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In this way, the Roman Prætor gave an immediate right of property to the person who had acquired a Res Mancipi by mere delivery, without waiting for the ripening of Usucapion. Similarly he in time recognised an ownership in the Mortgagee who had at first been a mere "bailee" or depositary, and in the Emphyteuta, or tenant of land which was subject to a fixed perpetual rent.
Two of the agents of legal amelioration, Fictions and Equity, were assiduously employed by the Roman lawyers to give the practical effects of a Mancipation to a Tradition: and, though Roman legislators long shrank from enacting that the right of property in a Res Mancipi should be immediately transferred by bare delivery of the article, yet even this step was at last ventured upon by Justinian, in whose jurisprudence the difference between Res Mancipi and Res Nec Mancipi disappears, and Tradition or Delivery becomes the one great conveyance known to the law.
Originally, the Romans divided things into res mancipi, and res nec mancipi. The former comprehended houses, lands, slaves, and beasts of burden, and could only be acquired by certain solemn forms, which, if not observed, the property was not legally transferred. The latter included all other things, and admitted of being transferred by simple tradition.
The consent of such supervision, whether of father, husband, or guardian, was essential, as Ulpian informs us, under these circumstances: if the woman entered into any legal action, obligation, or civil contract; if she wished her freedwoman to cohabit with another's slave; if she desired to free a slave; if she sold any things mancipi, that is, such as estates on Italian soil, houses, rights of road or aqueduct, slaves, and beasts of burden.
The distinction between Res Mancipi and Res Nec Mancipi is the type of a class of distinctions to which civilisation is much indebted, distinctions which run through the whole mass of commodities, placing a few of them in a class by themselves, and relegating the others to a lower category.
The history of Roman Property Law is the history of the assimilation of Res Mancipi to Res Nec Mancipi.
The Res Mancipi, however, did certainly at first enjoy a precedence over the Res Nec Mancipi, as did heritable property in Scotland and realty in England, over the personalty to which they were opposed.
Thus, the Res Mancipi of Roman Law included not only land, but slaves, horses, and oxen. Scottish law ranks with land a certain class of securities, and Hindoo law associates it with slaves. English law, on the other hand, parts leases of land for years from other interests in the soil, and joins them to personalty under the name of chattels real.
Such commodities were the Res Nec Mancipi of the ancient jurisprudence, "things which did not require a Mancipation," little prized probably at first, and not often passed from one group of proprietors to another, While, however, the list of the Res Mancipi was irrevocably closed; that of the Res Nec Mancipi admitted of indefinite expansion; and hence every fresh conquest of man over material nature added an item to the Res Nec Mancipi, or effected an improvement in those already recognised.
The Res Mancipi of old Roman law were land in historical times, land on Italian soil, slaves and beasts of burden, such as horses and oxen. It is impossible to doubt that the objects which make up the class are the instruments of agricultural labour, the commodities of first consequence to a primitive people.
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