IV. 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 decreed3 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 and quasi make a mortis causa donatio. If he died intestate castrense. and without children his father was his heir". titium. 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 Adventiconsisted 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. II. 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. tium. II. 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. CHAPTER V. Of the Civil Modes of acquiring Property. V. 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. ing Pro perty. toritas. 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. Leges II. BOOK could never be capable of usucapion unless it had returned to the possession of the original owner1. This applied to moveable property only, and the Julie and principle was subsequently extended to res vi possessa by the leges Julia and Plotia, passed about the year U.c. 665, whereby persons violently dispossessed of lands and immoveables, might make good their claim at any distance of time. Plotia. Præscrip tio. The very short time allowed for usucapion might be sufficiently adapted for the state of society when the Twelve Tables were published; in process of time, however, it began to produce injustice, and to lead to frauds: accordingly about the year A.D. 220 we find both Ulpian and Paulus, who were contemporaries, speaking of longæ possessionis prærogativa3, and longa possessionis præscriptio; and which Paulus says was, with regard to immoveable property, inter præsentes decennii inter absentes vicennii spatio continuo. This is the præscriptio longi temporis which had been gradually arising. Præscriptio est exceptio qua is qui rem longo tempore possederat, sese adversus dominum tuebatur; a plea whereby he who possessed a thing for a long time defended himself against the owner of the property. The old usucapion was enacted by the Twelve Tables, and therefore was a matter of strict law; the extended period of præscriptio must at first have rested upon the interpretationes prudentum, aided by the equity of the Prætor, and so continued till Justinian settled the law. Vetustas, says Paulus, pro lege habetur minuendarum scilicet litium causa. Long and uninterrupted possession, or usage, established the title of the bona fide possessor, i.e. he who had received the thing as a gift, or as a purchase from one whom he believed to be the proprietors. But an error in law is fatal, 1 D. XLI. 3. 4. 6. 7 D. XXXIX. 3. 2. 2 D. XLI. 4. 33. 2. 6 Hein. El. 438. 8 D. L. 16. 109. years in V. alteration. because juris ignorantia non prodest1. Justinian CHAP. finally abolished all distinction between usucapion and prescription, as well as between res mancipi and nec mancipi, and decreed that the longi tem- Justinian's poris possessio should be fixed at three things moveable, and ten years in things immoveable, if the owner were in civitate, and twenty if he were absent; and he made the law of prescription to apply equally to incorporeal as to corporeal property2. cessary to To make a title good by prescription there must What nebe an original bona fide possession3, founded on a make a justus titulus, and the possession must be continu- good title. ous for the period required by law. Usurpatio was the interruption of possession be- Usurpatio. fore the necessary time for establishing the prescriptive right was accomplished. During usurpatio the time counts if the claim of the usurper be bad 5. There was also the præscriptio longissimi tem- Longissimi poris, of thirty, forty, and a hundred years. Thirty temporis. years applied to cases of mala fides, and defective titles; forty years to public property, or that of the emperor; and an hundred years to the church". ableness of The civil law of any state might justly be said Reasonto be very imperfect that possessed not these sta- the Law. tutes of limitation. The reason assigned for them by the Romans was ne rerum dominia in incerto essent; and no one had a right to complain who thus lost his property, for videtur alienare qui patitur usucapis. definition. 2. Donatio, a gift, is classed among the civil Donatio, modes of acquiring property: Donatio est liberalitas in accipientem nullo jure cogente collata; when one from mere liberality bestows any thing on another, 1 D. XLI. 3. 31. 3 I. II. 6. pr.; D. XLI. 4. 2. 5 D. XLI. 6. 2. 7 Nov. 9. 9 Hein. El. 455. 2 C. VII. 31; C. VII. 33. 12. 4 D. XLI. 3. 5. 6 C. VIF. 39. 8 D. L. 16. 28. |