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the Twelve Tables, and the time applied only to purchases of Res Mancipi from the owner, when the legal forms of conveyance had been neglected. But the origin of Usucapio v/as probably still more remote.
When Gaius states that there was originally only one kind of ownership at Rome, and that afterwards ownership was divided, he immediately shows how this arose by taking the case of a Res Mancipi. This division of ownership rested on the division of things into Res Mancipi and Res Nee Mancipi, a distinction that had reference to nothing else than the mode of transferring the property of them. Things were merely called Res Mancipi, because the ownership of them could not be transferred without Mancipatio. Things were Res nee Mancipi, the alienation of which could be effected without Mancipatio. There could be no division of things into Mancipi and Nee mancipi, except by determining what things should be Res Mancipi. Res nee Mancipi are determined negatively : they are all things that are not Res Mancipi. But the negative determination pre-supposes the positive. Therefore Res Mancipi were determined before Res nee Mancipi could be determined ; and before the Res Mancipi were determined, there was no distinction of things into Res Mancipi and Res nee Mancipi. But this distinction, as such, only affected the condition of those things to which it had a direct application: consequently all other things remained as they were before. The conclusion then is certain, that the Res Mancipi as a class of things were posterior in order of time to the class of Res nee Mancipi, which comprehended all things except Res Mancipi. Until then the class of Res Mancipi was established, all property at Rome could be alienated by tradition, as Res nee Mancipi could be alienated by tradition after the class of Res Mancipi was constituted.
The time when the class of Res Mancipi was formed is not known ;. but it is most consistent with all that we know to suppose that it existed before the Twelve Tables. If we consider the forms of Mancipatio [mancipatio], we cannot believe that they arose in any other way than by positive enactment. As soon as the forms of Mancipatio and of the In jure cessio (which from its character must be posterior to Mancipatio) were established, it followed that mere tradition of a thing to a purchaser and payment of the purchase-money, could not transfer the ownership of a Res Mancipi. The transfer gave the purchaser merely a Possessio, and the original owner retained the property. In course of time the purchaser obtained the Publiciana actio, and from this time it might be said that a double ownership existed in the.same thing.
The introduction of Mancipatio, which gave rise to the double ownership, was also followed by the introduction of Usucapio. The bona fide Possessor of a Res Mancipi which had not been transferred by Mancipatio, had no legal defence against the owner who claimed the thing. But he had the exeeptio doli, and subsequently the Ex-peptiQ relYenditae et traditae by which he could protect ^imself-against the owner ; and as Possessor ksi4p.pl^;,;lie;- ;,had.;theT;protectioii: of the Interdict agaiins^thirjdyperspns,;. ./He had the(.full enjoyment ;qf;jthe thingj'^and he,ycould transfer;.-t'he:,posge_s_sio, but he;;cpuld;sdo ^o^a^t-withfTespect to it for which ar.ian^^
he could not alienate it by Mancipatio or In jure Cessio, and it was a necessary consequence that he could not dispose of it by Testament in the same way in which Quiritarian ownership was disposed of by Testament. The necessity for such a rule as that of Usucapio was evident, but it could arise in no other way than by positive enactment, for its effect was to be the same as that of Mancipatio. The Twelve Tables fixed the term of Usucapio, but we do not know whether they fixed or merely confirmed the rule of law as to Usucapio.
It is a mistake to suppose that tradition or delivery was a part of Mancipatio as such. Mancipatio was merely a form. of transferring ownership which was fixed by law, and the characteristic of which was publicity: a delivery of the thing would of course generally follow, but it was no part of the transfer of ownership. Land (praedi'a) for instance could be mancipated without delivery (in absentia mancipari solent^ Ulp. Frag. tit. 18 ; Gains, i. 121.) In the case of moveable things, it was necessary that they should be present, not for the purpose of delivery, but that the thing mancipated might be identified by apprehension. The essential to the transfer of ownership in all countries, is the consent of two persons, who have legal capacity to consent, the seller and the buyer. All the rest is form that may be varied infinitely: this consent is the substance. Yet tradition as a form of transfer was undoubtedly the 'old Roman form, and consent alone was not sufficient; and it may be admitted that consent alone was never sufficient for the transfer of ownership without affecting the principle laid down that consent alone is essential in the transfer of ownership. This apparent incongruity is ingeniously and sufficiently explained in the following manner: " Tradition owes its origin to a time when men could not sufficiently separate in their minds Physical ownership, or the dominium over a thing, from Legal ownership. As a man can only call a bird in the air or a wild animal in the forest his own when he has caught it; so men thought that tradition must be added to contract in order to enable a man to claim the thing as his own." (Engelbach, Ueber die Usuca-pion, &c. p. 60.)
Besides the case of property there might be Usucapio in the case of Servitutes, Marriage, and Hereditas. But as Servitutes praediorum rusticorum could only be the objects of Mancipatio and could only be established by the same form by which ownership of Res Mancipi was transferred, so according to the old law, these Servitutes alone could be the object of Usucapio ; and, as it is contended by Engelbach, only in the case of Aquaeductus, Haustus, Iter and Actus. But as the ownership of Res Mancipi could be acquired by bare tradition followed by usucapio, so these servitutes could be established by contract and could be fully acquired by Usucapio. In the later Roman law, when the form of Mancipatio was replaced by mere tradition, servitutes could be established per pacta et stipu-lationes only. In the case of a Marriage Coemp-tione, the form of Mancipatio was used, and the effect was that the woman came into the hand of her husband, and became part of his Familia. The marriage Usu could not of itself effect this, but if the woman lived with her husband a year, she passed into his Familia by Usucapio (velut annua, .pqssessione zisucapiebatur} : and accordingly it was :provMecIby the laws of the Twelve Tables, that if