well of the villenage as of his person' (fo. 208b). The only difference in the services was that the mer. chetum on marrying a daughter, being an incident of personal servitude (as a fine paid to the lord for depriving him of a slave), was not demandable from the free man holding in villenage' (F. Pollock, 'Notes on Early English Land Law,' Law Magazine and Review' for May 1882). The whole of Mr. Pollock's valuable paper deserves consideration.

CHAPTER X.

CLASSIFICATIONS OF PROPERTY.

ALL who have any knowledge of Legal History are aware of certain distinctions which run through all commodities or through large departments of them, and which cause the objects of enjoyment lying on either side of the line to belong, in the eyes of lawyers, to widely different provinces of law. Among these distinctions, there is that which the ancient Roman lawyers drew between Res Mancipi and Res nec Mancipi-that is, between Things which required and Things which did not require for their transfer the conveyance of Mancipation; there is the mediaval West European distinction between the Allod and the Feud, between allodial land and feudal land; there is the still surviving English distinction between Realty and Personalty, and finally there is the late Roman and modern European distinction between Res Mobiles and Res Immobiles, between movable and immovable property.

We only know the distinction between Movables and Immovables as relatively modern in the Roman

State and in Europe. It is the result of an attempt of the Roman lawyers to abandon the old historical classifications, and to classify commodities, Property. the objects of enjoyment, according to their actual nature. The generalisation has required but little subsequent correction; the difficulties which have arisen in using it have been insignificant, and have occurred only on the very border-line between the two great classes of Things. In the Middle Ages, the fact that a tree, though immovable, generally acquires value through being hewn down and becoming movable, and possibly some local practice of employing movable wooden frames in the structure of houses, suggested to the expositors of a few early German legal systems a definition of movables as everything which could be destroyed by fire; and, in more recent times, the question of the proper place to be assigned to a class of things of which modern manufacturing industry has greatly increased the importance-fixtures,' as we call them, the immovables by destination' of French law-has occasioned doubts and disputes. Still, on the whole, if law had really been founded on the principles imagined in the last century to constitute its basis-on those principles of simplicity or fitness or good sense which are associated with the words 'Nature' and 'Natural'-it is probable that no classification of commodities would have struck mankind sooner than that which divides

them into movable and immovable.

We know,

nevertheless, that the whole course of Roman legal modification from the Twelve Tables to the reforms of Justinian had to be gone through before this seemingly obvious distinction formally superseded the old historical distinction between Res Mancipi and Res nec Mancipi, the first including Land, Slaves, Horses, and Oxen, and the second everything else; and the curious fact remains that the Englishspeaking communities-England, her colonies, and considerably more than half the States of the American Union-still reject the improved Roman classification, and, separating leases of land for years from the bulk of immovable property, join them to personalty or movables. Thus stubbornly do the old historical classifications hold their ground. But still, if we firmly grasp the truth that these historical classifications can only mean that the commodities which they place in the highest class must have been at some time or other the sole important subjects of proprietary right, and that the others either did not exist or were of trifling value, we cannot but see that there must have been a still earlier time when the accepted historical classifications were themselves modern. The most archaic of them, one probably as old as any conscious attempt to draw this kind of distinction, is that bequeathed to us by the Romans. Yet land, slaves, horses, and oxen cannot, as subjects

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of individual property, have been of contemporaneous origin. There must have been a time when a wild animal tamed, which was a rarity, was of more value than a hundred acres of land, which was superabundant. The domain of a tribe, as soon as the history of mankind began, may have been jealously guarded by it as exclusive hunting-ground, as marking the limits which none but a tribesman could step within save for bloodshed or plunder, or may have been reserved by it (in a later stage of society) for pasture; but each man's share of this domain was of less value to him individually than a slave, a horse, an ox, or even than a flint-headed axe or spear. All this follows from the simplest economical axioms; but the vestiges of the older (and yet probably not the oldest) state of the primitive objects of enjoyment are plainly stamped upon one authentic record of archaic custom, the ancient Irish law; and they seem to me equally discernible in the ancient Teutonic Code, the Lex Salica, which, whatever else it is, is pre-eminently a body of rules protecting the ownership of kine, swine, sheep, goats, horses, and even bees.

I pass to a distinction which rose into importance in an age nearer our own-the distinction between the allod and the feud, between allodial and feudal land. The allod in some form or other is probably as old as the institution of individual landed property,