master when he was liberated after his father had sold him into slavery a third time; and that a son who was independent of paternal control should not be an heir of any portion of his father's estate under the general law of inheritance.

SEC. 439. Formulas.-Though there was no written complaint, answer, or demurrer in civil cases, custom required compliance with a precise oral formula. If, for instance, the suit was for 10,000 pounds of bronze, the plaintiff, in the presence of the magistrate, said to the defendant: "I declare that you owe me 10,000 pounds of bronze." The defendant replied, "I declare that I do not owe you 10,000 pounds of bronze." The plaintiff said, "I challenge you to a bet of 500 pounds of bronze that you do owe me the 10,000." The defendant responded that he accepted the bet. Each then deposited the amount of the bet or gave security; and the trial was either held immediately, or on some other day then fixed. If the plaintiff proved his averment, he got judgment for his claim and the stakes; if he failed, the defendant took the stakes. And he failed if the proof showed a debt less, by the least fraction, than the whole sum claimed.

In many respects the procedure was highly technical. The XII Tables authorized suit to recover damages for injury to "trees;" and the courts held that the trees included vines; but the complaint must say that the suit was for damage to "trees." If it said "vines," the plaintiff would be non-suited; if it said "trees," the averment would cover evidence relating to vines.

To get a legal title to a cow, a horse, a slave, a house, or a piece of land, it was necessary to go through a process called manual seizure (mancipatio), which required the presence of the seller, the buyer, the object of sale,

and of six Roman citizens, adult males, as witnesses, of whom one held a scale. The buyer, while resting his hand on the slave, if a slave was to be bought, struck the scale with a coin or piece of metal, and said: “I declare that this slave is mine by Roman law, and that I have purchased him with this money and scale." Without this formula, the legal title did not pass. Its use implied that it had its origin when the medium of exchange was uncoined metal, the value of which was ascertained by weight; and its application to the sale of land and houses implied a time when real estate was owned by clans, not individuals, and was not an object of sale. Written certificates of title and bills of sale were rare if not unknown in Roman law until a late period of the empire. Agreement and payment were sufficient to give title to things not mentioned among those transferred by manual seizure.

A will was not valid unless made under a form similar to that required for the sale of a slave. After the testator had declared the provisions of his will in the presence of the six witnesses, the executor, who was an indispensable party,—though his functions were not the same as those of the executor under the English law,—after striking the scale with the coin said: "In so far as you, by public law, have the right to make a will, let your estate and money be brought into my charge, guardianship, and custody, being purchased by me with this piece of brass.'

A contract of sale conveyed with it an implied guaranty that the thing sold was serviceable and as good as it appeared to be. As Hadley expresses it, "the buyer was entitled to have an article as good as he supposed, and might reasonably suppose, he was getting when he bought,

If he failed in this, and the defects were so great as to make the article practically worthless for him, he could claim the annulment of the bargain. If the defects were less serious, he could insist on a diminution of the price, or if he had paid, on the return to him of part of the purchase money."

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It was the duty of the vendor to declare all the defects which he knew in the thing sold; and he was responsible for any serious fault which he did not know, unless he protected himself by an explicit declaration that the buyer made the purchase at his own risk. The Roman law said practically, "Let the seller beware;" as the English law says, "Let the buyer beware."

Contracts for the future payment of money or delivery of merchandise were not made by written agreement but by oral stipulation, according to a precise form, with question and answer, the latter following the former without modification except by changing interrogation into affirmation. Thus a promise to pay 10,000 sesterces on the first day of the next month would be preceded by a question, "Do you promise to pay," etc. The response and the question taken together made the legal obligation. If the response was a promise to pay a larger or smaller sum or to pay that sum on another day, there was no legal contract.

Though brief, the decemviral code was comprehensive. It included constitutional provisions, definitions of civil right, methods of civil procedure, criminal law, and ecclesiastical regulations. On account of its crudeness. and of the growth of the Roman people, it was soon amended; and within three centuries nearly all its clauses were repealed or seriously changed. But its tables were still exposed in the Forum to the inspection and venera

tion of the public, while the hundreds or thousands of repealing or modifying laws were stored away in vaults, where they were hidden from the general public; and each of these laws related to some one subject of narrow scope and of no interest to anyone save the professional jurist or the exceptional litigant. For more than five centuries the XII Tables continued to be the only comprehensive collection of legal rules enacted by the state as of durable authority; and for this reason they were praised and venerated far beyond their merits.

SEC. 440. Decemvirs.-The XII Tables grew out of an agitation among the plebeians for the publication of the laws, and for more liberality in the constitution. The law had been a secret possession of the patrician, and in many cases the commoner could not learn its requirements until judgment was rendered against him for debt or crime. Such law as existed was, to a large extent, a matter of opinion, vague custom, and judicial discretion; and before patrician judges, the plebeian was at a great disadvantage.

The constitution was amended by abolishing the consular and tribunitian offices, and by creating in their place, the offices of the decemvirs, or ten ministers, who were to be annually elected by the centuriate assembly, and were to have the powers similar to those of the consuls. The plebeians expected that some of their order would be chosen to the first board of decemvirs, but in this hope they were disappointed. The successful candidates chosen in 450 B. C. were all patricians. They compiled ten tables of laws, which, after adoption by the senate and centuriate assembly, were engraved on ten copper plates, and posted up in the Forum for the information of the people. Their administration gave

satisfaction to all classes, and they retired with credit at the end of the year. At the second election for decemvirs, five plebeians and five patricians were elected. The new men soon assumed despotic power. They did not convene the senate or the popular assembly. They divided all the high functions of the administration among themselves, under an agreement that each should have exclusive control of his own department. They compiled two additional tables of law, and without enactment by the people, declared them in full force, and published them on copper tables.

At the end of the year for which they were chosen they did not order a new election. They continued to exercise their power as if they had been elected for an indefinite term or for life, and as if the senate and the centuriate and tribal assemblies had been abolished. Their usurpation gave great offense to the patricians, who, instead of undertaking to defend the privileges of their order, merely left the city to make their homes on their rural estates. The readiness to engage in civil war to defend their class interests shown by the senators in historical times did not appear on this occasion.

The plebeians had almost as much reason for dissatisfaction as had the patricians. The usurpers had not adopted the policy, usual among tyrants, of protecting the poor against the rich. They had recognized slavery for debt, the exclusion of the plebeians from office, and the prohibition of intermarriage between the two classes of citizens-the greatest grievances of the plebeians. They had deprived the commoners, as well as the nobles, of a voice in enacting laws and electing rulers. But the patricians were as submissive as the plebeians. Armies were organized and sent away to meet invading enemies