¹ Etudes sur le Furtum, p. 287.

² As to a minor point, see below note 43.

³ For references see P. Huvelin, loc. cit. p. 256.

⁴ Pp. 290 et seq.

⁵ Pp. 272 et seq.

⁶ In Huvelin's words, p. 272, furtum proper consists in détournements, abus de confiance, usurpation d’immeubles etc.

⁷ Pp. 290 et seq.

⁸ We need not decide whether one of these meanings is prior to the other; cp. Huvelin, p. 487. Probably both of them are of equal age.

⁹ Hovelin, p. 271, n. 3, suggests that subripere, wherever it occurs in Plautus; might be a sign of interpolation. But even if it were so, his theory could not be saved.

¹⁰ E.g. Cod. Theod. 2, 23, 1, 2 (Impp. Honoriua et Theodosius AA. Crispino Comiti et. Magistro Equitum): Ne quis sane post hane definitionem nostri numinis surripiendo postulare audeat haec spatia…, poenam viginti’ librarun auri iubemus adscribi. It may also be mentioned that, very possibly, the use of the word subrepere was not without influence on the signification of subripere. Of course, ideas as to furturn and ideas as to subripere are not always exactly identical: but this is not the same thing as a definite, recognized distinction between the words.

¹¹ 8, 12.

¹² P. 272, n. 2.

¹³ Vide W. Gesenius (F. Buhl), Handwörterbùuch über das Alte Testament14, ***

¹⁴ Homer's Iliad 14, 217.

¹⁵ Pp. 273 et seq. Huvelin only cites the, passage from ceterum quod Brutus to quia scit alienum esse.

¹⁶ See pp. 274 and 276, n. 2; Huvelin's criticism, however, goes too far here.

¹⁷ We must always keep in mind that thensaurus is used here in the older sense of the word.

¹⁸ P. Collinet, Mélanges Fournier, pp. 71 et seq., and E. Levy, Zeitschrift der Savigny-Stiftung, Roman. Abtlg. 50, pp. 646 et seq.

¹⁹ According to D. 41. 3. 38 (Gaius libro secundo rerum cottidianarum sive aureorum) those juriats who declared theft of a field possible actually took the consequences and did not recognize usucaption of stolen land.

²⁰ This in spite of the fact that furtum fundi was known to several lawyers called veteres by Gaius, among them Sabinus (D. 41. 3. 38, 47. 2. 25 pr. and 1- Ulpianus libro quadragensimo primo ad Sabinum-and Gellius, Noetes Atticae 11. 18. 13). I do not think that theft of land can have been an original species of furtum. The phrase furtum fundi sounds to me like something of a metaphor: it may be an ingenious one, but it seems too artificial to date from the period of Brutus and Manilius. Obviously the theft dealt with by the XII Tables is theft of movable property only. Moreover, comparative law and also the etymology of furtum-ferre-point the same way. But, of course, it is an open question, and Huvelin, pp. 378 et seq., takes the opposite view, in connexion with his whole theory of furtum proprium and furtum. improprium.

²¹ Pp. 279 et seq.

²² P. 275.

²³ The text has been the subject of much controversy recently; see Index Interpolationum, vol. 3. The writer owes much to Ch. Appleton's article, Le trésor et la iusta causa usucapionis,’ Studi Bonfante, vol. 3, pp. 10 et seq. I doubt, however, if the text has actually suffered the alterations which he thinks it has. He contends that the first sentence of the paragraph is more easily intelligible, if one reads: Neratius et Proculus et solo animo [non] posse nos adquirere possessionem, si [non] antecedat naturalis possessio. But it is possible that, originally, there existed a passage, now lost, which preceded this sentence and in which it was explained that possession cannot be acquired solo corpore. If such is the case, the text is perfectly tenable in its present form. A point of more importance is that he declares the whole statement sed et si sciat, non capiet longa possessions, quia scit alienum esse to be interpolated. His linguistic argument is that a classical lawyer would not have used the same word scire twice within such a small space. Paul, he says, would have preferred to write quia non ignorat alienum esse. This is, however, not very convincing, since we do not know whether the horror of repetition was so strong among authors of the third century A.D. The material objection put forward by Ch. Appleton is the following. In that part of the text which he considers as genuine, it is laid down that he who acquires a field by usucaption simultaneously acquires a treasure ‘even if be does not know that it lies in his field.’ Obviously, the case that he does know it presented no difficulties, usucaption being allowed without question. Now Ch. Appleton claims that the jurists cannot possibly have had in mind here a thensaurus alienus, as it would appear from the ‘interpolated‘ passage. He says that, leaving aside the exceptional case of a person erroneously regarding another person's treasure as his own, it is doubtless furtum if one removes a thensaurus alienus before the period of usucaption is completed. Therefore, he goes on to say, it is not credible that a man, knowing a thensaurus alienus is in his field, should ever be able to usucapt it. It would be absurd, he thinks, that one should only have to wait patiently for one or two years and then be rightful owner of a thing which, had one taken it earlier, would have been res furtiva. According to him, whilst Brutus, Manilius and Paul spoke of a treasure in the ordinary sense, to wit, of which the ownership is no longer traceable, it was only an interpolator who, misunderstanding them, introduced the thensaurus alienus. But all this seems somewhat misleading. It has been stated earlier in this article that, at the period of Brutus and Manilius, a person who possessed a field in the way required for usucaption probably did not commit theft by removing a thensaurus alienus, since the treasure was regarded as part of the land; at least in those cases in which field and treasure belonged to a hereditas iacens or were abandoned by their owner appropriation was certainly permitted, although carried out in bad faith. Thus there is no reason whatsoever why pre-classical lawyers should not have recognized usucaption of a thensaurus alienus. It was different, of course, in the time of Paul. A treasure was no longer reckoned among the accessories of land, but treated separately. Usucapio pro herede and usucaption of abandoned goods had ceased to exist. Consequently, taking away a thensaurus alienus now constituted an offence: it was under these circumstances that Paul made the remark, held to be a gloss by Ch. Appleton, that usucaption should not take place even if the holder of the field knows about the treasure. We may observe that there is nothing to justify suspicion in the fact that Paul, though a late classical author, uses thensaurus in the older sense of the word. Clearly he comments here upon views expressed by much earlier lawyers, and it is only natural that he adopts their terminology.

²⁴ I am not convinced that the affectus possidendi must always be interpolated. On the other hand, however, Ch. Appleton, loc. cit. p. 10, goes probably too far when he ascribes to Proculus this requirement of a “special manifestation of the animus”. It may be noted that the question does not affect the main problem of this article.

²⁵ On the change from usucapio to longi temporis praescriptio, see above, p. 220.

²⁶ Actually Paul does use their decision for illustrating the theory of possession in general.

²⁷ Of course, we cannot be certain that this was a general principle, applicable in nil cases.

²⁸ Paul's remark is very brief, indeed, almost abrupt. But this is easily explained. He discusses possession here and not usucaption. The responsum of Brutus and Manilius, chiefly regarding usucaption, is only mentioned because it has some bearing on the theory of possession. Therefore, as far as questions are concerned that merely relate to usucaption, Paul does not go into detail.

²⁹ Paul does not take into account the very unusual case where the finder of another person's treasure honestly believes that it is his own.

³⁰ Similarly, even if we assume that Brutus and Manilius required bona fides, it was no doubt sufficient that there was bona fides with regard to the field; in other words, the bona fides relating to the field was considered to cover a treasure deposited there.

³¹ This is another argument against Ch. Appleton's view that the original text dealt with a treasure which has no traceable owner, the passage sed et si sciat to alienum esse being interpolated.

³² Possibly this indicates that the argument quia non sit sub custodia nostra was already offered by Sabinus at a time when custodia was not yet primarily a technical term signifying a certain degree of liability. The fact that the clause quamvis to nostra is indirect speech seems equally to suggest that Paul adopted it from earlier sources.

³³ It must not be forgotten that the jurists are always more careful in recognizing acquisition than continuation of possession. Thus it is not surprising to find that, in the case discussed, the owner's position with regard to the treasure is still strong enough to make it rather difficult for the holder of the field.

³⁴ Huvelin maintains that Julian would have put an et, not a vel: why?

³⁵ Justinian I. 2. 6. 2 does not count, being dependent on Gaius. Besides, it is very possible that the words et lex Atinia have been inserted by his people; there is nothing which suggests a post-Justinian interpolation.

³⁶ Huvelin emphasizes the fact that both Gaius and Julian belonged to the Sabinian school. But so did Sabinns. Moreover, the differences between the schools seem to me to lie in another field.

³⁷ Cp. F. Kniep, Gai Institutionum commentarius secundus, §§ 1–96, p. 17, n. 2.

³⁸ On the ‘Exactitude of Gains‘, see W. W. Buckland, Reflections Suggested by the New Fragments of Gaius, Juridical Review, December, 1936, pp. 354 et seq. Prof. Buckland's conclusion, p. 364, is ‘that Gaius is far from an exact writer, and that inferences that passages are interpolations or glosses which have slipped into the text, drawn from looseness or inaccuracy of language, are unjustified’. We may add, in this connexion, that it is similarly unjustified to use small points with regard to which Gaius seems to differ from the main bulk of the sources as the basis for important historical conclusions.

³⁹ For references, see Huvelin, pp. 256 et seq., 259 et seq., 269 et seq.

⁴⁰ According to the interpretation of the classical lawyers, the return must be to the dominus; see D. 41, 3, 4, 6 (Paulus libro quinquagensimo quarto ad edictum).

⁴¹ Römisches Strafrecht, p. 756, n. 1.

⁴² 3, 7.

⁴³ Thus one may, perhaps, suppose that the lex Atinia had dum. or dum non or dum ne revertatur rather than Huvelin's nisi. The innovation consisted in the very fact that usucaption was now impossible, not only for the thief himself, but right up to the moment in which the thing returns to its previous holder.

⁴⁴ The passage in Gellius thus shows that the lex Atinia is not much older than Brutus, Manilius and P. M. Scaevola. These jurists would not have dealt with the question of retroaction, if the law had existed for a long time past. It has been suggested recently that the lex Atinia dates from 240 B.C. But the evidence proves that this cannot be the case; see P. F. Girard, Manuel Elémentaire de Droit Romain, 7th ed. p. 321, n. 5.

⁴⁵ It may, incidentally, be observed that, as Huvelin himself points out. pp. 260 et seq., P. Nigidius is to be regarded as the real author of this text rather than Gellius. Now P. Nigidius, who was praetor in 58 B.C., some generations before Sabinus, calls the act of. subreptio a furtum and has it called so by P. M. Scaevola, Brutus and Manilius: the question concerning subruptum erit was, according to him, utrumne in post facta modo furta lex valeret an etiam in ante facta. It is clear that he at least did not make a distinction between res furtiva and res subrepta.

⁴⁶ The grammatical argument for this view would be, according to Gellius: si dividas separesque duo verba haec subruptum et erit, et sic audias subruptum (erit) tanquam certamen erit aut sacrificium erit, tum videbitur lex in postfuturum loqui.

⁴⁷ Si vero copulate permixteque dictum intellegas, ut subruptum erit non duo, sed unum verbum sit idque unitum patiendi declinatione sit, turn hoc verbo non minus praeteritum tempus ostenditur quam futurum.

⁴⁸ Q. Scaevola says patrem suum et Brutum et Manilium quaesisse dubitasseque. Unfortunately, we know nothing about the outcome of the discussion.

⁴⁹ I should like to mention that, although Huvelin's view on furtum proprium and furtum improprium cannot be accepted, his Etudes sur le Furtum are without doubt among the most brilliant monographs written on a Roman Law subject. As Ch. Appleton, loc. cit., p. 12, n. 19, points out, Huvelin himself seems finally to have given up the theory combated in this article. I am much indebted to Professor W. W. Buckland and to Mr. P. W. Duff for valuable criticism and suggestions.