Latin
Ancient Law, lines 2.1.339-2.1.341
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.339-341
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These various obstacles to the free circulation of the objects of use and enjoyment, begin of course to make themselves felt as soon as society has acquired even a slight degree of activity, and the expedients by which advancing communities endeavour to overcome them form the staple of the history of Property. Of such expedients there is one which takes precedence of the rest from its antiquity and universality. The idea seems to have spontaneously suggested itself to a great number of early societies, to classify property into kinds. One kind or sort of property is placed on a lower footing of dignity than the others, but at the same time is relieved from the fetters which antiquity has imposed on them. Subsequently, the superior convenience of the rules governing the transfer and descent of the lower order of property becomes generally recognized, and by a gradual course of innovation the plasticity of the less dignified class of valuable objects is communicated to the classes which stand conventionally higher. The history of Roman Property Law is the history of the assimilation of Res Mancipi to Res Nec Mancipi. The history of Property on the European Continent is the history of the subversion of the feudalised law of land by the Romanised law of moveables; and, though the history of ownership in England is not nearly completed, it is visibly the law of personalty which threatens to absorb and annihilate the law of realty.
The only natural classification of the objects of enjoyment, the only classification which corresponds with an essential difference in the subject-matter, is that which divides them into Moveables and Immovables. Familiar as is this classification to jurisprudence, it was very slowly developed by Roman law; from which we inherit it, and was only finally adopted by it in its latest stage. The classifications of Ancient Law have sometimes a superficial resemblance to this. They occasionally divide property into categories, and place immovables in one of them; but then it is found that they either class along with immovables a number of objects which have no sort of relation with them, or else divorce them from various rights to which they have a close affinity. Thus, the Res Mancipi of Roman Law included not only land, but slaves, horses, and oxen. Scottish law ranks with land a certain class of securities, and Hindoo law associates it with slaves. English law, on the other hand, parts leases of land for years from other interests in the soil, and joins them to personalty under the name of chattels real. Moreover the classifications of Ancient Law are classifications implying superiority and inferiority; while the distinction between moveables and immovables, so long at least as it was confined to Roman jurisprudence, carried with it no suggestion whatever of a difference in dignity. The Res Mancipi, however, did certainly at first enjoy a precedence over the Res Nec Mancipi, as did heritable property in Scotland and realty in England, over the personalty to which they were opposed. The lawyers of all systems have spared no pains in striving to refer these classifications to some intelligible principle; but the reasons of the severance must ever be vainly sought for in the philosophy of law: they belong not to its philosophy, but to its history. The explanation which appears to cover the greatest number of instances is, that the objects of enjoyment honored above the rest were the forms of property known first and earliest to each particular community, and dignified therefore emphatically with the designation of Property. On the other hand, the articles not enumerated among the favored objects seem to have been placed on a lower standing, because the knowledge of their value was posterior to the epoch at which the catalogue of superior property was settled. They were at first unknown, rare, limited in their uses, or else regarded as mere appendages to the privileged objects. Thus, though the Roman Res Mancipi included a number of moveable articles of great value, still the most costly jewels were never allowed to take rank as Res Mancipi, because they were unknown to the early Romans. In the same way chattels real in England are said to have been degraded to the footing of personalty, from the infrequency and valuelessness of such estates under the feudal land-law. But the grand point of interest is, the continued degradation of these commodities when their importance had increased and their number had multiplied. Why were they not successively intruded among the favored objects of enjoyment? One reason is found in the stubbornness with which Ancient Law adheres to its classifications. It is a characteristic both of uneducated minds and of early societies, hat they are little able to conceive a general rule apart from the particular applications of it with which they are practically familiar. They cannot dissociate a general term or maxim from the special examples which meet them in daily experience; and in this way the designation covering the best-known forms of property is denied to articles which exactly resemble them in being objects of enjoyment and subjects of right. But to these influences, which exert peculiar force in a subject-matter so stable as that of law, are afterwards added others more consistent with progress in enlightenment and in the conceptions of general expediency. Courts and lawyers become at last alive to the inconvenience of the embarrassing formalities required for the transfer, recovery, or devolution of the favored commodities, and grow unwilling to fetter the newer descriptions of property with the technical trammels which characterized the infancy of law. Hence arises a disposition to keep these last on a lower grade in the arrangements of Jurisprudence, and to permit their transfer by simpler processes than those which, in archaic conveyances, serve as stumbling-blocks to good faith and stepping-stones to fraud. We are perhaps in some danger of underrating the inconveniences of the ancient modes of transfer. Our instruments of conveyance are written, so that their language, well pondered by the professional draftsman, is rarely defective in accuracy. But an ancient conveyance was not written, but acted. Gestures and words took the place of written technical phraseology, and any formula mispronounced, or symbolical act omitted, would have vitiated the proceeding as fatally as a material mistake in stating the uses or setting out the remainders would, two hundred years ago, have vitiated an English deed. Indeed, the mischiefs of the archaic ceremonial are even thus only half stated. So long as elaborate conveyances, written or acted, are required for the alienation of land alone, the chances of mistake are not considerable in the transfer of a description of property which is seldom got rid of with much precipitation. But the higher class of property in the ancient world comprised not only land but several of the commonest and several of the most valuable moveables. When once the wheels of society had begun to move quickly, there must have been immense inconvenience in demanding a highly intricate form of transfer for a horse or an ox, or for the most costly chattel of the old world --the Slave. Such commodities must have been constantly and even ordinarily conveyed with incomplete forms, and held, therefore, under imperfect titles.