of the corporation, yet the person of individuals, that is, their legal, as opposed to their natural, being, never became extinct. At the moment of death it was shifted to those who represented them. The son was clothed with the person of the father, the heir with that of the testator. What we mean by saying that the deceased is represented, that is, again made present and brought before us, the Roman jurists expressed by saying that his person had been shifted to those who succeeded in his place.

Use of the word res.

II. Things.

50. The word thing (res) has, in Roman law, a sense as artificial and as wide as the word person. As person comprehends every being who has rights and is subject to them, so thing comprehends all that can be considered as the object of a right. The object of a right may be incorporeal, or the pure creation of law, and need not be limited to things corporeal and visible. The law can separate the right to possess a field and the right to walk in it, and the object of each right is called indifferently a thing. When we attempt to classify these objects of rights, we are unable to select any one principle of division according to which we may distribute them. The aspects in which we may view them are too various to admit of a simple arrangement; we may, however, make a division approximately accurate by considering, first, those heads of things which we arrive at by examining the nature of the things themselves; and secondly, those gained by inquiring into the interest which persons have in them.

Division of

51. First, then, things may be corporeal or things. incorporeal; or, as the jurists expressed it, tangi Corporeal and possunt or tangi non possunt. We see a houso incorporeal. or a field; we do not see a right to inhabit the one or reap the fruits of the other. The physical, tangible object of sense is a corporeal thing; the intangible abstraction of the mind is an incorporeal thing, Incorporeal things always consist in a right; if we see a stream flowing, or a path winding through a field, the mind sees, as something distinct

from the object of sense, the power of using the water or of following the path. This power is, in the language of the law, an incorporeal thing; and a person may have a right to possess it just as he may have a right to possess a house or field. But this power is itself a right if taken cognizance of by the law, and considered as capable of being exercised by one or more persons to the exclusion of all others. When we say that an individual has a right to this right, we merely mean that he has a claim to be the person to exercise exclusively this power.

Things moveable and immoveable.

52. We may again speak of corporeal things as moveable and immoveable (res mobiles, se moventes, and res soli, res immobiles), a distinction so obvious that it needs no other remark than that some moveable things are so incorporated with immoveables, or so constantly associated with their use, that the law treats them as immoveables; as for instance a house, each brick of which is a moveable, is itself an immoveable, because attached to the soil.

Things divisible and indivisible.

53. Things are also either divisible or indivisible. We cannot divide a slave or a horse so that the several parts have the same value which they had when they were parts of a whole; but if we divide a field into four, we have four small fields.

Things principal and accessory.

54. They are also principal or accessory; that is, they are the direct object of rights, or are only so as forming portion of, or being intimately connected with, something that is; thus a tree is a principal thing, its fruit an accessory.

Genus and species.

55. Another distinction relating to things familiar to the Roman jurists was that between the genus and the species. By the genus was meant a whole class of objects, such as horses, or the general name for an object, such as wine, oil, wheat. Species was the particular member of the class, or particular portion of the object comprehended under the genus, as this horse, or the wine in this bottle. If a purchaser bought a horse or a certain quantity of

oil, the thing bought was said to be determined genere; if he bought a particular horse or the oil in a certain vase, the thing bought was said to be determined specie. All things which are included under a general name, such as oil or wheat, are commonly divided by being weighed, numbered, or measured, and were therefore spoken of by the jurists as being those things que pondere, numero, mensurare constant.

Res singu lares and

rerum uni

versitates.

56. We may, lastly, regard things as particular, or as collected under some head, when the whole collection is a thing in law. Thus a sheep is a particular thing (res singularis), a flock, composed ex distantibus uni nomini subjectis, is a collection of things, or, as the jurists expressed it, is a rerum universitas (or simply universitas). As also, of course, are such comprehensive things as an inheritance, a dowry, the peculium of a slave. 57. In proceeding to the second division of things according to the persons who have rights over them, and to the extent. of those rights, we must first notice the distinction in things caused by certain things having a sacred charac

Res sacra. ter (res divini juris). These were res sacræ, consecrated to the superior gods; or res religiose, such as tombs or burial grounds, consecrated to the infernal gods; or lastly res sanctæ, things human, but having a sort of sacredness attaching to them, such as the walls and gates of cities.

58. The State, again, impressed on some things a peculiar character. All things which were held by peregrini and not by citizens were peregrina. The soil which was included in the territories of the early State, the ager Romanus, Ager Romanus. was distinguished from all other land by being alone capable of being the subject of a sale by mancipation, and being alone held by the especial tenure of the jus Quiritium*. In later times, a greater portion of the soil of Italy was placed on the same footing with the soil of the ager Romanus, and solum Italicum came to be the name of all soil wherever situated to which the privileges of the old ager Romanus were accorded

DION. HALICARN. iv. 13.

as opposed to solum provinciale, which always remained, at least in theory, the property of the State, and of which a perfect ownership could not be acquired *. Justinian abolished this difference in the tenure of the soil.

59. In the older law there also prevailed a disRes mancipi. tinction, abolished by Justinian, between res mancipi and res nec mancipi. We know from a fragment of Ulpiant, what things were res mancipi. They were prædia in Italico solo, whether in the country or the city, servitudes (a term to be explained presently) over these prædia when in the country, slaves, and four-footed animals, as oxen and horses, tamed for the service of man. All other things were nec mancipi. We also know that property in res mancipi could only be transferred by mancipatio, that is, by a form of sale, in which the purchaser took hold with his hand of the thing purchased, and claiming it to be his tendered a piece of copper to the seller. The list of res mancipi is evidently a list of the possessions of an early agricultural community, and there can be scarcely any doubt that the form of sale required to transfer the property in them was the ordinary form of sale in such a community. At some period, and in some manner of which we have no knowledge, these possessions of an early agricultural community were contrasted with other forms of wealth, and the mode of transfer customary in, the one case was found not to be customary in the other. The law, sanctioning and embodying the custom, made the form of mancipatio necessary to pass res mancipi, and declared it not to be necessary to pass other things. So far is clear; but the difficulty is to account for the origin of the term. Why were these things called res mancipi? How is the expression connected with the word manus? In order to arrive at an answer, we must remember that a wife in the power of her hus

* ULPIAN, xix. 1; CICERO, pro Flacco, i. 32; GAIUS, i. 20. +ULP. Frag. xix.

The form of mancipatio will be more fully noticed in sec. 81 of the Introduction.

band was said to be in manu, and a free person, who sold himself, or was sold by the person in whose power he was, was said to be in mancipio. On the other hand, it was an essential feature in the form of transfer mentioned above that the purchaser should take the thing purchased in his hand. Two theories have been formed out of these data. The one considers manus as signifying "power,"* to be the root of the phrases mancipi and mancipatio. Thus res mancipi meant originally things in the hand, or taken by the hand, of the owner, and the taking by the hand in the form of transfer was symbolic of the purchaser holding or acquiring the thing in the way in which the seller had held or acquired it. The other theory looks primarily to the form of transfer. In order to show to the witnesses the fact of the transfer of the property, the purchaser made use of the expressive gesture of seizing the thing he bought with his hand, and hence the hand came to be a symbol of power or ownership. Either of these theories is plausible, and neither can be conclusively established.

60. If we look at things according to the

Res communes. persons by whom they are owned, we have a

division into res communes, as the sea and the air, which cannot be appropriated by any particular individuals; res Res publica. publica, things which belong to the State, as the State land (ager publicus), navigable rivers, roads, &c.; res universitatis, things which belong to aggregate bodies, as to corporations; and res private, things which belong to individuals: all these several kinds of things were

Privata.

In nostro

said to be in nostro patrimonio, i. e. we could,

patrimonio. in one way or another, have a property in them.

Lastly, there were res nullius, or extra nostrum patrimonium, things of which no one has the ownership, as wild animals, or unoccupied islands in the sea.

* How manus signifies power is a further question; it may be that the hand is merely a metaphor, as we say "in the hands" for "in the power" of a person; or it may mean the hand of a conqueror or plunderer, and thus originally things manu capta would be the booty of plunderers.