486
THE DECLINE AND FALL
the richest citizen to the measure of five hundred jugera, or three hundred and twelve acres of land. The original territory of Rome consisted only of some miles of wood and meadow along the banks of the Tiber; and domestic exchange could add nothing to the national stock. But the goods of an alien or enemy were lawfully exposed to the first hostile occupier; the city was enriched by the profitable trade of war; and the blood of her sons was the only price that was paid for the Volscian sheep, the slaves of Britain, or the gems and gold of Asiatic kingdoms. In the language of ancient jurisprudence, which was corrupted and forgotten before the age of Justinian, these spoils were distinguished by the name of manceps or mancipium, taken with the hand; and, whenever they were sold or emancipated, the purchaser required some assurance that they had been the property of an enemy, and not of a fellow-citizen.[1] A citizen could only forfeit his rights by apparent dereliction, and such dereliction of a valuable interest could not easily be presumed. Yet, according to the Twelve Tables, a prescription of one year for moveables, and of two years for immoveables, abolished the claim of the ancient master, if the actual possessor had acquired them by a fair transaction from the person whom he believed to be the lawful proprietor.[2]
- ↑ The res mancipi is explained from faint and remote lights by Ulpian (Fragment. tit. xviii. p. 618, 619), and Bynkershoek (Opp. tom. i. p. 306-315). The definition is somewhat arbitrary; and, as none except myself have assigned a reason, I am diffident of my own. [The distinction of res mancipi and res nec mancipi does not admit of an exact definition, but can be shown only by enumeration. Res mancipi were (1) immoveables situated in Italy, (2) rural servitudes in Italy, (3) oxen, mules, horses, and asses (quæ collo dorsove domantur), (4) slaves. All other things are res nec mancipi. The legal importance of this distinction was that res mancipi alone could be acquired by the process of mancipation (which process, applied to res nec mancipi, was void) and that they could not be acquired by Delivery (traditio). Thus res mancipi meant things that admitted of mancipation (mancipii). The different modes of acquiring property (apart from the original and primary mode: occupation) were six: (1) mancipation, a fictitious sale; (2) in jure cessio, a fictitious process before a magistrate (in which the alienator was assimilated to the defendant), and applicable to both res mancipi and res nec mancipi; (3) traditio, or simple delivery (implying, of course, certain conditions), confers full right of property (dominium) in case of res nec mancipi; but places a res mancipi not in dominio, but in bonis of the receiver, who may convert this incomplete into complete proprietorship by usucapio; (4) usucapio, the prescription mentioned in the text; (5) adjudicatio, a magistrate's award in the case of a partition of property; (6) lex; this included certain cases connected with inheritance, and also treasure-trove.]
- ↑ 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.).
