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BONA.
in the same person. And as a man might have both the Quiritarian ownership and the right to the enjoyment of a thing, so one might have the Quiritarian ownership only, and another might have the enjoyment of it only. This bare ownership was sometimes expressed by the same terms (ex jure Quiritium} as that ownership which was complete, . but sometimes it was appropriately called nudum jus Quiritium (Gaius, iii. 100), and yet the person who had such bare right was still called dominus, and by this term he is contrasted with the usu-fructuarius and the bonae fidei possessor.
The historical origin of this notion, of the separation of the ownership from the right to enjoy a thing, is not known ; but it may be easily conjectured. When nothing was wanting to the transfer of ownership but a compliance with the strict legal form, we can easily conceive that the Roman jurists would soon get over this difficulty. The strictness of the old legal institutions of Rome was gradually relaxed to meet the wants of the people, and in the instance already mentioned, the jurisdiction of the praetor supplied the defects of the law. Thus, that interest which a man had acquired in a thing, and which only wanted certain forms to make it Quiritarian ownership, was protected by the praetor. The praetor could not give Quiritarian ownership, but he could protect a man in the enjoyment of a thing — he could maintain his possession: and this is precisely what the .praetor did with respect to those who were possessors of public land ; they had no ownership, but only a possession, in which they were protected by the praetor‘s interdict. [agrariae leges$ p. 38.]
That which was in bonis, then, was that kind of interest or ownership which was protected by the praetor, which interest may be called bonitarian or beneficial ownership, as opposed to Quiritarian or bare legal ownership. It does not appear that the word dominium is ever applied to such bonitarian ownership except it may be in one passage of Gaius (i. 54), the explanation of which is not free from difficulty.
That interest called in bonis, which arose from a bare tradition of a res mancipi, was protected by the exceptio, and the actio utilis in rem. (Big. 41. tit. 1. s. 52.) Possessio is the general name of the interest which was thus protected. The person who had a thing in bonis and ex justa causa was also entitled to the actio Publiciana, in case he lost the possession of the thing before he had gained the ownership by usucapion. (Gaius, iv. 36.)
The phrases bonorum possessio^ bonorum possessor, might Alien apply to him who has had a res mancipi transferred to him by tradition only; but the phrase applies also to other cases in which the praetor by the help of fictions gave to persons the beneficial interest to whom he could not give the ownership. When the praetor gave the goods of the debtor to the creditor, the creditor was said in possessionem rerum^ or bonorum debitoris mitti. (Dig. 42. tit. 5. s. 14, &c.) [BoNORtJM emtio ; bonorum possessio.]
• As to things nee mancipi^ the ownership might be transferred by bare tradition or delivery, and such ownership was Quiritarian, inasmuch as the Roman law required no special form to be observed in the transfer of the ownership of res nee mancipi. Such transfer was made according to
BONA CADUCA.
the jus gentium (in the Roman sense of that term). (Gaius, ii. 26, 41, 20 ; Ulp. Frag. i. 16.)
(Zimmern, Ueberdas Wesen des sogenannten boni- tarisc/ien Eigenthums, Rlieiniscli. Mus.fur Jurispr. iii. 3.) * [G. L.]
BONA CADUCA. Caducum literally signifies that which falls : thus, glans caduca^ according to Gaius (Dig. 50. tit. 16. s. 30), is the mast which falls from a tree. Caducum, in its genera] sense, might be any thing without an owner, or what the person entitled to neglected to take (Cic. De Or. iii. 31, Phil, x, 5) ; but the strict legal sense of ca-ducum and bona caduca, is that stated by Ulpian (Frag. xvii. De Caducis}, which is as follows : —
If a thing is left by testament to a person, so that he can take it by the jus civile, but from some cause has not taken it, that thing is called cadu-cuni) as if it had fallen from him ; for instance, if a legacy was left to an unmarried person, or <i Latinus Junianus ; and the unmarried person did not within a hundred days obey the law, or if within the same time the Latinus did not obtain the Jus Quiritium, or had become a peregrinus (see Cujacius, ad Ulpiani Titulos XXIX. vol. i. ed. Neapol. 1758), the legacy was caducum. Or if a Jieres eoc parte, or a legatee, died before the opening of the will, the thing was caducum. The thing which failed to come to a person in consequence of something happening in the life of the testator was said to be in causa caduci; that which failed of taking effect between the death of the testator and the opening of the will, was simpty called caducum. (Cornp. Dig. 28. tit. 5. s. 62, and Dig. 31. s. 51; Code Civil, Art. 1039, &c.)
The law above alluded to is the Lex Julia et Papia Poppaea, which is sometimes simply called Julia, or Papia Poppaea. This law, which was passed in the time of Augustus (a. d. 9), had the double object of encouraging marriages and enriching the treasury—aerarium (Tacit. Ann. iii. 25), and contained, with reference to these two objects, a great number of provisions. Martial (v. Ep. 75) alludes to a person who married in order to comply with the law.
That which was caducum came, in the first place, to those among the heredes who had children ; and if the heredes had no children, it came among those of the legatees who had children. The law gave the jus accrescendi, that is, the right to the caducum as far as the third degree of consanguinity, both ascending and descending (Ulp. Frag. 18), to those who were made heredes by the will. Under the provisions of the law, the caducum, in case there was no prior claimant, bel mged to the aerarium; or$ as Ulpian (xxviii. 7) expresses it, if no one was entitled to the bonorum possessio, or if a person was entitled, but did not assert his right, the bona became public property (populo deferuntur)) according to the Lex Julia caducaria; but by a constitution of the Emperor Antoninus Caracalla it was appropriated to the fiscus: the jus accrescendi above mentioned was^ however, still retained. The lawyers, however (joiri prudentis-simi by various devices, such as substitutions, often succeeded in making tho law of no effect. A case is mentioned in the Digest (28. tit. 4. s. 3), in which bona caduca were claimed by the fiscus in the time of Marcus Antoninus, and another in which the fiscus is mentioned even under Hadrian, where one would expect to find the term aerarium used. (Savigny, System, &c. ii. 273, note qq.)
