commences his possession or detention of a thing in the character of a vendee from a non-proprietor, or as lessee, borrower, depositary, or even thief, shall not be able, on the death of the true proprietor, to accelerate or initiate usucapion by merely professing that he ceases to hold in his former character and proceeds to hold as possessor pro herede.

Possession pro herede was perhaps the germ of the intestate succession of next of kin or cognati, a succession, as we shall see, not originally recognized in Roman law; at least, the family or next of kin of an intestate would generally have the best chance of seizing any movables or immovables that he left; and perhaps it was this equitable result, no less than the object mentioned by Gaius, that, in the absence of a regular succession of cognati, led the public to look on possessio pro herede as a rational and salutary institution.

The institution of possessio lucrativa pro herede, or rather the Sc. Juventianum by which it was defeated, has left its traces in the formula, still to be found in the Digest, of the interdict Quorum bonorum, 4 § 144, the remedy whereby a person who claimed not as civil heir (heres), but as praetorian successor (bonorum possessor), established his right to succeed and recovered possession of the hereditaments. To leave these traces in the wording of the interdict was an oversight on the part of Justinian, as in his legislation the last remnants of the institution of usucapio pro herede had been definitively abolished.

§ 61. The circumstances contemplated seem to be as follows: A proprietor is debtor to the state, and his lands are mortgaged as security for the debt. On default of payment, the state exercises the power of sale: if the debtor is not turned out of possession by the purchaser (praediator) in two years he recovers his proprietorship by usureception.

Provincial lands were not subject to Usucapion: they might however be acquired by an analogous title, longi temporis praescriptio, i. e. possession for ten years during the presence of the former proprietor (inter praesentes), and for twenty years during his absence (inter absentes).

Usucapion required something beyond mere possession for a certain period; and something beyond what we hereafter call Interdict possession, 4 § 148. The conditions of possession which entitled a possessor to appeal for the protection of his possession to the

praetor's interdict were merely that it should be adverse (with the knowledge of the other party and without his permission), and, in respect of the other party, commenced without violence (nec vi nee clam nec precario). To produce Usucapion, possession must be based on a justa causa or titulus, such as contract or bequest; and commenced with bona fides on the part of the possessor, e. g. ignorance of the alienor's want of title, if the subject had been delivered to him by a non-proprietor; and the thing itself must be capable of Usucapion, e. g. not taken by theft or violence from the former proprietor.

Justinian remodelled the law of Usucapion. For movables he extended the period from one year to three years: for immovables he abolished the distinction between Italian and provincial land, and in every case required ten years' possession if the parties were domiciled in the same province, and twenty years possession if they were not domiciled in the same province. Further, he introduced a new usucapion (longissimi temporis praescriptio), which was governed by less stringent conditions than the ordinary usucapion (longi temporis praescriptio). It applied both to movables and immovables, was not vitiated by certain flaws in the subject (furtiva, violenta), and needed no support of any titulus, but only required bona fides in its inception on the part of the possessor, Cod. 7, 39, 8. It was completed in thirty years.

Usucapion, particularly in this its later form, requires to be carefully distinguished from the Limitation of actions (temporalis praescriptio) with which it has been coordinated by some civilians under the name of Acquisitive, as opposed to Extinctive, Prescription. We shall see, 4 § 110, that all actions were originally divided into temporales and perpetuae, temporales being such as could only be brought within a certain period (e. g. in the case of penal actions, a year) from the time when the right of action accrued, perpetuae such as were subject to no such limitation. Subsequently, however, even the latter were limited, and no action could be brought after thirty years from the nativity of the action or the time when the right of action accrued (actio nata). In the case of personal actions there is no danger of confusing Usucapion and Limitation. Usucapion implies possession, and in the case of personal actions, or jus in personam, no such thing as possession is conceivable, for possession only relates to the subjects of jus in rem. Usucapion and the Limitation of real actions are more similar, but

even here a distinction may be recognized. Limitation is the extinction of a right by neglect of the person entitled, by his omission to enforce his remedy: Usucapion is the acquisition of a right by something positive on the part of the acquirer, his strictly defined possession during a certain number of years. Even extraordinary Usucapion requires, as we have seen, bona fides in the commencement of possession: no such condition is attached to Limitation or temporalis praescriptio.

English law originally only recognized Usucapion in the case of incorporeal hereditaments or servitudes, e. g. rights of way; for the acquisition of which the Prescription Act, 2 and 3 Will. 4, c. 71, requires possession during twenty years. But since the Act for the limitation of real actions, 3 and 4 Will. 4, c. 27, deprives a proprietor of land of his right as well as his remedy if he omit to bring his action to recover it within twenty years after the right accrued, Usucapion (Acquisitive prescription) in corporeal as well as incorporeal hereditaments may be said to be recognized in English law.

Besides the civil titles which we have examined, two others are mentioned by Ulpian: Singularum rerum dominia nobis adquiruntur mancipatione, traditione, in jure cessione, usucapione, adjudicatione, lege, 19, 2.

Adjudication (for the nature of which see 4 § 42), whereby property might be taken from one individual and vested in another without any of the ordinary methods of conveyance, may be compared in its operation to the vesting orders made by the Court of Chancery under the Trustee acts. When trustees are disabled by lunacy or infancy from dealing with the estates vested in them, the Court of Chancery is empowered to make orders the effect of which is that the estate becomes immediately vested in the substituted trustees as effectually as if a conveyance had been duly made by the person previously entitled to the legal estate. Another parallel is to be found in the awards of certain commissioners acting under powers given by act of parliament. Thus the order of the Inclosure commissioners for exchange and partition of land closely resembles in subject and effect the adjudicatio of a judex in the actio finium regundorum.

Lex is an ambiguous and miscellaneous title. It includes title by escheat or forfeiture (caducum) under the lex Papia Poppia, and bequest or legacy (legatum), a title deriving its validity from the lex of the Twelve Tables, Ulpian, 19, 17. Extending our view

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from res singulae, to which Ulpian confines himself, to universitates, lex was an apt denomination of title by will at the period when wills required the ratification of the Comitia Calata, 2 § 101, as at that time testamentary dispositions were really acts of the legislature. Title by lex in this case may be compared to conveyances by private act of parliament in English jurisprudence.

It may assist to clear our conception of title if we observe that the title Lege' is ambiguous, and that (1) while one of its meanings implies an absence of all title, (2) another denotes a miscellaneous group of heterogeneous titles.

(1) The only case in which Law can be said in any distinctive sense to be a cause of acquisition is privilegium or private law. The acquisition of a right by immediate grant from the sovereign (private act of the legislature, private act of parliament) is unlike the acquisition of a person entitled under some general disposition of a universal law. Acquisition by bequest or escheat is not an acquisition by law in any pre-eminent manner, but only in the same degree as is acquisition by mancipation or usucapion or any other title, for all these acquisitions are equally founded on law or the general disposition of the legislator. But in acquisition by privilegium there is properly speaking neither title nor law. Law is properly speaking a universal proposition, annexing a right or duty to a title it knows nothing of individual persons, but stops short at classes of persons, classes, that is, defined by the title. Again, title is properly speaking a contingent fact distinct from a corresponding law a fact which may occur an indefinite number of times, and entitle, that is, invest with rights or duties, an indefinite number of persons, in accordance with the dispositions of one and the same unchanging law. Title, loosely and inaccurately defined as a fact investing a person with a right, would include a privilege, i. e. a law conferring a right immediately on a given individual without the intervention of a fact distinguishable from the law: but title, properly defined as an intervening fact through which a law confers a right mediately, excludes privilege.

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Whenever there is a genuine title and genuine law, the title is interposed between the right or duty and the person therewith invested, just as the middle term is interposed between the major and minor terms of a syllogism. E.g. All persons marked, stamped, characterized by a certain fact (B), are invested with a certain right or duty (A); a given individual person (C) bears the badge, mark,

or stamp of this fact (B); therefore this individual (C) is invested with these rights or duties (A). A genuine law is only the major premiss, the universal proposition, all B is A. The conclusion, C is A, stating the rights or obligations of the individual, is a mediate or dependent proposition, depending partly on the law and partly on an independent fact, the minor premiss C is B, which often requires to be ascertained by judicial investigation. The condition, represented by the middle term, which connects or disconnects the right or duty, represented by the major term, with a person, represented by the minor term, is the title. In a privilegium we have no such premisses and no such middle term. The conjunction of C with A, the investment of an individual with rights (or the disjunction of C from A, the spoliation of his rights), is here an ungrounded proposition, unwarranted by any recognized title; in other words, unsupported by any subsumption of fact under law. (The syllogism we have indicated affords a convenient means of distinguishing an Institution from a Right or Obligation. An Institution (e. g. Property, Slavery, Tithe, Advowson) is the same thing as a Right or Obligation, but the one is abstract, the other concrete. The same major term A which as predicate of the major premiss represents an Institution, as predicate of the conclusion represents a Right or Obligation.)

(2) In Bequest and Escheat and the succession of necessarius heres there is a genuine law and a genuine title, but the law is not the title, any more than it is in any other mode of acquisition. Either because these modes include fewer voluntary acts than some closely allied modes (for instance, the necessarius heres acquires without aditio, which is a parcel of the title of voluntarius heres), or for some other reason, divers modes are lumped together under the head of acquisition by lex. The name, however, besides being a misnomer, is merely a sink or receptacle of miscellaneous unrelated titles, just as we shall find in the doctrine of obligations that miscellaneous titles (variae causarum figurae) are lumped together under the denomination of quasi-contract.

QUIBUS ALIENARE LICEAT VEL NON.

§ 62. Accidit aliquando, ut qui dominus sit alienandae rei potestatem non habeat, et qui dominus non sit alienare possit.

§ 63. Nam dotale praedium maritus invita muliere per legem Iuliam

§ 62. It sometimes occurs that a proprietor has not a power of alienation, and that a non-proprietor has a power of alienation.

§ 63. The alienation of dower land by the husband, without the