[Footnote 140: From this short prescription, Hume (Essays,
vol. i. p. 423) infers that there could not then be more
order and settlement in Italy than now amongst the Tartars.
By the civilian of his adversary Wallace, he is reproached,
and not without reason, for overlooking the conditions,
(Institut. l. ii. tit. vi.)
Note: Gibbon acknowledges, in the former note, the obscurity
of his views with regard to the res mancipi. The
interpreters, who preceded him, are not agreed on this
point, one of the most difficult in the ancient Roman law.
The conclusions of Hume, of which the author here speaks,
are grounded on false assumptions. Gibbon had conceived very
inaccurate notions of Property among the Romans, and those
of many authors in the present day are not less erroneous.
We think it right, in this place, to develop the system of
property among the Romans, as the result of the study of the
extant original authorities on the ancient law, and as it
has been demonstrated, recognized, and adopted by the most
learned expositors of the Roman law. Besides the authorities
formerly known, such as the Fragments of Ulpian, t. xix. and
t. i. 16. Theoph. Paraph. i. 5, 4, may be consulted the
Institutes of Gaius, i. 54, and ii. 40, et seq.
The Roman laws protected all property acquired in a lawful
manner. They imposed on those who had invaded it, the
obligation of making restitution and reparation of all
damage caused by that invasion; they punished it moreover,
in many cases, by a pecuniary fine. But they did not always
grant a recovery against the third person, who had become
bona fide possessed of the property. He who had obtained
possession of a thing belonging to another, knowing nothing
of the prior rights of that person, maintained the
possession. The law had expressly determined those cases,
in which it permitted property to be reclaimed from an
innocent possessor. In these cases possession had the
characters of absolute proprietorship, called mancipium, jus
Quiritium. To possess this right, it was not sufficient to
have entered into possession of the thing in any manner; the
acquisition was bound to have that character of publicity,
which was given by the observation of solemn forms,
prescribed by the laws, or the uninterrupted exercise of
proprietorship during a certain time: the Roman citizen
alone could acquire this proprietorship. Every other kind
of possession, which might be named imperfect
proprietorship, was called "in bonis habere." It was not
till after the time of Cicero that the general name of
Dominium was given to all proprietorship.
It was then the publicity which constituted the distinctive
character of absolute dominion. This publicity was grounded
on the mode of acquisition, which the moderns have called
Civil, (Modi adquirendi Civiles.) These modes of acquisition
were,
1. Mancipium or mancipatio, which was nothing but the solemn
delivering over of the thing in the presence of a
determinate number of witnesses and a public officer; it was
from this probably that proprietorship was named, 2. In jure
cessio, which was a solemn delivering over before the
praetor. 3. Adjudicatio, made by a judge, in a case of
partition. 4. Lex, which comprehended modes of acquiring in
particular cases determined by law; probably the law of the
xii. tables; for instance, the sub corona emptio and the
legatum.
5. Usna, called afterwards usacapio, and by the moderns
prescription. This was only a year for movables; two years
for things not movable. Its primary object was altogether
different from that of prescription in the present day. It
was originally introduced in order to transform the simple
possession of a thing (in bonis habere) into Roman
proprietorship. The public and uninterrupted possession of
a thing, enjoyed for the space of one or two years, was
sufficient to make known to the inhabitants of the city of
Rome to whom the thing belonged. This last mode of
acquisition completed the system of civil acquisitions. by
legalizing. as it were, every other kind of acquisition
which was not conferred, from the commencement, by the Jus
Quiritium. V. Ulpian. Fragm. i. 16. Gaius, ii. 14. We
believe, according to Gaius, 43, that this usucaption was
extended to the case where a thing had been acquired from a
person not the real proprietor; and that according to the
time prescribed, it gave to the possessor the Roman
proprietorship. But this does not appear to have been the
original design of this Institution. Caeterum etiam earum
rerum usucapio nobis competit, quae non a domino nobis
tradita fuerint, si modo eas bona fide acceperimus Gaius, l
ii. 43. As to things of smaller value, or those which it
was difficult to distinguish from each other, the
solemnities of which we speak were not requisite to obtain
legal proprietorship. In this case simple delivery was
sufficient.
In proportion to the aggrandizement of the Republic, this
latter principle became more important from the increase of
the commerce and wealth of the state. It was necessary to
know what were those things of which absolute property might
be acquired by simple delivery, and what, on the contrary,
those, the acquisition of which must be sanctioned by these
solemnities. This question was necessarily to be decided by
a general rule; and it is this rule which establishes the
distinction between res mancipi and nec mancipi, a
distinction about which the opinions of modern civilians
differ so much that there are above ten conflicting systems
on the subject. The system which accords best with a sound
interpretation of the Roman laws, is that proposed by M.
Trekel of Hamburg, and still further developed by M. Hugo,
who has extracted it in the Magazine of Civil Law, vol. ii.
p. 7. This is the system now almost universally adopted.
Res mancipi (by contraction for mancipii) were things of
which the absolute property (Jus Quiritium) might be
acquired only by the solemnities mentioned above, at least
by that of mancipation, which was, without doubt, the most
easy and the most usual. Gaius, ii. 25. As for other
things, the acquisition of whichwas not subject & to these
forms, in order to confer absoluteright, they were called
res nec manci mancipi. Their enumerations do not quite
agree; and various methods of reconciling them have been
attempted. The authority of Ulpian, however, who wrote as a
civilian, ought to have the greater weight on this subject.
But why are these things alone res mancipi? This is one of
the questions which have been most frequently agitated, and
on which the opinions of civilians are most divided. M.
Hugo has resolved it in the most natural and satisfactory
manner. "All things which were easily known individually,
which were of great value, with which the Romans were
acquainted, and which they highly appreciated, were res
mancipi. Of old mancipation or some other solemn form was
required for the acquisition of these things, an account of
their importance. Mancipation served to prove their
acquisition, because they were easily distinguished one from
the other." On this great historical discussion consult the
Magazine of Civil Law by M. Hugo, vol. ii. p. 37, 38; the
dissertation of M. J. M. Zachariae, de Rebus Mancipi et nec
Mancipi Conjecturae, p. 11. Lipsiae, 1807; the History of
Civil Law by M. Hugo; and my Institutiones Juris Romani
Privati p. 108, 110.
As a general rule, it may be said that all things are res
nec mancipi; the res mancipi are the exception to this
principle.
The praetors changed the system of property by allowing a
person, who had a thing in bonis, the right to recover
before the prescribed term of usucaption had conferred
absolute proprietorship. (Pauliana in rem actio.) Justinian
went still further, in times when there was no longer any
distinction between a Roman citizen and a stranger. He
granted the right of recovering all things which had been
acquired, whether by what were called civil or natural modes
of acquisition, Cod. l. vii. t. 25, 31. And he so altered
the theory of Gaius in his Institutes, ii. 1, that no trace
remains of the doctrine taught by that civilian. - W.]