Latin
Ancient Law
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.345
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The distinction between Res Mancipi and Res Nec Mancipi is the type of a class of distinctions to which civilization is much indebted, distinctions which run through the whole mass of commodities, placing a few of them in a class by themselves, and relegating the others to a lower category. The inferior kinds of property are first, from disdain and disregard, released from the perplexed ceremonies I which primitive law delights, and thus afterwards, in another state of intellectual progress, the simple methods of transfer and recovery which have been allowed to come into use serve as a model which condemns by its convenience and simplicity the cumbrous solemnities inherited from ancient days. But, in some societies, the trammels in which Property is tied up are much too complicated and stringent to be relaxed in so easy a manner. Whenever male children have been born to a Hindoo, the law of India, as I have stated, gives them all an interest in his property, and makes their consent a necessary condition of its alienation. In the same spirit, the general usage of the old Germanic peoples --it is remarkable that the Anglo-Saxon customs seem to have been an exception forbade alienations without the consent of the male children; and the primitive law of the Sclavonians even prohibited them altogether. It is evident that such impediments as these cannot be overcome by a distinction between kinds of property, inasmuch as the difficulty extends to commodities of all sorts; and accordingly, Ancient Law, when once launched on a course of improvement, encounters them with a distinction of another character, a distinction classifying property, not according to its nature but according to its origin. In India, where there are traces of both systems of classification, the one which we are considering is exemplified in the difference which Hindoo law establishes between Inheritances and Acquisitions. The inherited property of the father is shared by the children as soon as they are born; but according to the custom of most provinces, the acquisitions made by him during his lifetime are wholly his own, and can be transferred by him at pleasure. A similar distinction was not unknown to Roman law, in which the earliest innovation on the Parental Powers took the form of a permission given to the son to keep for himself whatever he might have acquired in military service. But the most extensive use ever made of this mode of classification appears to have been among the Germans, I have repeatedly stated that the allod, though not inalienable, was commonly transferable with the greatest difficulty. and moreover, it descended exclusively to the agnatic kindred. Hence an extraordinary variety of distinctions came to be recognized, all intended to diminish the inconveniences inseparable from allodial property. The wehrgeld, for example, or composition for the homicide of a relative, which occupies so large a space in German jurisprudence, formed no part of the family domain, and descended according to rules of succession altogether different. Similarly, the rei pus, or fine leviable on the re-marriage of a widow, did not enter into the allod of the person to whom it was paid, and followed a line of devolution in which the privileges of the agnates were neglected. The law, too, as among the Hindoos, distinguished the Acquisitions of the chief of the household from his Inherited property, and permitted him to deal with them under much more liberal conditions. Classifications of the other sort were also admitted, and the familiar distinction drawn between land and moveables; but moveable property was divided into several subordinate categories, to each of which different rules applied. This exuberance of classification, which may strike us as strange in so rude a people as the German conquerors of the Empire, is doubtless to be explained by the presence in their systems of a considerable element of Roman law, absorbed by them during their long sojourn on the confines of the Roman dominion. It is not difficult to trace a great number of the rules governing the transfer and devolution of the commodities which lay outside the allod, to their source in Roman jurisprudence, from which they were probably borrowed at widely distant epochs, and in fragmentary importations. How far the obstacles to the free circulation of property were surmounted by such contrivances, we have not the means even of conjecturing, for the distinctions adverted to have o modern history. As I before explained, the allodial form of property was entirely lost in the feudal, and when the consolidation of feudalism was once completed, there was practically but one distinction left standing of all those which had been known to the western world --the distinction between land and goods, immovables and moveables. Externally this distinction was the same with that which Roman law had finally accepted, but the law of the middle ages differed from that of Rome in distinctly considering immoveable property to be more dignified than moveable. Yet this one sample is enough to show the importance of the class of expedients to which it belongs. In all the countries governed by systems based on the French codes, that is, through much the greatest part of the Continent of Europe, the law of moveables, which was always Roman law, has superseded and annulled the feudal law of land. England is the only country of importance in which this transmutation, though it has gone some way, is not nearly accomplished. Our own, too, it may be added, is the only considerable European country in which the separation of moveables from immovables has been somewhat disturbed by the same influences which caused the ancient classifications to depart from the only one which is countenanced by nature. In the main, the English distinction has been between land and goods; but a certain class of goods have gone as heir-looms with the land, and a certain description of interests in land have from historical causes been ranked with personalty This is not the only instance in which English jurisprudence, standing apart from the main current of legal modification, has reproduced phenomena of archaic law.