Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/714

Rh 690 ROMAN LAW [JUS CIVILE. not enjoy what was called jus Itnlicum ; and long before the time of Justinian it had entirely disappeared. The effects of a mancipation, provided the price had been paid or security given for it, were that the property passed instantly to the purchaser, and that the transferrer was held to warrant the transferee against eviction from the moment the price was received. In the absence of either payment or sureties for it, the title still remained with the vendor, so that it was in his power, by means of a real action, to get back what had been mancipated, even though it had passed into the possession of the vendee. The vendor's liability to the vendee in the event of eviction is usually supposed to have arisen ipso jure, that is to say, without anything expressly said about it ; the acceptance by the transferrer of the coin with which the scales had been struck was held to have im- posed upon him an obligation to maintain the transferee in posses- sion, under a penalty of double the amount of the price, recoverable by the latter by what is usually called an actio auctoritatis. But this ipso jure obligation did not arise when the mancipation was either really or fictitiously gratuitous, really, in the case of dona- tions, &c., fictitiously, when, on purpose to exclude the warranty, the recital of the transferee was that the price was a single sesterce. The right of a vendee to sue an actio auctoritatis arose only when eviction resulted from a decree in a regular judicial process at the instance of a third party disputing his title, and was conditional on his having done all that was necessary on his part to bring his vendor (auctor) into the field to defend his own interests. And the duration of the auctoritas was limited by statute to two years in the case of lands and houses, to one year in the case of other things. As possession for those periods was sufficient to cure any defect in the vendee's title, it was but reasonable that with their expiry the vendor's liability on his warranty should be at an end. By a provision of the Tables in the very inclusive terms, "cum nexum faciet mancipiumque, uti lingua nuncupassit, itajusesto," the importance of mancipation was immensely increased ; for any sort of qualification germane to the transaction might be super- induced upon it, and the range of its application thus greatly extended. Such qualifications were spoken of as leges inancipii, self-imposed terms, conditions, or qualifications of the conveyance, which, as integral parts of the transaction per aes et libram, partook of its binding character and were law between the parties. The matter of oral declaration might be the acreage of lands, their freedom from burdens or right to easements, reservation of a usu- fruct, limitation of their mode of use, undertaking to reconvey on a certain event, or what not ; the result was just so many obliga- tions created per aes et libram, whose contravention or denial (Cicero tells us) was punished with a twofold penalty. Ordinarily the words spoken in the hearing of the witnesses fixed the begin- ning and the end of the liability ; it was enough that they were literally complied with, however much the other party might be injured by something inconsistent with their spirit, or which he had not taken the precaution to require should be made matter of declaration. But there was an exception (although possibly not introduced until long after the Tables) in the case of that parti- cular mancipatory agreement which Avas known by the name of fiducia, i.e., where the mancipation was to a creditor in security or to a friend for safe custody, and the engagement was to return the thing mancipated in the one case when the debt secured by it was paid and in the other on demand. In such cases the transferee took the conveyance more in the transferrer's interest than his own ; he became a trustee, entitled to be treated with consideration, and neither mulcted in a twofold penalty when his inability to reconvey was due to no fault of his, nor forced to reconvey until relieved of charges incurred by him in reference to the property. Accordingly it became the practice to import into the mancipation a reference to fides "fidei fiduciae meum esse aio," with explanation of the purpose, &c., of iefiducia in the relative lex mancipii ; this had the effect of freeing alike the right of the vendor and the obligation of the vendee from the hard-and-fast lines of the jus strictum, and subordinating them to the principles of bona fides. Surren- Of the civil modes of acquiring property on singular title appli- ler in cable to both res mancipi and res nee mancipi surrender in court
 * ourt. (injure cessio) was just a rei vindicatio arrested in its initial stage.

The parties, cedent and cessiouary, appeared before the magistrate ; the cessionary, taking the position of plaintiff, declared the thing his in quiritary right ; the cedent, as defendant, was asked what he had to say in answer ; and, on his admission or silence, the magistrate at once pronounced a decree (addictio) which completed the transfer, but which might be subject to a condition or other limitation, or even to a fiduciary reservation. It was probably more resorted to for the constitution of servitudes, both real and personal, and transfer of such rights as patria poteslas, tutory-at-law of a woman, or an inheritance that had already vested, than for con- veyance of property. For it was not only inconvenient, inasmuch as it required the parties to appear before the supreme magistrate in Rome, and could not be carried through by a slave on his owner's behalf (as mancipation might), but it had the serious dis- advantage that it did not ipso jure imply any warranty of title by the cedeut or afford the cessionary any action against him in the event of eviction. The reason was that in form the right of the cessionary flowed from the magisterial decree, "Since you say the thing is yours, and the cedent does not say it is his, I declare it yours," and not from any act or word of the cedent's', who was passive in the matter. Adjudication was the decree of a judge in a divisory action, such Adjudi as one for partition of an inheritance amongst co-heirs ; it con- cation, ferred upon each of them a separate and independent right in a part of what as a whole had previously been joint property. Usucapion, 1 regulated by the XII. Tables, but not im- Usuca- probably recognized previously in a vague and uncertain pi' way, converted uninterrupted possession (usits) into quiri- tary property by efflux of time. The provision in the Tables was to this effect " usus auctoritas fundi biennium esto, ceterarum rerum annuus esto." The relation in which the words usits and auctoritas stand to each other has been a subject of much discussion : the prevailing opinion amongst modern civilians is that the first alone refers to usucapion, and the second to the warranty of title incum- bent on the vendor in a mancipation, and that both were limited to two years in the case of lands (and, by extensive interpretation, houses), and to one year in the case of any- thing else. In the later jurisprudence the possession re- quired to be based on a sufficient title and the possessor to be in good faith. But the decemviral code, as is now generally admitted, contained no such requirements ; any citizen occupying immovables or holding movables as his own, provided they were usucaptible and he had not taken them theftuously, acquired a quiritary right in two years or one, as the case might be, simply on the strength of his possession. Originally, therefore, it was simply the conversion of de facto possession, no matter how acquired so long as not by theft, into legal ownership when pro- longed for the statutory period, too often the mainte- nance of might at the cost of right. But in time it came to be regarded rather as a remedy for some defect of title, arising either from irregularity of conveyance or incapacity of the party from whom a transfer had been taken ; and with the progress of jurisprudence it developed into the carefully regulated positive prescription which has found a place in every modern system. The conception of the abstract notion of a real right in J (or over) the property of another person (jus in re aliena) re alie is not to be looked for at so early a period in the history of the law as that now under consideration. The rural servitudes of way and water were no doubt very early re- cognized, for they ranked as res mancipi, and the XII. Tables contained various regulations in reference to the former. Usufruct, too, was probably not unknown ; but the urban prsedial servitudes bear the impress of a some- what later jurisprudence. Pignorate and hypothecary rights were unknown as rights protected by action at the time now being dealt with. 2 Between private parties the only thing legally recognized of the nature of a real security was the fiducia that is described above. Ap- proaching more nearly to the modern idea of a mortgage was the security praedibus praediisque required by the state from those indebted to it in assurance of their obli- gations. Here there was the double guarantee of sureties (praedes) and mortgaged lands of 'theirs (praedia subsig- 1 Literature: Stintzing, Das Wesen von bona fides und titulus in d. rb'm. Usucapionslehre, Heidelberg, 1852 ; Schirmer, Die Grundidee d. Usucapion im rom. Recht, Berlin, 1855 ; Pernice, Labeo, vol. ii. pp. 152 sq. ; Voigt, XII. Tafeln, vol. ii. 91 ; Esmein, "Sur 1'histoire de 1'usucapion," in the Nouv. Rev. Hist., &c., vol. ix. (1885), p. 261 sq. 2 Hypothecary rights were certainly unknown until near the end of the republic. But Festus (s.v. " Nancitor ; " see Bruns, Fontes, p. 274) speaks of a provision in the Cassian league between Rome and the Latin states of the year 262 u.c. " Si quid pignoris nasciscitur, sibi habeto " which makes it difficult to believe that the Romans were altogether unacquainted with pledge or pawn of movables as a transaction of some value de facto if not dejure.