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sell, let, nor give away his right, which was ter- CHAP. minated by death natural or civil, and also by omitting to exercise the right for ten years.
3. Habitatio est jus alienas ædes inhabitandi Habitatio. salva earum substantia1. This servitus contained more than usus, but less than usus fructus. It may be said to be a life estate in a house; the habitarius could sell or let his right, but it must be confined to the jus inhabitandi, and the house could not be used for other purposes than inhabitation. This terminated like the foregoing; but it appears it was not lost by the capitis diminutio; for which Modestinus seems to give a very unsatisfactory reason, because it consisted in facto and not in jure. It is difficult to conceive how the two could be separated. But see D. 50. 17. 24.
Of the Persons by whom Property might be
PROPERTY might be acquired not only immediately by a man's self, but also mediately by others whom he had under his power, as a son and a slave.
It has already been explained' that children under the power of the father, and slaves, were res mancipi; and as such were incapable of the legal possession of property, consequently, whatever they might acquire belonged to their respective parents or masters. Yet both a son and a slave were allowed to have some little property of their own, which was called peculium. This was the consequence of the gradual relaxation of the patria and dominica potestas.
Peculium est pusilla pecunia quam filius familias vel servus a rationibus paternis vel dominicis separatam habet: a very small sum of money which the Filiusfamilias or the slave was allowed to have to his separate use from his father's or master's accounts. This did not depend on the son, or slave himself, but must be expressly granted by the father or master3. It was thus divided:
The militare peculium was apparently at first only castrense, and it consisted of whatever a filius
1 Book I. cc. 3 and 5.
2 Hein. El. CCCCLXXIII.; D. XV. 1. 5. 3 and 4.
3 D. XV. I. 4.
familias received from his father and relations, as CHAP. necessary for his military outfit1. This privilege having been conceded to the son who entered the army, it ultimately became impossible to deny the same to his brother who assumed the profession of the law, or of medicine. We find the Emperor Leo, A.D. 469, recognizing the militia togata to which the peculium quasi castrense was conceded; and Justinian decreed that this, consisting of whatever a filiusfamilias obtained as an advocate, or by the exercise of any other liberal profession, should enjoy the same privileges as the castrense.
With respect to the peculium castrense and quasi castrense, the son possessed an entire right in it, and was so far considered as a paterfamilias; for he could dispose of it by gift inter vivos, and Castrense make a mortis causa donatio4. If he died intestate castrense. and without children his father was his heir5.
Paganus signified whatever was not military; Paganum. and the paganum peculium was divided into profectitium and adventitium. The profectitium consisted of whatever the son received from his father; Profecthe legal estate as regarded this still remained in the father, but the son had the possession and the management. Yet if for any cause the father's property were confiscated the son's peculium profectitium was protected by a constitution of the Emperor Claudius". The peculium adventitium Adventi consisted of whatever the son obtained from any other source than through his father, e.g. by his own industry, or as gifts from his relatives and friends: here the legal estate vested in the son, but the usufruct belonged to the father, who, in case of emancipation, was at liberty to retain half the usufruct for his life. Since the son, in this case could make no will, this peculium was subject to the law of intestate property. See Nov. 118.
1 D. XLIX. 17. 11.
4 See post. ch. 5.
2 C. II. 2. 7. 14.
3 C. III. 39. 37.
5 D. XLIX. 17. 14.
6 D. IV. 4. 3. 4. and Gothofred's note.
BOOK In what has been said above respecting the rights in the peculium of the filiusfamilias, should it appear, in consulting the authorities, sometimes to involve contradictions, these are to be explained by the progressive curtailment of the paternal power.
Peculium of the slave.
A slave could not possess any thing of his own. While the advance of civilization and refinement gradually softened the position of the filiusfamilias, the slave remained incapable of the smallest rights; all that he acquired belonged to his master. Still he was allowed his peculium, which arose in this way. The slaves received their rations once a month, thence called their menstruum, which consisted of five measures (modii) of corn, and five denarii. Whatever by care and economy they could save from this constituted their peculium, which they were allowed to possess; and by extreme parsimony they sometimes acquired enough to purchase a servus vicarius, whom they let out to hire. The slave's peculium, like himself, was also liable to his master's creditors, if he became insolvent'. If a slave were appointed heir by testament he could not accept the office without his master's permission, because it might prove a damnosa hereditas, and thereby bring loss to his master. If he accepted with his master's permission, whatever was the benefit vested in the master. Property could be acquired by a slave of whom one had only the usufruct, but this was confined to such things as arose from the slave's ordinary labour; and if the slave were appointed heres in a testament the benefit went to his owner, not to the usufructuary. Freemen were sometimes reduced to a servile state from debt, and so condemned to serve their creditor. Liber homo bona fide serviens is an expression often occurring; and whatever their work produced belonged to the person whom they served. All this is clearly explained by Gaius, to whom the reader is referred.
Of the Civil Modes of acquiring Property.
WE have already explained in the second chap- CHAP. ter of this book the mode of acquiring property by the law of nations, we must now consider those methods which have arisen from the Civil law.
The Civil modes of acquiring a right in things Civil modes were chiefly three:-1. Usucapion or Prescription. of acquir 2. Donation. 3. Succession.
1. Usucapio est adjectio dominii per continua- Usucapio. tionem possessionis temporis lege definiti1: a mode of acquiring property by means of a continuous possession for a period determined by law. Usucapion dates from the Twelve Tables, where it is termed usus auctoritas, which provided that the possession of land for the space of two years, or of moveable property for the space of one year, should establish the title of the bona fide possessor. Usus auctoritas fundi biennii, ceterarum rerum Usus aucannuus usus esto. In the early period of the republic this statuti temporis spatium was deemed a sufficient allowance of time for proprietors to claim their property; if they failed to do this the bona fide possessor might avail himself of the power which the law gave him, and for ever exclude the original owner. The thing must be possessed bona fide; nec vi, nec clam, nec precario. Hence a thing stolen could never be acquired by usucapion, though this was at first interpreted to apply to the thief only; therefore the Lex Atinia was passed, Lex Atinia. whereby it was decreed that stolen property, though it came into the hands of a bona fide possessor,
1 D. XLI. 3. 3; Ulp. Frag. XIx. 8.
2 D. XLI. 3. I.