merito non debent a fructibus separari.-1. 34, D. Pomp. Usura pecuniae, quam percipimus, in Natural and civil fruits are at the same time comprised in the expression 'omnis causa rei,' which designates everything belonging juristically to an object of rights to which claim is made, constituting the augmentation thereof which likewise has to be accounted for. § 74. RES MANCIPI-NEC MANCIPI. A distinction peculiar to the Roman people is that of 'res mancipi' and 'res nec mancipi.' a in Ulp. xix. 1 Mancipi res sunt praedia Italico solo tam rustica, qualis est fundus, quam urbana, qualis domus; item iura praediorum rusticorum, velut via iter actus aquaeductus; item servi et quadrupedes, quae dorso collove domantur, velut boves muli aequi asini. Ceterae res nec mancipi sunt; elefanti et cameli, quamvis collo dorsove domentur, nec mancipi sunt, quoniam bestiarum numero sunt. (―nam ne nomen quidem eorum animalium illo tempore notum fuit, quo constituebatur quasdem res mancipi esse quasdam nec mancipi. Gai. ii. § 16.)" 1 Interest represents fruits, and rightly ought not to be separated from them. The interest of money drawn by us is not amongst fruits, because it does not arise from the thing itself but from another cause, that is, a new obligation. 3 Res mancipi are praedia on Italian soil, both rural, as a field, and urban, as a house; likewise rights belonging to rural praedia, as via, ita, actus, aquaeductus, besides slaves and quadrupeds which are tamed by yoke or saddle, such as oxen, mules, horses, asses. The rest of things are nec mancipi; elephants and camels, although they are tamed by yoke and BOOK III. Pt. 1. Ch. 1. a Anct. Law,' Pp. 273, 8qq.; Early Law pp. 249-251. and Custom,' BOOK III. Pt. 1. Ch. 1, 4 § 79. Gai. ii. § 15 (nostri quidem praeceptores) statim ut nata sunt, mancipi esse putant: Nerva vero et Proculus et ceteri diversae scholae auctores non aliter ea mancipi esse putant, quam si domita sunt; et si propter nimiam feritatem domari non possunt, tunc videri mancipi esse incipere, cum ad eam aetatem pervenerint, qua domari solent.' The practical significance of this distinction consists in the fact that, in respect of res mancipi amongst Roman citizens, full Roman ownership can only be transferred by a civil act of acquisition, as especially the formal transaction of mancipatio' and 'in iure cessio,' a Gai. ii. § 18: Magna autem differentia est inter mancipi res et nec mancipi.—§ 19: Nam res nec mancipi ipsa traditione pleno iure alterius fiunt. § 22: Mancipi vero res sunt, quae per mancipationem ad alium transferuntur; unde etiam mancipi res sunt dictae; quod autem valet mancipatio, idem valet et in iure cessio.2 Comprehensive as is this distinction between res mancipi and nec mancipi, which in later time disappeared, and was literally abolished by Justinian, the saddle, are nec mancipi, being reckoned amongst wild beasts (-for not even was the name of such animals known at that time when it was settled that some things should be mancipi, some nec mancipio). 1-(the leaders of our school) consider that these animals are mancipi immediately they are born; but Nerva and Proculus and other leaders of the opposite school think they become so only when broken in; and if on account of their extreme ferocity they cannot be broken in, then they are considered first to be mancipi when they reach the age at which such animals are commonly broken in. 2 Now there is a great difference between things mancipi and nec mancipi.-§ For res nec mancipi become the property of another in full ownership by mere delivery.--§ But things are mancipi which are conveyed to another by mancipation, whence also their name of r. m. Now the effect of a mancipation is that also of a surrender in court. Pt. I. Ch. I. reason for it has been subject of much dispute. Man- BOOK III, cipi res' are supposed to have been those objects of ownership which by virtue of their nature, according to the old national idea, stood in close relationship to the Roman family life (familia and heredium), of which they constituted the basis and most important ingredient. That at the same time explains their relation to agriculture. TITLE II.-OWNERSHIP AND POSSESSION." § 75. NATURE, FORMS, AND HISTORY OF ROMAN OWNERSHIP. lect. 47; OWNERSHIP is the total and exclusive legal control cf. Austin, over a corporeal thing. The positive element charac- Markby, teristic of the owner consists in the legal power to Holland, pp. operate upon the thing in every direction; the negative, 139-140, 149, in excluding every other person from the thing. It English concomprises the following features. sqq. For the ception, see Brown, s. v. с A 'dominium plurium in solidum' is inconceivable; and further, if the same thing is the property of several persons, the co-owners are only entitled 'pro partibus. indivisis, so that the one proprietary right in the D. 45, 3, 5. thing belongs to several together, and each possesses the aggregate of proprietary rights in respect of a quota of the thing.d Ulp. (Celsus) ait, duorum quidem in solidum dominium vel possessionem esse non posse, nec quemquam partis corporis dominum esse, sed totius corporis pro indiviso pro parte dominium habere.-D. 13, 6, 5, 15.' Papin. Sabinus, in re communi neminem dominorum iure facere quidquam invito altero posse. Unde manifestum est, prohibendi ius 1 (Cels.) says, There cannot be ownership or possession of two persons for the entirety, and no one is owner of a part of a material thing, but each has the ownership of the whole corpus as undivided for a portion. A A d D. § 135. BOOK III. Pt. I. Ch. I. a § 92. esse; in re enim pari potiorem causam esse prohibentis constat.-D. 10, 3, 28.1 On the other hand, particular rights inherent in ownership can be specifically restricted or can be extinguished, without any resulting encroachment upon. the idea of ownership, as of full control, which apprehends the thing not in this or that particular relation, but in the whole significance attached to it by Private Law. These limitations can obtain (1) through private disposition,-iura in re aliena,' a Paul. Recte dicimus eum fundum totum nostrum esse, etiam cum ususfructus alienus est, quia ususfructus non dominii pars . . . sit; nec falsɔ dici totum meum esse, cuius non potest ulla pars dici alterius esse.-D. 50, 16, 25 pr.2 (2) Through prescription by the Law in the public interest, as especially takes place in lauded estates. (So-called legal servitudes.) : Ulp. Si quis sepulcrum habeat, viam autem ad sepulcrum non habeat, et a vicino iure prohibeatur, . . . praeses compellere debet, iusto pretio iter ei praestari.-D. II, 7, 12 pr.3 Pliny, hist. nat. xvi. 5 (6), 15: —Cautum est lege XII tabularum, ut glandem in alienum fun 1 Sab. (says), In respect of common property no one of the proprietors can legally do anything against the will of the other. Therefore it is clear that he possesses a right of forbiddal; for it is a recognised rule of law that in equal circumstances the position prevails of the one that forbids. 2 We are right in saying that the estate belongs to us entirely even when another has the usufruct, because the usufruct is no part of the ownership; and that it is not erroneous to allege that to be entirely mine, of which it is impossible to affirm that any part belongs to another. 3 If any one possess a tomb, but have no way to the tomb, and is prevented by his neighbour from going thither, . . . the president must insist upon access being granted to such person for a reasonable sum. dum procidentem colligere liceret.-Ulp.: Glandis BOOK III. Pt. I. Ch. 1. We have first to distinguish between Roman and non-Roman ownership. The latter, the ownership of Peregrini and possessors of provincial estates," was "§ 71, ad fin. protected by Law, like other legal relations of the Peregrini.b d §4. As regards the right of Roman ownership, there was originally only a single form of it, the 'dominium ex iure Quiritium,' of which the requisite, besides the commercium (civitas or Latinitas) of the subject entitled, and the passive commercium of the thing, was § 70. some recognised kind of acquisition. All else is entirely uncertain. Thus it is supposed ownership was established not merely by the grounds of acquisition appertaining to the 'ius civile propr. Rom.,'d but & §§ 78-80. also in certain cases of so-called 'adquisitiones naturales' as certainly, from the first, by the occupation of things originally without owners and 'res hostiles' § 83. (out scarcely of 'res derelictae' of Roman citizens), and in the cases where actual ownership was naturally extended to a new thing, as in the acquisition of fruits. § 85. There was otherwise in fact need originally, without distinction between 'res mancipi' and 'nec mancipi,' of a completion of the acquisition by usucapio'; so especially in derivative acquisition by 'traditio' on the part of a civis Romanus, whilst the traditio of a Peregrinus always transferred ownership. Later on, however, the need of a civil act of acquisition was still only maintained for res mancipi, so that full Quiritarian ownership in res nec mancipi was always brought about by traditio in particular. f Besides Quiritarian ownership, a ' Bonitarian' owner It was provided by a law of the Twelve Tables that if an acorn fall into the land of another, it would be lawful to gather it.-All fruits are comprised by the expression glans. |