Rervm Corporalivm Adqvisitiones Civiles. (2)

Things are further divided into mancipable and not mancipable; mancipable are land and houses in Italy; tame animals employed for draught and carriage, as oxen, horses, mules, and asses; rustic servitudes over Italian soil; but urban servitudes are not mancipable.

§ 15. Stipendiary and tributary estates are also not mancipable. According to my school animals which are generally tamed are mancipable as soon as they are born; according to Nerva and Proculus and their followers, such animals are not mancipable until tamed, or if too wild to be tamed, until they attain the age at which other individuals of the species are tamed.

§ 16. Things not mancipable include wild beasts, as bears, lions; and semi-wild beasts, as elephants and camels, notwithstanding that these animals are sometimes broken in for draught or carriage; for their name was not even known at the time when the distinction between res mancipi and nec mancipi was established.

§ 17. Also things incorporeal, except rustic servitudes on Italian soil; for it is clear that these are mancipable objects, although belonging to the class of incorporeal things.

§ 18. There is an important difference between things mancipable and things not mancipable.

§ 19. Complete ownership in things not mancipable is transferred by merely informal delivery of possession (tradition), if they are corporeal and capable of delivery.

§ 20. Thus when possession of clothes or gold or silver is delivered on account of a sale or gift or any other cause, the property passes at once, if the person who conveys is owner of them.

Similarly transferable are estates in provincial lands, whether stipendiary or tributary; stipendiary being lands in provinces subject to the dominion of the people of Rome; tributary, lands in the provinces subject to the dominion of the Emperor.

§ 22. Mancipable things, on the contrary, are such as are conveyed by mancipation, whence their name; but surrender before a magistrate has exactly the same effect in this respect as mancipation.

§ 23. The process of mancipation was described in the preceding book (1 § 119).

Conveyance by surrender before a magistrate (in jure cessio) is in the following form: in the presence of some magistrate of the Roman people, such as a praetor, the surrenderee grasping the object says: I say this slave is my property by title Quiritary. Then the praetor interrogates the surrenderor whether he makes a counter-vindication, and upon his disclaimer or silence awards the thing to the vindicant. This proceeding is called a statute-process; it can even take place in a province before the president.

§ 25. Generally, however, and almost always the method of mancipation is preferred; for why should a result that can be accomplished in private with the assistance of our friends be prosecuted with greater trouble before the praetor or president of the province?

If neither mancipation nor surrender before the magistrate is employed in the conveyance of a mancipable thing . . . .

Mancipable things—things taken by the hand and so alienable—were at first, probably, the more important accessories of a farm, that is, slaves and beasts of burden—oxen, horses, mules and asses (1 § 120), land itself in Italy and rural servitudes attaching to such land being subsequently made mancipable.

These, the objects of principal value to an agricultural community, became alienable by means of the formal proceeding by bronze and balance, called mancipation, which Gaius says (1, 119) is an imaginary sale.

In its origin, however, mancipation appears to have been not an imaginary, but a genuine sale for valuable consideration. The introduction of coined money by making the weighing of the bronze in the scales a formality first gave the proceeding an appearance of unreality, but in order to maintain its original character, the Twelve Tables, which were passed at the time when this important monetary change took place, expressly declared that no property should pass by mancipation, unless the price was actually paid to the mancipating party or security given him for it (cf. Inst. 2, 1, 41 Venditae vero et traditae non aliter emptori adquiruntur, quam si is venditori pretium solverit vel alio modo ei satisfecerit, veluti expromissore aut pignore dato: quod cavetur etiam lege duodecim tabularum)—where traditae is an evident Tribonianism for mancipatae. But this law was afterwards evaded by juristic ingenuity, the practice of paying only a nominal sum—a single sesterce—being held to be a sufficient compliance with it. This made it possible to use mancipation as a mere conveyancing form. Even in the case of genuine sales, it was found advantageous only thus to pay a nominal sum in the mancipation itself and to make the payment of the purchase money something entirely apart, for by this means the mancipating party in fact escaped the liability imposed on him by the Twelve Tables of paying, as warrantor of the title (auctor), double the price to the other party to the transaction in case of the latter being evicted (cf. Cic. pro Mur. 2, 3, in Caec. 19, 54), and it had the further advantage that the purchaser was enabled to acquire ownership by the mancipation before he had paid the actual purchase money (cf. Muirhead, Roman Law, § 30; Sohm, pp. 51, 61). How, by means of the nuncupation and by collateral fiduciary agreements, mancipation was adapted to effect various legal purposes, may be seen in other parts of the text and commentary.

The form of mancipation (1, 119) shows its archaic origin. If, as has been thought by many modern writers, the witnesses to it originally represented the five classes of the Roman people, mancipation, at least in its ultimate form, cannot have been earlier than the Servian constitution, by which this division of the people was made. The advantage of requiring the presence of a number of citizens to bear testimony to important transfers of property in an age when writing was not in common use is apparent.

§§ 24-26. In jure cessio—the other mode of transfer peculiar to Jus Civile, and so likewise confined to Roman citizens, is an adaptation of the legis actio per vindicationem to conveyancing purposes, depending for its operation on the collusive admission by the defendant of the supposed plaintiff’s claim (confessus pro judicato est). This fictitious process, which is not so primitive in character as mancipation, though it was also recognized by the law of the Twelve Tables, must have been introduced to circumvent the law in order to effect objects unattainable by direct means, such as the manumission of slaves. Though Quiritary ownership could be thus conveyed, it was, for the reason given in § 25, rarely employed for this purpose. But for creating or transferring some kinds of rights surrender before a magistrate was essential, §§ 30, 34.

In jure cessio or surrender before a magistrate cannot fail to recall to an English lawyer two similar modes of alienation that recently existed in English jurisprudence, alienation by Fine and alienation by Recovery, both of which, like in jure cessio, were based on a fictitious action; in both of which, that is to say, although the parties did not really stand in the relation of adverse litigants, the alienee was supposed to recover an estate by process of law. By a Fine, an action commenced against the alienor and at once terminated by his acknowledging the right of the alienee, a tenant in tail could aliene the fee simple, so far at least as to bar his own issue. By a Recovery, a tenant in tail could convey an absolute estate in fee. This was an action supposed to be, not like a Fine immediately compromised, but carried on through every regular stage to the conclusion; whereby the alienee recovered judgement against the alienor, who in his turn recovered judgement against an imaginary warrantor whom he vouched to warranty (cf. laudat auctorem, 3 § 141, comm.).

Res nec mancipi, that is all objects of individual ownership, other than res mancipi, were the only things allowed to pass in complete ownership (pleno jure) simply by tradition, § 19.

This informal mode of alienation did not, like mancipatio, in jure cessio, and usucapio, belong to Jus Civile, but to Jus Gentium, § 65; and was of later introduction than these.

The tradition or informal delivery of some res nec mancipi must, however, have been common from the earliest times, though such tradition would have been regarded at first merely as a delivery of possession, to be protected by the law of theft, not as a title of ownership, to be asserted by vindicatio. At a later period, however, in order to facilitate commerce, tradition became by the influence of jus gentium a mode of acquiring ownership in things which did not belong to the privileged class of res mancipi. By tradition, which is a transfer of possession, ownership may be also transferred, if the transferor is himself owner; otherwise conformably to the principle ‘Nemo plus juris transferre potest, quam ipse habet’—possession only passes, bona fide possession, if the transferee knows nothing of his defective title, malâ fide, if he is aware of it. If we consider Surrender before a Magistrate, Mancipation, Tradition, we shall see that they are only three forms of one identical title, Alienation. The substance or essence of the title, the intention on the one side to transfer property, on the other to accept it, is the same in all three; it is only the adventitious, or accidental, or evidentiary portion of the title in which they differ.

Although delivery of possession, like the solemnities of mancipation and surrender, is, as compared with the will or intention of the parties, only an evidentiary and declaratory part of the title; yet both parcels, delivery of possession, as well as agreement, are indispensable in the transfer of ownership. ‘Traditionibus et usucapionibus dominia rerum, non nudis pactis transferuntur,’ Cod. 2, 3, 20. ‘Tradition and usucapion, not bare agreement, operate as a transfer of ownership.’ Tradition, which is only applicable to corporeal things, is usually effected by some physical act of appropriation, but it may take place without any such actual delivery being made at the time. This occurs when a vendor agrees to hold the property he sells on account of, or as agent of, the purchaser (constitutum possessorium), or when a person already holding a thing on account of the vendor, e. g. as a deposit, or loan, agrees to purchase it (traditio brevi manu). (Inst. 2, 1, 44.)

We have spoken of tradition as a title whereby ownership was acquired. Tradition, however, was only an element, usually the final element, of the complex mode of acquisition, to which it gives its name. To be capable of passing property, delivery must be accompanied by another element, usually an antecedent element, some contract of sale or other legal ground, which is evidence of an intention to aliene. ‘Nunquam nuda traditio transfert dominium, sed ita si venditio vel aliqua justa causa praecesserit, propter quam traditio sequeretur,’ Dig. 41, 1, 31 pr. It is clear that bare delivery, or transfer of physical control, without any further element of Title, cannot pass Dominium, for in Loan for Use (commodatum) such transfer merely passes what may be called Detention without Possession; in Pledge (pignus) it passes what may be called derivative Possession; in Deposit it usually passes Detention alone, but sometimes Possession also, though in this case also it is derivative Possession, not Possession of the thing as one’s own. (4 §§ 138-170, comm.) The cases in which Ownership (Dominium) is passed by Tradition may be reduced to three classes, traditio donandi animo, traditio credendi animo, and traditio solvendi animo. In the first, it simply confers ownership on the donee; in the second, it confers ownership on the transferee, and subjects him to an obligation; in the third, it confers ownership on the transferee, and discharges the transferor of an obligation. In the two latter cases, i. e. tradition by way of loan, as of money (mutui datio), and tradition by way of payment (solutio), the disposition or justa causa accompanying tradition contains much that is unessential to the transfer of dominium or ownership, the only absolutely essential element being the intention of the parties to convey and take dominium. In Donation the justa causa traditionis consists solely of this essential element. The justa causa, then, which must accompany delivery, must involve the animus or voluntas transferendi dominii, and this, apparently, is given as the whole of the matter in a passage of Gaius quoted in Digest: ‘Hae quoque res, quae traditione nostrae fiunt, jure gentium nobis adquiruntur; nihil enim tam conveniens est naturali aequitati quam voluntatem domini volentis rem suam in alium transferre ratam haberi,’ Dig. 41, 1, 9, 3. Tradition is a mode of acquisition, ‘in accordance with Jus Gentium, for it is a plain dictate of natural justice, that the will of an owner to transfer his ownership to another should be allowed to take effect.’

In one case, as we have seen, the operation even of contract and delivery combined was limited by the Twelve Tables, namely, in Sale. Hence it came about that tradition did not operate a transmutation of property without a further condition—payment of the purchase money, unless the sale is intended to be a sale on credit, or satisfaction is made to the vendor in some way. Inst. 2, 1, 41. Delivery sometimes precedes the intention to transfer, for instance, in a conditional sale; in which case the transfer of property may be suspended until the condition is fulfilled. The intended transferee may be an incerta persona, for instance, when money is scattered among a mob by a praetor or consul (missilium jactus). Inst. 2, 1, 46.

Tradition in Roman law was never fictitious; it was always an actual delivery of a power of physical or corporeal control, so the delivery of the keys of a house is not something symbolical or fictitious, but a real transfer of a power of exercising dominion. The restriction of tradition, as a mode of acquiring ownership, to res nec mancipi had previously to the time of Gaius lost much of its importance, the Praetor protecting one to whom a res mancipi, such as land, had been delivered, as if Quiritarian ownership of it had been obtained by usucapion, § 41. In Justinian’s time Tradition had entirely superseded the civil titles of surrender before the magistrate and mancipation: the ancient distinction between res mancipi and res nec mancipi being no longer in existence.

This section contains the clearest statement which we possess of the technical distinction between the two classes of provinces instituted by Augustus. Those which were not under the direct control of the Princeps were technically under the control of the Senate and People (compare Dio Cassius, liii. 12); but, as the People was mainly represented by the Senate, they are often spoken of as Senatorial Provinces. The provinces of Caesar were far more numerous; about the time of Gaius they numbered thirty-one—twenty-one being governed by Legati pro praetore, nine by Procurators, and Egypt by its Praefect—while the Public Provinces under Proconsuls numbered but eleven. See Marquardt, Staatsverwaltung, i. p. 494. The attempt to keep these departments distinct was a failure; and the control of the Public Provinces by the Princeps was now very considerable, especially in matters of jurisdiction. But the technical difference between the two kinds of provinces was still preserved in the reign of Marcus Aurelius. Thus we find that Emperor causing provinces to be transferred from the one to the other category in obedience to military considerations, and asking the Senate to vote money to him from the Aerarium, the treasury which contained the dues from the Public Provinces (Vita Marci, 22, Dio Cassius, lxxi. 33).

During the Republic the taxes paid by provincials had been called stipendium—a word which points to the view originally taken that these revenues were meant to meet military expenses; for stipendium means pay for the army. During the Principate the word tributum came also to be used for imperial taxes; but this passage of Gaius shows that stipendium was still employed for the dues paid by the Public Provinces. The distinction between stipendiary and tributary provinces is perhaps based on a difference in the mode of collecting, not of levying, the taxes. It seems that in the Public Provinces the taxes were still collected by the local governments themselves and paid to the Quaestors, whereas in Caesar’s Provinces the Procurators came into direct contact with the tax-payer. The mode of collection was in the second case direct, in the first indirect. It is also possible that the ownership of the soil in Caesar’s Provinces was regarded as vested in the Princeps, that of the soil in the Public Provinces as vested in the Roman state (see Mommsen, Staatsrecht, ii. p. 1088), and this distinction may be implied in the two classes of provincialia praedia mentioned by Gaius.

The mode of taxation was uniform for the whole Empire, and the assessments were made at intervals by the Emperor’s officials. The taxes were either imports on the land (tributum soli) or on the person (tributum capitis). The land-tax was in most provinces paid either in money or grain, more usually in the former, although in certain minor districts it was delivered in the form of other produce. The personal tax might be one on professions, income, or movable property. Occasionally it was a simple poll-tax, this latter burden being probably imposed on those provincials whose property fell below a certain rating.

The legati Caesaris or Presidents of imperial provinces had originally on jurisdiction to preside over legis actio, but this was afterwards conferred upon them, Tac. Ann. 12, 60.

Gaius probably explained in this place the effect of tradition of a res mancipi, § 41, and then went on to treat of the jus commercii. Ulp. 19, 4, 5 Mancipatio locum habet inter cives Romanos et Latinos coloniarios Latinosque Junianos eosque peregrinos quibus commercium datum est. Commercium est emendi vendendique invicem jus.