William Alexander Hunter.

A systematic and historical exposition of Roman law in the order of a code online

. (page 29 of 115)
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law specifies certain investitive facts as the condition of owner-
ship. If then it were to treat as owner a person that had not
acquired the ownership by any investitive fact, and to refuse
to regard as owner the person that had acquired ownership by
an investitive fact, it would stultify itself. But as against a
person that is not owner, a possessor stands in a very differejat


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position. . If A enters on laud possessed by B, and neither A nor
B asserts that the land belongs to him by any investitive fact,
there is nothing unreasonable in saying that B should be pro-
tected in his possession against A. To use the expression of
Paul, as between A and B, B has the better right to the posses-
sion. In a controversy between them, it is immaterial that B
does not claim to have any right of property founded on any
investitive fact ; for A is in the same position.^

How far did the Roman Law proceed in accordance with
those general ideas ? The case of the bona fide possessor may
be dismissed at once. We have seen that he could maintain
an action for theft not merely against men generally, but even
against the owner. (G. 3, 200 ; J. 4, 2, 1.) For many pur-
poses a possessor who beUeved himself to have a good title,
although he had not, was entitled to great indulgence. But
the question is, how far did the law extend protection to a
mala fide possessor — (in other words), to one that had not, and
knew that he had not, any title I

In answering this question, a distinction must be made
between moveables and immoveables. ' *

(1.) The mala fide possessor of moveables, or, to employ an
equivalent and more vigorous expression, a robber or thief, had
no right against third persons, much less against the owner.
A bona fide possessor could bring the actio vi bonorum raptorum
' (J. 4, 2, 2), but not a thief. (D. 47, 2, 12, 1.) What makes
this the more striking is, that even when a thief could acquire
by u8ucapio (as in the old case pro herede\ he could not sue one
that by theft deprived him of possession. (D. 47, 2, 71, 1.)

(2.) A mala fide possessor of land, on the other hand, as against
third parties, was absolutely entitled to retain possession. No
one could turn out a possessor against his will. Although,
under the old law, a m.ala fide possessor might be ejected by
the owner by force without arras, yet after the enactment of
Valentinian even the owner could no longer use force against
a mala fide possessor (p. 105).

PossEssio AS Equitable Ownership. — If the case ended
here, the subject of possession would present very Uttle
diflSculty. Possession would imply a temporary disturbance

> Qualiscumque enim postessor, hoc ipso, qucd possessor est, plus juris hahet^ quam UU
qui nonpassidet. (D. 43, 17, 2.)


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of the normal legal state; a eeparation between a person
enjoying the right, and the person invested by law with
the right. This divorce is put an end to when the person
invested with the rights takes the proper legal steps to enforce
them. But in the Roman Law possession is regarded not
merely as a provisional state protected by law from in-
terruption by violence, but as a kind of ownership, distinct
from dominium, but parallel to it. The passages quoted from
Gaius (G. 4, 156-160) afford, when taken in conjunction with
the characteristics of the old actio sacramenti (see Book IV.,
Proceedings in Jure, Legis Actiones), the most convincing
evidence of this parallelism. It is a characteristic of the old
vindicaiio that in the beginning of the process there was neither
plaintiff nor defendant. The action simulated a quarrel between
two persons, with an appeal to the Praetor. The first thing
the Praetor did was to command the parties to desist from the
strife ; the next was to see whether there was any real issue
between them : if there was, he prepared a formula to put before
a judex, and in the meanwhile decided who should have the
interim possession. The person that got interim possession was
defendant, and the other was plaintiff. In point of fact, there
was in this, as in other cases, a plaintiff from the beginning ;
but according to the form of proceeding, the law knew neither
plaintiff nor defendant until a certain stage in the action was
reached. This ancient, but highly artificial, procedure was
imitated in the case of the interdicts by two only, uti
possidetis and utrubi. Although the interdict uti possidetis could
not be brought except by an actual possessor, and the object of
the interdict was to prevent the possession being challenged,
yet at the beginning of the proceedings the Praetor refused
to recognise either party as in possession, and proceeded to
determine the question of intermediate possession in a manner
at once clumsy and inconvenient, but adhering with pedantic
fidelity to the model of the old vindicatio. What is the inference
suggested by this strange parallelism? May we not say that
possession has become ownership — ^not indeed dominium, with
its appropriate action of vindicatio, but a new kind of ownership,
asserted by interdicts? Thus in dominium we have rights*
vindicated by certain special actions, and investitive facts en-
forced by different actions. So in possession (of land) the rights
of the possessor are protected by the interdicts de vi and guod
vi out clam^ as in the case of dominium; and, moreover, there


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are special investitive facts with their appropriate remedies —
the interdicts xsti possidetis and vtrubi. In the interdict uti
possidetis^ for example, the question to be determined is precisely
analogous to that in vindicatio. In vindicatio the question is
whether there are any investitive facts in favour of the claimant ;
if there are, he is declared owner. Ia uti possidetis, in like manner,
the question is whether there is an investitive fact of possession,
and the claimant, if successful, gets possession. As the Praetor
was the great fountain of equity in the Roman Law, and as all
interdicts were special emanations of his magisterial authority
(imperium), we may, without impropriety, call the possession
protected by the interdict — ^Equitable Ownership.^

Before considering the evidence in favour of this mode of re-
presenting the relation of Possession to Ownership, it is necessary
to define more closely the terms employed. The word ^^possessio '*
is itself used in two difierent senses. It designates both the
investitive fact and the rights created by that fact. In speaking
of ownership we have two terms — dominium^ signifying the
totality of rights ; and, say, traditio, the name of the investitive
fact. But unfortunately the word possessio is used indifferently
for the investitive fact — ^namely, obtaining physical control over
a thing — and for the right to enjoy the undisturbed possession
of the thing, which is the legal efiect of obtaining physical
control. It would not be easy to exaggerate the mis-
chief arising fi*om this ambiguity. Possession — is it a Fact or
a Bight ? — ^is a question that has been discussed almost inter-
minably. Some authors say it is a fact, which is true; others say
it is a right, which is also true ; and others say it is both a fact
and a right ; meaning neither, but a confused jumble of both.

In one instance only do the Roman Jurists expressly say
that possession was equitable ownership ; and the language
they employ is worthy of notice. When a res mancipi was
deUvered to a person without mancipatio, there was by the
civil law no conveyance; the owner still remained owner
{dominus ex jure Quiritium) ; but he was not allowed to exercise

' *' Po89etsio ** may be regarded as equitable ownership, in Uie sense of being a crea-
tion of the Praetor, and having no recognition from the jtis civile ; but it did not
depend upon dominium in the same way as an English equitable estate requires to be
supported by a legal estate. Although the Roman Praetor and the Tgn glin^ Chancellor
were guided by a similar spirit in establishing equitable interests, there are consider*
able differences in the results of their activity, owing to the very different dream*
stances with which they had to deal


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any of the rights of ownership, and the possessor was said to
have the thing in bonis} It would be a perfectly fair transla-
tion of bona fide possessio (after the introduction of the Actio
PubUciand) to call it Praetorian or Equitable ownership. The
separation between the equitable and legal ownership continued
until the time of itsucapio had run, and the possessor became
domintis ex jure Quiritium. The separation of the two kinds of
ownership was temporary.

The Roman Law affords us, however, instances where the
equitable estate (in bonis) was not transient, but permanent.
For example, land situated out of Italy could not be acquired
by usucapio, but it was an object of commerce, of sale and
exchange, and a bona fide possessor was protected by the
Actio Publiciana. (D. 6, 2, 12, 2.) Such a possessor had only
an equitable estate, and never had anything more, until, upon
the changes made by Justinian, possession for a long time was
held to give legal ownership {dominium) (p. 144). In this case
the equitable estate was permanent, because in land out of Italy
legal ownership was impossible. Practically, such possession
was ownership ; nominally, it was not. The Praetor gave the
possessor nearly every right that a legal owner (dominus ex
jure Quiritium) could exercise ; but he could not give him that
ancient title.

Analogy op Equitable Ownership. — Passing for a moment
to a different department of law, we meet a phenomenon
of the same notable character. In the law of inheritance
the Praetor played a conspicuous part. He interfered with
the established rules of succession; he cast down, and he
raised up. The manner and objects of his intervention
are alike deserving of attention. The rules of succes-
sion contained in the XII Tables were adapted to a social

* A bona fide poflseBsor, although he could not have ownership, could have yooc2»;
and this language may be compared with the phrase applied to the interest of an heir
whose title was derived from the Praetorian edict, not from the civil law ; namely, the
pooBCSBion of goods (bonorum poneatio). The word "property" in English means
either the aggregate of rights of an owner, or the thing that is owned, as when we
speak of a man of large property. " Dominium " is employed to express the aggre-
gate of rights, and is the equivalent of *' ownership ; " the objects of ownership were
designated either speci6cally, as land, houses, &a, or simply as things (re»). " Bona "
was the equivalent of property in the second sense, meaning not the rights of the
owner, but the tilings belouging to him ; and therefore another phrase is wanted to
give the conesponding term of " ownership ;" that phrase \Bjpo8semo bonorum.


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system of which the unit was the ^paterfamilias^ where everjr
one either was subject to, or exercised, the potestas. But as
the patriarchal age receded, and Rome came nearer the
climax of her greatness as the lawgiver and mistress of the
world, the potestas withered, and the personal independence
of the individual became the basis of the social organisation.
As time went on, the old law of inheritance became less and
less in harmony with the progressive march of Roman civilisa-
tion, and the rules of succession often caused the cruellest
injustice. Under the Empire, the improvement of the law
was effected by direct legislation ; but during the Repubhc the
adjustment of the law to the changing moral sentiments of
Roman society was almost exclusively effected by the less
obtrusive agency of the Praetor. In the exercise of his
supreme power (imperium)^ the Praetor called persons to the
succession of a dead man in a very different order from that
presented by the XII Tables. But the persons that he intro-
duced did not get the inheritance (hereditas) ; for the saying
was that the Praetor could not make an heir (Jieres), While
religiously observing this rule, the Praetor gave, under the name
of bonorum poBsessio, every right that a heres enjoyed. Hence there
grew up by the side of the old a new law of inheritance, with a
new name ; and for many centmies the distinction between a
legal and equitable heir (Jieres and bonorum possessor) continued
to perplex and complicate a portion of the law that at the
best was not very simple. In the end, the distinction ceased
to have any practical importance; the legal was merged in
the equitable inheritance. The bonorum possessio imparted to
the hereditas its characteristic flexibiHty and liberality; while the
inconveniences that always and almost necessarily attach to
every form of equitable estate were removed by conferring the
legal estate on the equitable heir.

Defects of the Early Roman Law of Property.— The
early Roman law of property is characterised by precisely
the same kind of defects that led to the interference of the
Praetor in the law of Procedure, Contract, and Inheritance : —
(1.) The modes of conveyance {mancipation cessio in jure) were
formal and inconvenient; (2.) The ager publicus (the old
common land of the Roman people), although inclosed and
cultivated, could not be held in ownership (dominium ex jure
Quiritium) ; and (3.) Aliens could not be owners. The mancipatio


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existed in the time of Gaius, bat fell into disuse before Justinian ;
and the agerpublicusy so far back as legal records go, could always
beheld in Quiritarian ownership. After Caracalla, the disabilities
of aliens were no longer of importance, because every subject of
the Roman Emperor was a citizen. But could an alien not be
owner before that time ? There is conclusive proof that an alien
could be owner of property long before Caracalla. Now these
three evils — the inconveniences of the mancipatio, the disability
of citizens to own portions of the ager publicaSy and of aUens to
hold any property whatever — were all remedied by the Praetor.

I. The manner in which the Praetor dealt with the incon-
veniences and dangers of the formal conveyances has already
been described. But one question remains to be answered. The
actio Publiciana was introduced at a late period : what remedy
then had the bona fide possessor before that time ? Unquestion-
ably he had the possessory interdicts. But it would be rash to
affirm that it was for this case that these interdicts were first
brought in. A person whose title was defective only from an
informal conveyance was a Jcma^e possessor ; but the inter-
dicts were open equally to mala fide possessors. It has been
already said that the Praetor never interfered except when
necessary ; it is equally true that he never interfered further
than was necessary. If the Praetor had brought in an interdict
for the sake of the bona fide possessor, it may be affirmed with
some confidence that he would not have inlroduced a remedy
equally open to the thief and the robber.

II. K the theory of Niebuhr and Savigny as to the character
and history of the ager publims be correct — ^that portions of
the ager pvblicus were inclosed by patricians, and given to their
clients to be cultivated as tenants-at-will, without rent — all the
conditions are present for the creation of equitable interests.
No one could be Quiritarian owner of any portion of the ager
pubKcus ; and therefore the interests of the patricians and their
cHents, the cultivators, could have no other support than the
Praetor. If any ownership was recognised at aU, it must be
Equitable, because it could not be Quiritarian. The character
of preearium (see Quasi-Possession) aflFords some grounds for
believing that in Rome certain land was given to tenauts-at-
win that could not be recovered by vindication and therefore
coxdd not have been held in Quiritarian ownership. This
would coincide with the peculiarity of the ager publicus.

Jf the origin of the interdict tUi possidetis may be assigned to


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the relation of patricians and their clients to the ager publicuSy
one of the most remarkable characteristics of possessory inter-
dicts would be accoimted for— namely, that bona fides was not
required. Bona fides, as related to possession, had a peculiar
technical meaning. ^It did not signify mere honesty ; it meant
that the possessor had got the thing in a way that justified
him in believing himself to be owner. But a possessor of ager
publicus knew that he could not be owner ; and he also knew
that nobody else could be owner ; and therefore, although he
was not a bona fide possessor, so neither could he be called
a mala fide possessor in any other than a purely technical
sense. In truth, the legal notion of bona fides is entirely
irrelevant to the case in question. Now the Praetor looked
solely to the fact of possession, and treated bona fides as a
simple irrelevance.

The theory of Savigny, if it were fully established by inde-
pendent evidence, would afibrd a satisfactory explanation of
the interdict uti possidetis ; but it can hardly be said to rest
on an unassailable basis, and it does not account for the inter-
dict utrubi, which applies to moveables only.

III. There is, however, another case, strangely overlooked by .
Savigny and other learned writers, quite capable of accounting
for the peculiarities of the whole Praetorian law of possession.
It was only by means of a doctrine of equitable ownership *
that aliens (peregrini) could enjoy rights of property. An;
alien could not be a Quiritarian owner ; he could not take '
part in the mancipation cessio in jure, or acquire by usucapioi, .
He found no place in the Roman Law as it stood prior,'
to the intervention of the Praetors. But an alien, although;
he could not be an owner, could be a possessor; and it was.
competent to the Praetor to throw around such possession
the shield of his imperium. The Praetor did not exact bona
fides, for the simple reason that the alien knew that he could
not possibly acquire a legal title.

But was there any necessity for admitting aliens to the enjoy-
ment of civil rights ? We may infer that there was from the fact
that the steady policy of the Praetors through centuries was to
extend the law to ahens. The circumstance that the additional
Praetor created in B.0. 246 was called Praetor Feregrintts, proves
that already at that time the legal business of aliens was suffi-
ciently great to give occupation to a special magistrate ; and
considering that the work of the magistrate consisted merely in


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ascertaining the question in dispute between litigants, and nam-
ing an arbitrator to decide on the merits, this fact alone speaks
volumes as to the position of aliens in Rome. But it does not rest
upon inference merely. In the first place, we know that at
a very early period the law of contract was expanded to admit
aliens. The formal words of the atipulatio were modified for
the express benefit of aliens ; and aliens could enter into con-
tracts that arose ea jure gentium, a class that included every
contract of any importance in the Romaa Law, except the
atipulatio. (D. 48, 19, 16.) But nine contracts out of ten
have no other object than the acquisition of property. Con-
sequently, if the law of contract was opened to aliens, so also
must have been the law of property. This argument is per-
fectly irresistible; but the conclusion does not rest upon
argument. Gains has furnished us with explicit testimony
both as to the fact that aliens were admitted to proprietary
rights, and also as to the manner in which it was done in the
case of moveables.^

And again, an alien is by a fiction regarded as a Roman citizen, when he
is plaintiff or defendant on some ground for which an action is established
by our Statutes ; provided only it is just that such an action should be ex-
tended even to an alien. If, for instance, it is alleged that an alien has aided
or been privy to a theft, and an action is brought against him, the formula is
framed thus : — " Let there be 2i judex. If it appears that Dio, a Greek, aided
or was privy to the theft of a golden platter from Lucius Titius, and
ought, on that account, if he were a Roman citizen, to be cast in damages as
a thief," and so on. Again, if an alien brings an action for theft, he is
by a fiction regarded as a Roman citizen. In like manner, also, if under the
lex Aguilia an alien bring an action for damnum injuria, or if such an action
is brought against him, then by the fiction that he is a Roman citizen a
lemedy is given. (G. 4, 37.)

By the aid of a fiction, an alien was enabled to sue a thief or
any person injmiig his property. Suppose, however, a person
claimed a slave in the possession of an alien, and took him
away by force, what was the remedy of the aUen ? Not the
CLctio vi bonorum raptorum, because the claimant was not a robber ;

' Item ctuiUu Bomana peregrine fingUur, si eo nomine agat aut cum eo agatur, quo
momine nottriM Ugibus actio constittUa est, si tnodo iustum sit, earn (ictionem etiam ad
pertgrinum extendi, udut si furtum 'diaUur (factum ope conailio) *peregrini et cum eo
^gatMT, formula iia concipitur: IVDEX esto. m pakbt, *opb oonsilio dionis * oraeci
(Lveio) Tmo fvbtvm factvm esse patkras avreae, quam ob bem bvm, si civis
frnii agat, ciuitas ei Romana fingUur. similiter si ex lege Aquilia peregrinus damni
inittriae agal aut cum eo agatur, ficta ciuitate Romana iudicium datur^


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there was then only the interdict utrubi. Again, if between a
citizen and an alien, or between two aliens, a dispute arose as to
the ownership of a slave, there was no other means of settling
the dispute than the interdict tUrubi. In like manner, an alien
could enjoy aad maintain an interest in immoveables only by
the interdict uti possidetis. An alien, therefore, could be pos-
sessor, although not Quiritarian owner ; and by the aid of
fictions and interdicts, enjoy precisely or nearly the same
rights as if he were a Roman citizen. An alien had bene-
ficial, but not technical, ownership. A Roman citizen had
Quiritarian ownership, acquired by means of a formal transvesti-
tive fact, and maintained by vindicatio. An alien had beneficial
or equitable ownership, acquired by delivery of possession, and
supported in the case of immoveables by the interdict uti possi*
detisy and in the C€ise of moveables by the interdict tUrttbi.

Connection between Possession and Equitable Ownership.
— A consideration of the circumstances shows how the exten-
sion of ownership came to be wrapped up with the idea of
possession. Suppose the object of dispute was a slave. How
is the Praetor to decide between the two aliens claiming him ?
Neither q{ them can be Quiritarian owner, and therefore no
question can arise as to the existence of mancipatio or any other
transvestitive fact of the Roman Law. What substitute could
the Praetor adopt for mancipatio f The best answer to this
question is a brief statement of the substitute actually adopted
by the Praetor : — (1) The first rule was that if of two claimants
one had possession at the time of action brought, and the other
never had had possession, the Praetor preferred the possessor.
(2) If both the claimants had been in possession at different
times (they could not possibly be together, D. 13, 6, 3, 5), then
either one succeeded the other in possession, or there was some-
body in possession between them. Take the first cfiuse, where
the claimants had possession immediately in succession, and
suppose Titius was first in possession and Gains after him. Did
Gains obtain possession with the consent of Titius t If he did,
the Praetor decided in favour of Gains ; if he did not, the posses-
sion was decreed to Titius. (D. 43, 17, 3.) (3) If there was
a possessor between Titius and Gains, the rule was different.
The Praetor decided in favour of the man that had the longest
possession in the year preceding. The result of this apparently
arbitrfioy rule was to secure practical justice. Thus if Titius


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poeeessed the slave for six months, and Attius had the slave
for one month, Titins would recover the slave from Gains, if he

Online LibraryWilliam Alexander HunterA systematic and historical exposition of Roman law in the order of a code → online text (page 29 of 115)