man law. The
conclusions of Hume, of which the author here speaks, are grounded
on false assumptions. Gibbon had conceived very inaccurate notions of
Property among the Romans, and those of many authors in the present day
are not less erroneous. We think it right, in this place, to develop the
system of property among the Romans, as the result of the study of
the extant original authorities on the ancient law, and as it has been
demonstrated, recognized, and adopted by the most learned expositors
of the Roman law. Besides the authorities formerly known, such as the
Fragments of Ulpian, t. xix. and t. i. 16. Theoph. Paraph. i. 5, 4, may
be consulted the Institutes of Gaius, i. 54, and ii. 40, et seq.
The Roman laws protected all property acquired in a lawful manner.
They imposed on those who had invaded it, the obligation of making
restitution and reparation of all damage caused by that invasion; they
punished it moreover, in many cases, by a pecuniary fine. But they did
not always grant a recovery against the third person, who had become
bona fide possessed of the property. He who had obtained possession of a
thing belonging to another, knowing nothing of the prior rights of that
person, maintained the possession. The law had expressly determined
those cases, in which it permitted property to be reclaimed from an
innocent possessor. In these cases possession had the characters of
absolute proprietorship, called mancipium, jus Quiritium. To possess
this right, it was not sufficient to have entered into possession of the
thing in any manner; the acquisition was bound to have that character
of publicity, which was given by the observation of solemn forms,
prescribed by the laws, or the uninterrupted exercise of proprietorship
during a certain time: the Roman citizen alone could acquire this
proprietorship. Every other kind of possession, which might be named
imperfect proprietorship, was called "in bonis habere." It was not till
after the time of Cicero that the general name of Dominium was given to
all proprietorship.
It was then the publicity which constituted the distinctive character
of absolute dominion. This publicity was grounded on the mode of
acquisition, which the moderns have called Civil, (Modi adquirendi
Civiles.) These modes of acquisition were,
1. Mancipium or mancipatio, which was nothing but the solemn delivering
over of the thing in the presence of a determinate number of witnesses
and a public officer; i