pre I. of property mancipation was the usual mode by CHAP. which it was effected; and it was done in the sence of five witnesses, Roman citizens, specially summoned for the purpose; the Libripens and the Antestatus. In the sale of a slave, for example, the seller said, Mancupo tibi hunc hominem, &c. The buyer replied, taking hold of the slave, Hunc hominem meum esse aio, &c.; he then paid down the price agreed upon, and the Antestatus called upon the five witnesses to bear testimony to the fact. This at once vested the legal title in the buyer. Without mancipation he would only have had bare possession. Res mancipi are thus defined, quæ solenni ritu Res Maninter solos Romanos Cives ita vendi alienarique cipi. poterant, ut emptor eas mancuparet, et venditor earum evictionem præstaret'. If the purchaser of a thing were by legal means deprived of it, the seller was bound to make good the title, i.e. evictionem præstare; the maxim of the Roman law being caveat Venditor, contrary to the English law. Res nec mancipi erant quæ solenni ritu vendi Res nec alienarique non poterant. But what determined Mancipi. whether a thing were mancipi or nec mancipi? Amongst res mancipi Heineccius begins with prædia in Italico solo, and mentions res mancipi under seven heads, excepting elephants and camels3; Gaius excepts bears, lions, and all animals fero naturæ1. With these exceptions, the reader must divest himself of the idea that a thing was mancipi, or nec mancipi from any peculiarity in itself. The locality, and not the thing, made the distinction. Every thing within the Italicum solum must be transferred by mancipation, because the Jus Italicum required it. Adeoque, says Heineccius, et in provinciis, si quando locis erat datum jus Italicum. Res nec mancipi therefore were every thing which was extra solum, et Jus Italicum. 1 Hein. Ant. II. I. 17. 2 Id. 3 Hein. Ant. II. 1. 18. 5 Hein. Ant. II. 1. 18. BOOK II. Property. Modes of acquiring. 1. Оссираtio. CHAPTER II. Of the natural modes of acquiring Property. HAVING considered in the first chapter what are the subjects of property, we now proceed to examine how property is acquired. pro And first, as to the original institution of perty. In the beginning of the world every thing was res nullius; and the maxim being that res nullius occupanti cedunt, the taker acquired that title which no one else had. His time and labour being expended upon a piece of land in fencing and tillage his right was established. Before the laws of civil society existed he might be expelled by one stronger than himself, but this could not be done without the commission of a wrong. Property at first was often only temporary, lasting so long as the occupation continued. If the thing occupied were abandoned it became a derelict, and returned to its former state of res nullius, and the next occupier had a right to it1. Property is acquired, 1. By the law of nations. 2. By the Civil law. The natural modes of acquiring property are three: 1. Occupancy. 2. Accession. 3. Tradition. And first, as regards occupation. Occupatio est apprehensio rerum corporalium nullius cum animo sibi habendi2; the taking possession of corporeal things which belong to no one with the intention of appropriating them to our own use. 1 The reader is here referred to Blackstone, book II.-Of Property in general. 2 Hein. El. CCCXLII. II. Occupatio is divided by the Civil law into CHAP. three heads : I. Venatio. 2. Occupatio bellica. 3. Inventio. One of the earliest vestiges of property would Venatio. be found in those things acquired by hunting as necessary for subsistence. The labour and skill expended in their capture gave the possessor the best title to them; therefore we find the Civil law commences with the rules respecting Fere, which Feræ. are very simple. Animals perfectly wild were considered the property of the person who first captured them; and they continued his so long as they were in his possession. If they escaped he did not lose his right if he could retake them; but if he could not recover possession, or even if they escaped from his sight, they then became the property of the next taker. Wild animals, therefore, of all kinds became the property of him who captured them, and that without any regard to the place; for if taken upon another man's land the taking would be lawful, because no one could claim a property in them; but the owner of the land might prevent a stranger from coming upon it for that purpose: Plane qui alienum fundum ingreditur, venandi aut aucupandi gratia, potest a domino, si is præviderit, prohiberi, ne ingrediatur2. and Man Tame or domestic animals were said to be man- Mansuetæ suetæ naturæ, which was determined by their having surface. the animus revertendi, returning of their own accord as domestic fowls to their roost, or swine to their sty. Mansuefacta were animals of a wild nature in a state of control after their capture, for if bees settle on your tree, and there make their honeycombs, they are still feræ naturæ, and any one may lawfully take the bees and their honey; but after you have enclosed them in a hive they then become mansuefactæ, and the taking would be theft; and the same rule applies to all other II. BOOK wild animals'. Dr Colquhoun calls animals mansuefactæ naturæ, "tame animals"." This would appear to lead to confusion. There are animals feræ naturæ, which may be so reclaimed as to have the animus revertendi, but the broad distinction between animals mansueta and mansuefacto is this: the former have a regular animus revertendi, as domestic fowls or swine, the latter are in a state of control, which control being removed they would return to their wild habits3. Occupatio bellica. Jus Postliminii. Occupation by war extends both to the persons and property of enemies. If persons or moveable property be taken in lawful war, and be confined intra præsidia, or the camps and forts of the captors; or if any portion of an enemy's territory were taken possession of by the Roman people, according to the law of war, it became the property of the state". Captives taken in war recovering their liberty were reinstated in their ancient rights by the fiction called Jus Postliminii. If a Roman citizen became a prisoner of war all his rights were suspended; but they were revived by the Jus Postliminii, which is defined by Paulus as the right of recovering what has been lost in war, and of being restored to our former status. This was accomplished by the return of the party to his country, or by escaping to the protection of some friendly ally of the state". It involves the fiction that such an one had never been absent; retro creditur in civitate fuisse, says Ulpian; and if he never returned his death dated from the day he was taken captive. The animus revertendi is essential1o, therefore, in the case of Regulus, who 1 I. II. I. 14. Coly. DCCCCLXVII. 8. 9. 2 Colq. DCCCCLXVII. 4 D. XLIX. 14. 5. 6 D. XLIX. 15. 19. 8 D. XLIX. 15. 16. 3 D. XLI. I. 5. 6. 5 D. XLIX. 15. 20. I. 10 D. XLIX. 15. 5. 3. was sworn to return to Carthage, the jus post- CHAP. liminii was inoperative. Territory came also under this law, for if an enemy have taken possession of land, and afterwards abandon it, or be driven from it, it reverts to its former state. II. Occupancy in things found, relate, 1. To such Inventio. things as never had an owner, as a nugget of gold found on the surface of the earth or in the sea. 2. To things which cease to have an owner; as treasure and derelicts. Things found become the property of the finder; but they must be res nullius, or res derelicto, i. e. having once had an owner they have been intentionally abandoned. An ex- Res dereample of a derelict is not easily found in civilized lictæ. society, because all property is too valuable, but among a semi-barbarous people like the Newzealanders, where a man removes his hut and leaves his plot of cultivated ground with no intention to resume the occupation, this is a derelict, and becomes the property of the finder should he choose to occupy it. Things found which have been lost Things lost. by accident must be restored to the owner, but if the owner were unknown, and could not be discovered, they would vest in the finder usucapione as the bona fide possessor. Thesaurus est vetus depositio pecuniæ cujus non Thesaurus. extat memoria1. This comes under the head of inventio, and corresponds with the treasure trove of the English law. It is treasure of any kind hidden in the earth, or other secret place, for so long a time that the owner cannot be discovered. This is no derelict, because the concealment shows no intention to abandon. If it were found on another man's land the finder had half jure inventionis, the owner of the land half jure accessionis. If found on public land, half went to the finder and half to the public body to which the land belonged. If found by any one on his own land, or in a locus 1 D: XLI. I. 31. I. 1 |