The law of property at the time of the XII Tables (II): Ownership

We have spoken so far of ownership as something which explains itself, but in order to understand the next point it is necessary to enquire a little more closely into its nature. The Roman law of classical times is dominated by the absolute conception of ownership which it has evolved and by the action through which this right is asserted, the vindicatio. Ownership, in the developed law, may be defined as the unrestricted right of control over a physical thing, and whosoever has this right can claim the thing he owns wherever it is and no matter who possesses it.

If I possess a thing and you own it, then all you have to do is to prove your ownership and I must give it up; it is not necessary for you to allege that I have done you any wrong. I, on the other hand, the possessor, have nothing to do but to sit tight and wait for you to prove your right; if you do not succeed in proving that you are owner, I remain in possession. Now this very clear-cut conception is not to be found in all, or even most systems of law. English law, for instance, has never known an action corresponding to the vindicatio, at any rate with respect to movables. The action by which an owner recovers his thing which has got out of his possession all allege that the defendant "unjustly detains" the thing or that the plaintiff lost it, that it came into the hands of the defendant and that the defendant has converted it to his own use; to use technical language, the actions for the recovery of movables all "sound in tort". Further, the wrong alleged is, strictly, not one to ownership, but to possession, for, if the thing be "bailed", e.g. lent, by the owner to another, it is the bailee who can bring the action against the third party in whose hands the thing is found, the bailor being originally confined to his rights against the bailee. Hence it can be said that "although the bailor was the owner, the sum of his rights as owner was originally his better right as against the bailee to get possession; for this better right to get possession was the only form of ownership which the mediaeval common law recognised". This idea of a relative right to possession as contrasted with the absolute Roman dominium, is common to other Germanic systems of law besides the English, and it indeed appears that the Greeks also knew only of a similar relative right.

The law of property at the time of the XII Tables (I): Res mancipi and nec mancipi

Most, if not all, systems of law are compelled by the very nature of things to distinguish landed from all other types of property, for land is necessary for the production of food and the erection of dwelling-places, and, unlike other things, it cannot be moved. In English law, in the guise of the distinction between "real" and "personal" property, this contrast is particularly marked; in Roman law, though it existed as early as the XII Tables (1), its importance is overshadowed by a different and purely Roman distinction, that between res mancipi and res nec mancipi.

Res mancipi were land subject to Roman ownership (2), slaves, beasts of draft and burden, including cattle, and rustic servitudes belonging to land subject to Roman ownership; res nec mancipi were all other things. In the developed law the point of the distinction is that full Quiritarian ownership in res mancipi can only be transferred by the solemn method of conveyance known as mancipatio or the equivalent ceremony of in iure cessio, whereas the ownership of res nec mancipi can be transferred by mere delivery (traditio). Thus if A wants to make B the gift of a sheep and delivers it to him for that purpose the sheep becomes immediately the full Quiritarian property of B, but if he wants to give him an ox and does the same the ox remains the property ex iure Quiritium of A, because an ox is a res mancipi whereas a sheep is not.

Slavery and manumission at the time of the XII Tables

Slavery is an institution common to all the races, whether civilised or barbarian, of the ancient world and it was certainly recognised from the earliest times at Rome. Its chief source was then, as at all times, capture in war, and there is no doubt that the rule which makes a child the slave of the person who owns his mother goes back to remote antiquity. Such minor modifications of this rule as exist in classical times are due to a late principle of favouring liberty wherever possible and were no doubt absent from the earliest law. The slave was always at Rome, so far as the law was concerned, a piece of property and any limitations on the power of the master to do as he liked with him were, at the times of which we are speaking, still in the distant future. In two respects only can we say that the civil law recognised the humanity of the slave, (a) in the possibility that the master might acquire rights through him and (b) in his capacity to become a free man, incapable of being owned, on manumission.

- Slavery at the time of the XII Tables

The civil law rule was that an act-in-the-law carried out by the slave enured to the benefit of the master, but could not place the master under any liability. A slave could thus, in the later law, make a stipulation for his master, because stipulation is a unilateral contract out of which duties arise only on the side of the promissor. If when A's slave says to B: "Will you pay my master 10?" and B replies "I will", B thereupon ows A 10. Not so with a sale, because a sale is bilateral, and the seller only acquires a right to the payment of the price in return for placing himself under the duty of delivering the thing sold. If therefore A's slave purports to sell A's property to B, B cannot force A to do anything, but A can enforce the contract against B if he likes, provided, of course, that he is willing to do his part. These examples belong to a period later than the XII Tables, but there is no reason to doubt that the principle is ancient. A slave could, in classical times, receive a thing by mancipation on behalf of his master, and so presumably could he as soon as mancipation had become a mere conveyance, not necessitating the real payment of any price. In iure cessio to a slave was however not possible because, as Gaius says, he could not claim anything as his own.

The only way in which a man's legal rights could be adversely affected by his slave's act was by delict on the part of the slave, for if the slave committed a delict the master must either pay damages, or lose his slave. But this cannot be regarded as an admission of the slave's humanity because very similar rules applied in the case of damage inflicted by animals.

- Manumission at the time of the XII Tables

The developed civil law knew of three methods of manumission, all of which had the effect, provided they were correctly carried out, of making the slave not only free but a citizen.

+ Censu

This consisted in the enrolment of the slave with his master's consent in the list of citizens drawn up at the census. It was the slave who actually gave his name to the magistrate charged with the census, but the authorisation of the master was of course necessary, and if it were not given the magistrate would refuse to accept the name, as, no doubt, he might also refuse if he himself considered the man unfit for citizenship.

+ Vindicta

A more common method was that which consisted in the use for the purpose of manumission of the form appropriate to an action in which liberty was claimed (causa liberalis). It might, of course, happen that a person held as a slave wished to claim that he was really free. In such a case it was not open to him to bring the necessary action himself; he had to get some citizen to act as claimant (adsertor libertatis) and the proceedings took the form (so long as the legis actiones were in use) of a legis actio sacramento. The parties came before the magistrate and the adsertor, touching the man with the wand (vindicta or festuca), asserted his freedom; then the defendant also touched the man and asserted that he was his owner, and finally after further formalities, the matter was sent for trial by a iudex in the ordinary way.

When a master wants to use this process for the purpose of freeing his slave, he gets some citizen (in fact one of the magistrate's lictors was commonly used) to act as adsertor and make a claim that the man is free; then, instead of contesting the claim (as he would do if involved in a real causa liberalis), he remains silent, and so admits the claim. He does, however, here too place his wand on the man, and it appears indeed that it is from this act of his rather than from that of the lictor that the proceeding takes its name. The process then ends with the declaration (addictio) by the magistrate that the man is free.

Manumission victicta is thus in form a collusive action, but it cannot, any more than in iure cessio, be explained simply as such. The magistrate knowns the purpose of the transaction and can, if he disapproves, refuse his addictio. Further, the effects are not the same as they would be in the case of an ordinary action, merely an effect between the parties; the man becomes free for all purposes. Also he becomes free only from the moment of manumission, whereas the decision of a causa liberalis in favour of liberty would necessarily imply that the man had been free before the action was begun. He becomes, too, the freedman of his former master, whereas if he had been free all along he might not be a freedman at all but free born. Manumission vindicta is in fact a form of cessio in iure, and here too we have to deal with a hybrid institution, beginning perhaps as a sort of collusive action, but coming to be recognised as something quite different.

+ Testamento

Manumission by will was the most common of the three forms, for a man who dislikes parting with his property during his lifetime, may have no objection to being generous at the expense of his heirs. The gift of liberty must, like a legacy, be in authoritative words, the usual form being Stichus liber esto or Stichum liberum esse iubeo; like a legacy, too, it is dependent on the validity of the will as a whole, and where the heir is an extraneus takes effect only from the moment of his entry.

Of the relative antiquity of the three forms we can say little. Manumission by will certainly existed as early as the XII Tables, for we find a reference to conditional gifts of liberty, and a condition could not be attached to either of the other forms. Very probably the code did nothing more than confirm an existing institution.

Manumission vindicta is said by Livy to have been used first to liberate a slave who had given information of a monarchist plot in the first year of the republic, and this would of course mean that it existed at the time of the XII Tables if any particular credence could be given to the story. For manumission censu there is no evidence. It is sometimes said that both vindicta and censu being fictitious processes, in which there is a pretence that the slave is already free, must be older than testamento which is a direct gift of liberty, the idea being that original Roman law knew of no manumission at all. But it is by no means agreed that censu or even vindicta have anything fictitious about them, and if they have not, even this argument falls to the ground, so that we are left without any information as to the relative age of the three forms.

There is also dispute about another, related, matter. Did the rule that manumission gave not only liberty but citizenship go back far into history, and did it apply to all three methods from their inception? Our information is scanty, but this, at least, can be said. All methods involved originally the co-operation of a public authority, that of the magistrate in vindicta and censu, that of the assembly in testamento (at least if testamentary manumissions go back to the comitial will). This control ceased as the private will per aes et libram developed, and as, with the increase in population, it became impossible for the magistrate to know anything about the people brought before him for manumission, but its existence in the early stages is significant. If is existed then, it is an argument in favour of the antiquity of the citizenship rule, for unless manumission made the slave a citizen, it is difficult to see why the state should have been so deeply interested.

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Source:
Historical introduction to the study of Roman law, H. F. Jolowicz, pages 135 - 138.

The law of the family and of succession at the time of the XII Tables (VI): Testamentary succession

When we pass from intestate to testamentary succession our difficulties in ascertaining the state of the law at the time of the XII Tables become much greater. We know that a will of some sort existed, and this is in itself a noteworthy fact, for most peoples have not yet invented a will at a parallel stage in their legal development. The existence of a will means that a man's power over his property extends beyond his lifetime, that he can take it away from those to whom the law would give it at his death and say that someone else is to have it. We are so accustomed to this extreme development of the right of property that it seems natural to us, but it is in fact a development which comes as a rule only late in a people's legal history. We know also that the XII Tables dealt with testamentary before intestate succession, and that throughout their history the Romans continued to regard testamentary succession as normal. Beyond these facts however all is more or less plausible conjecture. We can tabulate the chief points on which there is difference of opinion as follows.

- To what type of will did the words in the XII Tables refer?

We know from Gaius that "in the beginning there were two kinds of will, one made comitiis calatis, the other in procinctu". The former was made in the comitia curiata, summoned twice a year for the purpose probably under the presidency of the pontifex maximus and known as the comitia calata. The testamentum in procinctu was made when the citizens were met, not in the assembly, but in military array, "for", says Gaius, "procinctus is the host ready and armed". "Thus", he continues, "they made the one sort of will in peace and ease and the other when they were about to proceed to battle". It appears from other sources that the moment for making the will in procinctu was between the two takings of the auspices, and that the citizen-soldier made it in the hearing of three or four comrades. To these two public forms of will was afterwards added a private form, that per aes et libram (mancipatory will) which consisted of the mancipation of the whole of the testator's fortune at a nominal price to a friend (hence called familiae emptor) who was asked to dispose of the property after the testator's death in accordance with his instructions. At first an expedient adopted in cases of emergency when there was no time to wait for the next meeting of the comitia calata, the mancipatory will developed into a true will and was in the later republic, and still in classical times, the usual form.

The law of the family and of succession at the time of the XII Tables (V): Intestate succession

By the XII Tables, if a man dies intestate the first people entitled to succeed to his estate are his sui heredes, i.e. all those in his patria potestas or manus who become sui iuris at his death. Thus if he leaves a widow in manu, a son who has himself a son, a grandson by a predeceased son, a married daughter and an unmarried daughter, his estate will be divided into four parts of which the widow, the son, the grandson by the predeceased son and the unmarried daughter, will each get one. The grandson by the living son gets nothing; he is not a suus heres because he does not become sui iuris by the death of his grandfather but comes under the potestas of his own father. The married daughter also gets nothing, because, provided she was married with manus, she has passed out of her father's power.

The form in which the rights of the sui heredes are mentioned in the XII Tables is worthy of notice. They are not so much given the inheritance as assumed to take it, for the statute simply says "if a man dies intestate without having a suus heres, the nearest agnate is to take". The reason for this is to be found in the original co-ownership of all the members of the family in the family property, of which the father in primitive times appears to have been regarded rather as the administrator than the owner. The original vague administrative supremacy of the head of the family had crystallised into ownership over the property as it had crystallised into potestas, manus and mancipium over the persons, but a trace of the older conception remained throughout in the manner in which sui heredes succeeded on the death of a paterfamilias. Whereas any other successor only assumed the rights and duties of an heir after signifying his acceptance of the succession (aditio hereditatis), the suus heres assumed them at once on the death of the paterfamilias without any act on his part and even without his knowledge or desire. His succession was in fact not so much a succession as a coming into the enjoyment of what, in a sense, had already partly belonged to him. Failing sui heredes the succession goes to the nearest agnate or agnates, if there are several in the same degree. In the case of women and children this is necessarily the first class because, since a woman cannot have patria potestas, she cannot have any sui heredes, and a child cannot have any children. No distinction is made in agnatic succession any more than in that of sui heredes between male and female agnates. Thus a sister of the deceased (by the same father) will share equally with a brother and will exclude an uncle; an aunt similarly (if the father's sister) will share with a father's brother and exclude a first cousin (the son of a brother of the deceased's father).

The law of the family and of succession at the time of the XII Tables (IV): The agnatic family

Outside the immediate circle of persons subject to the same paterfamilias relationship was still traced exclusively on the agnatic principle, i.e. only relationship through males was recognised.

Two people are related agnatically if they are in the patria potestas of the same man, or if there is some common ancestor in whose power they would both be if he were alive (1). Two brothers or a brother and a sister are thus agnates, and so are a man and his brother's son or daughter, because they are both in the potestas of the same man, i.e. the father of the one and the grandfather of the other (or would be if he were alive), but a man and his sister's son are not related agnatically because they could never be in the same potestas –they are mere cognates, cognates being all relatives whether the relationship be traced through males or females–. The bond of patria potestas can, as we have seen, be created artificially by adoption, which gives to the adopted child all the rights he would have had if he had been born in potestas; he becomes by the adoption the agnate of all his adopting father's agnates. On the other hand he loses all agnatic connection with his previous family, as does also the person who is emancipated. Manus has the same effect as patria potestas; on marriage with manus the woman passes out of the agnatic family of her father into that of her husband, in which she occupies a position similar to that of her husband's daughter.

The law of the family and of succession at the time of the XII Tables (III): Guardianship

Throughout the history of Roman law a child under the age of puberty needed a guardian and so also at the time of the XII Tables (and for long afterwards) did a woman of any age who was sui iuris. In these cases the guardian was called tutor. Beyond incapacity due to youth or sex Roman law also recognised two other cases, that of the lunatic (furiosus) and the spendthrift (prodigus), but in these cases the guardian was called by a different name –curator–. It must however be understood that there is never any question of guardianship of either sort except where the person concerned is sui iuris; a person who is in potestate, in manu or in mancipio can have no guardian, because the chief function (and in later law the only function) of the guardian is to administer the property of the incapable person, and a person alieni iuris can have no property to be administered.

At the time of the XII Tables the rules for the appointment of tutores were simple in the extreme. A man might in his will appoint a tutor for any person in his manus or potestas who would become sui iuris at his death. Failing a tutor appointed by will, the tutela went, in the case of free-born persons, to the nearest male agnate (i.e. to the person most closely related, relationship being reckoned through males exclusively), or nearest agnates jointly, if there were several related in the same degree; failing agnates it went to the gentiles. In the case of freed persons (who could have no agnates) the tutela went to the patron (i.e. the person who had manumitted them) or his children. This was not definitely laid down by the XII Tables, but was inferred from the rule that the patron or his children were to take the succession to freed persons if they died intestate.