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 in the 4th century of the city, the 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 transferee to the transferred, 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 a common 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 (raudusculum), which the transferee then handed to the transferrer as “the first pound and the last,” and thus representative of the whole.[1] And where no real price was intended, as in constituting a dos or in coemption, a raudusculum would also be employed. Whatever may have been its form, however, its effect was instant exchange of property against a price weighed in the scales. The resulting obligation on the vendor to maintain the title of the vendee, and the qualifications that might be superinduced on the conveyance by agreement of parties—the so-called leges mancipii—will be considered below in connexion with the provisions of the XII. Tables on the subject (infra, p. 542).
The things included in the class of res mancipi were lands and houses held on Quiritarian title, together with rights of way and aqueduct, slaves, and the following domestic beasts of draught or burden, viz. oxen, horses, mules and donkeys; all others were Res mancipi. res nec mancipi. Many theories have been propounded to account for the distinction between these two classes of things, and to explain the principle of selection that admitted oxen and horses into the one, but relegated such animals as sheep and swine to the other. But there is really little difficulty. Under the arrangement of Servius, what was to determine the nature and extent of a citizen's political qualifications, military duties and financial burdens was apparently the value of his heredium (and other lands, if he had any), and what may be called its appurtenances—the slaves that worked for the household, the slaves and beasts of draught and burden that worked the farm, all of which lived and worked in common with the free members of the familia. But the cattle a man depastured on the public meadows were no more res mancipi than his sheep, a fact which, though ultimately in the later Empire lost sight of, was still understood in the time of Gaius.[2] To say that the things classed as res mancipi were selected for that distinction by Servius because they were what were essential to a family engaged in agricultural pursuits would be to fall short of the truth. They constituted the familia in the sense of the family estate proper; whereas the herds and flocks, and everything else belonging to the paterfamilias, fell under the denomination of pecunia. So the words are to be understood perhaps in the well-known phraseology of the mancipatory testament, familia pecuniaque mea.[3]
The public solemnity of mancipatio thus sanctioned as a mode of transferring a Quiritarian right of property, for which manus was probably as yet the only descriptive word in use, was not long in being adapted to and utilized for other transactions in which other kinds of manus were sought to be acquired. These new adaptations, if confined at first for the most part to plebeians, were also soon made use of by the patricians, perhaps before as well as after the XII. Tables, and became by custom part of the common law. Such were, for example, coemption (as explained above), emancipation and adoption of filiifamilias, and mortis causa alienation of a familia and nexum.
Law of Succession.—The legal order of succession during the regal period was extremely simple. It was this: on the death Succession amongst the patricians. of a paterfamilias his patrimony devolved upon those of his descendants in potestate who by that event became sui juris, his widow (being loco filiae) taking an equal share with them, and no distinction being made between movables and immovables. Such persons were styled self-heirs (sui heredes). Failing widow and children, his patrimony went to his gens. The notion that between the descendants and the gens came an intermediate class under the name of agnates does not seem well founded as regards the regal period; the succession of agnates as such seems to have been first legally recognized by the XII. Tables, probably to meet the case of the plebeians, who, having no gentes, were without legal heirs in default of children.[4]
The later jurists more than once refer to the perfect equality of the sexes in the matter of succession in the ancient law.[5] But it was rather nominal than real. A daughter who had passed into the hand of a husband during her father's lifetime of course could have no share in the latter's inheritance, for she had ceased to be a member of his family. One who was in potestate at his death, and thereby became sui juris, did become his heir, unless he had prevented such a result by testamentary arrangements; but even then it was in the hands of the gens to prevent risk of prejudice to themselves. For she could not marry, and so carry her fortune into another family, without their consent as her guardians; neither could she without their consent alienate any of the more valuable items of it; nor, even with their consent, could she make a testament disposing of it in prospect of death. Her inheritance, therefore, was hers in name only; in reality it was in the hands of her guardians.
Of primogeniture or legal preference of one member of the family over the others there is not the faintest trace. And yet we are told of heredia remaining in a family for many generations—a state of matters that would have been impossible had every death of a paterfamilias necessarily involved a splitting up of the family estate. It is conceivable that this was sometimes prevented by arrangement amongst the heirs themselves; and the practice of every now and then drafting the younger members of families to colonies diminished the number of those who had a claim to participate. But the simplest plan of avoiding the difficulty was for the paterfamilias to regulate his succession by testament; and this was probably had recourse to, not so much for instituting a stranger heir when a man had no issue—according to patrician notions his duty then was to perpetuate his family by adopting a son—as for partitioning the succession when he had more children than one.
There were two sorts of testaments made use of by the patricians of the regal period—that made in the comitia of the Testaments. curies (test. calatis comitiis) and that made in the presence of the army (probably represented for this purpose by a few comrades) on the eve of battle ments (test. in procinctu factum). The first at least—and the second was just a substitute for it on an emergency—was far from being an independent exercise of the testator's voluntas. For, though, in course of time, and under the sanction of the uti legassit ita jus esto of the XII. Tables, the curies may have become merely the recipients of the oral declaration by the testator of his last will, in order that they might testify to it after his death, it is impossible not to see in the comitial testament what must originally have been a legislative act, whereby the testator's peers, for reasons which they and the presiding pontiffs thought sufficient, sanctioned in the particular case a departure from the ordinary rules of succession. The pontiffs were there to protect the interests of religion, and the curies to protect those of the testator's gens; and it is hardly conceivable that a testament could have been sanctioned by them which so far set at nought old traditions as to deprive a filiusfamilias of his birthright, at least in favour of stranger.
- ↑ 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 postremamque expendo (“I weigh out to you this the first and the last pound”). The idea is manifestly archaic, and the words, taken strictly, are quite inappropriate to the transaction in the form it had assumed long before the time of Gaius.
- ↑ Gai. ii. 15; Ulpian, Frag. xix. 1.
- ↑ Gai. ii. 104. By the time of the XII. Tables the sharp distinction between these two terms is tending to disappear.
- ↑ It is quite true, however, that from the first the order of succession was agnatic; for it was those only of a man's children who were agnate that had any claim to his inheritance; and the gens was, theoretically at least, just a body of agnates. The supposed mention of agnates in a law attributed to Numa is a conjecture of P. E. Huschke's (in Analecta litteraria, Leipzig, 1826, p. 375). The law is preserved in narrative by Servius, In Virg. Eclog. iv. 43, which runs thus: “In Numae legibus cautum est, ut si quis imprudens occidisset hominem, pro capite occisi et natis ejus in cautione (Scalig, concione) offerret arietem.” Huschke's substitution of agnatis for et natis is all but universally adopted; but, even were it necessary, it need mean nothing more than his children in potestate or his gens.
- ↑ The Voconian law of 169 B.C. avowedly introduced something new in prohibiting a man of fortune from instituting a woman, even his only daughter, as his testamentary heir; but even it did not touch the law of intestacy. See Girard, Manuel, 4th ed. p. 816.
