第79章

These various obstacles to the free circulation of theobjects of use and enjoyment, begin of course to make themselvesfelt as soon as society has acquired even a slight degree ofactivity, and the expedients by which advancing communitiesendeavour to overcome them form the staple of the history ofProperty. Of such expedients there is one which takes precedenceof the rest from its antiquity and universality. The idea seemsto have spontaneously suggested itself to a great number of earlysocieties, to classify property into kinds. One kind or sort ofproperty is placed on a lower footing of dignity than the others,but at the same time is relieved from the fetters which antiquityhas imposed on them. Subsequently, the superior convenience ofthe rules governing the transfer and descent of the lower orderof property becomes generally recognised, and by a gradual courseof innovation the plasticity of the less dignified class ofvaluable objects is communicated to the classes which standconventionally higher. The history of Roman Property Law is thehistory of the assimilation of Res Mancipi to Res Nec Mancipi.

The history of Property on the European Continent is the historyof the subversion of the feudalised law of land by the Romanisedlaw of moveables; and, though the history of ownership in Englandis not nearly completed, it is visibly the law of personaltywhich threatens to absorb and annihilate the law of realty.

The only natural classification of the objects of enjoyment,the only classification which corresponds with an essentialdifference in the subject-matter, is that which divides them intoMoveables and Immoveables. Familiar as is this classification tojurisprudence, it was very slowly developed by Roman law; fromwhich we inherit it, and was only finally adopted by it in itslatest stage. The classifications of Ancient Law have sometimes asuperficial resemblance to this. They occasionally divideproperty into categories, and place immoveables in one of them;but then it is found that they either class along withimmoveables a number of objects which have no sort of relationwith them, or else divorce them from various rights to which theyhave a close affinity. Thus, the Res Mancipi of Roman Lawincluded not only land, but slaves, horses, and oxen. Scottishlaw ranks with land a certain class of securities, and Hindoo lawassociates it with slaves. English law, on the other hand, partsleases of land for years from other interests in the soil, andjoins them to personalty under the name of chattels real.

Moreover the classifications of Ancient Law are classificationsimplying superiority and inferiority; while the distinctionbetween moveables and immoveables, so long at least as it wasconfined to Roman jurisprudence, carried with it no suggestionwhatever of a difference in dignity. The Res Mancipi, however,did certainly at first enjoy a precedence over the Res NecMancipi, as did heritable property in Scotland and realty inEngland, over the personalty to which they were opposed. Thelawyers of all systems have spared no pains in striving to referthese classifications to some intelligible principle; but thereasons of the severance must ever be vainly sought for in thephilosophy of law: they belong not to its philosophy, but to itshistory. The explanation which appears to cover the greatestnumber of instances is, that the objects of enjoyment honouredabove the rest were the forms of property known first andearliest to each particular community, and dignified thereforeemphatically with the designation of Property. On the other hand,the articles not enumerated among the favoured objects seem tohave been placed on a lower standing, because the knowledge oftheir value was posterior to the epoch at which the catalogue ofsuperior property was settled. They were at first unknown, rare,limited in their uses, or else regarded as mere appendages to theprivileged objects. Thus, though the Roman Res Mancipi included anumber of moveable articles of great value, still the most costlyjewels were never allowed to take rank as Res Mancipi, becausethey were unknown to the early Romans. In the same way chattelsreal in England are said to have been degraded to the footing ofpersonalty, from the infrequency and valuelessness of suchestates under the feudal land-law. But the grand point ofinterest is, the continued degradation of these commodities whentheir importance had increased and their number had multiplied.

Why were they not successively intruded among the favouredobjects of enjoyment? One reason is found in the stubbornnesswith which Ancient Law adheres to its classifications. It is acharacteristic both of uneducated minds and of early societies,that they are little able to conceive a general rule apart fromthe particular applications of it with which they are practicallyfamiliar. They cannot dissociate a general term or maxim from thespecial examples which meet them in daily experience; and in thisway the designation covering the best-known forms of property isdenied to articles which exactly resemble them in being objectsof enjoyment and subjects of right. But to these influences,which exert peculiar force in a subject-matter so stable as thatof law, are afterwards added others more consistent with progressin enlightenment and in the conceptions of general expediency.