legal pantomime

This is my first Gibbon post in quite awhile. I stopped reading him for two or three months, because I was daunted by the long and dry-looking chapter on Roman law. And yes, it’s dry. But it does contain the following little treasure, about the manner in which early Roman law incorporated physical gestures as a necessary part of binding legal acts. (In some ways it would be a lot of fun if we still had to do these things in court.)

“Among savage nations, the want of letters is imperfectly supplied by the use of visible signs, which awaken attention, and perpetuate the remembrance of any public or private transaction. The jurisprudence of the first Romans exhibited the scenes of a pantomime; the words were adapted to the gestures, and the slightest error or neglect in the forms of proceeding was sufficient to annul the substance of the claim… the divorced wife resigned the bunch of keys, by the delivery of which she had been invested with the government of the family. The manumission of a son, or a slave, was performed by turning him round with a gentle blow on the cheek; a work was prohibited by the casting of a stone; prescription was interrupted by the breaking of a branch; the clenched fist was the symbol of a pledge or deposit; the right hand was the gift of faith and confidence. The indenture of covenants was a broken straw; weights and scales were introduced into every payment; and the heir who accepted a testament was sometimes obliged to snap his fingers, to cast away his garments, and to leap and dance with real or affected transport.”

The part that would not be so fun… According to Gibbon, what is most unique about Roman law is the absolutely brutal degree of authority it grants a father over his children, including adopted children. It extended through harsh corporal punishment to the point of being a power of life and death. Even a male citizen respected as a free political actor in the city had, in his father’s house, the legal status of thing rather than person.