Page images

different view is taken by Puchta, who connects the earliest protection of Possession with the primitive form of Real Action. In this, both plaintiff and defendant were, until decision of the suit, regarded by the law as equally entitled to the dominium. It was necessary, however, that one of them should be magisterially instated in the possession of the disputed property pending litigation, and we learn from Gaius (iv. 16) how such interim possession was awarded. Having been magisterially awarded, it must also be magisterially protected, and this was done by an interdict; a remedy which came subsequently to be used for the protection of all Possession, independently of a pending suit.

Mr. Hunter (Roman Law pp. 195–222) believes that Possessio entirely changed its meaning in the course of Roman legal history. In origin he connects it with the technical incapacity of aliens to own property iure civili rather than with the occupation of ager publicus, and maintains that it properly means Equitable or Gentile ownership. When, after the edict of Caracalla, all subjects of the Empire practically became cives, its functions, in this connection, were exhausted, and it came to have precisely the same meaning that it has in every system of law; it is a temporary separation between the person exercising rights and the person invested by law with rights.'

There is no evidence of this change of meaning, and nothing to show that the Roman lawyer's idea of Possessio differed in the time of Justinian from what it had been in that of Cicero, or that he conceived Possession as otherwise than the very antipodes of dominium (* nihil commune habet possessio cum proprietate' Dig. 41. 2. 12. 1); or, finally, that the 'gentile' ownership of the alien (p. 187 supr.) was specially protected by interdicts; he recovered his property, not by an interdict, but by a real action, fictitia or utilis perhaps, but still a remedy which recognised his proprietorship. On the other hand, as all Possession, whether iusta or iniusta, whether bona fide or mala fide, was protected by interdicts, to dwell upon the close resemblance, the almost complete material identity, between many cases of bona fide Possession, and Equitable ownership, as Mr. Hunter does, is not to the point. The actio Publiciana was open to any possessor whose Possession could ripen by usucapio into ownership; but his interest was more than Possession; it was inchoate or Bonitarian ownership, or, adopting an expression of Mr. Poste's (Gaius p. 642), we may say that the ius in rem, and the interdict-possession, are distinct though concurrent. The fallacy of arguing that, because many cases of (bona fide) Possession are equivalent to Bonitarian ownership,

therefore (all) Possession is equivalent to Equitable ownership, is obvious.

Mr. Hunter seems to have been led into what we cannot but regard as other than a completely wrong theory by not rigidly confining his attention to Possession-not this possession or that possession, but all Possession—whether bona fide or mala fide. His insurmountable difficulty lies in the impossibility of identifying Possession, when accompanied by mala fides, with Equitable ownership. Upon mala fide Possession he is inconsistent. In one passage (p. 205) he says,

the interdicts were open equally to mala fide possessors;' in another (p. 200), “the mala fide possessor of moveables had no right against third persons. The latter statement, which is based solely on the inability of a mala fide possessor to bring an actio furti or bonorum vi raptorum, is shown to be untrue, so far as interdicts are concerned, by Savigny and by Dr. Walker (Selected Titles from the Digest, Introduction to Digest 41. 2): and interdicts are all that here we need concern ourselves with ; other remedies are not for the protection of Possession at all. In fact, Mr. Hunter's general position seems defensible only to this extent, viz. that where a man has usucapion Possession, he also has Equitable ownership.

For a discussion of the question, to what part of the Roman system the doctrine of Possession logically belongs, see Poste, Gaius pp. 648 sqq.; and for the possessory interdicts, and the cases to which they were individually applicable, Bk. iv. Title 15, and notes inf.


In this book the treatment of universal succession is continued, the first subject considered being the mode in which a person's universitas iuris devolves on his dying intestate. This falls naturally into two divisions, according as the deceased was free-born or libertus. Of the devolution of a free-born man's universitas we have a full historical account. The first two Titles in the main describe the classes of persons who succeeded an intestate under the law of the Twelve Tables: in the first rank being the sui heredes to the exclusion of all other descendants; in the second the nearest agnate or agnates, in preference to ascendants and all other collateral relatives whatsoever. No portion of the Institutes presents so clearly the contrast between modern and ancient law, or brings out more vividly the exclusive regard paid to agnatic relationship in primitive society. While pointing out the injustice which this system of succession entailed upon many classes, especially emancipated children and descendants or collaterals who traced their kinship with the deceased through a female, Justinian takes occasion to describe briefly the extent to which a remedy had been supplied by the bonorum possessio intestati of the Praetor, a subject more explicitly treated in Title 9, and also various disconnected changes made in the law by earlier Emperors as well as by himself. To the most sweeping of the Praetor's innovations, namely that by which he granted rights of succession upon intestacy to persons related to the deceased by cognation alone, though only in subordination to the classes recognised by the Twelve Tables, the fifth Title is exclusively devoted; that which follows details the mode in which the degrees of this natural relationship are calculated. The third and fourth Titles deal with two enactments of the civil law passed in the latter half of the second century, the SCa. Tertullianum and Orfitianum, which redressed a wrong arising from the Twelve Tables for which no adequate remedy had been provided by the praetorian bonorum possessio. The first of these preferred the mother to many of the agnates of her deceased children: the second raised a woman's children from the rank of mere cognates, in relation to her, to that of sui heredes, thus giving them a statutory right of succeeding her to the exclusion of her agnates.

The intestate succession to freedmen is dealt with in Title 7, the earlier paragraphs of which give a historical summary of the old rules in cases of both testacy and intestacy, and of the changes introduced in the interest of the patron by the Praetor and the lex Papia Poppaea. Between this, and a brief account of the curiously contrasted mode of succession to Latini Iuniani, a class of freedmen which as we know was abolished by Justinian, is a statement of his own settlement of the classes entitled to succeed upon the intestacy of a civis libertus, and of the latter's testamentary rights against the patron. The modification which might conceivably be effected in these rules by the exercise of a power, conferred by a senatusconsult, of assigning any particular freedman to any particular child in one's power is considered in Title 8.

The Roman law of intestate succession, especially to ingenui, is an admirable illustration of the heterogeneous mass of rules which may grow round any subject usually regulated by law where there is a variety of legislative organs, often actuated by diverse motives, and little anxiety in the supreme legislature or in the lawyer class to reduce them to formal order and unity by some process of codification. Technically, of course, the rules which, at the date of the publication of the Institutes, decided on whom an intestate person's universitas iuris should devolve, were enacted by Justinian himself; historically, they originated either in the Twelve Tables, or in the Edict relating to bonorum possessio, or in the later civil law, which, either through senatusconsulta or imperial constitutions conferred at long intervals of legislation, and in an entirely disconnected manner, rights of succession upon relatives of the deceased whom the earlier law had altogether passed over. The main drift of this series of changes was the same throughout; to fill up the voids and correct the anomalies of the Twelve Tables; to substitute cognation for agnation as the sole title a person could have to succeed. No department of law called more imperatively for a comprehensive simplification, such, for instance, as that which we have seen Justinian effected in the law of Usucapion and Prescription; but the changes made in the Corpus Iuris are hesitating and tentative, the most considerable perhaps being that in the classes of bonorum possessores, necessitated by Justinian's reform in the succession to liberti, of which a full account is given in Title 9. When the Institutes were published, the three distinct bodies of rules relating to one subject still coexisted side by side: the successor of an intestate might base his claim on the Twelve Tables, on the Edict, or on some enactment of the later civil law; in the second case, it is true, he was not technically heres, but, as we have already seen, his rights were substantially identical with those of a civil law successor. Cases were even still to be found, in which agnatic relationship entitled a claimant to priority over others who, if cognation alone were considered, would at least take with him pari passu. It was not unnatural that Justinian should be dissatisfied with his work, and by a Novel issued in the year A. D. 543 he substituted for the system of succession which has here been sketched a new scheme based entirely upon blood relationship, of which an account is given in the notes to Title 9. 9.

Two other modes quibus res per universitatem adquiruntur,' though of far less interest and importance than inheritance, are described in Titles 10 and 11. The first of these is the type of adoption known as adrogation. When a person sui iuris gave himself in adoption to another, his universitas iuris passed, under the law as previously settled, to the latter ; but the development of the filiusfamilias' proprietary capacity had infringed upon the necessity of this rule, and Justinian, as he himself remarks, limited the adrogator's right in accordance with the principle which he had already established in the second book. The liability of the adrogator for debts contracted by the adopted son while sui iuris is treated in the last paragraph of the Title. The last remaining form of universal succession, which was introduced by a constitution of Marcus Aurelius, was a provision ‘favore libertatis,' to secure the freedom of slaves who had been manumitted in a will under which no heres accepted, and enabled any one who would give the creditors full security for the satisfaction of their claims to have the estate adjudged to him, thus putting it in his power, as quasi heir, to fulfil the intentions of the deceased.

Title 12 briefly touches on two universal successions obsolete under Justinian's legislation; the one the peculiar form of bankruptcy execution known as bonorum emptio — a subject which is more fully discussed in a note on the text; the other introduced by the SC. Claudianum, of which we have already read, and which, with its consequences, was repealed by Justinian in person.

From this subject we pass at Title 13 to the consideration of the important class of res incorporales called obligations. An obligation is a legal relation between two ascertained persons, in virtue of which

« PreviousContinue »