Courts and lawyers become at last alive to the inconvenience ofthe embarrassing formalities required for the transfer, recovery,or devolution of the favoured commodities, and grow unwilling tofetter the newer descriptions of property with the technicaltrammels which characterised the infancy of law. Hence arises adisposition to keep these last on a lower grade in thearrangements of Jurisprudence, and to permit their transfer bysimpler processes than those which, in archaic conveyances, serveas stumbling-blocks to good faith and stepping-stones to fraud.
We are perhaps in some danger of underrating the inconveniencesof the ancient modes of transfer. Our instruments of conveyanceare written, so that their language, well pondered by theprofessional draftsman, is rarely defective in accuracy. But anancient conveyance was not written, but acted. Gestures and wordstook the place of written technical phraseology, and any formulamispronounced, or symbolical act omitted, would have vitiated theproceeding as fatally as a material mistake in stating the usesor setting out the remainders would, two hundred years ago, havevitiated an English deed. Indeed, the mischiefs of the archaicceremonial are even thus only half stated. So long as elaborateconveyances, written or acted, are required for the alienation ofland alone, the chances of mistake are not considerable in thetransfer of a description of property which is seldom got rid ofwith much precipitation. But the higher class of property in theancient world comprised not only land but several of thecommonest and several of the most valuable moveables. When oncethe wheels of society had begun to move quickly, there must havebeen immense inconvenience in demanding a highly intricate formof transfer for a horse or an ox, or for the most costly chattelof the old world -- the Slave. Such commodities must have beenconstantly and even ordinarily conveyed with incomplete forms,and held, therefore, under imperfect titles.
The Res Mancipi of old Roman law were land -- in historicaltimes, land on Italian soil, -- slaves and beasts of burden, suchas horses and oxen. It is impossible to doubt that the objectswhich make up the class are the instruments of agriculturallabour, the commodities of first consequence to a primitivepeople. Such commodities were at first, I imagine, calledemphatically Things or Property, and the mode of conveyance bywhich they were transferred was called a Mancipium orMancipation; but it was not probably till much later that theyreceived the distinctive appellation of Res Mancipi, "Thingswhich require a Mancipation." By their side there may haveexisted or grown up a class of objects, for which it was notworth while to insist upon the full ceremony of Mancipation. Itwould be enough if, in transferring these last from owner toowner, a part only of the ordinary formalities were proceededwith, namely, that actual delivery, physical transfer, ortradition, which is the most obvious index of a change ofproprietorship. Such commodities were the Res Nec Mancipi of theancient jurisprudence, "things which did not require aMancipation," little prized probably at first, and not oftenpassed from one group of proprietors to another. While, however,the list of the Res Mancipi was irrevocably closed, that of theRes Nec Mancipi admitted of indefinite expansion; and hence everyfresh conquest of man over material nature added an item to theRes Nec Mancipi, or effected an improvement in those alreadyrecognised. Insensibly, therefore, they mounted to an equalitywith the Res Mancipi, and the impression of an intrinsicinferiority being thus dissipated, men began to observe themanifold advantages of the simple formality which accompaniedtheir transfer over the more intricate and more venerableceremonial. Two of the agents of legal amelioration, Fictions andEquity, were assiduously employed by the Roman lawyers to givethe practical effects of a Mancipation to a Tradition: and,though Roman legislators long shrank from enacting that the rightof property in a Res Mancipi should be immediately transferred bybare delivery of the article, yet even this step was at lastventured upon by Justinian, in whose jurisprudence the differencebetween Res Mancipi and Res Nec Mancipi disappears, and Traditionor Delivery becomes the one great conveyance known to the law.
The marked preference which the Roman lawyers very early gave toTradition caused them to assign it a place in their theory whichhas helped to blind their modern disciples to its true history.
It was classed among the "natural" modes of acquisition, bothbecause it was generally practised among the Italian tribes, andbecause it was a process which attained its object by thesimplest mechanism. If the expressions of the jurisconsults bepressed, they undoubtedly imply that Tradition, which belongs tothe Law Natural, is more ancient than Mancipation, which is aninstitution of Civil Society; and this, I need not say, is theexact reverse of the truth.
The distinction between Res Mancipi and Res Nec Mancipi isthe type of a class of distinctions to which civilisation is muchindebted, distinctions which run through the whole mass ofcommodities, placing a few of them in a class by themselves, andrelegating the others to a lower category. The inferior kinds ofproperty are first, from disdain and disregard, released from theperplexed ceremonies in which primitive law delights, and thusafterwards, in another state of intellectual progress, the simplemethods of transfer and recovery which have been allowed to comeinto use serve as a model which condemns by its convenience andsimplicity the cumbrous solemnities inherited from ancient days.
