2. Ab Urbe Condita to the Enactment of the XII Tables

The likely origins of the Roman concept of property and its original nature are much debated.¹⁵ It is, for example, unclear whether the early Roman concept of property was ‘home-grown’ or not.

Various property regimes existed in the ancient Mediterranean before the establishment of the Roman state, and the Romans may have used these as inspiration for the creation of their own.¹⁶ But source material for this period is so sparse that it is impossible to determine the nature of this concept in early Roman law. It seems plausible that it would have started out as a factual (customary) rather than legal concept, since a fledgling city-state with a small territory hardly requires much more. It also seems plausible that the early notion of ‘lang=EN-US>ownership’ was perhaps first limited to chattels only.¹⁷The traditional narrative, found in most earlier works on Roman property law, is of an ‘evolution’ from communal to individual ownership of land (which is thought to have come into existence by the time of the enactment of the XII Tables in the mid-fifth century BC) via first the gens and then the familia.¹⁸ The recognition of individual ownership of chattels and land seems to have gone hand in hand with early attempts at classifying certain types of property.¹⁹ The primary distinction drawn in the XII Tables was between res mancipi and res nec mancipi.²⁰ The origins and motivation for this distinction most likely lay in the utility of the former for agricultural production. Given their special significance, the transfer of ‘ownership’ of res mancipi in early Roman law required the performance of a ritual known as mancipatio.²¹ The legal consequence of mancipatio was to give the transferee mancipium over the object.²² This term is thought to be the historical ancestor of the concept of ownership (dominium) of classical Roman law.²³ The legal consequences of a mancipatio are particularly visible where this ritual was performed on account of a ‘sale’.

Here it also generated auctoritas, a type of guarantee of title to the extent that the transferor was called upon to help prove ‘ownership’ where the transferee’s entitlement to the object was challenged.²⁴ The fact that sale was singled out for special attention suggests that it may have been an important reason for mancipatio in early Roman law. Acquiring ‘ownership’ of anything else (res nec mancipi) did not require a mancipatio to be performed, but how ownership was transferred remains unclear. It has been suggested that it could be done using a formal legal procedure known as cessio in iure, where the parties had to appear before a magistrate who then assigned ‘ownership’ of the property to one party.²⁵ This is an important point. For both categories of property, formality was required when transferring ‘ownership’. This tells us something about the Roman approach to ‘lang=EN-US>ownership’ of property in the earliest period. Any transfer of ‘ownership’ of property outside the familia required legal formality. It also suggests that the familia and the larger gens may have been largely self-sufficient entities in terms of the production of commodities. Mainly for these reasons, since formality increases the potential for error, a third method whereby ‘ownership’ of property could be acquired seems to have arisen in early Roman law, namely through prescription, the continued use of the property of another for a period of time (usus auctoritas).²⁶ According to the XII Tables the period of prescription for chattels was one year and for land two years. The short time periods reflect the size of Roman territory and may also be connected in some way to agricultural production. It has been suggested that there were no formal legal requirements for prescription.²⁷This seems true, but since such a large part of Roman property law during this period must have been based on custom, it cannot be said definitively. Related to the rise of individual ownership of chattels and land in early Roman law is the concept of possession.

Much like the classical concept of ownership (dominium), the concept of possession in classical Roman law (as a legal concept and as the counterpoint to ownership) seemingly did not yet exist in early Roman law.² On a practical level, however, possession in the sense of physical control must already have had some legal significance in early Roman law, given the existence of an early form of acquisition of ‘ownership’ by continued ‘possession’ for a certain period of time.

The XII Tables also mentioned certain ‘limited real rights’ that individuals could hold over another’s property.²⁹ They are all related in some way to agricultural production. These ‘limited real rights’ included those created by the contract of pledge (pignus) and its historical antecedent, which are known to have agricultural roots. Others included the right to a path or a water source or to drive one’s cattle over the property of another (collectively called ‘rustic servitudes’ in classical Roman law). The relationship between these and the early Roman concept of ownership remains disputed.³⁰

The extent to which the early Roman-law concept of property and property rights is rooted in custom can be seen from the nature of the legal remedies used to enforce these rights.³¹ One of the archaic forms of civil procedure, the action at law known as the legis actio sacramento (in rem) (‘by oath’), seems to have been mainly used for this purpose.³²face=Arial> Gaius’ Institutes, our main source for this early form of procedure, states that it could be used in all cases where a specific statute did not exist to deal with the issue.³³ It therefore would have been the prime legal remedy for property disputes. This procedure had a number of peculiarities.³⁴ Both parties had to appear before a magistrate and assert their claim over the object. These claims had to be supported by a fixed sum of money - the amount depending on the value of the property in question - that was provided as a wager of the truth of the assertion.

After hearing both arguments, the magistrate assigned ‘interim possession’ of the object in dispute to one party until the end of the proceedings. The party who lost the suit forfeited his wager to the state treasury as penalty. Another of the archaic forms of civil procedure, the legis actio per iudicis arbitrive postulationem (by petition for a judge or arbitrator), might also have been used in the law of property, especially in the division of property held in common.³⁵

Before we move on to the republic, one final observation about the XII Tables is required. If, as is now generally accepted, the XII Tables was nothing more than a redaction in writing of some of the most controversial areas of Roman customary law,³⁶ then the fact that many areas of property law are contained in it suggests that the customary law on property was starting to become a source of discontent in the context of the ‘struggle of the orders’ and could no longer be regulated purely by custom. It is also important to view the early Roman law of property in the context of the knowledge of the law and the ‘pontifical monopoly’ over legal interpretation.

The growth of the Roman republic from the late years of the sixth century BC to its fall at the start of the first century BC is dominated by a number of political events which are inextricably linked to land and land ownership. Traditionally, the conclusion of the Second Punic War in 201 BC is taken as a watershed moment in the legal development of the republic, although in reality the Roman concept of property was most probably shaped by a number of different events.³⁷ In the period between the enactment of the XII Tables and the Second Punic War, Rome expanded her influence progressively across the Italian mainland through conquest and treaty, as is evidenced by the circumstances surrounding the Latin War of 340-338 BC.

Once (most of) the Italian mainland had been subjected to the authority of Rome, a series of wars (collectively known as the Punic Wars) with the Carthaginians, mainly on account of access to trade routes, gave the Romans overseas territories. These territories had to be governed and issues surrounding land (specifically the legal status of such lands and the entitlements of local inhabitants to such land) had to be resolved.³⁸ This period also marks the start of the Roman obsession with the mapping out and classifying of the status of difflang=EN-US>erent types of land.³⁹ The final event, which had a significant impact on the formation of the Roman law of property, was the Gracchan land reforms (133—111 BC). This attempt to give land to war veterans at the expense of the patrician-dominated senate demonstrates the politically sensitive nature of land and land ownership in the Roman republic and set the tone for the events of the next century. These political events also need to be viewed within the context of certain major legal innovations which occurred during the course of the republic, namely the introduction of the office of the praetor as well as the rise of the profession of the jurist.⁴⁰

The exact route whereby the early Roman concept of mancipium became the concept of dominium of classical Roman law is unclear, but it is commonly accepted that this development occurred during the repub- lic.⁴¹ In all likelihood, both the acquisition of new territories, first in Italy and later abroad, as well as the effect of the Gracchan land reforms contributed to the formation of the Roman legal concept of dominium, which is thought to have come into existence by the start of the first century BC.⁴² Linked to this, and as a precursor to the development of dominium, possession as a legal concept developed in republican law.⁴³ The concept in its various forms was, according to Kaser, already widely known in Roman law by the third century BC.⁴⁴ Possession must have been particularly useful as a legal concept in defining the nature of the entitlement of those individuals who held land in the provinces.⁴⁵

During the republic, a less formal mode of acquisition of ownership arose alongside mancipatio and cessio in iure to deal with the transfer of ownership of res nec mancipi.

The rise of this mode, called traditio (delivery), suggests a growth of the category of res nec mancipi. It arose sometime between the third and second centuries BC and was therefore most likely linked to the increased economic importance of res nec mancipi as well as the influx of foreigners after the conclusion of the Second Punic War.⁴⁶ The third method of acquiring ownership of property, prescription, underwent substantial changes in republican law. The early Roman law concept, usus auctoritas, was transformed into usucapio (possibly during the second century BC), and various legal requirements for its operation were introduced.⁴⁷ This development in particular suggests the growth of a more sophisticated legal concept of property in Roman law.

The number of ‘limited real rights’ which individuals could hold over the property of another increased during the republic. A category of servitus (servitudes) appears which contains both the original rustic servitudes of early Roman law and a number of urban servitudes, the latter no doubt a product of the increased urbanization of the Roman population.⁴⁸lang=EN-US>The exact legal nature of these ‘limited real rights’ during the republic remains unclear, which is to be expected given the developmental state of ownership and possession during this period.⁴⁹ The increasing complexity and sophistication of Roman property law during this period can be seen, for example, in the rise of two further types of entitlement to the land of another: the lease of state land (later known as emphyteusis), and the right to lease a building (superficies).⁵⁰

The rise of the formulary procedure and the impact of praetorian innovation upon the ius civile had an important effect on the remedies of early Roman law. A new proprietary remedy arose in the context of the formulary procedure.⁵¹ This new remedy, the formula petitoria (ownership formula), differed from its predecessor (it has been suggested by Buckland that there may have been an intermediate remedy, agere per sponsionem).⁵²The main advantages of the new remedy were that it dispensed with the wager, while at the same time strengthening the legal significance of ‘interim possession’ by placing the proof of ownership on the party who had not been granted possession.

The praetor also developed another important proprietary remedy during the republic, to deal with uncertainties surrounding ownership under Roman civil law. Sometime in the first century BC the actio Publiciana was created to assist individuals who, through no fault of their own, had failed to acquire ownership for good cause (causa) and who had lost possession before prescription (usucapio) could run its course.⁵³ The action contained a legal fiction that the time period for prescription had already passed. The significance of this action and the protection which it afforded are a matter of some debate.⁵⁴

Possession in the Roman law of the republic came to be protected by interdicts, a summary procedure that occurred in front of the praetor. Information about the origins ofinterdicts is scarce.⁵⁵ The main advantage of possessory interdicts as a remedy was that they did not enquire about the legality of the possession but merely preserved the status quo. An interdict thus often served as a precursor for a more comprehensive legal process in which the true state of affairs was ascertained. The praetor then commanded the offending party to abstain from any attempt to interfere with the possession. Failure to do so resulted in a fine. While the possessory interdicts were useful in protecting property rights, the fact that they were required in the first place suggests a fairly unsettled property regime which would be in keeping with the political and societal turmoil of the late republic. It is also clear from celebrated court cases like Cicero’s defence of Aulus Caecina that the legal interpretation of newly introduced possessory interdicts could be problematic.

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Source: Johnson David (ed). The Cambridge companion to Roman Law. Cambridge University Press,2015. — 554 p.. 2015

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