Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/700

676 ROMAN LAW [REGAL PERIOD. perplexing. Apparently the majority of those specially mentioned in the so-called leges regiae and other records of the regal period were regarded as violations of divine law, and the punishments appropriate to them determined upon that footing. Yet in many of them the prosecution was left to the state or to private indi- viduals. It is not clear, indeed, that there was any machinery for public prosecution except in treason and murder, the former be- cause it was essentially a state offence, the latter because it was comparatively early deemed expedient to repress the blood -feud, which was apt to lead to deplorable results when friends and neighbours appeared to defend the alleged assassin. 1 Take some of those offences whose sanction was sacratio capitis. Breach of duty resulting from the fiduciary relation between patron and client, maltreatment of a parent by his child, exposure or kill- ing of a child by its father contrary to the Romulian rules, the ploughing up or removal of a boundary stone, the slaughter of a plough-ox, all these were capital offences ; the offender, by the formula sacer esto, was devoted to the infernal gods. Festus says that, although the rules of divine law did not allow that he should be offered as a sacrifice to the deity he had especially offended (nee fas est eum immolari), yet he was so utterly beyond the pale of the law and its protection that any one might "kill him with impunity. But, as the sacratio was usually coupled with forfeiture of the offender's estate or part of it to religious uses, it is probable that steps were taken to have the outlawry or excommunication judi- cially declared, though whether by the pontiffs, the king, or the curies does not appear ; such a declaration would, besides, relieve the private avenger of the incensed god of the chance of future question as to whether or not the citizen he had slain was sacer in the eye of the law. That there must have been other wrongful acts that were regarded in early Rome as deserving of punishment or penalty of some sort, besides those visited with death, sacration, or forfeiture of estate, total or partial, cannot be doubted ; no community has ever been so happy as to know nothing of thefts, robberies, and assaults. The XII. Tables contained numerous provisions in reference to them ; but it is extremely probable that, down at least to the time of Servius Tullius, the manner of dealing with them rested on custom, and was in the main self-redress, restrained by the inter- vention of the king when it appeared to him that the injured party was going beyond the bounds of fair reprisal, and frequently bought off with a composition. When the offence was strictly within the family, the gens, and perhaps the guild, it was for those who exercised jurisdiction over those corporations to judge of the wrong and prescribe and enforce the penalty. Effect of Effect of the Servian Reforms on the Private Law. The Servian a i m o f t ^ e constitutional, military, and financial reforms of Servius Tullius was to promote an advance towards equality between patricians and plebeians. While it may be an open question whether the institution of the comitia of the centuries was of his doing, or only a result of his arrangements in after years, it seems clear that he had it in view to admit the plebeians to some at least of the privileges of citizenship, imposing on them at the same time a proportionate share of its duties and its burdens. Privileges, duties, and burdens were alike to be measured by the citizen's position as a freeholder ; the amount of real estate with its appurtenances held by him on quiri- tarian title was to determine the nature of the military service he was to render, the extent to which he was to be liable for tribute, and, assuming Servius to have con- templated the creation of a new assembly, the influence he was to exercise in it. To facilitate the execution of his scheme it was neces- sary to establish a register of the citizens (census), which should contain, in addition to a record of the strength of their families, a statement of the value of their lands and appurtenances, and which should be revised periodically. In order to ensure as far as possible certainty of title, and relieve the officials of troublesome investigations into the genuineness of every alleged change of ownership between two valuations, it was further declared presumably by Servius that no alleged transfer would be recognized which had not been effected publicly, with observance of certain prescribed solemnities, or else by surrender in 1 On murder (parricidium) in regal Rome, see Osenbruggen, Das altrSmische Paricidium, Kiel, 1841, and review by Dollmann in Richter's Krit. Jahrbuch, vol. xi. (1842), p. 144 tq. ; Clark, op, cit., p. 41 sq. court before the supreme magistrate. The form of con- veyance thus introduced got the name of mancipium, and at a later period mancipatio, while the lands and other things that were to pass by it came to be known whether from the first or not is of little moment as res mancipi. Hence arose in the law of property a distinction of great importance, only abolished by Justinian more than a thousand years later, between res mancipi, which were transferable in quiritarian right only by mancipation or surrender in court, and res nee mancipi, which were trans- ferable by simple delivery. Mancipation is described by Gaius, but with particular reference Mane to the conveyance of movable res mancipi, as a pretended sale in tion. presence of five citizens as witnesses and a libripens holding a pair of copper scales. The transferee, with one hand on the thing being transferred, and using certain words of style, declared it his by purchase with an as (which he held in his other hand) and the scales (hoc acre aencaque libra) ; and simultaneously he struck the scales with the as, which he then handed to the transferrer as figurative of the price. The principal variation when it was an immovable that was being transferred was that the mancipation did not require to be on the spot : the land was simply described by its known name in the valuation roll. Although in the time of Gaius only a fictitious sale in fact the formal conveyance upon a relative contract yet it was not always so. Its history is very simple. The use of the scales fixes its introduction to a time when coined money was not yet current, but raw copper nevertheless had become a standard of value and in a manner a medium of ex- change. That, however, was not in the first days of Rome. Then, and for a long time, values were estimated in cattle or sheep, fines were imposed in them, and the deposits in the legis actio sacra- mento (infra, p. 681) took the same form. The use of copper as a substitute for them in private transactions was probably derived from Etruria. But, being only raw metal or foreign coins, it could be made available for loans or payments only when weighed in the scales :_ it passed by weight, not by tale. There is no reason for supposing that the weighing was a solemnity, that it had any significance beyond its obvious purpose of enabling parties to ascer- tain that a vendor or borrower was getting the amount of copper for which he had bargained. It was this practice of everyday life in private transactions that Servius adopted as the basis of his mancipatory conveyance, en- grafting on it one or two new features intended to give it publicity and as it were state sanction, and thus render it more serviceable in the transfer of censuable property. Instead of the parties them- selves using the scales, an impartial balance-holder, probably an official, was required to undertake the duty, and five citizens were required to attend as witnesses, who were to be the vouchers to the census officials of the regularity of the procedure. They are fenerally supposed to have been intended as representatives of the ve classes in which Servius had distributed the population, and thus virtually of the state ; and the fact that, when the parties appealed to them for their testimony, they were addressed not as testes but as Quirites lends some colour to this view. Servius is also credited with the introduction of rectangular pieces of copper of different but carefully adjusted weights, stamped by his authority with various devices (aes signatum), which are usually supposed to have been intended to take the place of the raw metal (aes rude) formerly in use, and so facilitate the process of weighing ; but there is more reason for thinking they were cast and stamped as standards to be put into one scale, while the raw metal whose weight was to be ascertained was put into the other. Instead, therefore, of being a fictitious sale, as Gaius describes it, and as it became after the introduction of coined money early in the 4th century, the mancipium or mancipation, as regulated by Servius, was an actual completed sale in the strictest sense of the term. What were the precise words of style addressed by the trans- feree to the transferrer, or what exactly the form of the ceremonial, we know not. But, as attendance during all the time that some thousands of pounds perhaps of copper were being weighed would have been an intolerable burden upon the five citizens convoked to discharge a public duty, it may be surmised that it early became the practice to have the price weighed beforehand, and then to reweigh, or pretend to reweigh, before the witnesses only a single little bit of metal (raudusculnm), which the transferee then handed to the transferrer as " the first pound and the last," and thus repre- sentative of the whole. 2 Whatever may have, been its form, how- 2 The conjecture is suggested by the words of style in the solutio per aes et libram, Gai., iii. 173, 174. There were some debts from which a man could be effectually discharged only by payment (latterly fictitious) by copper and scales in the presence of a libripens and the usual five witnesses. In the words addressed to the creditor by the debtor making payment these occurred hanc tibi libram primam