INTRODUCTION TO BOOK II.

WITH the second Book of the Institutes we enter upon the discussion of the ius quod ad res pertinet. Instead of giving a plain statement of the contents of this branch of the legal system, Justinian follows Gaius in presenting us with a number of very perplexing cross divisions of res, which, however, only partially correspond with those of the earlier writer, and from which we are left to infer the meaning in which they both use the term when they make it their basis of classification. In three of these divisions there is no divergence between the two writers. Res are, firstly, either in patrimonio nostro or extra patrimonium nostrum (G. ii. 1, Inst. ii. 1. pr.); secondly, they are either corporales or incorporales (G. ii. 12, Inst. ii. 2. pr.): thirdly (though this classification is rather matter of inference than of direct statement), they are either res singulae or universitates (G. ii. 97, Inst. ii. 9. 6).

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The main point wherein Justinian differs from Gaius is his further treatment of the res in patrimonio and extra patrimonium. This distinction Gaius hardly seems to consider of much importance, for, after stating it, he proceeds: Summa itaque rerum divisio in duos articulos deducitur, nam aliae sunt divini iuris, aliae humani;' res divini iuris, as he goes on to remark, comprising res sacrae, religiosae, and sanctae; res humani iuris being either publicae or privatae. Justinian, however, makes it the basis of a further subdivision; he arranges the res which are extra patrimonium in subordinate classes -res communes, res universitatis, res publicae, and res nullius-the last corresponding with Gaius' res divini iuris. Res in patrimonio, on the other hand, either belong, or can belong, to private individuals (res singulorum); they seem to be identical with the res privatae of Gaius, and (the subject of the treatise being Private Law) are alone important for the purpose in hand. For the ascertainment of the

meaning of the ius (privatum) quod ad res pertinet, the classifications of res as communes, sacrae, religiosae, publicae, and universitatis may be regarded as eliminated.

If we cast our eyes over the contents of the second and third books of Gaius and Justinian, we shall find that, so far as the system is concerned, the only divisions of res which are of primary importance are, first, that into res corporales and incorporales, and, second, that into res singulae and universitates. Res corporales

having been defined (G. ii. 13, Inst. ii. 2. 1) as tangible objects, and such tangible objects as cannot be in singulorum dominio having already been excluded, the modes in which ownership (and incidentally possession) of them can be acquired, natural (Tit. 1) and civil (Tit. 6 and 7), are explained. Res incorporales having been defined (G. ii. 14, Inst. ii. 2. 2), the nature of some of them (viz. servitudes) and their modes of acquisition are described in Titles 3-5: others, viz. obligations, occupy the greater portion of the third Book. These are all res singulae: universitates and their modes of vesting are examined under the heads of hereditas, whether testamentary (ii. 10-25) or intestate (iii. 1-9), adrogation (iii. 10), and bonorum addictio libertatis causa (iii. 11).

Speaking briefly, then, the ius quod ad res pertinet, extending over the whole of the second and third Books and part of the fourth Book of the Institutes, treats of tangible external objects of property, with their titles; real rights over them of less orbit than dominium ; inheritance, comprising the subject of legacies: two less considerable forms of universal succession; and finally obligations, under the two heads of contracts and delicts or torts. All these are 'res;' the question still remains, What is the common property in virtue of which they are classed together, and the law relating to them set apart as one of the three great departments of the private code? To this question Mr. Poste (Gaius pp. 148 sq.), following Austin, answers that the law relating to res is set apart because it is the law of equal rights. By this he appears to mean, that in it all persons are regarded as equal, in the sense that exactly the same capacity of right and of disposition is ascribed to all, and that differences in such capacity are left out of sight, as belonging properly to the law of Persons or unequal rights. If this is his meaning, we cannot but reject it as entirely misleading. The division of law into law of equal and law of unequal rights is no older than Austin, and to attribute an acquaintance with it to Gaius is a mere anachronism. If by the ius quod ad res pertinet Gaius had meant to express the law of equal

rights, he would not, in it, have noticed incapacities of disposition (as he does in ii. 47. 80 sq. cf. Inst. ii. 8. 2), incapacities of right (as he does in ii. 87 sq.: cf. Inst. ii. 9. 1 and 2), disabilities in certain classes to take benefits of a particular kind (as he does in ii. 111) or exceptions from the ordinary rules for the execution of testaments (ii. 109; Inst. ii. 11): it would be superfluous to multiply instances from the law of contract or delict, for the objection that nearly the whole of the law relating to remedial rights, which as a matter of fact is placed under the head of actions, would on his hypothesis belong to the law of res, is fatal by itself.

A far truer explanation of this branch of the system is given by Professor Holland (Jurisprudence p. 85), who, following Savigny (System §53), defines it as the department of law which treats of such modifications of rights as result from varieties in the objects or in the acts with which they are concerned. ""Res" (the Roman lawyers tell us), are either "corporeal," things which can be touched, such as a farm, a slave: or "incorporeal," which cannot be touched, consisting in right only, such as a right of servitude, a right of action, a right arising out of contract. Now "corporeal " things are obviously what we have called the "objects" of the right; "incorporeal " things are the advantages which the person entitled can insist upon; in other words, "the acts or forbearances " to which he is entitled.' Though this may be true in the abstract, it seems erroneous to credit Gaius, to whom Justinian owed his classification, with a conscious juristic analysis of which there is no clear indication in his writings, and the importance of which, though familiar to us, seems to have first been placed in clear light by the continental jurists from whom it was derived by Austin.

The true point of contact between the various res seems in reality to be the fact that whoever has a res is, actually or prospectively, so much the better off. If then we embrace everything by acquiring which a man is materially better off-be it an estate or a five-pound note, a ius in re aliena or an inheritance, a right of action on a contract or a delict-under the general notion of property, we shall find in the ius quod ad res pertinet the law of proprietary relations, which is treated under the heads of Ownership, real rights less than Ownership, Possession, Inheritance, other universal successions, Contracts and Delicts. Of ownership or dominium, as a right or aggregate of rights, we are told little in the abstract; we have to gather its content from isolated passages. That it includes the rights of use and enjoyment is clear from the power of the dominus to separate them

off from his dominium, and vest them in other persons as distinct and independent iura in re aliena (Tit. 4. 1): from Tit. 1. 12 we gather that the owner has the exclusive right to the thing, and may lawfully prohibit others from interfering with his own enjoyment of it; the right of alienation inter vivos is stated emphatically in Tit. i. 40; that of testamentary disposition is attested by the phrase of the Twelve Tables-uti legassit super pecunia tutelave suae rei, ita ius esto-and is expounded at length in Titles 10-25. Certain abnormal cases, in which a person, though not owner, may, or, though owner, may not alienate, are noticed in Tit. 8. But the bulk of the text relating to dominium is taken up by the modes, natural and civil, original and derivative, in which it may be acquired, the preponderance of natural over civil titles, as compared with the law of Gaius' age, being particularly noteworthy. Titles 3-5 relate to the fragments of ownership called servitudes, which correspond very roughly to the easements and profits of English Law. Title 9 discusses the question of agency in the acquisition of ownership, and states the changes which had taken place since Gaius in the proprietary capacity of filiifamilias; here too we get a reference to Possession, which is not treated in extenso, but a knowledge of its rules is presupposed in the Title on Usucapio, and is supplied in an Excursus below.

The transition from modes 'quibus res singulae adquiruntur' to those 'quibus adquiruntur per universitatem,' brings us to the law of Inheritance; the rules which prescribe the devolution of a man's universitas iuris on his decease. This may take place either ex testamento or ab intestato: the exposition of testamentary succession occupies the remainder of the Book. Firstly (Title 10), are described the solemnities necessary for the execution of a valid will, the qualification required in the witnesses taking up some considerable space; but from these formalities soldiers, while on actual service, are exempt, and Title 11 points out the chief anomalies involved in this exemption. In Title 12 are stated the qualifications required in the testator, such as puberty and 'testamentifactio,' and the special precautions to be observed in the execution of a blind man's will are alluded to. Four successive Titles then explain the most ordinary contents of a testament, viz. exheredation of issue whom the testator wishes to exclude from all share in his succession (Title 13); the institution of the heres or universal successor (Title 14); substitutions 'vulgar' (Title 15) and 'pupillary' (Title 16), answering in some degree to the remainders so familiar in English deeds and wills. Title 17 enumerates the modes in which a testament might be or become void, such