The History of Rome (Volumes 1-5). Theodor MommsenЧитать онлайн книгу.
the bounds of the community. The case was different in war: whatever the soldier who was fighting in the ranks of the levy gained, whether moveable or immoveable property, fell not to him, but to the state, and accordingly here too it depended upon the state whether it would advance or contract its bounds.
Exceptions from these general rules were created by special state-treaties, which secured certain rights to the members of foreign communities within the Roman state. In particular, the perpetual league between Rome and Latium declared all contracts between Romans and Latins to be valid in law, and at the same time instituted in their case an accelerated civil process before sworn "recoverers" (-reciperatores-). As, contrary to Roman usage, which in other instances committed the decision to a single judge, these always sat in plural number and that number uneven, they are probably to be conceived as a court for the cognizance of commercial dealings, composed of arbiters from both nations and an umpire. They sat in judgment at the place where the contract was entered into, and were obliged to have the process terminated at latest in ten days. The forms, under which the dealings between Romans and Latins were conducted, were of course the general forms which regulated the mutual dealings of patricians and plebeians; for the -mancipatio- and the -nexum- were originally not at all formal acts, but the significant expression of legal ideas which held a sway at least as extensive as the range of the Latin language.
Dealings with countries strictly foreign were carried on in a different fashion and by means of other forms. In very early times treaties as to commerce and legal redress must have been entered into with the Caerites and other friendly peoples, and must have formed the basis of the international private law (-ius gentium-), which gradually became developed in Rome alongside of the law of the land. An indication of the formation of such a law is found in the remarkable -mutuum-, "the exchange" (from -mutare- like -dividuus-)—a form of loan, which was not based like the -nexum- upon a binding declaration of the debtor expressly emitted before witnesses, but upon the mere transit of the money from one hand to another, and which as evidently originated in dealings with foreigners as the -nexum- in business dealings at home. It is accordingly a significant fact that the word reappears in Sicilian Greek as—moiton—; and with this is to be connected the reappearance of the Latin -carcer- in the Sicilian—karkaron—. Since it is philologically certain that both words were originally Latin, their occurrence in the local dialect of Sicily becomes an important testimony to the frequency of the dealings of Latin traders in the island, which led to their borrowing money there and becoming liable to that imprisonment for debt, which was everywhere in the earlier systems of law the consequence of the non-repayment of a loan. Conversely, the name of the Syracusan prison, "stone-quarries" or—latomiai—, was transferred at an early period to the enlarged Roman state-prison, the -lautumiae-.
Character of the Roman Law
We have derived our outline of these institutions mainly from the earliest record of the Roman common law prepared about half a century after the abolition of the monarchy; and their existence in the regal period, while doubtful perhaps as to particular points of detail, cannot be doubted in the main. Surveying them as a whole, we recognize the law of a far-advanced agricultural and mercantile city, marked alike by its liberality and its consistency. In its case the conventional language of symbols, such as e.g. the Germanic laws exhibit, has already quite disappeared. There is no doubt that such a symbolic language must have existed at one time among the Italians. Remarkable instances of it are to be found in the form of searching a house, wherein the searcher must, according to the Roman as well as the Germanic custom, appear without upper garment merely in his shirt; and especially in the primitive Latin formula for declaring war, in which we meet with two symbols occurring at least also among the Celts and the Germans—the "pure herb" (-herba pura-, Franconian -chrene chruda-) as a symbol of the native soil, and the singed bloody staff as a sign of commencing war. But with a few exceptions, in which reasons of religion protected the ancient usages—to which class the -confarreatio- as well as the declaration of war by the college of Fetiales belonged—the Roman law, as we know it, uniformly and on principle rejects the symbol, and requires in all cases neither more nor less than the full and pure expression of will. The delivery of an article, the summons to bear witness, the conclusion of marriage, were complete as soon as the parties had in an intelligible manner declared their purpose; it was usual, indeed, to deliver the article into the hand of the new owner, to pull the person summoned as a witness by the ear, to veil the bride's head and to lead her in solemn procession to her husband's house; but all these primitive practices were already, under the oldest national law of the Romans, customs legally worthless. In a way entirely analogous to the setting aside of allegory and along with it of personification in religion, every sort of symbolism was on principle expelled from their law. In like manner that earliest state of things presented to us by the Hellenic as well as the Germanic institutions, wherein the power of the community still contends with the authority of the smaller associations of clans or cantons that are merged in it, is in Roman law wholly superseded; there is no alliance for the vindication of rights within the state, to supplement the state's imperfect aid, by mutual offence and defence; nor is there any serious trace of vengeance for bloodshed, or of the family property restricting the individual's power of disposal. Such institutions must probably at one time have existed among the Italians; traces of them may perhaps be found in particular institutions of ritual, e.g. in the expiatory goat, which the involuntary homicide was obliged to give to the nearest of kin to the slain; but even at the earliest period of Rome which we can conceive this stage had long been transcended. The clan and the family doubtless were not annihilated in the Roman community; but the theoretical as well as the practical omnipotence of the state in its own sphere was no more limited by them than by the freedom which the state granted and guaranteed to the burgess. The ultimate foundation of law was in all cases the state; freedom was simply another expression for the right of citizenship in its widest sense; all property was based on express or tacit transference by the community to the individual; a contract was valid only so far as the community by its representatives attested it, a testament only so far as the community confirmed it. The provinces of public and private law were definitely and clearly discriminated: the former having reference to crimes against the state, which immediately called for the judgment of the state and always involved capital punishment; the latter having reference to offences against a fellow-burgess or a guest, which were mainly disposed of in the way of compromise by expiation or satisfaction made to the party injured, and were never punished with the forfeit of life, but, at most, with the loss of freedom. The greatest liberality in the permission of commerce and the most rigorous procedure in execution went hand in hand; just as in commercial states at the present day the universal right to draw bills of exchange appears in conjunction with a strict procedure in regard to them. The burgess and the client stood in their dealings on a footing of entire equality; state-treaties conceded a comprehensive equality of rights also to the guest; women were placed completely on a level in point of legal capacity with men, although restricted in action; the boy had scarcely grown up when he received at once the most comprehensive powers in the disposal of his estate, and every one who could dispose at all was as sovereign in his own sphere as was the state in public affairs. A feature eminently characteristic was the system of credit. There did not exist any credit on landed security, but instead of a debt on mortgage the step which constitutes at present the final stage in mortgage-procedure—the delivery of the property from the debtor to the creditor—took place at once. On the other hand personal credit was guaranteed in the most summary, not to say extravagant fashion; for the lawgiver entitled the creditor to treat his insolvent debtor like a thief, and granted to him in entire legislative earnest what Shylock, half in jest, stipulated for from his mortal enemy, guarding indeed by special clauses the point as to the cutting off too much more carefully than did the Jew. The law could not have more clearly expressed its design, which was to establish at once an independent agriculture free of debt and a mercantile credit, and to suppress with stringent energy all merely nominal ownership and all breaches of fidelity. If we further take into consideration the right of settlement recognized at an early date as belonging to all the Latins,(8) and the validity which was likewise early pronounced to belong to civil marriage,(9) we shall perceive that this state, which made the highest demands on its burgesses and carried the idea of subordinating the individual to the interest of the whole further than any state before or since has done, only did and only could do so by itself removing the barriers to intercourse and unshackling liberty quite