ve ten
conflicting systems on the subject. The system which accords best with a
sound interpretation of the Roman laws, is that proposed by M. Trekel of
Hamburg, and still further developed by M. Hugo, who has extracted it in
the Magazine of Civil Law, vol. ii. p. 7.
This is the system now almost universally adopted. Res mancipi (by
contraction for mancipii) were things of which the absolute property
(Jus Quiritium) might be acquired only by the solemnities mentioned
above, at least by that of mancipation, which was, without doubt, the
most easy and the most usual. Gaius, ii. 25. As for other things, the
acquisition of which was not subject to these forms, in order to confer
absolute right, they were called res nec mancipi. See Ulpian, Fragm.
xix. 1. 3, 7.
Ulpian and Varro enumerate the different kinds of res mancipi. Their
enumerations do not quite agree; and various methods of reconciling them
have been attempted. The authority of Ulpian, however, who wrote as a
civilian, ought to have the greater weight on this subject.
But why are these things alone res mancipi? This is one of the questions
which have been most frequently agitated, and on which the opinions of
civilians are most divided. M. Hugo has resolved it in the most
natural and satisfactory manner. "All things which were easily known
individually, which were of great value, with which the Romans were
acquainted, and which they highly appreciated, were res mancipi. Of old
mancipation or some other solemn form was required for the acquisition
of these things, an account of their importance. Mancipation served to
prove their acquisition, because they were easily distinguished one from
the other." On this great historical discussion consult the Magazine of
Civil Law by M. Hugo, vol. ii. p. 37, 38; the dissertation of M. J. M.
Zachariae, de Rebus Mancipi et nec Mancipi Conjecturae, p. 11. Lipsiae,
1807; the History of Civil Law by M. Hugo; and my Institutiones Juris
Romani Privati p. 108, 110.
As a general rule, it may be said that all things are res nec mancipi;
the res mancipi are the exception to this principle.
The praetors changed the system of property by allowing a person, who
had a thing in bonis, the right to recover before the prescribed term
of usucaption had conferred absolute proprietorship. (Pauliana in rem
actio.) Justinian went still further, in times when there was no longer
any distinction between a Roman citizen and a stranger. He granted the
r