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tion of interpreting and, at the same time, developing the laws of § 12. 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 regarded all along 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' which should develop and even alter the law, but should, at the same time, leave the letter of the law intact.

The period of interpretation covers the later centuries of the Republic. At the outset the work of interpreting the law, i. e. of carrying on, in its initial stage, the development of the jus civile, was performed by the pontiffs. It was regarded as the special professional duty of the pontiffs to preserve the knowledge of the laws of the Kings. In consequence more particularly of the knowledge they thus possessed and also of their general scientific learning, it became their office to assist with legal advice not only magistrates in regard to the exercise of the jurisdiction vested in them, but also private parties in regard to the steps to be taken in concluding contracts and carrying on lawsuits (infra, § 18). Thus it happened that

§ 12. the business of interpreting the subsisting law, and thereby developing the civil law, fell under the control of the pontiffs.

It was by means of such interpretation that the so-called 'In Jure Cessio' was now developed. In jure cessio was a new way of conferring a legal title by means of a fictitious lawsuit before the magistrate. The beginnings of in jure cessio probably date back to a time anterior to the laws of the Twelve Tables, but its full development belongs to a period subsequent to these laws. The Twelve Tables provided that whenever one party to an action, at the suit of the other, at once admitted his opponent's title in person before the magistrate ('in jure'), no judgment should be required, and the party confessing should be regarded as already condemned (confessus pro judicato est). The confession before the magistrate had the force of a judgment. Thus, in a suit about ownership, the magistrate could at once proceed to award the thing to the plaintiff (the 'addictio'). In other words, if a person confessed before the

• That the maxim 'confessus pro judicato est' (1. 1 D. 42, 2) occurred in the Twelve Tables in some form or other, either directly or indirectly, seems a reasonable inference from the statement of the jurist Paulus (Vat. fr. 50): ‘et mancipationem et in jure cessionem lex xii. tab. confirmat.'

It is extremely probable that the starting-point in the development is to be found in the fictitious suit on a question, not of ownership, but of status, such a suit being first employed for purposes of manumission. Livy tells us (ii. 5) that it first came into use in the beginning of the Republic, which would be not long before the Twelve Tables. The oldest times knew of no juristic act by means of which a manumission could be effected. In jure cessio was thus invented in order to render manumission possible, and was used for the first time (according to the legend reported by Livy) in favour of the slave who discovered the conspiracy of the sons of Brutus. Cp. Karlowa, Röm. RG., vol. ii. p. 130.

In an in jure cessio the fictitious defendant himself directly confesses that he has no title. As distinguished from

the judgment of a judex which only operates clearly to ascertain a legal relationship already in existence, this self-condemnation of the defendant (cp. nexum, p. 52) is tantamount to a valid disposition (cessio), i. e. it operates not to ascertain, but to constitute a legal relationship. That is the reason why, on principle, the judgment of a judex only operates inter partes,' i. e. its effect is confined to the parties themselves, whereas, on the other hand, the selfcondemnation produces a new legal relationship. The confessus in jure is divested of his right, and that even though he may fail to effect a transfer of it to the other party (cp. e. g. § 109, end of n. 3). This is the foundation of the legal force of in jure cessio against third parties as well, for the disposition which is implied in the confessio in jure confers on the other party a title available against every one, provided of course the person making the disposition was himself really the owner. See, on this question: Demelius, Die Confessio im röm. Civilprocess (1880), p. 98 ff.; Pernice, ZS. der Sav. St. für RG., vol. ix. p. 203.

magistrate that his opponent in the action was the owner, he was § 12. divested of his ownership, provided that at the moment of the confessio he was still owner. This suggested a general method for transferring ownership. If A desired, on any legal ground whatever, to transfer his ownership in a thing to B, A and B would go before the magistrate, B (the intended transferee) would claim ownership as fictitious plaintiff, A (the intended transferor) would admit his title as fictitious defendant, and the magistrate would then pronounce his award (addictio) in favour of the transferee. Thus the transferor was divested of his ownership and the transferee was invested with it. A rule of procedure (confessus pro judicato est) had been utilized for developing a new kind of private juristic act, the act of transferring ownership by means of a fictitious vindicatio (in jure cessio), and one the validity of which could be represented as resting on the Twelve Tables. The same process could be utilized for the purpose of establishing patria potestas and effecting the manumission of a slave by means of a fictitious vindicatio 'in patriam potestatem' and 'in libertatem' respectively. Thus in jure cessio became the medium through which a whole host of new juristic acts were introduced into the working system of Roman law".

* In jure cessio was used for the purpose (1) of manumission (manumissio vindicta, infra, § 3a); (2) of emancipation (§ 102); (3) of adoption (§ 100); (4) of assigning the tutela legitima mulierum (§ 103, n. 2); (5) of assigning the hereditas (but only the hereditas legitima, 109, n. 3); (6) of transferring ownership, both in res mancipi and res nec mancipi (§ 62); (7) of creating any kind of servitude (mancipatio being only available for the creation of rural servi tudes, 69, iv). The procedure was the same in all cases, whether the subjectmatter of the claim were liberty, patria potestas, tutela, hereditas, ownership, or servitude. The alienee first makes a fictitious vindicatio in his own favour, the alienor then confesses in jure,' and the magistrate gives his award (dictio, addictio) accordingly. The use of in jure cessio in cases 2, 3, and 7 can be assigned with certainty to a period subsequent to the Twelve Tables. The

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same is to be said of 4 and 5, because
the sphere within which they are ap-
plicable is determined by the Twelve
Tables themselves, in jure cessio being
only available for the assignment of a
tutela legitima mulierum and a hereditas
legitima. Only the first case belongs
most probably to a period anterior to
the Twelve Tables (note 4, supra), but
very possibly owes its general and un-
questioned validity to the interpretation
based on the Twelve Tables. It should
also be observed that not every tutela
legitima was transferable by in jure
cessio, but only the tutela legitima
mulierum. This fact shows that at the
time when in jure cessio was coming
into use, the tutela legitima impuberum
was already regarded as an officium'
and, as such, was unassignable, whereas
the tutela legitima mulierum retained
its original character of a special power
which existed in the interest of the
(agnatic) guardian, and might therefore

§ 12.

Another juristic act was developed in a similar manner by utilizing a penal provision of the Twelve Tables. This was the 'emancipation' of the filiusfamilias. The Twelve Tables enacted that, if a father sold his son thrice into bondage, he should suffer the penalty of forfeiting his patria potestas.

XII Tab. IV. 2: Si pater filium ter venumduuit, filius a patre liber esto.

The 'interpretatio' utilized this rule. The father might sell his son, by a purely imaginary sale, thrice repeated, into the bondage of another who would manumit the son after each sale by means of in jure cessio. The effect of this transaction was the 'emancipation' of the filiusfamilias, i.e. he was discharged from the paternal power; for the conditions required by the Twelve Tables had been complied with. The father had thrice sold his son into bondage, consequently the son was now free from the paternal power. A different adaptation of the same penal rule led to the development of 'datio in adoptionem' (§§ 100, 102).

Of all the changes the most important was the transformation which mancipatio underwent in the course of the century subsequent to the Twelve Tables. The Twelve Tables enacted:

XII Tab. VI. 1: Cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto.

That is to say, the formal juristic act was to operate in the manner defined by the solemn oral declaration (nuncupatio). Utilizing this rule, the interpretation changed the nature of mancipatio. It was the intention of the Twelve Tables that mancipatio should be a genuine sale, and it was essential for its validity that the purchasemoney, as specified in the mancipatio, should be actually paid down. But there was nothing to prevent the parties from naming in the ceremony of mancipatio, not the real price, but a fictitious one, and since the payment of this price sufficed to call into play the operation of mancipatio as a legal conveyance, the parties were thus able,

be treated as assignable. Both the cases
in which in jure cessio was applied, and
also the limitations which were imposed
upon its use, point to the conclusion that
it was not developed at a very early

period. See also on this subject: Karlowa, Röm. RG., vol. ii. pp. 383, 384.

• Mancipium is the name given here to mancipation.

in effect, to evade the rule as to the necessity of paying the price. § 12. And this is what actually happened at a later stage. The outcome of this device was the so-called 'mancipatio sestertio nummo uno.? In the mancipatio a declaration was made that the thing was being sold for 'one sesterce,' and, the alienee having paid his sesterce', ownership passed to him in virtue of the Twelve Tables. So far then as mancipatio took the form of a 'mancipatio sestertio nummo uno,' it had passed from a genuine to a purely fictitious sale (imaginaria venditio)'.

The result was that mancipatio developed into a general mode of conveying ownership as such, quite irrespective of the legal ground on which such conveyance took effect. It could now be employed for a variety of purposes. It was, for instance, available for the purpose of making a gift. But there was another and a more important use to which it could be turned: the so-called 'mancipatio fiduciae causa' had now become practicable. This mancipatio fiduciae causa, or, briefly, ‘fiducia,' was a qualified mancipatio, the effect of which was accordingly to impose a duty on the transferee, and it was a trans action, the nature of which rendered it conveniently available for economic purposes of the most multifarious kinds. Thus the change from the old mancipatio to the new was a change from a trans

" It will be observed that the handing over of the aes (raudusculum), which was part of the mancipatio ceremony, was not sufficient. The requirement of the Twelve Tables concerning the payment of the price had also to be satisfied, and this was done by the payment of the nummus unus. True, such a proceeding was a violation of the spirit of the Twelve Tables, but the letter was strictly adhered to. And it was precisely in this that the peculiar nature of the interpretation lay: while professedly but interpreting the letter of the old law, it was really building up new law.

A fictitious sale of this kind was resorted to, when it was desired, e. g. to make a gift, pledge, &c., by mancipatio (cp. p. 62). But mancipatio nummo uno was also available in the case of real sales, and possessed then a twofold advantage, one in favour of the purchaser, the other in favour of the vendor.

The purchaser was benefited in that the
ownership passed by the mere payment
of one sesterce, the rule of the Twelve
Tables touching the necessity of paying
the price being thus evaded. The vendor
was benefited in this wise. According
to the Twelve Tables, if the purchaser
in mancipatio were evicted from posses-
sion of the thing mancipated by a person
whose title was superior to his (the
vendor, e. g. not having been the real
owner), the latter (i. e. the vendor) was
compellable by an actio auctoritatis'
to indemnify the purchaser to the extent
of double the price solemnly named
('nuncupated') in the mancipatio. In
the case of a mancipatio nummo uno
'double the price named' meant two
sesterces, i.e. practically nothing. Thus,
by means of the mancipatio nummo uno
the 'actio auctoritatis' was also excluded
in spite of the Twelve Tables. Karlowa,
Röm. RG., vol. ii. pp. 371 ff., 377 ff.

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