Page:The history of Rome. Translated with the author's sanction and additions.djvu/182

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162

LAW AND JUSTICE.

[Book I.

founded no claim for legal redress at the hands 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 cases where an oath had been added, as was frequently done, 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 This was done, after copper superseded sheep and cattle as the regular standard of value, by weighing out the stipulated quantity of copper in a balance adjusted by a neutral person.^[1] These conditions having been complied with, the seller had to answer for his being the owner, and further, seller and purchaser had to fulfil every stipulation specially agreed upon; the party failing to do so made reparation to the other, just as if he had robbed 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 could form no ground of action. A loan was negociated in a similar way; the creditor weighed over to the debtor in presence of witnesses the stipulated quantity of copper under the obligation

↑ The mancipatio, as we know it, must have been more recent than the Servian reform, as the five testes classici and the selection of mancipable objects, which had for its aim the fixing of agricultural property, serve to show; even tradition must have assumed that such was the case, for it makes Servius the inventor of the balance. But in substance the mancipatio must be far more ancient, for it is primarily applicable only to objects which are acquired by grasping with the hand, and must therefore, in its earliest form, have belonged to the epoch when property mainly consisted in slaves and cattle (familia pecuniaque). The number of witnesses, and the enumeration of those objects, which had to be acquired by mancipatio, would in this view undergo revision when the constitution was reformed; the mancipatio itself, and consequently the use also of the balance and of copper, are more ancient. Beyond doubt, mancipatio was originally the universal form of purchase, and was the practice followed with all articles even after the Servian reform; it was only a misunderstanding of later ages which put upon the rule that certain articles must be transferred by mancipatio, the construction that such articles alone could be so transferred.

[1] The mancipatio, as we know it, must have been more recent than the Servian reform, as the five testes classici and the selection of mancipable objects, which had for its aim the fixing of agricultural property, serve to show; even tradition must have assumed that such was the case, for it makes Servius the inventor of the balance. But in substance the mancipatio must be far more ancient, for it is primarily applicable only to objects which are acquired by grasping with the hand, and must therefore, in its earliest form, have belonged to the epoch when property mainly consisted in slaves and cattle (familia pecuniaque). The number of witnesses, and the enumeration of those objects, which had to be acquired by mancipatio, would in this view undergo revision when the constitution was reformed; the mancipatio itself, and consequently the use also of the balance and of copper, are more ancient. Beyond doubt, mancipatio was originally the universal form of purchase, and was the practice followed with all articles even after the Servian reform; it was only a misunderstanding of later ages which put upon the rule that certain articles must be transferred by mancipatio, the construction that such articles alone could be so transferred.

[1]