(C. iv. 66. 1.) He was also bound to use the thing over which his right extended, so that it was not deteriorated in value at the time his right expired. (Nov. vii. 3. 2.)

The right of superficies was almost identical with that of emphyteusis, but applied only to the superficies, that is, things built on the ground, not to the ground itself. It was the right of disposing freely of a building erected on another man's soil without destroying it, subject to the payment of a yearly rent. (D. vi. 1. 74.) It must have been the creation of the jus prætorium at a time when there was nothing like the emphyteusis of buildings, and when it was only lands that were let as agri vectigales. The rights and duties of the superficiarius, the person who enjoyed the right, may be gathered from those of the emphyteuta.

The jus pignoris was the right given to a creditor over a thing belonging to another, in order to secure the payment of a debt. When the thing over which the right was given passed into the possession of the creditor, the right of the creditor was expressed by the word pignus; when the thing remained in the hands of the debtor, the right of the creditor was expressed by hypotheca. Sometimes only one or more particular things were under a hypotheca, sometimes all the property of the debtor. The right of the creditor extended only to the amount of his debt, but all the thing pledged was subject to his claim. The right might be created by the mere agreement of the parties, without any handing over or tradition of the thing pledged to the creditor. (C. viii. 17. 2. 9.) Sometimes the right was created by a magistrate, who gave execution to a creditor by this means; and in many cases the law created what was called a hypotheca tacita over the property, as, for instance, over the property of a tutor in favour of the pupil, and over the property of a husband, that the dos of the wife might be restored.

The creditor had the right (1) of selling (D. xx. 5) or pledging (C. viii. 24) the thing pledged; (2) of satisfying his own claim before that of any one else out of the proceeds of the sale, or of the money obtained by pledging the thing; (3) of having himself constituted owner of the thing if no purchaser could be found for it. The creditor could not be deprived even by agreement of his power of sale. Justinian enacted that, unless the parties otherwise agreed, the sale should take place two years after notice to pay, and in two years more, if no purchaser could be found, the creditor should be considered the owner. (Tit. 8. 1 note.) (4) Of bringing a real action (termed the actio quasi-Serviana) against any third person who unlawfully detained the thing pledged to him, or, if he had only a hypotheca, against the borrower to put him in possession of the thing pledged. (Bk. iv. Tit. 6. 7.)

If the same thing was pledged to different creditors, the one to whom it was first pledged had generally a preference, potior tempore, potior jure. But there were certain hypotheca which had special privileges attached to them, and which had a first

claim on the property of the debtor, such as the hypotheca of the fiscus or imperial treasury for the payment of taxes (C. iv. 46. 1), and that of a wife for her dos (C. viii. 14. 12); and hypothecce which were created by an instrument publicly registered had a preference over others by a constitution of Leo. (C. viii. 18. 11.)

Gaius speaks of an older form of giving pledge, the contractus fiducia, by which the full property in the thing pledged was made over to the creditor by mancipatio or in jure cessio, the debtor being entitled to a reconveyance if he paid the debt; but this was obsolete in the time of Justinian. (GAI. ii. 59, 60.)

TIT. VI.

DE USUCAPIONIBUS ET LONGI TEMPORIS

POSSESSIONIBUS.

Jure civili constitutum fuerat, ut, qui bona fide ab eo, qui dominus non erat, cum crediderit, eum dominum esse, rem emerit vel ex donatione aliave qua justa causa acceperit, is eam rem, si mobilis erat, anno ubique, si immobilis, biennio tantum in Italico solo usucapiat, ne rerum dominia in incerto essent. Et cum hoc placitum erat, putantibus antiquioribus, dominis sufficere ad inquirendas res suas præfata tempora, nobis melior sententia resedit, ne domini maturius suis rebus defraudentur neque certo loco beneficium hoc concludatur. Et ideo constitutionem super hoc promulgavimus, qua cautum est, ut res quidem mobiles per triennium usucapiantur, immobiles vero per longi temporis possessionem, id est inter præsentes decennio, inter absentes viginti annis usucapiantur et his modis non solum in Italia, sed in omni terra, quæ nostro imperio gubernatur, dominium rerum justa causa possessionis præcedente adquiratur.

By the civil law it was provided, that if any one by purchase, gift, or any other legal means, had bona fide received a thing from a person who was not the owner, but whom he thought to be so, he should acquire this thing by use if he held it for one year, if it was a moveable, wherever it might be, or for two years, if it was an immoveable, but this only if it was in the solum Italicum; the object of this provision being to prevent the ownership of things remaining in uncertainty. Such was the decision of the ancients, who thought the times we have mentioned sufficient for owners to inquire after their property; but we have come to a much better decision from a wish to prevent owners being despoiled of their property too quickly, and to prevent the benefit of this mode of acquisition being confined to any particular locality. We have accordingly published a constitution providing that moveables shall be acquired by a use extending for three years, but immoveables by the 'possession of long time,' that is, ten years for persons present, and twenty for persons absent; and that by these means, provided a just cause of possession precede, the ownership of things may be acquired, not only in Italy, but in every country subject to our empire.

GAI. ii. 42-44; D. xli. 3. 1; C. vii. 35.

The subject of possessio is only treated indirectly in the Institutes, and it is necessary to have a general conception of the

meaning of the term before proceeding to examine the mode of acquiring property called usucapion.

By possessio is meant primarily mere detention, i.e. the physical apprehension of a thing. If the possessor adds the intention (animus) of holding the thing as his own and of exercising over it all the rights of an owner, then he has legal possession of it as opposed to the mere physical possession involved in simple detention. When a person had legal possession of a thing, he was protected in his possession against any one who had not a better title to possess, and in order to protect him the prætor granted him an interdict. If his possession was not founded on force or fraud, and had been acquired by a legal mode of acquisition, then it ripened, after a length of time laid down by law, into full ownership, and the process by which the change was effected was termed usucapio. Thus the meaning of the term legal or juristical possession, the protection of the rights of the possessor by interdicts, and the transmutation under certain circumstances of possessio into ownership by the lapse of time, are the three main points on which attention has to be fixed in examining the subject of possessio.

The two requisites of legal possession are briefly summed up in the words detentio and animus. The detention of a corporeal thing means such a dealing with it as enables the person detaining to deal with the thing at his pleasure. Thus a person who enters on part of a piece of land has detention of the whole because it is at his pleasure to go to any part of it. A person who has the key of a granary has the means of going into the granary. The animus means the intention of the possessor to hold the thing possessed as his own, and not as a person to whom a thing has been pledged holds the thing, for he holds it avowedly as belonging to another (alieno nomine).

When a person was in possession of a thing physically, but without the animus possidendi, as a borrower would be of the thing lent, he was said not to possess it, but to be in possession of it, non possidet, est tantum in possessione (D. xli. 2. 10); and a person merely in possession was not protected by interdicts. The Roman jurists contrast natural with civil possession, and in natural possession they include the two cases of a possessor not possessing bona fide and ex justa causa and a person in possessione, while by civil possession they mean such a possession as was capable of transmutation by usucapion, that is, was bona fide and ex justa causa.

The edict fixed certain cases in which the prætor would himself at once give a decision and pronounce what was to be done without sending the case to be examined by a judex, and the order of the prætor thus given was called an interdict (see Bk. iv. Tit. 16). What was termed an interdictum retinendæ possessionis was granted to a person whose possession had been disturbed or threatened with disturbance, and an interdictum recuperandæ possessionis was granted to a person who had been forcibly ejected

from his possession. Whenever a person possessed a thing as a matter of fact, with the intention of treating it as if he was the owner, that is, as if it belonged to him, the possessor had a right to the interdicts that protected his possession. But it was only when the possession was bona fide and ex justa causa that the operation of usucapion would transmute his possession into ownership: that is, the possessor must have commenced his possession, thinking he had a real right to possess, and have acquired it by a recognised legal method of acquiring property. A possessio which was commenced under these circumstances was changed into dominium by lapse of time, and the time required, as fixed by the law of the Twelve Tables, was two years if the thing possessed was an immoveable, and one year if it was a moveable. The operation of usucapion was of the greatest importance in the system of Roman law. Things that being res mancipi ought to have been conveyed by emancipation, but had been conveyed without the necessary ceremony, were not legally passed in ownership to the person to whom they were nominally conveyed. But the very short time requisite for the operation of usucapion quickly changed the possession into dominium, and thus ended the separation of the legal and beneficial interests. And, generally, when the prætor gave the possession of property where he could not by strict law give the ownership, that is, when he exercised his equitable jurisdiction, the operation of usucapion soon converted the possessor bonorum into the full legal dominus.

In order that the ownership of a thing should be acquired by usucapion, it was of course necessary that the thing itself should be susceptible of being held in dominio. There was no ownership possible, for instance, in the case of the solum provinciale, and, therefore, no usucapion. The emperor or the people were owners of the soil, and the actual occupier of land in the provinces could not be the owner; he could only be protected in the possession of it; and the prætors protected his possession against the claim of any one asserting himself to be the rightful possessor, by permitting the possessor, when he had held the land for ten years, if he and the claimant had during that time inhabited the same province (inter præsentes), or when he had held it for twenty years, if they had not (inter absentes), to repel the action by an exception, which, as being placed at the beginning of the intentio, was termed a præscriptio (see Introd. sec. 104), and would probably be in this form: Ea res agatur, cujus non est longi temporis præscriptio; and this prescription or exception (for the terms may be used indifferently, as it was only in the early times of the construction of the formula that such a defence was really placed at the beginning of the intentio), if found to be true in fact, made the possessor quite secure.

This prescription, however, had not exactly the same effect as usucapion. In the first place, it did not make the person owner of the immoveable, for nothing could do that with respect to the

solum provinciale. Secondly, if an action was brought by the real owner, the usucapion was not interrupted until judgment had been given against the possessor (D. xli. 4. 2. 21); whereas, if an action was brought against the possessor of an immoveable in the solum provinciale, the præscriptio longi temporis was of no avail unless the time required had expired before the proceeding had reached that stage termed the litis contestatio. (See Introd. sec. 105.) Lastly, the effect of the præscriptio longi temporis was in one way more favourable to the possessor than that of usucapion; for the person who acquired a thing by usucapion acquired it with all its liabilities and charges; whereas the præscriptio longi temporis was a good plea to the action of a person who claimed to have a right over the thing, as, for instance, a right of servitude or mortgage, so that the possessor who could use this plea had the thing he possessed quite free from any liability or charge anterior to the commencement of his possession. (D. xli. 3. 44. 5; D. xliv. 3. 12.)

In the time of Justinian all difference between the solum Italicum and the solum provinciale was done away. The text furnishes us with a brief statement of the change made in the effect of possession. Under Justinian possession during three years (called, however, usucapion in this case—see paragr. 12 of this Title) gave the ownership of moveables; possession during ten years if the parties were present, or twenty if they were absent, gave the ownership of immoveables. Thus the length of possession no longer afforded merely a means of repelling an action, but conferred the dominium, although the word præscriptio was used to express the process. See Title 9. 5 of this Book.

1. Sed aliquando etiamsi maxime quis bona fide rem possederit, non tamen illi usucapio ullo tempore procedit, veluti si quis liberum hominem vel rem sacram vel religiosam vel servum fugitivum possideat.

1. Sometimes, however, although the thing is possessed with perfect good faith, yet usucapion does not operate in any length of time; as, for instance, when the possession is of a free person, a thing sacred or religious, or a fugitive slave.

GAI. ii. 45. 48.

The Institutes now proceed to speak of the exceptions to the rule of acquisition by use. These exceptions arise from two sources: either the thing which we have possessed is in its nature incapable of being acquired by use, or there is something in the mode in which it has come into our possession which prevents length of possession having its ordinary effect.

As a general rule, no incorporeal thing could be acquired by usucapion, incorporales res traditionem et usucapionem non recipere manifestum est (D. xli. 1. 43); but see as to servitudes Tit. 3. 4 note, and as to inheritances note to paragr. 10 of this Title.

The fugitive slave could not be acquired by use, because