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See also:PERIOD]
or perhaps old-established customs formulated by the higher pontiffs and ascribed to the See also:kings.'
It is also stated by See also:Dionysius that under Servius Tullius various See also:laws, fifty in number, dealing with contracts and delicts, were enacted in the See also:comitia of the curies.' But we have no corroboration of this, and See also:recent writers are now generally agreed in regarding the statement as a See also:legend
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ii
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Reforms of Servius Tullius
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It is generally agreed that towards the end of the regal period, and connected with the See also: The plebeians were thereby made constitutionally part of the populus See also:Romanus; they became citizens (See also:Quirites).3 They got commercium and also connubium so far that their marriages inter se were recognized as legal marriages . Rights and duties ' See See also:Clark, Hist. of Rom . Law (1906), i . 16-19; Kipp, Geschichte d . Quellen (1903), pp . 24-25 . The most comprehensive See also:treatise on these royal laws, which also contains references to the earlier literature, is that of Voigt, Uber See also:die Leges Regiae (See also:Leipzig, 1876) . An exhaustive collection of them, including numerous references to royal institutions by See also:Livy, Dionysius and others, is given in Bruns, Fontes See also:Juris, 6th ed. i. seq . Another collection is in See also:Girard, Texles, 3rd ed. pp . 3 seq . 2 See also:Dion. iv. to, 13 . ' The view of some recent writers that the plebeians had at all times participated in the See also:jus Quiritium and were admitted to the curiate comitia and even had gentile rights (see Lenel in See also:Holtzendorff's Bncyklobadie d . Rechtswissenschaft, 6th ed. i . 90 nn . 1, 2, and authorities there cited), must be decidedly negatived . Not only does it render the whole tradition about the Servian reforms untrustworthy, but the accounts of the struggles between patricians and plebs in the early See also:Republic are See also:left largely without meaning.529 were so far to be measured by each See also:citizen's position as a holder of lands; the amount of land (including slaves and cattle appurtenant thereto)' held by him on quiritarian See also:title was to determine the nature of the military service he was to render, the See also:tribute he was to pay, and his right to take part in the new political assembly . It is indeed probable that a good while before Servius the conception of individual ownership of lands and things necessary for their cultivation had been reached, and that such ownership was recognized not only among the gentiles, but also de facto even more largely among the plebeians . The See also:common lands of the genies had become split up, to a considerable extent, among families and individuals . However this be, the creation of the census ensured, as far as possible, certainty of title, as it was declared that no transfers of See also:property enrolled in it would be recognized unless made by public See also:conveyance with observance of certain prescribed formalities.' The See also:form of conveyance thus legally sanctioned was called originally mancupium, afterwards mancipium, and at a still later period mancipatio, while the lands and other things that were to pass by it came to be known as res mancipii (or mancipi) . Hence arose a distinction of great importance in the law of property (which lasted till Justinian formally abolished it), between res mancipi and res nec mancipi; the former being transferable only by mancipation or surrender in See also:court, the latter by See also:simple delivery (see infra, p . S41) . iii . Institutions of the Private Law . Law of the See also:Family 6—The word familia in Roman law had at once a more extensive and a more limited meaning than it has in its English form . See also:Husband, wife and The See also:children did not necessarily constitute an independ- patrician ent family among the Romans, as with us, nor were family . they all necessarily of the same one . Those formed a family who were all subject to the power—originally manus," later potestas or jus—of the same See also:head (paterfamilias) . The paterfamilias was himself a member of the family only in the sense in which a king is a member of the community over which he rules . He might have a whole See also:host dependent on him, wife and sons and daughters, and daughters-in-law and See also:grand-children by his sons, and possibly remoter descendants related through See also:males; so See also:long as they remained subject to him they constituted but one family, that was split up only on his See also:death or loss of citizenship . But if his wife had not passed in manum (a result apparently unknown among the patricians at this period), she did not become a member of his family: she remained a member of the family in which she was See also:born, or, if its head were deceased or she had been emancipated, she constituted a family in her own See also:person . Both sons and See also:Modern writers are not agreed as to whether movable res mancipi were included with lands in the valuation of property for fixing the classes . Or else by cessio in jure, though this may not have been before the XI I . Tables, and it was in any See also:case of very limited operation . ' On tribal family and See also:matriarchate among the Romans in pre-historic times, consult Westermarck, See also:History of Human See also:Marriage (See also:London, 1891) ; See also:Post, Grundriss der ethnologischen Jurisprudenz, (1894), i . 15-160 . Familia and family are used in this See also:section. solely to designate the See also:group of See also:free persons subject by See also:birth, marriage or See also:adoption to the same paterfamilias . Strictly the word familia meant the See also:household and all belonging to it . It had also the following See also:principal meanings: (1) a gens or See also:branch of a gees (group of families in the stricter sense) ; (2) the whole See also:body of agnatic kinsmen (familia communi jure); (3) the family See also:estate or pairimonium, as in the provisions of the XII . Tables about intestate See also:succession, e.g. adgnatus See also:proximus familiam habeto; (4) the family slaves collectively, as in the phrase familia rustics . See See also:Mommsen, Staatsr. iii. io n . 16 n . 22; Rivier, Precis du See also:droit de famille romain (See also:Paris, 1891), § i . This word manus, though in progress of time used technically to See also:express the power (hand) of a husband over his wife in familia, was originally the generic See also:term for all the rights exercised, not only over the things belonging but also over the persons subject to the head of the See also:house—as seen, for example, in the words " manumission " and " emancipation." Cf . Inst. i . 5 pr . It should be observed that among uncivilized peoples there is always a very small vocabulary, and the same word often has to do See also:duty in several senses—e.g. familia, mancipium, nexum, ca put . daughters on emancipation ceased to be of the family of the paterfamilias who had emancipated them . A daughter's children could never as such be members of the family of their maternal grandfather; for children born in lawful marriage followed the family of their See also:father, while those who were illegitimate ranked from the moment of birth as patresfamilias and matresf amilias . With the early Romans, as with the See also:Hindus and the Greeks, marriage was a religious duty a See also:man owed alike to his ancestors Marriage. and to himself . Believing that the happiness of the dead in another See also:world depended on their proper See also:burial and on the periodical renewal by their descendants of prayers and feasts and offerings for the repose of their souls, it was See also:incumbent upon him above all things to perpetuate his See also:race and his family cult . The Romans were always strictly monogamous . In taking to himself a wife, he was about to detach her from her father's house and make her a partner of his family mysteries . With the patrician at least this was to be done only with divine approval, ascertained by auspicia . His choice was limited to a woman with whom he had connubium (irr-yapia) or right of intermarriage . This was a See also:matter of state arrangement; and in the regal period Roman citizens could have it outside their own See also:bounds only with members of states with which they were in See also:alliance, and with which they were connected by the See also:bond of common religious observances . A patrician citizen, therefore, if his marriage was to be reckoned lawful (justae nuptiae), had to wed either a See also:fellow-patrician or a woman who was a member of an allied community . In either case it was essential that she should be outside his sobrinal circle, i.e. more remote in kinship than the See also:sixth degree . The ceremony was a religious one, conducted by the See also:chief pontiff and the See also:flamen of See also:Jupiter, in presence of ten witnesses, representatives probably of the ten curies of the bridegroom's tribe, and was known as farreum or confarreatio . Its effect was to dissociate the wife entirely from her father's house, and to make her a member of her husband's; for confarreate marriage involved in manum conventio, the passage of the wife into her husband's " hand" or power, provided he was himself paterfamilias; if he was not, then, though nominally in his hand, she was really subject like him to his family head . Any property she had of her own—which was possible only if she had been See also:independent before marriage—passed to him as a matter of course; if she had none, her paterfamilias usually provided her a See also:dowry (dos), which shared the same See also:fate . In fact, so far as her patrimonial interests were concerned, she was in much the same position as her children; and on her husband's death she had a share with them in his See also:inheritance as if she had been one of his daughters . In other respects manus conferred more limited rights than patria potestas; for See also:Romulus is said to have ordained that, if a man put away his wife except for See also:adultery or one or two other See also:grave offences, he forfeited his estate See also:half to her and half to See also:Ceres, while if he sold her he was to be given over to the infernal gods.' Patria potestas was the name given to the power exercised by a father, or by his paterfamilias if he was himself in potentate, Patch over the issue of such justae nuptiae . The Roman potestas. jurists boasted that it was a right enjoyed by none but Roman citizens; and it certainly was See also:peculiar to them in this sense, that nowhere else, except perhaps among the Latin race from which they had sprung, did the paternal power attain such an intensity . The omnipotence of the paterfamilias and the See also:condition of utter subjection to him of his children in potentate became greatly modified in the course of centuries; but originally the children, though in public ' See See also:Plutarch, Rom . 22; See also:Marquardt, Rom . Altert. v . 7 . The question whether a husband could in early law sell his wife is one on which modern writers are not agreed . The better See also:opinion is that he could not do so if the marriage was by confarreation . Apart from the lex regia above mentioned, it would have been inconsistent with her dignity as maeerfamilias . There is certainly no trace of its having been done . In marriages by coemption and usus, on the other hand, it is not improbable that it was allowed, though here also there is no evidence of it.See also:life on an equality with the house-father, in private life, and so long as the potestas lasted, were subordinated to him to such an extent as, according to the See also:letter of the law, to be in his hands little better than his slaves .
They could have nothing of their own: all they earned was his; and, though it was quite common when they See also:grew up for him to give them peculia, " cattle of their own," to See also:manage for their own benefit, these were only de facto theirs, but de jure his
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For offences committed by them outside the family circle, for which he was not prepared to make amends, he had to surrender them to the injured party, just like slaves or animals that had done See also:mischief
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If his right to them was disputed, he used the same See also:action for its vindication that he employed for asserting his ownership of his See also: The adopting parent acquired potestas over the adopted child exactly as if he were the issue of his body; while the latter enjoyed in his new family the same rights exactly that he would have had if he had been born in it . The manus and the patria potestas represent the masterful aspects of the patrician's domestic establishment . Its conjugal. and parental ones, however, though not so prominent in the pages of the jurists, are not to be lost sight of. t)omeoatns . tc The patrician family in the early history of the law was retatt governed as much by fas as by jus . The husband was See also:priest in the family, but wife and children alike assisted in its prayers, and took part in the sacrifices to its fares and. See also:penates . As the See also:Greek called his wife the house-See also:mistress, SEO7rowa, so did the Roman speak of his as materfamilias,2 the house-See also:mother . She was treated as her husband's equal . As for their children, the potestas was so tempered by the natural sense of parental duty on the one See also:side and filial See also:affection on the other that in daily life it was rarely See also:felt as a grievance; while the See also:risk of an arbitrary exercise of the domestic See also:jurisdiction, whether in the See also:heat of See also:passion or under the impulse of justifiable resentment, was 2 Materfamilias is used in the texts in two distinct senses—(t) as a woman sui juris, i.e. not subject to any family head; and (2) as a wife in manu mariti . guarded against by the See also:rule which required in grave cases the paterfamilias to consult in the first place the near kinsmen of his crud, maternal as well as paternal . Even the incapacity of the children of the family to acquire property of their own cannot in those times have been regarded as any serious hardship; for, though the legal title to all their acquisitions was in the house-father during his life, yet in truth they were acquired for and belonged to the family as a whole, and he was little more than a trustee to hold and administer them for the common benefit . The patria potestas, unless the paterfamilias voluntarily put an end to it, lasted as long as he lived and retained his status . The marriage of a son, unlike that of a daughter passing into the hand of a husband, did not See also:release him from it, nor did his children become subject to him so long as he himself was in potentate . On the contrary, his wife passed on marriage into the power of her father-in-law, and their children as they were born See also:fell under that of their paternal grandfather; and the latter was entitled to exercise over his daughters-in-law and grandchildren the same rights that he had over his sons and unmarried daughters . But there was this difference, that, when the paterfamilias died, his sons and daughters who had remained in potestate and his grandchildren by a predeceased son instantly became their own masters (sui juris), whereas grand-children by a surviving son simply passed from the potestas of their grandfather into that of their father . The acquisition of domestic See also:independence by the death of the family head frequently involved the substitution of the Guard- guardianship of tutors (tutela) for the potestas that ianship had come to an end . This was so invariably of tutors. in the case of See also:females sui juris, no matter what their See also:age: they remained under guardianship until they had passed by marriage in manum mariti . It was only during pupillarity, however, that males required tutors, and their See also:office came to an end when See also:puberty was attained . It is improbable that during the regal period a testamentary See also:appointment of tutors by a husband or parent to wife or children was known in practice . In the See also:absence of it the office devolved upon the gens to which the deceased paterfamilias belonged . Family Organization among the Plebeians.—If perfect identity of customs cannot be assumed to have existed amongst the patrician genies in the regal period of See also:Rome, far less Plebeian can it be supposed to have existed amongst the heterofamily . geneous See also:population (Latins, Etruscans, Greeks, &c.) of which the plebs was constituted . Nevertheless, contiguity of See also:residence and community of interests tend inevitably to unify customs and cause dissimilarities to disappear, and the plebeians must have not only gradually brought their own customs into unison inter se, but adapted them at the same time in many respects to those of the patricians . Even to those of non-Latin race manus over their wives and potestas over their children would become a desideratum . Though the plebeians seem to have been always excluded from confarreation, and their matrimonial unions must have been at first informal and irregular from the point of view of the Quirites, two See also:civil modes of acquiring marital manus were available to them after they obtained citizenship, viz. coemptio and usus . Some writers hold that neither of these modes was legally recognized See also:prior to the XII . Tables.' This may be so, but it is improbable . As the plebeians obtained by the Servian constitution full capacity for quiritarian ownership, it was at once open to them to adapt the modes sanctioned for acquiring property to the acquisition of marital manus . Coemptio was just a simple See also:adaptation of mancipation above referred to (see also infra, p . 540) . It was, as we may infer from what we know of it at a later time, a See also:sale of the woman to the man per aes et libram for a nominal See also:price . The price being fictitious, a piece of See also:copper (raudusculum) was used to represent it, and this was handed over to the seller, who would ordinarily be the woman's paterfamilias, or, if she were sui juris, her gentile See also:tutor . The nuncupatory words used in the ceremony have unfortunately not been preserved; necessarily, of course, they t See as to coemptio, Cuq, Institutions juridiques, 2nd ed., i. p . 62.varied from those of an ordinary mancipation of property.2 Though called by the jurists a mode of constituting marriage, coemptio, as we know it, was strictly a mode of creating manus; for, though usually contemporaneous with, it might, as See also:Gaius informs us, follow the marriage at any distance of time, and was not dissolved by See also:divorce, but required a See also:separate See also:act of remancipation . Students of See also:comparative law have observed that in coemptio there are clear traces of earlier See also:bride See also:purchase, so common even nowadays among uncivilized tribes, where a real price in cattle or See also:sheep, and not a See also:mere nominal one, has to be paid for the bride . Usus, on the other hand, was a mode of acquiring marital manus by See also:possession of the woman as wife for a certain period of time—long cohabitation .3 Whether this was recognized by the law prior to the XII . Tables depends probably upon whether usucaption, as. a mode of acquiring property, was settled by See also:custom earlier than the Tables . Some writers, however, think it older than coemptio, and as a de facto relation prolonged cohabitation as man and wife must have existed from very early times . Comparative historians with good reason trace in usus the See also:relics of See also:primitive bride See also:capture . Both coemption and usus, from the time they were first recognized by the jus Quiritium, undoubtedly created patria potestas and agnatic rights . Law of Property.'-The history of the early Roman community, like many other primitive communities, is marked by the disintegration of the genies and the growth of property individual property . Yet the See also:distribution of land in land . amongst the early Romans is one of the puzzling Pate/-problems of their history . The Servian constitution clans . apparently classified the citizens and determined their privileges, duties and burdens according to the extent of their lands; and yet we know nothing for certain of the way in which these were acquired . All is conjectural . We have indeed a traditional account of a See also:partition by Romulus of the little territory of his See also:original See also:settlement into three parts, one of which was devoted to the See also:maintenance of the state and its institutions, civil and religious, the second (ager publicus) to the use of the citizens and profit of the state, and the third (ager privatus) subdivided among his followers . See also:Varro and See also:Pliny relate that to each paterfamilias among his followers he assigned a See also:homestead (heredium) of two jugera, equal to about an See also:acre and a See also:quarter . These See also:heredia were to be held by him and his heirs for ever (quae heredem sequerentur) ; Pliny adding that to none did the king give more . This can only be accepted as a partially correct account of what may have taken place at some early period during the kingly regime . There can be little doubt that a portion of the Roman territory, gradually augmented through new conquests, was early reserved by the state as ager publicus; that is sufficiently attested by the complaints made for centuries by the plebeians of its monopolization by the patricians . It is also probable that heredia (i.e. plots of land within the city) may have been granted to the heads of the gentile families, many of whom would be living in pagi on their respective gentile lands outside the city . Such heredia became family property, administered . as such by the paterfamilias, but inalienable by him . In this respect the position would be very similar to what existed among the See also:ancient Germans and exists to-See also:day in India among the Hindus . Even See also:late in the Republic, when the See also:idea of 2 One or two writers of the later See also:Empire (e.g . ,Servius, in Georg . I . 31) describe coemptio as a mutual purchase, the man and woman taking alternately the position of emptor and using nuncupatory' words as such ; but this seems to be a misapprehension and not consistent with what Gaius says . See the arguments in favour of it in Muirhead, See also:Historical Introduction; 2nd ed. pp . 414-415 . Girard, See also:Manuel, 4th ed. p . 15o, gives a probable explanation of the See also:mistake of these late authors . 3 It would thus cure defects in a coemption just as usucaption did defects in mancipation . ' See See also:Giraud, Recherches sur le droit de propriete chez See also:les Romains (See also:Aix, 1838) ; See also:Mace, Histoire de la propriete &c., chez les Romains (Paris, 1851); See also:Hildebrand, De antiquissimae agri Romani distributionis fide (See also:Jena, 1862) ; Cuq, Instil. jurid., 2nd ed., vol. i. pp . 72 seq . ; Beaudouin, La See also:Limitation See also:des fonds de terre (1894), pp . 259 seq . individual ownership was See also:paramount, it was still considered a disgrace for a man to alienate his heredium . But though the existence of monogamous families seems to imply private ownership to some extent, yet, as formerly indicated, a large part of the Roman territory at, and for a good while after, the See also:foundation of the city must have been gentile lands held by the separate clans for the use of their members . The fact that the See also:majority of the rural tribes See also:bore the names of well-known patrician gentes favours the conclusion that even in the later regal period a good many of the clans still held lands in their collective capacity . It was at some uncertain time before Servius that there began to be a break-up of these gentile lands and their See also:appropriation by individual members . Under the influence of this See also:movement lands were acquired and held by families and individuals to a large extent . A patrician's holding must have been sometimes See also:pretty large so as to enable him to make grants (so often alluded to by ancient writers) to his clients, but we have no means of estimating the normal See also:size . The heredia were small; even during the Republic there is some evidence (e.g. the traditional See also:story about See also:Cincinnatus) that seven jugera were regarded as the normal extent of a patrician's holding for his own and his family's use . On the other hand, twenty jugera are commonly supposed to have been the qualification for enrolment in the first of the Servian classes . Of course it must be kept in view that a patrician did not necessarily hold all his lands by gratuitous assignation or concession either from the state or from his gens; purchase from the former was by no means uncommon, and it may have been on his See also:purchased lands that his clients were usually placed . Those dependants were also probably employed in large See also:numbers upon those parts of the ager publicus which were occupied by the patricians and were in historic times known as possessiones . These, of course, were not the property of their occupants; it was the lands acquired by assignation or purchase that were alone, apart from the heredia, regarded as theirs ex jure Quiritium . The traditional accounts of the early distribution of lands among the plebeians are even, if possible, more vague than those property regarding the patricians . They had apparently become In land holders de facto of land in large numbers before the among Servian reforms . But they can have attained that plebeian& position only by See also:gradual stages . While their earliest grants of land, probably from the kings, can only have been during See also:pleasure, latterly, as they increased in number and importance, they were allowed to have permanent possession . That those who had means also acquired lands by purchase from the state may be taken for granted . The distinction between de facto possession and ownership was at best a very vague one at this period, and, like the holders of provincial lands in later times, the plebeians might have the benefits of ownership without ownership . The result of the Servian constitution was to convert this de facto property or permanent possession into quiritarian ownership.' There are some writers who maintain that in the regal period, prior to the Servian reforms, though after the collective owner-Property See also:ship of the gentes had begun to disintegrate, there in mov- was no private property in movables . This proposiable& tion can at most be accepted only in a qualified sense . If it be meant that movables generally were not then recognized as See also:objects of quiritarian dominium which could be vindicated by any real action, it may be admitted . But otherwise the distinction between meum and tuunz must have been well recognized, de facto at least . Men must have been in the See also:habit of transferring things from one to another by simple delivery in respect of See also:barter, sale or otherwise, and any violent or " theftuous " appropriation of things in a man's occupation would be punished by magisterial authority or by ordinary sell-redress by the injured party . A sort of ownership in ' On this question of land-holding among the early patricians and plebeians, consult Cuq, Institutions juridiques des Romains, 2nd ed., vol. i. pp . 73–76; Bourcart (See also:French See also:translation of See also:Muir-'See also:wad's Historical Introduction), p . 58o, and authorities there cited.possession must at least have been recognized for movables generally.' But apart from this, we must believe that certaih'kinds of movables, viz. those which have been described as appurtenant to land and necessary for its cultivation—which with land formed the real objects, as distinct from the See also:personal subjects, of the familia—were treated from the time of Romulus down-wards, as in manu of the patresfamilias . These were the res mancipi already referred to . Quiritarian ownership in them, as we have seen, was recognized both for patricians and plebs by the Servian constitution, periodical See also:registration of them in the census and transference by the quasi-public act of mancipation being probably required . Earlier even than with lands, the conception of private ownership, it has been said, connected itself with them.' A See also:short explanation may now be given of the ceremony of mancipation and the nature of res mancipi . Mancipation is described by Gaius, with particular reference to the conveyance of movable res mancipi, as a pretended sale in presence of not less than five citizens as witnesses and a Maacl libripens holding a pair of copper scales . The transferee, pa" with one hand on the thing being transferred, and using aon. certain words of See also:style, declared it his by purchase with a piece of copper (which he held in his other hand) and the scales (hoc aere aeneaque See also: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 See also:roll . Although in the time of Gaius only a fictitious sale—in fact the formal conveyance upon a relative See also:contract—yet it was not always so . Its history is very simple . The use of the scales fixes its introduction at a time when coined See also:money was not yet current, but raw copper nevertheless had become a See also:standard of value and in a manner a See also:medium of See also:exchange . 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 See also:sacramento (infra, p . 549) took the same form . The use of copper, as a substitute for them in private transactions was probably derived from See also:Etruria . But, being only raw See also:metal or See also:foreign coins, it could be made available for loans or payments only when weighed in the scales: it passed by See also:weight, not by See also: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 ascertain 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 apparently adopted as the basis of his mancipatory conveyance, engrafting on it one or two new features intended to give it publicity and, as it were, state See also:sanction, and thus render it more serviceable in the transfer of censuable property . Instead of the parties themselves using the scales, an impartial See also:balance-holder, probably an See also:official, was required to undertake the duty, and at least five citizens were required to attend as witnesses, who were to be the vouchers to the census officials of the regularity of the See also:procedure . Whether they were intended as representatives of the five classes in which Servius had distributed the population, and thus virtually of the state, is disputed, though the fact that, when the parties appealed to them for their testimony, they were addressed not as testes but as Quirites lends some See also: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 ' The position of the plebeians in this respect did not differ from that of the patricians . Mancipation seems to have been a very ancient mode of conveyance . The use of the balance in barter or sale was known to the ancient Egyptians at least as early as 2000 B.C., as may be seen on reliefs in the See also:temple of Dehr-el-Bahri in Upper See also:Egypt . The derivation of mancipium (mancipatio) from manu capere, to seize with the hand, is given by Gaius and is confirmed by the fact that at all times in its history the acquirer had to See also:lay his hand on the thing being acquired, during the ceremony, if a movable . So where several things were being mancipated in a See also:lot, this had to be. done to each separately . With lands and other immovables it was different: they might be mancipated in absence, which goes some way to prove that mancipation must have been extended to them at a later period . The derivation of mancipatio given by Muirhead (Historical Introduction, 2nd ed., pp . 59 seq.) from manum capere, i.e. to acquire power (manus), is open to the objection that it places the abstract idea of power before the See also:concrete See also:symbol of it . Cf . Cuq, Institutions juridiques, 2nd ed., i. p . 8o n . 4 See Gai. ii . § 104 . usually supposed to have been intended to take the place of the raw metal (aes See also:rude) formerly in use, and so facilitate the process of weighing; but there is more reason for thinking they were See also:cast and stamped as See also:standards to be put into one See also: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 See also: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 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 See also:burden upon the five citizens convoked to See also: |