individual ownership was 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 foundation of the city must have been gentile lands held by the separate clans for the use of their members. The fact that the majority of the rural tribes 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 appropriation by individual members. Under the influence of this movement lands were acquired and held by families and individuals to a large extent. A patrician's holding must have been sometimes 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 size. The heredia were small; even during the Republic there is some evidence (e.g. the traditional story about 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 purchased lands that his clients were usually placed. Those dependants were also probably employed in large 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 in land among plebeians. regarding the patricians. They had apparently become holders de facto of land in large numbers before the Servian reforms. But they can have attained that position only by gradual stages. While their earliest grants of land, probably from the kings, can only have been during 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.[1]
There are some writers who maintain that in the regal period, prior to the Servian reforms, though after the collective ownership Property in movables. of the gentes had begun to disintegrate, there was no private property in movables. This proposition can at most be accepted only in a qualified sense. If it be meant that movables generally were not then recognized as objects of quiritarian dominium which could be vindicated by any real action, it may be admitted. But otherwise the distinction between meum and tuum must have been well recognized, de facto at least. Men must have been in the habit of transferring things from one to another by simple delivery in respect of 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 self-redress by the injured party. A sort of ownership in possession must at least have been recognized for movables generally.[2]
But apart from this, we must believe that certain 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 personal subjects, of the familia—were treated from the time of Romulus downwards, 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 registration of them in the census and transference by the quasi-public act of emancipation being probably required. Earlier even than with lands, the conception of private ownership, it has been said, connected itself with them.[3]
A 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 Mancipation. presence of not less than 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 a piece of copper (which he held in his other hand) and the scales (hoc aere aeneaque 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 at 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 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 sacramento (infra, p. 549) 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 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 emancipatory conveyance, engrafting 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 themselves using the scales, an impartial balance-holder, probably an 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 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 colour to this view.[4] 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
- ↑ 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 (French translation of Muiread's Historical Introduction), p. 580, and authorities there cited.
- ↑ 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 temple of Dehr-el-Bahri in Upper 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 lay his hand on the thing being acquired, during the ceremony, if a movable. So where several things were being emancipated in a lot, this had to be done to each separately. With lands and other immovable 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 concrete symbol of it. Cf. Cuq, Institutions juridiques, 2nd ed., i. p. 80 n.
- ↑ See Gai. ii. § 104.
