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p685 Lex Cincia

Article by George Long, M.A., Fellow of Trinity College
on pp685‑686 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

CIN′CIA LEX, or MUNERA′LIS. This lex was a plebiscitum passed in the time of the tribune M. Cincius Alimentus (B.C. 204), and entitled De Donis et Muneribus (Cic. de Orat. II.71, ad Att. 1.20; Liv. XXXIV.4). One provision of this law, which forbade a person to take anything for his pains in pleading a cause, is recorded by Tacitus (Ann. XI.5), Ne quis ob causam orandam pecuniam p686donumve accipiat. In the time of Augustus, the lex Cincia was confirmed by a senatusconsultum (Dion Cass. LIV.18), and a penalty of four times the sum received was imposed on the advocate. The fact of confirmation will explain a passage in Tacitus (Ann. XIII.42). The law was so far modified in the time of Claudius, that an advocate was allowed to receive ten sestertia; if he took any sum beyond that, he was liable to be prosecuted for repetundae (repetundarum tenebatur, Tacit. Ann. XI.7; see also Sueton. Nero, 17, and the note in Burmann's edition). [Repetundae.] It appears that this permission was so far restricted in Trajan's time, that the fee could not be paid till the work was done (Plin Ep. V.21).

So far the Cincian law presents no difficulty; but it appears that the provisions of the law were not limited to the case already stated. They applied also to gifts in general: or, at least, there were enactments which did limit the amount of what a person could give, and also required gifts to be accompanied with certain formalities; and it does not seem possible to refer these enactments to any other than the Cincian law. The numerous contradictions and difficulties which perplex this subject, are perhaps satisfactorily reconciled and removed by the following conjecture of Savigny (Ueber die Lex Cincia, Zeitschrift, &c. IV):— "Gifts which exceeded a certain amount were only valid when made by mancipatio, in jure cessio, or by tradition: small gifts consequently were left to a person's free choice as before; but large gifts (except in the case of near relations) were to be accompanied with certain formalities." The object of the law, according to Savigny, was to prevent foolish and hasty gifts to a large amount; and consequently was intended among other things to prevent fraud. This was effected by declaring that certain forms were necessary to make the gift valid, such as mancipatio and in jure cessio, both of which required some time and ceremony, and so allowed the giver opportunity to reflect on what he was doing. These forms also could not be observed, except in the presence of other persons, which was an additional security against fraud. It is true that this advantage was not secured by the law in the case of the most valuable things, nec mancipi, namely, money, for the transferring of which bare tradition was sufficient; but, on the other hand, a gift of a large sum of money is one that people of all gifts are least likely to make.

Savigny concludes, and principally from a passage in Pliny's letters (X.3), that the Cincian law originally contained no exception in favour of relatives; but that all gifts above a certain amount required the formalities already mentioned. The emperor Antoninus Pius introduced an exception in favour of parents and children, and also of near collateral kinsmen. It appears that this exception was subsequently abolished (Cod. Hermog. VI.1), but was restored by Constantine (A.D. 319) so far as it was in favour of parents and children; and so it continued as long as the provisions of the Cincian law were in force.

As to the amount beyond which the law forbade a gift to be made, except in conformity to its provisions, see Savigny, Zeitschrift, &c. IV. p36.

The matter of the lex Cincia is also discussed in an elaborate essay by Hasse (Rheinisches Museum, 1827), and it is discussed by Puchta, Inst. vol. II § 206. These examinations of the subject, together with the essay of Savigny, will furnish the reader with all the necessary references and materials for investigating this subject.


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