If “the betrayer of his kind” was till malicious capture admittedly and of set purpose left free in the sea, how could it have been reduced into possession, how could any title in it have been acquired, and, lastly—granted some kind of possession—by what actio or legal formula could such possession have been enforced?
These points were to me a stumbling-block, till Professor Courtney Kenny of Cambridge kindly came to my aid. As the extension here of Mansuefactio is apparently unique, and would possibly have been repudiated by jurists after Mucian’s time, we seem to be faced by a novel point, which on account of its intricacy and interest will appeal to people learned in the Roman Law.
The Professor’s letter runs: “Ownership in the Anthias must have been created by that form of Occupatio of a res nullius, which consists, not by the physical detention by angling, or by a piscina, but in mere mansuefactio. This form is familiar for birds (Dig., 41. 2. 3. 15: and for English Law, Bracton, 2. 1. 4): but for fishes I know of no other passage than the one cited by you. Perhaps jurists, not so early as Mucian, would have declined to admit that there had been a true occupatio of this Anthias. The partner, who sold this fish, which was partnership property, would be called on to account for it, and pay over, in damages, his partner’s share of the price by the contractual action Pro Socio. He might, in addition, be made to pay a penalty for his wrong-doing in the delictual Actio Furti. For, though there was a legal primâ-facie presumption (Dig., 17. 2. 51) in favour of the honesty of any partner in the sales of partnership-property, we are here expressly told that he acted ‘maleficii voluntate,’ i.e. his contrectatio of the fish was ‘fraudulosa,’ and therefore a Furtum. The defrauded partner might well have brought both actions at once (Dig., 17. 2. 45), but Pliny speaks only of his having brought the last named one.”
A GREEK ANGLER.
From the Agathemeros Relief, c. 3rd century b.c.