Except in the singular institutions of Sparta, the wisest legislators
have disapproved an agrarian law as a false and dangerous innovation.
Among the Romans the enormous disproportion of wealth surmounted the
ideal restraints of a doubtful tradition and an obsolete statute; a
tradition that the poorest follower of Romulus had been endowed with the
perpetual inheritance of two jugera; a statute which confined the
richest citizen to the measure of five hundred jugera, or three hundred
and twelve acres of land. The original territory of Rome consisted only
of some miles of wood and meadow along the banks of the Tiber, and
domestic exchange could add nothing to the national stock. But the goods
of an alien or enemy were lawfully exposed to the first hostile
occupier; the city was enriched by the profitable trade of war, and the
blood of her sons was the only price that was paid for the Volscian
sheep, the slaves of Britain, to the gems and gold of Asiatic kingdoms.
In the language of ancient jurisprudence, which was corrupted and
forgotten before the age of Justinian, these spoils were distinguished
by the name of manceps or mancipium, taken with the hand; and whenever
they were sold or emancipated, the purchaser required some assurance
that they had been the property of an enemy and not of a fellow-citizen.
A citizen could only forfeit his rights by apparent dereliction, and
such dereliction of a valuable interest could not easily be presumed.
Yet, according to the _Twelve Tables_, a prescription of one year for
movables, and of two years for immovables, abolished the claim of the
ancient master, if the actual possessor had acquired them by a fair
transaction from the person whom he believed to be the lawful
proprietor.[32] Such conscientious injustice, without any mixture of
fraud or force could seldom injure the members of a small republic; but
the various periods of three, of ten, or of twenty years, determined by
Justinian, are more suitable to the latitude of a great empire. It is
only in the term of prescription that the distinction of real and
personal fortune has been remarked by the civilians; and their general
idea of property is that of simple, uniform, and absolute dominion. The
subordinate exceptions of use, of usufruct, of servitudes, imposed for
the benefit of a neighbor on lands and houses, are abundantly explained
by the professors of jurisprudence. The claims of property, as far as
they are altered by the mixture, the division, or the transformation of
substances, are investigated with metaphysical subtlety by the same
civilians.
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