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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 sui heredes 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 ana wills. Title 17 enumerates the modes in which a testament might be or become void, such as original informality, revocation, subsequent birth of a suus heres, and capitis deminutio of the testator: and in Title 18 is discussed the querella inofficiosi testamenti, the right of certain relatives of the deceased to impeach and upset his will, for not having left them a certain minimum of his property. The division of heredes into necessarii, sui et necessarii, and extranei, the necessary qualifications of the last, and the modes in which they can accept the inheritance, follow in Title 19, which also contains a reference to the vast revolution effected in the character of heres by Justinian's own introduction of the ' inventory.' Legacies are treated at length in Titles 20 and 21, and the successive limitations placed upon their amount in Title 22. The last three Titles are occupied with the subject of fideicommissa, trust successions and bequests, the legislation relating to them, and codicilli, a form of disposition resembling a will, but incapable of directly passing the deceased's universitas iuris, and employed for the purpose of creating fideicommissa, or of adding to or modifying a previously executed testament.
No small amount of criticism has been passed upon the grouping together in one department of a legal system of the topics which are comprised under the ius quod ad res pertinet, and which, we may truly say, would not be co-ordinated upon any other principle of classification. The most solid objection is the inclusion of the law of Inheritance and that of obligations in the same division with that of property and other real rights. The place of the first is due to its character as one of the modes of universal succession, among which it ranks with adrogation, bonorum addictio libertatis causa, and (in Gaius) conventio in manum, hereditatis in iure cessio, and venditio bonorum. Through this false idea of proportion the importance of Testamentary and Intestate succession, as an independent branch of law, is altogether obscured: moreover, as Savigny has remarked, these modes 'quibus res per universitatem adquiruntur' are exclusively regarded as titles to rights, whereas they are equally sources of obligations. Accordingly, the German jurists, in their systematic treatises on Roman law, here abandon the Roman classification, and make Inheritance one of their main divisions, instead of subordinating it to that between titles to res singulae, and titles to universitates.
Why obligations are ' res' has been already pointed out. When an obligatio is said to be a res, the active, or creditor's side of the relation is intended. The promisee in a contract, unless the promise is performed, and the plaintiff in an action on delict, have the power of recovering damages by action; this partial control over another's freedom of action is money's worth, and falls under the category of property, in the wide sense in which the term has been used above. An even more intimate point of contact between the law of ownership and the law of obligations may be found in the ultimate purpose of the largest and most important class of the latter, viz. the creation of real rights, or the communication of their exercise and enjoyment This co-ordination however of obligations with rights in rem is regarded by the Austinian school as an egregious error of arrangement, on the ground that the distinction between rights, according as they are real or personal, is a radical one for purposes of classification: yet it is adopted by the continental writers on Roman law, who subdivide Vermogensrecht, or Property law, into Sachenrecht, comprising ownership, possession, and iura in re aliena, and the law of obligations, whether arising ex contractu or ex delicto. Indeed, the very treatment of contracts and delicts together, as facts or events from which obligations arise, is considered faulty by Mr. Hunter, because, as he alleges, the sole connection between them was that they formed two subdivisions of actiones in personam. 'In the statement of claim it was alleged that the defendant ought to do or pay something. In an action, then, upon a contract or delict, the formulae were very similar, while both stood in marked contrast to the formula in an actio in rem. It is easy to understand, therefore, why the Roman writers included contract and delict under the common designation of obligatio' (Roman Law, Introduction p. xxxvi). It is not however the action, but the right which the action is designed to enforce, to which attention should be directed; and whether a man refuses to perform his contract, or violates a right in rem, the right which arises from the refusal or the violation is a right in personam. It may be replied that this involves a confusion between antecedent and remedial rights: but this is a purely party objection which Gaius could not have been expected to answer. On the other hand, Mr. Hunter may himself be met by the charge that he regards contracts from the wrong point of view. A contract may be analysed into two elements, the agreement or promise, and the obligation which is annexed to it by law. Now Roman and modern law differ as regards the importance which they respectively attribute to these two elements: the former bringing the obligation into the foreground, the latter rather dwelling on the consensus of the parties. Yet the Roman view here seems to be strictly correct and lawyer-like, for a promise without an obligation, such as English lawyers call a nudum pactum, is in the eye of the law non-existent, while an obligation has an independent legal existence; it is the obligation, consequently, which for legal purposes should be deemed of primary importance, and constituted a summum genus for purposes of classification. If contracts are not to stand isolated and out of all connection with
other parts of the system, they must, in reason, be co-ordinated with other facts from which the same kind of legal relation, namely obligation, arises. And from this point of view Mr. Hunter is himself inconsistent, for he co-ordinates with contracts certain other sources of obligation, viz. quasi-contract, and what he calls Status, while he omits delict from this connection altogether. Under Status, as a source of obligation, he groups the family relations of husband and wife, and parent and child; but the incorrectness of this had been long before shown by Savigny (System § 58), who remarks that these relations, and that produced by contract or delict, are altogether disparate; the latter being the partial and temporary subjection of one person to the will of another, the former being permanent, and having a content natural and moral as well as legal: its legal content being not so much the personal right against the other party as a real right to non-disturbance by the world at large>.
Important changes had taken place in the law comprised in this second Book since the time of Gaius. In respect of modes of acquisition the ius gentium had reaped another triumph; in iure cessio and mancipatio, the oldest titles of the ius civile, which had already become practically obsolete, were formally abolished by Justinian, who also swept away, in the train of the latter, a troublesome distinction and much antiquated learning. The simplification of law effected by the recognition of traditio or mere delivery as the universal mode of conveying res singulae is however perhaps no more to be admired than Justinian's masterly codification, or more properly reform, of the law of Usucapio or Prescription, which had hitherto consisted of two different sets of rules, the one civil, the other praetorian, whose divergence had been occasioned by the absurd survival of the doctrine that provincial soil could not be owned by private individuals. The great change in the proprietary rights of filiifamilias, initiated under Constantine by the institution of quasicastrense and adventitium peculium, was consummated by Justinian himself; the survival of the patria potestas was thus made tolerable by the partial surrender of one of its most valuable privileges. The direct acquisition of possession, and so of ownership through agents, had been sanctioned by a constitution of Severus, based upon a consensus among the jurists, who in Gaius' time had been divided upon the question; and the interests of mortgagors were carefully guarded by Justinian's regulations as to the exercise of powers of sale and foreclosure. In the law of wills, apart from changes in their form, 1 Cf. Holland's Jurisprudence pp. 112 and 165.
and the introduction, already noticed, of the 'inventory,' by far the most important development was that effected by Justinian's assimilation of legacies and fideicommissa. When Gaius wrote, prescribed forms were still required for the former, which were also recovered by different remedies; but, by requiring the observance of certain evidentiary solemnities in the creation of fideicommissa, by freeing legacies from the trammels of language, and by the abolition of the formulary procedure, later emperors had removed many of the distinctions between them, and such as had remained were swept away by Justinian's ordinance, that in future the rules and remedies of each should apply to both indifferently, which also presented an opportunity for constructing one consistent enactment from the provisions of the senatus consulta Trebellianum and Pegasianum, the latter of which had half undone the judicious rule introduced by the former for the assimilation of fideicommissarii to directi heredes. Many unreasonable prohibitions, such as those of legacies to incertae personae, poenae nomine, and post mortem heredis, were also abolished by Justinian, whose changes in connection with the querella inofficiosi testamenti, both before and after the publication of the Institutes, are noticed in the notes to Title 18.