Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

1218 UJSUCAPIO. USUCAPIO.
the Twelve Tables, and the time applied only to he could not alienate it by Mancipatio or In jure
purchases of Res Mancipi from the owner, when Cessio, and it was a necessary consequence that he
the legal forms of conveyance had been neglected. could not dispose of it by Testament in the same
But the origin of Usucapio wvas probably still way in which Quiritarian ownership was disposed
more remote. of by Testament. The necessity for such a rule as
When Gainus states that there was originally that of Usucapio was evident, but it could arise
only one kind of ownership at Rome, and that in no other way than by positive enactment, for its
afterwards ownership was divided, he immediately effect was to be the same as that of Mancipatio.
shows how this arose by taking the case of a Res The Twelve Tables fixed the term of Usucapio,
Mancipi. This division of ownership rested on the but we do not know whether they fixed or merely
division of things into Res Mancipi and Res Nec confirmed the rule of law as to Usucapio.
Mancipi, a distinction that had reference to nothing It is a mistake to suppose that tradition or deelse than the mode of transferring the property of livery was a part of Mancipatio as such. Mancithem. Things were merely called Res Mancipi, patio was merely a form of transferring ownership
because the ownership of them could not be trans- which was fixed by law, and the characteristic of
ferred without Mancipatio. Things were Res nec which awas publicity: a delivery of the thing would
Mancipi, the alienation of which could be effected of course generally follow, but it was no part of
without Mancipatio. There could be no division the transfer of ownership. Land (praedia) for
of things into Mancipi and Nec mancipi, except instance could be mancipated without delivery
by determining what things should be Res Mancipi. (in absentia macncipaei solent, Ulp. FrAp. tit. 18;
Res nec Mancipi are determined negatively: they Gaius, i. 121.) In the case of moveable things,
are all things that are not Res Mancipi. But the it was necessary that they should be present, not
negative determination pre-supposes the positive. for the purpose of delivery, but that the thing
Therefore Res Mancipi were determined before mancipated might be identified by apprehension.
ties nec Mancipi could be determined; and before The essential to the transfer of ownership in all
the Res Mancipi were determined, there was no countries, is the consent of two persons, who have
distinction of things into RBes Mancipi and Res legal capacity to consent, the seller and the buyer.
nec Mancipi. But this distinction, as such, only All the rest is form that may be varied infinitely:
affected the condition of those things to which it this consent is the substance. Yet tradition as a
had a direct application: consequently all other form of transfer was undoubtedly the'old Roman
things remained as they were before. The conclu- form, and consent alone was not sufficient; and it
sion then is certain, that the Res Mancipi as a may be admitted that consent alone was never sufficlass of things were posterior in order of time to cient for the transfer of ownership without affecting
the class of Res nec Mancipi, which comprehended the principle laid down that consent alone is esall things except Res Mancipi. Until then the sential in the transfer of ownership. This appaclass of Res Mancipi was established, all property rent incongruity is ingeniously and sufficiently exat Rome could be alienated by tradition, as Res plained in the following manner: " Tradition owes
nec Mancipi could be alienated by tradition after its origin to a time when men could not sufficiently
the class of Res Mancipi was constituted. separate in their minds Physical ownership, or the
The time when the class of Res Mancipi was dominium over a thing, from Legal ownership. As
formed is not known; but it is most consistent a man can only call a bird in the air or a wild
with all that we know to suppose that it existed animal in the forest his own when he has caught
before the Twelve Tables. If we consider the it; so men thought that tradition must be added to
forms of Mancipatio [MANCIPATIO], we cannot contract in order to enable a man to claim the
believe that they arose in any other way than by thing as his own." (Engelbach, Ueber die Usucapositive enactment. As soon as the forms of pion, &c. p. 60.)
Mancipatio and of the In jure cessio (which from Besides the case of property there might be
its character must be posterior to Mancipatio) Usucapio in the case of Servitutes, Marriage, and
were established, it followed that mere tradition of Hereditas. But as Servitutes praediorum rusticorum
a thing to a purchaser and payment of the purchase- could only be the objects of Mancipatio and could
money, could not transfer the ownership of a Res only be established by the same form by which
Mancipi. The transfer gave the purchaser merely ownership of Res Mancipi was transferred, so aca Possessio, and the original owner retained the cording to the old law, these Servitutes alone could
property. In course of time the purchaser ob- be the object of Usucapio; and, as it is contended
tained the Publiciana actio, and from this time it by Engelbach, only in the case of Aquaeductus,
might be said that a double ownership existed in Haustus, Iter and Actus. But as the ownership
the same thing. of Res Mancipi could be acquired by bare tradition
The introduction of Mancipatio, which gave rise followed by usucapio, so these servitutes could be
to the double ownership, was also followed by established by contract and could be fully acquired
the introduction of Usucapio. The bona fide by Usucapio. In the later Roman law, when the
Possessor of a Res Mancipi which had not been form of Mancipatio was replaced by mere tradition,
transferred by Mancipatio, had no legal defence servitutes could be established per pacta et stipuagainst the owner who claimed the thing. But he lationes only. In the case of a Marriage Coemphad the exceptio doli, and subsequently the Ex- tione, the form of Mancipatio was used, and the,eptki rei;yenditae et traditae by which he could effect was that the woman came into the hand of
plPttct lhimself against the owner; and as Possessor her husband, and became part of his Familia. The
As.PTp;i: he; had-the -protection: of the Interdict marriage Usu could not of itself effect this, but if
agistr'hir peo1Pss 0 nsle ihad the full enjoyment the wonman lived with her husband a year, she
qof;,thve thng, andhe could.transfer- tlee.possessio, passed into his Familia by Usucapio (velut aznza,but he:could.,do noactt.ith,-respect to it for -which Ipossessione uzsucapiebatr): and accordingly it was;Qpjrjitprpjp:pwaufesh'ipe.asni-cessar~,[couse-q:elntly provided by the laws of the Twelve Tables, that if