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LIBER SECUNDUS.

I.

DE RERUM DIVISIONE.

SUPERIORE libro de iure personarum exposuimus: modo videamus de rebus, quae vel in nostra patrimonio vel extra nostrum Patrimonium habentur. quaedam enim naturali iure communia sunt omnium, quaedam publica, quaedam universitatis, quaedam nullius, pleraque singulorum, quae variis ex causis cuique adquiruntur, sicut ex subiectis apparebit.

Et quidem naturali iure communia sunt omnium haec: aer et aqua profluens et mare et per hoc litora maris, nemo igitur ad litus maris accedere prohibetur, dum tamen villis et monu-1 mentis et aedificiis abstineat, quia non sunt iuris gentium, sicut et mare. Flumina autem omnia et portus publica sunt: ideoque ius piscandi omnibus commune est in portubus

Tit. I. By res extra Patrimonium seems to be meant a thing which is legally incapable of being owned by a private person, i.e. it does not cease to be in patrimonio by not having, or by ceasing to have, a private owner. Extra Patrimonium is thus equivalent to extra commercium: but" in the former the res is viewed as incapable of private dominium, in the latter rather as incapable of acquisition by a private person. Having drawn the distinction, Justinian proceeds to classify res extra Patrimonium under four heads.

§ 1. Cf. Plautus, Rud. 4. 3. 36 ' mare quidem commune certo'st omnibus,' Cicero, pro Rosc. 26 'quid tam est commune, quam spiritus vivis, mare fluctuantibus, litus eiectis?' Seneca, benef. 4. 28, Ovid, metam. 6. 349. The seashore up to the line of the highest tide in flood or storm (hibernus=per hiemem, vel ventis excitatus), § 3, was communis because incapable of appropriation, though if by driving piles one erected a building upon any part of it he acquired property in the structure (but not in the soil, § 5 inf.) so long as it stood. This, however, could not be done without a decretum of the praetor, Dig. 41. 1. 50. The modern doctrine that the seashore between high and low tide belongs to the state is derived from Celsus, Dig. 43. 8. 3.

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2 fluminibusque. Est autem litus maris, quatenus hibernus fluctus maximus excurrit. Riparum quoque usus publicus

3 est iuris gentium, sicut ipsius fluminis: itaque navem ad eas

4 appellcre, funes ex arboribus ibi natis religare, onus aliquid in his reponere cuilibet liberum est, sicuti per ipsum flumen navigare. sed proprietas earum illorum est, quorum praediis haerent: qua de causa arbores quoque in isdem natae eorun

5 dem sunt. Litorum quoque usus publicus iuris gentium est, sicut ipsius maris: et ob id quibuslibet liberum est casam ibi imponere, in qua se recipiant, sicut retia siccare et ex mare deducere. proprietas autem eorum potest intellegi nullius esse, sed eiusdem iuris esse, cuius et mare et quae subiacent mari,

6 terra vel harena. Universitatis sunt, non singulorum veluti quae in civitatibus sunt, ut theatra stadia et similia et si qua alia sunt communia civitatium.

§ 2. Res publicae seem to be divisible into two classes, (1) Things which belong to and are used by the state as by a private person: e.g. public slaves, money, stores, etc.: these are not properly extra Patrimonium nostrum. (2) Things which are publico usui destinatae, (i.e. not communes generally, but only to ci ves), e.g. roads, harbours, public rivers (i.e. ' flumina perennia' Dig. 43. 12. 3) and their beds. The banks of public rivers were private property, subjected by the law to a kind of servitude in favour of all members of the state, § 4 inf.

§ 6. Universitas here seems to be used as equivalent to civitas, i.e. a Roman city or municipium. Taken in this sense, res universitatis are analogous to res publicae, and are divisible in the same manner. Such property only of a provincial city as is municipum usui destinatum, is extra Patrimonium: a res publica is a thing which any civis may use: a res universitatis is one which may be used as of right only by the members of the universitas.

Taken in its widest sense, universitas is equivalent to the 'juristic person' of modem writers. For the definition and characteristics of juristic persons in general reference may be made to Holland's Jurisprudence p. 225 sq.: those recognised by Roman law may be subdivided into universitates personarum and universitates bonorum. [The latter should not be confounded with so-called universitates rerum (distantium), such as a flock of sheep, which have no independent legal existence apart from the elements which go to make them up.]

A universitas personarum (or corporation) is an aggregate of natural persons forming an ideal whole, regarded by the law as a 'person1 distinct from its members for the time being, because its existence does not cease along with theirs, and invested with rights and subject to duties, other than those of the individuals, taken singly, of which it is com

Nullius autem sunt res sacrae et feligiosae et sanctae: quod enim divini iuris est, id nullius in bonis est. Sacra sunt, quae 7 rite et per pontifices deo consecrata sunt, veluti aedes sacrae 8 et dona, quae rite ad ministerium dei dedicata sunt, quae etiam per nostram constitutionem alienari et obligari prohibuimus, excepta causa redemptionis captivorum. si quis vero auctoritate sua quasi sacrum sibi constituerit, sacrum non est, sed profanum. locus autem, in quo sacrae aedes aedificatae sunt, etiam diruto aedificio adhuc sacer manet, ut et Papinianus scripsit. Religiosum locum unusquisque 9

posed: so that legal relations can subsist between it and them and any number of them no less than between it and other persons generally. Such corporations may be exemplified by the state (Dig. 49. 14, Cod. 10. 1), ecclesiastical bodies (Dig. 28. 3.6. 7), and commercial associations, 'collegia pistorum, fabrorum,' etc. (Dig. 3. 4. 1. pr.)

Universitates bonorum are juristic persons not necessarily supported by any natural person: they are so much property, or masses of rights and duties (Giiterinbegriff) personified and regarded as capable of perpetuating their separate existence and fictitious unity indefinitely, e.g. the treasury or fiscus: foundations such as churches, hospitals, and almshouses: hereditates iacentes, i.e. inheritances on which no heir has yet entered, and the 'estate' or universitas iuris of a citizen lying in captivity with the enemy, Dig. 3. 5. 19. 5. Savigny's dictum as to the origin of corporations (which is stated by Mr. Poste, Gaius p. 156) seems untrue in the face of Dig. 34. 5. 20, from which it may be argued that persons could always incorporate themselves for lawful purposes without the special assent of the sovereign.

§ 7. When it is said that res sacrae, religiosae, and sanctae are res nullius, what is meant is rather that they were nullius in bonis, i. e. extra patrimonium. Res nullius, in the more technical sense, are those things which 'fiunt singulorum' by occupatio, 12-18 inf.

§ 8. Res sacrae could become so only by being dedicated under public authority by a priestly ceremony (for which in the pagan time see Cic. pro domo 47, Ovid, Fast. 1. 610, Valer. Max. 5. 10) in the later period the imperial sanction seems to have been sufficient, Dig. 5. 3. 50. 1; 11. 7. 8. pr. By consecration they ceased to be in commercio and became inalienable, though in Justinian's time moveable res sacrae might be sold for the purpose mentioned in the text (cf. Gregor. ep. 6. 13, Socrates, trist. eccl. 7. 21) and also for the support of the poor in time of famine, and for payment of the debts of the church, Cod. 1. 2. 21, Nov. 120. 10. If sacred ground was captured by the enemy, it became profanum, though by a kind of postliminium it could recover its former character, Dig. 11. 7. 36.

§ 9. Gaius (ii. 4) describes res religiosae as things 'quae dis manibus

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sua voluntate facit, dum mortuum infert in locum suum. in communem autem locum purum invito socio inferre non licet: in commune vero sepulcrum etiam invitis ceteris licet inferre. item si alienus usus fructus est, proprietarium placet nisi consentiente usufructuario locum religiosum non facere. in alienum locum concedente domino licet inferre: et licet postea ratum habuerit, quam illatus est mortuus, tamen

10 religiosus locus fit. /Sanctae quoque res, veluti muri et portae, quodammodo divini iuris sunt et ideo nullius in bonis sunt. ideo autem muros sanctos dicimus, quia poena capitis constituta sit in eos, qui aliquid in muros deliquerint. ideo et legum eas partes, quibus poenas constituimus adversus eos qui contra leges fecerint, sanctiones vocamus. .

11 Singulorum autem hominum multis modis res fiunt: quarundam enim rerum dominium nanciscimur iure naturali, quod, sicut diximus, appellatur ius gentium, quarundam iure civili. commodius est itaque a vetustiore iure incipere. palam est autem vetustius esse naturale ius, quod cum ipso genere humano rerum natura prodidit: civilia enim iura tunc coeperunt,

relictae sunt:' here little seems to be expressed by the term except ground used for burial, though there is reference to moveable res religiosae in Bk. iv. 18. 9 inf., and Dig. 48. 13. 1. As is said in the text, soil could be made religiosus by its full owner burying a corpse in it, or (Dig. 11. 7. 4) being buried in it himself: hence, as Gaius points out (ii. 7), provincial soil could not properly become religiosus because it could not be owned ex iure Quiritium by a private person: however, 'pro religioso habebatur.' Ground which had thus become divini iuris was to a certain extent private property, as in the case of family burialplaces: it was extra Patrimonium only in the sense that it could not be diverted from the purpose to which it had been devoted.

§ 10. Under the older law res were made sanctae by a religious ceremony: 'sanctum ... a sanguine hostiae ... nihil enim sanctum apud veteres dicebatur, nisi quod hostiae sanguine esset consecratum aut conspersum' Isidor, orig. 15. 4, the result being 'ut violari sine poena (maiore) non possent ' Aelius, Gall, apud Festum, 'sancire est confirmare et irrogatione poenae ab iniuriis defendere' Isidor. I.c. It is probably the retention of the penalty without the ceremony of consecration which makes Gaius (ii. 8) speak of them as 'quodammodo divini iuris.'

§ 11. Having excluded the consideration of res which cannot be the private property of individuals, Justinian proceeds to point out the various modes in which ownership over res singulae (corporales) can be acquired. Before passing on to these, it is necessary to note briefly the cum et civitates condi et magistratus creari et leges scribi coeperunt.

various meanings which the term dominium (ownership) bore in the course of legal history and its relation to other cognate notions.

Full Roman ownership, dominium ex iure Quiritium, had two conditions. It could be exercised only over such objects as were in commercio (and therefore not over res divini iuris and res publicae, especially provincial soil) : and it could be vested only in persons who had the commercium (p. 26 supr.), i.e. cives, Latini, and peregrini to whom it might have been granted as a special favour. With the rapid provincial extension of Rome and the large influx of peregrini, the strict 'civil' Roman dominium soon reproduced itself in a 'natural' counterpart. He who had the commercium, though he could not 'own' provincial soil, could stand to it in a very similar relation, called possessio properly, and later even, though laxly, dominium. Similarly the peregrinus, though he could not be dominus ex iure Quiritium, had a sort of property: the praetor granted him actions for its recovery differing only in small technical points from those which lay at the suit of the full citizen. In short, we arrive at the idea of a new kind of dominium (Gaius ii. 40) called by the moderns dominium ex iure gentium, or gentile ownership, because recognised by the ius gentium, though not by the ius civile: acquirable only in modes not peculiar to the latter, and differing from full Roman ownership also in respect of the persons in whom it could be vested, in the objects over which it could be exercised, and in the remedies by which it was recovered.

This distinction is one between civil and natural law. But we also find another, implicated with the former only, and originating in defective conveyances. In certain things (res mancipi) property could be transferred ex iure Quiritium only by a precise observance of the mancipation form. Mr. Poste has pointed out (Gaius p. 172) that this itself was at first probably a simplification: it was easier to convey a res mancipi than a res nec mancipi, for the latter at the time of which we speak required the cumbrous process of in iure cessio and most of the formalities of an action-at-law: the former was a mere private transaction. But when traditio or bare delivery was recognised as able to pass the property in res nec mancipi 'the tables were turned: things, which formerly were most difficult, were now most easy to aliene: the term mancipable, which before denoted an enlargement of the powers of alienation, now denoted a restriction,' for res mancipi could not be conveyed by the new and simple process of traditio. Still, the practice of traditio extended itself largely also to res mancipi, but the effect of this was to leave the dominium in the transferor; all that the transferee acquired was bona fide possession, he was said to have the thing ' in bonis;' by later writers he is called 'bonitarian' owner. In a short time (Tit. 6 inf.) his possession ripens by prescription into full ownership: meanwhile his transferor's rights over the object (termed nudum ius Quiritium) are merely nominal, and against him sometimes (note (3) on

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