X[10arg] The meaning of the phrase ex iure manum consertum.
Ex iure manum consertum, or “lay on hands according to law,” is a phrase taken from ancient cases at law, and commonly used to-day when a case is tried before the praetor and claims are made. I asked a Roman grammarian, a man of wide reputation and great name, what the meaning of these words was. But he, looking scornfully at me, said: “Either you are making a mistake, youngster, or you are jesting; for I teach grammar and do not give legal advice. If you want to know anything connected with Virgil, Plautus or Ennius, you may ask me.” “It is a question from Ennius then, master,” said I, “that I am asking. For it was Ennius who used those words.” And when the grammarian said in great surprise that the words were unsuited to poetry and that they were not to be found anywhere in the poems of Ennius, I quoted from memory the following lines from the eighth book of the Annals; for it chanced that I remembered them because of their particularly striking character: 1
Wisdom is driven forth and force prevails;When I had recited these verses from Ennius, the grammarian rejoined: “Now I believe you. But I would have you believe me, when I say that Quintus Ennius learned this, not from his reading of the poets, but from someone learned in the law. Do you too then go and learn from the same source as Ennius.” I followed the advice of this teacher, when he referred me to another from whom I could learn what he ought to have taught me himself: And I thought that I ought to include in these notes of mine what I have learned from jurists and their writings, since those who are living in the midst of affairs and among men ought not to be ignorant of the commoner legal expressions. Manum conserere, “to lay on hands.” . . . For with one's opponent to lay hold of and claim in the prescribed formula anything about which there is a dispute, whether it be a field or something else, is called vindicia, or “a claim.” A seizing with the hand of the thing or place in question took place in the presence of the praetor according to the Twelve Tables, in which it was written 2 'If any lay on hands in the presence of the magistrate." 3 But when the boundaries of Italy were extended and the praetors were greatly occupied with legal business, they found it hard to go to distant places to settle claims. Therefore it became [p. 451] usual by silent consent, though contrary to the Twelve Tables, for the litigants not to lay on hands in court in the presence of the praetor, but to call for “a laying on of hands according to law”; that is, that the one litigant should summon the other to the object in question, to lay hands on it according to law, and that they should go together to the field under dispute and bring some earth from it to the city to the praetor's court, for example one clod, and should lay claim to that clod, as if it were the whole field. Accordingly Ennius, wishing to describe such action, said that restitution was demanded, not by legal processes, such as are carried on before a praetor, nor by a laying on of hands according to law, but by war and the sword, and by genuine and resistless violence; and he seems to have expressed this by comparing that civil and symbolic 4 power which is exercised in name only and not actually, with warlike and sanguinary violence.
They scorn the speaker good, the rude soldier love.
[p. 449] Contending not with learning nor abuse,
They join in strife, not laying claim by law,
But, seeking with the sword both wealth and power,
With force resistless rush.