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unknown to the authorities: Gaius says (i. 115 a, 162 ; iv. 38) that a woman who passed in manum underwent capitis deminutio, and does not add that this occurred only when she had been sui iuris, and there is the same silence as to the assumed distinction in Ulpian, reg. 11. 13, and Cic. Top. 4. Savigny affirms that though in these passages there is no express limitation to the case of indipendent women, yet this limitation must be understood, in which supposition Mr. Poste (note on Gaius i. 162) thinks there is nothing ' outrageous.'
(3) In reply to the question why a child, on being emancipated or given in adoption, was capite minutus, Savigny answers 'because a necessary step in these processes was the assumption of the condition of mancipium, a semiservile condition (" cum emancipari nemo possit nisi in imaginariam servilem causam deductus" Dig. 4. 5. 3), and it was this degradation, not the emancipation or adoption itself, which produced the capitis deminutio.' Assuming the truth of this for the sake of argument, it follows that when for the old forms of emancipation and adoption Justinian substituted new forms (notes on Bk. i. Tit. 11. 2, Tit. 12. 6 supr.) in which there was no approach to ' degradation,' emancipation and adoption must have ceased to be attended by capitis deminutio. But the passages in the Corpus iuris which affirm that capitis deminutio still accompanied emancipation (e.g. Bk. i. 16. 3. supr. ' vel contra :' Dig. 4. 5. 3, ib. 9 etc.), are too numerous to allow us to believe, as Savigny supposes, that they were admitted into the Corpus by an oversight of the compilers: and as adoptio plena extinguished patria potestas, we may almost certainly conclude that this extinction was still attended by change of agnatic family, which (except in one or two anomalous cases) always went hand in hand with any extinction of patria potestas which was produced by act of the parties.
There are certain legal facts upon which Savigny relies as absolutely irreconcileable with the view adopted in the notes referred to, and which are supplied by the cases of the Vestal Virgin and the Flamen Dialis. As regards the former Gellius says (1. 2) 'virgo autem Vestalis simul est capta atque in atrium Vestae deducta et pontificibus trad i ta, eo statim tempore sine emancipatione ac sine capitis minutione e patris potestate exit et ius testamenti faciendi adipiscitur .... virgo Vestalis neque heres est cuiquam intestato neque intestatae quisquam, sed bona eius in publicum redigi aiunt. Id quo iure fiat, quaeritur.' From this passage Savigny infers that — though, as is expressly stated, she had not been capite minuta—a Vestal Virgin left her previous agnatic family. It is to be observed that this is merely an inference: all that is stated in the text is that on a vestal's dying intestate she had no heir ab intestato, but that her estate escheated to the treasury, and the lawyers were puzzled to explain this: 'id quo iure fiat quaeritur.' Savigny says the explanation is simple: 'The reason why a vestal had no intestate heirs was that a woman could have no suus heres, and that she, in particular, had no agnates to take in default, because she had left her agnatic family.' But if this had been the true solution, can we believe that the Roman lawyers were unable to discover it? It would have suggested itself to the veriest tyro; and it is inconceivable that had this been the case Gellius could have written the words ' id quo iure fiat quaeritur.' A better explanation is perhaps to be found in the vestal's immediate relation to the gods: her life had been devoted to their service, and it was only consistent that, on her dying wi1hout disposing of her property by will, it should go to the treasury for sacrificial purposes. The case of the Flamen Dialis is exactly parallel: see Gaius iii. 114.
The real fact seems to be that Savigny has been misled by his desire to establish ' a harmonious system of legal conceptions' into adopting a view against which there is an irresistible weight of textual authority; he has been overpowered by the word 'deminutio,' and by the analogy which, according to him, there ought to be between deminutio maxima, media, and minima. Not to speak of the impropriety of arguing from words in the face of the clearest authority to the contrary, it may be observed that the jurists agree in describing the essence of capitis deminutio as a mere change rather than a deterioration of condition: it is a ' status mutatio.' It is true that in many cases of capitis deminutio minima (e. g. often in adoption) the agnatic rights which were lost were more than outbalanced by the rights acquired in the new family; but the prominent idea, the feature on which the legal mind is concentrated, is usually the immediate loss, not the compensatory gain. Savigny himself would not deny that there was a capitis deminutio (media) when a Roman citizen lost his civitas, even though he acquired citizenship in another city whereby he enjoyed far greater advantages: and similarly, it is always a capitis deminutio (minima) if a man loses his previous agnatic rights, even though he acquires in exchange a perhaps better and more advantageous position in another family.
INTRODUCTION TO BOOK II.
W1th 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 gather by induction 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 nostra 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).
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 p. 159), 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 ordinar}- rules for the execution of testaments (ii. 109, Inst. ii. 11): it would be superfluous to multiply instances from the law of contract and 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 whose importance, 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 enr joyment 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. 1. 40: that of testamentary disposition is attested by the phrase of the Twelve