become perceptible till men had begun to adopt a distinct practice in
contracting and conveying.
It may here be observed that we know enough of ancient Roman law to
give some idea of the mode of transformation followed by legal
conceptions and by legal phraseology in the infancy of Jurisprudence.
The change which they undergo appears to be a change from general to
special; or, as we might otherwise express it, the ancient conceptions
and the ancient terms are subjected to a process of gradual
specialisation. An ancient legal conception corresponds not to one but
to several modern conceptions. An ancient technical expression serves
to indicate a variety of things which in modern law have separate
names allotted to them. If however we take up the history of
Jurisprudence at the next stage, we find that the subordinate
conceptions have gradually disengaged themselves and that the old
general names are giving way to special appellations. The old general
conception is not obliterated, but it has ceased to cover more than
one or a few of the notions which it first included. So too the old
technical name remains, but it discharges only one of the functions
which it once performed. We may exemplify this phenomenon in various
ways. Patriarchal Power of all sorts appears, for instance, to have
been once conceived as identical in character, and it was doubtless
distinguished by one name. The Power exercised by the ancestor was the
same whether it was exercised over the family or the material
property--over flocks, herds, slaves, children, or wife. We cannot be
absolutely certain of its old Roman name, but there is very strong
reason for believing, from the number of expressions indicating shades
of the notion of _power_ into which the word _manus_ enters, that the
ancient general term was _manus_. But, when Roman law has advanced a
little, both the name and the idea have become specialised. Power is
discriminated, both in word and in conception, according to the
object over which it is exerted. Exercised over material commodities
or slaves, it has become _dominium_--over children, it is
_Potestas_--over free persons whose services have been made away to
another by their own ancestor, it is _mancipium_--over a wife, it is
still _manus_. The old word, it will be perceived, has not altogether
fallen into desuetude, but is confined to one very special exercise
of the authority it had formerly denoted. This example will enable us
to comprehend the nature of the historical alliance between Contracts
and Conveyances. There seems to have been one solemn ceremonial at
first for all solemn transactions, and its name at Rome appears to
have been _nexum_. Precisely the same forms which were in use when a
conveyance of property was effected seem to have been employed in the
making of a contract. But we have not very far to move onwards before
we come to a period at which the notion of a Contract has disengaged
itself from the notion of a Conveyance.
Public-domain text, read in full here on John Shaqi.
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