xist 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 as much as it subjected it to
restriction. In permission or in prohibition the law was always
absolute. As the foreigner who had none to intercede for him was
like the hunted deer, so the guest was on a footing of equality
with the burgess. A contract did not ordinarily furnish a ground
of action, but where the right of the creditor was acknowledged,
it was so all-powerful that there was no deliverance for the poor
debtor, and no humane or equitable consideration was shown towards
him. It seemed as if the law found a pleasure in presenting on all
sides its sharpest spikes, in drawing the most extreme consequences,
in forcibly obtruding on the bluntest understanding the tyrannic
nature of the idea of right. The poetical form and the genial
symbolism, which so pleasingly prevail in the Germanic legal
ordinances, were foreign to the Roman; in his law all was clear and
precise; no symbol was employed, no institution was superfluous.
It was not cruel; everything necessary was performed without much
ceremony, even the punish