t was not the right of the stronger that
was regarded as the foundation of a title to it; on the contrary,
all property was considered as conferred by the community upon the
individual burgess for his exclusive possession and use; and therefore
it was only the burgess, and such as the community accounted in
this respect as equal to burgesses, that were capable of holding
property. All property passed freely from hand to hand. The Roman
law made no substantial distinction between moveable and immoveable
estate (from the time that the latter was regarded as private
property at all), and recognized no absolute vested interest of
children or other relatives in the paternal or family property.
Nevertheless it was not in the power of the father arbitrarily
to deprive his children of their right of inheritance, because he
could neither dissolve the paternal power nor execute a testament
except with consent of the whole community, which might be, and
certainly under such circumstances often was, refused. In his
lifetime no doubt the father might make dispositions disadvantageous
to his children; for the law was sparing of personal restrictions
on the proprietor and allowed, upon the whole, every grown-up
man freely to dispose of his property. The regulation, however,
under which he who alienated his hereditary property and deprived
his children of it was placed by order of the magistrate under
guardianship like a lunatic, was probably as ancient as the period
when the arable land was first divided and thereby private property
generally acquired greater importance for the commonwealth. In
this way the two antagonistic principles--the unlimited right of
the owner to dispose of his own, and the preservation of the family
property unbroken--were as far as possible harmonized in the Roman
law. Permanent restrictions on property were in no case allowed,
with the exception of servitudes such as those indispensable in
husbandry. Heritable leases and ground-rents charged upon property
could not legally exist. The law as little recognized mortgaging;
but the same purpose was served by the immediate delivery of the
property in pledge to the creditor as if he were its purchaser,
who thereupon gave his word of honour (-fiducia-) that he would not
alienate the object pledged until the payment fell due, and would
restore it to his debtor when the sum advanced had been repaid.

Contracts

Contracts concluded between the state a