Verba carminis — On a cardinal point of Archaic Roman law

Abstract

Abstract. Beginning with the well-known fact that one lost a lawsuit if he made even a single verbal mistake in his speech during the process of the legis actio (Gai. inst. 4, 11. 30), we have to examine through some examples the power of verbality in ius sacrum. (I.) We study the development of the concept of fatum (II.), a narration of Plinius maior concerning the dedicatio of the templum of Ops Opifera (III.), another narration based on a source of Plinius related to a special interpretation of prodigium (IV.), as well as parallels that can be discovered between "fruges excantare" and the ceremony of the evocatio (V.). From these one could gain a picture of connection between Roman religion and jurisprudence of the Archaic Age and the spoken word.Keywords: legis actio sacramento, ius sacrum, dedicatio, evocatio, procuraio prodigii I. The description of the ritual of legis actio sacramento im rem is provided by Gaius.1 This is the locus that should be brought into harmony with the explanation of the meaning of manum conserere given by Gellius, and with the * Associate Professor, Reformed University "Károli Gáspár", Faculty of Law and above presented text. Aulus Gellius in Noctes Atticae 2 wants to get an explanation for the origin and meaning of "ex iure manum consertum", an expression coming from the old legis actio claims, from a renowned grammaticus, who first refuses to answer the question since he deals with grammatica, Vergilius, Plautus and Ennius. In reply, Gellius remarks that it was exactly chapter eight of Ennius's Annales where he found the phrase; in turn the grammaticus asserts that Ennius drew this expression not from legal but poetic language. The actual explanation follows after that.3 Consequently, according to Gellius, manum conserere means grasping the object of dispute manually (manu prendere), which corresponds to Gaius's phrase rem apprehendere; however, in view of its purpose it has definitely separated from that in the course of time. 4 According to Gaius's locus, the assertion of "property" or "stronger right to possess" 5 by both parties through uttering the sentence "HUNC EGO HOMINEM EX IURE QUIRITIUM MEUM ESSE AIO" refers to things present in iure and grasped manually. Thus, initially vindicatio-just as mancipatio 6 -was created for transactions involving chattels of greater value (i.e., slaves and draught animals) since the thought that rule over a single land can be exercised merely by placing a rod or hands on it would suppose considerable abstraction of generally accepted formalism, hardly reconciled with the way of thinking of ab utroque accipiebat sacramenti causa, quod id in publicum cedebat. Festuca autem utebantur quasi hastae loco, signo quodam iusti dominii, quando iusto dominio ea maxime sua esse credebant, quae ex hostibus cepissent; unde in centumviralibus iudiciis hasta proponitur.2 Gellius, Noctes Atticae 20, 10, 1-10. 3 Gellius, Noctes Atticae 20, 10, 7. sqq. "Manum conserere." Nam de qua re disceptatur in iure in re praesenti sive ager sive quid aliud est, cum a...