeat the whole mancipatio ceremony specially for each separate slave. Cp. Eck, vol. 1. p. 87 (Romanist. Abt.) of the ZS. der Sav. St. This follows from the legal rules about nexi liberatio (inf. § 76). It as appears, therefore, that in nexum well as in mancipatio the material character of the transaction must have been brought out in the ceremonial in some way or other, so that just as the purchaser did not acquire ownership by the bare form of mancipatio alone, so here the debtor did not incur an obligation by the bare form of the nexum alone. We have stated that mancipatio is a ready money transaction. § 10. It does not, as such, bind the purchaser to pay the price, but only makes such payment a condition precedent to the passing of ownership. Nexum, on the other hand, is a transaction on credit. Its effect is to place the borrower under an obligation to repay. If he fails, the debt will be followed by execution. Execution proceeds directly with inexorable rigour against the person of the debtor. He falls into the power of his creditor, who may bind him and cast him into chains. After having thrice publicly invited some one to come forward and release him, the creditor may-in default of any one appearing, and after the lapse of sixty days-regard the debtor as his slave, and may either kill him or sell him 'trans Tiberim,' i. e. into a foreign country, say, Etruria. If several creditors have claims upon one and the same debtor, the law allows them to cut the debtor into pieces, and provides that a mistake in the division shall in no wise prejudice their rights. XII tab. III. 1-4: Aeris, confessi rebusque jure judicatis, XXX dies justi sunto. Post deinde manus injectio esto. In jus ducito. Ni judicatum facit aut quis endo eo in jure vindicit, secum ducito, vincito aut nervo aut compedibus XV pondo, ne minore, aut si volet majore vincito. Si volet, suo vivito. Ni suo vivit, qui eum vinctum habebit, libras farris endo dies dato, si volet plus dato. 6: Tertiis nundinis partis secanto. Si plus minusve secuerint, se fraude esto. The rigour of the private law finds its counterpart in the rigour of the family power. Within his family the paterfamilias is an absolute sovereign; he has power over the life and liberty of any member of the household. The only external checks on the exercise of his legal rights are furnished, not by the law, but by religion and custom. § 11. The Interpretatio. The Twelve Tables had exhibited early Roman law in a form corresponding to its tendency, the form, namely, of a popular statute. § 11. In the original stages of its development the law of Rome, like that of other nations, was of the nature of customary law. The Romans, however, looked upon customary law as an inferior kind of law. Their innate sense of form could not rest satisfied with a species of law which is comparatively intangible, formless, and difficult of proof. True, there were some rules of customary origin which possessed the full force of law (legis vicem), rules resting on immemorial usage which the legal habits of the nation had gradually shaped into precision. But, generally speaking, it was held that the magistrate in administering justice was not absolutely bound by rules of mere customary law, and that in dealing with such rules he was justified, within certain limits, in exercising his free discretion. But a Lex (publica), i. e. a rule of law which magistrate and people had agreed upon by means of a solemn declaration of consensus, was a different matter'. The authority of a lex was irrefragably binding on the magistrate. In the Twelve Tables, Roman law had, to a considerable extent, received the form of a lex 2. It is to this fact that the success and or 1 Lex (Icelandic : lag, lög; Frisian: 2 Some isolated laws were made as probability, merely to the fact that the 59 ff. popularity of the decemviral legislation is due. So far as it was § 11. codified, at any rate, the law was now secure from the arbitrary powers of the magistrate who administered it. I L. 2 § 1 D. de orig. juris (1, 2) (POMPONIUS): Ex quidem initio civitatis nostrae populus sine lege certa, sine jure certo primum agere instituit omniaque manu a rege gubernabantur. TACITUS, Annal. III. 27: compositae duodecim tabulae, finis aequi juris. The decemviral legislation being accomplished, the energies of the three succeeding centuries were concentrated in the task of thoroughly working out its contents. During the Republic, changes by statute, in matters of private law, were exceptional, and the function of interpreting and, at the same time, developing the laws of the Twelve Tables was left, in the main, to the operation of the existing legal agencies. The period of legislation was followed by the period of interpretation. The exigencies of commerce demanded new regulations. How to represent these new regulations as virtually contained in, and covered by the statutory force of, the law of the Twelve Tables, was thus the problem to be solved. The notion of formally superseding the law of the Twelve Tables, which was statutory, by conflicting rules of law, which were merely customary, would, at that time, have appeared well-nigh inconceivable to the Romans. For throughout the long period of one thousand years, extending down to the final stage in the development of Roman law, i. e. down to the Corpus juris civilis of Justinian, the legal force of the Twelve Tables, as the source of all Roman law, was all along regarded as remaining, in theory, unimpaired, in spite of the fact that, when the end came, there was not a stone in the entire structure of the decemviral laws but had long been displaced from its original position. And this was quite in keeping with the conservatism of the Romans and the extreme caution with which they proceeded in all matters of law. Not one letter of the Twelve Tables was to be altered, and yet the new spirit was to be infused into the old letter. The decemviral legislation being complete, the time had arrived for an 'interpretatio' |