61. Having now given a sketch of the position of Rights. persons in Roman law, as also of the divisions of things, we now proceed to speak of that connection between persons and things which what are termed rights express. The necessities of his physical position

How divided.

oblige man to exert his power over the world of things; his special interests prompt each man to claim, as against his fellows, an exclusive interest in particular things. Sometimes such a claim sanctioned by law is urged directly: the owner, as he is said to be, of the thing publishes this claim against all other men, and asserts an indisputable title himself to enjoy all the advantages which the possession of the thing can confer. Sometimes the claim is more indirect; the claimant insists that there are one or more particular individuals who ought to put him in possession of something he wishes to obtain, or do something for him, or fulfil some promise, or repair some damage they have made or caused. Such a claim is primarily urged against particular persons, and not against the world at large. On this distinction between claims to things advanced against all men, and those advanced primarily against particular men, is based the division of rights into real and personal expressed by writers of the middle ages * on the analogy of terms found in the writings of the Roman jurists, by the phrase jura in re and jura ad rem. A real right, a jus in re, or, to use the equivalent phrase preferred by some later commentators, jus in rem, is a right to have a thing to the exclusion of all other men. A personal right, jus ad rem, or, to use a much more correct expression, jus in personam, is a right in which there is a person who is the subject of the right, as well as a thing as its object, a right which gives its

The term jus in re appears in the summary of law bearing the name of the Brachylogus which belongs to the twelfth century; both phrases occur in the pontificial constitutions of the thirteenth century. (See Sexti Decret. iii. 7, 8, in quibus jus non esset quæsitum in re, licet ad rem).

possessor a power to oblige another person to give or procure, or do or not do something. It is true that in a real right the notion of persons is involved, for no one could claim a thing if there were no other persons against whom to claim it; and that in a personal right is involved the notion of a thing, for the object of the right is a thing which the possessor wishes to have given, procured, done or not done. But the leading principle of the distinction is simple and intelligible, and though it has not been formally adopted in the system of the Institutes or of the leading jurists, yet the classifications of the different relations of persons and things. which they actually employed, are so capable of being assimilated to that which this distinction suggests that we need not hesitate to adopt it.

Dominium.

III. Rights over Things.

62. The most complete real right is of course that possessed by the absolute owner of the thing, the person who has power to dispose of it as he likes, and who holds it by a title recognized as valid by law. This ownership was in Roman law expressed by the word dominium, sometimes by proprietas. The dominus was entitled to the use of the thing (usus), to the perception of all its products (fructus), or to consume the thing entirely if it were capable of consumption (abusus). He could also dispose of, or alienate it at will. In the ancient system of private law, the owner was said to be owner ex jure Quiritium. Nor did the old law recognize any dominium other than that which was enjoyed ex jure Quiritium. But the prætors found occasions. when they wished to give all the advantages of ownership but were prevented by the civil law from giving the legal dominium. Another kind of dominium came therefore to be spoken of: and the term in bonis habere was used to express an ownership which was practically absolute because it was protected by the prætor's authority, but which was not technically the same as ownership ex jure Quiritium. Commentators have called this

ownership the dominium bonitarium, a term not, however, used by the jurists. The distinction between the dominium bonitarium and that ex jure Quiritium entirely disappeared under Justinian.

63. To the notion of dominium was opposed that Possessio. of possessio. A person might be owner of a thing

and yet not possess it, or possess it without being the owner. Possession implied actual physical occupation, or detention, to use the technical term, of the thing; but it also implied something more in the sense in which it was used by the Roman lawyers. It implied not only a fact, but an intention; not only the fact of the thing being under the control of the possessor, but also the intention on the part of the possessor to hold it so as to reap exactly the same benefit from it as the real owner would, and to exercise the same rights over it, even though he might be well aware that he was not the real owner, and had no claim to be so. The possessor had no rights over the thing; but he was entitled to have his possession protected against every one but the true owner, and length of possession would, under certain conditions fixed by law, make the possessor really become the owner of the thing possessed.

64. As the real rights over a thing may be very numerous, it is perfectly possible to separate them, and to give some to one person and some to another. We can, for instance, separate the right of walking in a field from the right of digging under the surface, and give the right of doing the one to this person and of doing the other to that. In this way each right that is separated off may be considered as a fragment of the whole dominium, capable of being given away from the proprietor. These fragmentary rights, these portions of the whole right comprised in the absolute ownership, were termed servitutes, because Servitudes. the thing was under a kind of slavery for the benefit of the person entitled to exercise over it this separate right. In some servitudes, the right over the thing subject to the servitude, res serviens, was attached to the ownership of another thing (res dominans); the servitudes were then spoken of as servitutes rerum or prædiorum, and a distinction was

made in these servitudes according as the right given by them referred to the soil itself, as the right to go or to drive over it, when the servitutes were said to be rusticorum prædiorum, or to the soil as supporting some superstructure, as a house, when the servitudes were said to be urbanorum prædiorum. In other servitudes, the right was given to particular persons; and the servitudes were then termed servitutes personarum. The most important of these latter servitudes were usufructus and usus. Usufructus was the right to enjoy a thing belonging to another person so as to reap all the produce derivable from it, as, for instance, all the fruits of the soil; usus was the right to use and enjoy a thing belonging to another person, only without reaping any of its produce, or altering its substance. Only immoveable property was subject to the servitutes prædiorum; both moveable and immoveable to the servitutes per

sonarum.

65. There were two other real rights which Emphyteusis had something of the nature of servitudes, but and superficies. which received a particular name. These were Emphyteusis and superficies. The former was an alienation of all rights except that of the bare ownership for a long term, in consideration of the proprietor receiving a yearly rent (pensio); the latter was the alienation by the owner of the surface of the soil of all rights necessary for building on the surface, a yearly rent being generally reserved. 66. Lastly, there was the real right given over Jus pignoris. a thing by pledge or mortgage pignus, hypotheca; the former term being used to express the case of the thing, over which the right was given, being placed in the possession of the creditor, the latter to express the case of it being left in the possession of the debtor. The right was given to secure a creditor the payment of his debt; and he had power to sell the thing, and to satisfy his claim out of the proceeds, if he could find no purchaser, to have himself made owner of the thing.

67. We may now proceed to speak of the mode in which real rights are acquired. We find at the outset an obvious

difference between acquiring rights over a particular thing, and acquiring rights over the entirety of a number of things comprised in such a term as an inheritance, which Acquisition includes the entirety of the rights belonging to of rights over things. a deceased person, both real and personal. We may thus divide the subject of the acquisition of rights into two parts, the first comprising the modes in which real rights are acquired over particular things, the second comprising the modes in which an entirety (universitas) of rights, both real and personal, passed from one person to another.

Acquisition of right over particular things. Occupatio.

68. We may mention, as the first of the modes of acquiring particular things, occupation, i. e. the seizing on a thing which is a res nullius: land in an unoccupied country is a res nullius, so are wild animals; if we seize on, or, as we should say, occupy the land, and catch the wild animal, we gain our right over the soil and the animal by having been the first to seize it.

Accessio.

69. Accession is the general term for the acquisition of rights over things which are added by the forces of nature to, and become an inseparable part of, another thing regarded as the principal thing. The owner of the principal thing, by virtue of his being owner, is the owner also of the accessory thing.

Tradition.

70. A contract, by which one person bound himself to give a thing to another, did not make that. other the owner of the thing. A further step was necessary. The thing must be handed over to the person who was under the terms of the contract, to become the owner of it. This handing over was called traditio; and a perfect traditio implied, first, that it was a real absolute owner, capable of alienating the thing, who transferred it, and, secondly, that he placed the new proprietor in actual possession of the thing.

71. The above are termed natural modes of acquisiGifts. tion; but there are some which derive their force only from the civil law. Among these is acquisition by gift. An ordinary gift did not make the person, to whom the thing was