§ 2.-Things. One of the main purposes of law is to settle the competing claims of persons to portions of the material universe. These become "property," and the appropriation of them is the subject-matter of "contracts." In either case law is called upon to ascertain the rights of the parties; to prevent, by anticipation, the controversies which might otherwise arise; or to determine them, by a judicial sentence, after they have arisen. Thus law has a main concern with these material objects or things, so far as they are susceptible of complete appropriation or even of momentary possession. The rules of law which apply to different classes of things have in all countries grown partly out of the various physical nature and capabilities of the things themselves, and partly out of historical, political, and social accidents which have led to the thing being impressed with a special juridical character based upon the possibilities and modes of its being owned and transferred. Physical and juridical classes are seldom co-extensive; in other words, the limits of a class based on the physical features of things seldom correspond precisely with the limits of a class marked out by historical development or juridical symmetry; and therefore law has arbitrarily to determine what things do, and what do not, fall within the juridical class. Before examining the chief classes into which things were distributed in Justinian's time, it must be noted that the word res, like the words sache and thing in German and English, had a wider meaning, besides the narrower and stricter meaning of a sensible and material object. There were" incorporeal" as well as "corporeal" things; incorporeal things including such groups of rights as are implied in an inheritance, an obligation, a right of using and taking the fruits (usufructus), a right of guardianship. Res or thing, in this sense, was only a L. 2, J. (ii. 2). convenient term to signify an integral group Ulp. (xix. 11). of rights which, for the moment, by the act of the imagination, are treated as consolidated into a material substance, and as becoming objects of rights outside themselves. An inheritance, for instance, like the true corporeal things which enter into its composition, may be acquired, lost, or transferred, as may also an obligation and an usufruct, and thus the analogy between these composite rights and material things is not wholly forced and unnatural. I. The broadest and the most important of all divisions of things was that between things susceptible of appropriation by private persons and things not so susceptible L. 6, D. (xviii. (in nostro patrimonio, in commercio, extra patri1). L. 1, § 2, monium nostrum, extra commercium). Things D. (xx. 3). which were not susceptible of appropriation by private persons were: (1) Things common to every one (res communes), as air, flowing water, the open sea, and the sea-shore. These things were not appropriated even by the State, though the use of them, as, for instance, in case of building temporarily on the sea-shore, was regulated by 2 L. 3, J. (ii. 1). law. The inland limit of the sea-shore was the highest line to which the tide reached in winter.2 1 L. 14, 50, D. (xli. 1). (2) Things set aside for peculiarly solemn uses (res divini juris, res nullius). These things were, in fact, withdrawn from the general market and set apart by the State for sundry purposes recognized as of supreme importance, whether of a practical or purely sentimental kind. These things were subdivided into i. “sacred,” ii. “religious," and iii. "sanctified" (sanctæ). (i.) "Sacred" things were things which had been publicly and solemnly devoted to the service of God, as churches, offerings, and vessels used in divine worship. They could neither be owned, possessed, alienated, hypothecated, or pledged even by the ministers of 1 L. 8, J. (ii. 1). L. 30, § 1, D. religion, except in case of extreme necessity, as D. (xli. 3). L. for the redemption of captives.1 Ecclesiastical Nov. (cxx. 10). Property, that is, property vested in the Church, was not included among sacred things, though it could only be alienated and mortgaged with special formalities.2 21, C. (i. 2). 2 L. 14, 17, C. (i. 2). L. 9, J. (ii. 1). L. 2, C.(iii. 44). (xi. 7). (ii.) "Religious" things were places in which dead bodies (or, at any rate, their heads) were buried by persons legally entitled to use the places for such a purpose. Such a place was incapable of being possessed or owned so long as the remains continued there; but if the remains were removed by authority, the place lost its religious character; and if the place was occupied by an enemy, its religious character as well as the sacredness of 1 L. 36, 44, D. "sacred" things in the same predicament- (xi. 7). was in suspense.1 The right to inter a dead 2 L. 14, C. (vi. body was a private right which was capable of 37). being transferred,2 (iii.) "Sanctified" things were the gates, walls, and ramparts of the city, which it was a capital L. 8,9,11, D. offence to injure or even to treat contemptuously. (i. 8). (3) Public things (res publica)—that is things appropriated by the State for the general use of all persons or the public service, such as the larger rivers which were never dry, ports, public squares, edifices, streets, and roads, and the banks of public rivers so far as their use for navigation went. These things were protected from L. 4, J. (ii. 1), injury by the executive authority. No person D. (xliii. 12), D. (xlii. 11). could appropriate them, but every one could, in subordination to the claims of the Government, use them. (4) Things belonging to a municipal corporation (res universitatis), for the common use of the citizens, as theatres, race-courses, public slaves, and the like. These things were vested in the municipal body, which might make what arrangements it pleased for the L. 6, pr. D. effective and equal enjoyment or use of them (i. 8). by all citizens. All other things were susceptible of appropriation by private persons (res singular&m). ณ. II. When once the line is clearly and finally drawn between the classes of things which can be appropriated or possessed by private persons and those which cannot, it may be laid down that the part of the law which determines the rights and duties of private persons (sometimes called "private law") has only to do with those things which are susceptible of appropriation or possession by private persons. The different physical qualities of these things have, in fact, gone far to determine the rights and duties of persons in reference to them, and for this reason it was held convenient in Roman law to treat things under those various physical aspects which impressed the most distinct juridical destination upon them. (1) THINGS MOVABLE AND THINGS IMMOVABLE (res mobiles and res soli). The immovability of things does not seem to have at first attracted the attention of Roman lawyers so much as the fact of some things being part of the national soil or very closely attached to the soil, whether by growth or close physical adhesion, as is the case of trees, standing corn, minerals, and permanent buildings. Of course these things were immovable as well as connected with the soil, but the prominent fact which arrested attention in respect to this class of things was this lasting connection with the soil, while the class of things opposed to them was recognized as simply movable or as moving themselves. The direct opposition, however, of movable and immovable things appears in the code especially in relation to pre (vii. 31). L. 2, 3, C. (vii. 37). scription, and it has become the most fixed one L. un., § 1, C. in modern Roman law. The words fundus and prædium were used in a broad generic sense, like the English words "land" and "estate," which may be taken as approximate translations of them. Thus under the name fundus was included land, with all the permanent buildings upon it and the things which naturally or artificially adhered to it. Under the name. prædium was included both land devoted to culture (prædium rusticum), and land, wherever situated, in D. (l. 16). town or country, with buildings upon it, or, at least, not cultivated (prædium urbanum). L. 198, 211, In drawing a line between things movable and things. immovable, the difficulty chiefly arises in respect of things which are not generally or frequently moved, but which are in fact movable, with greater or less detriment to the ground or buildings to which they are attached. These questions were solved, in practice, in Roman law, as in modern systems of law, by arbitrarily ranging certain doubtful things in the class of movables or immovables, not with reference to fine considerations of their physical qualities, but with reference to the juridical result of the arrangement. Thus the treatment of this class of questions belongs to that of the purely arbitrary classification of things into "principal and accessory." (2) THINGS PRINCIPAL AND THINGS ACCESSORY. There were some things the legal destination of which, as affecting the rights and duties of persons, was determined by their casual connection with other things, whether as being joined to them by intimate physical union or as being habitually and exclusively used as auxiliaries to the use of those other things. 1 2). Among things regarded as physically joined to other things and partaking of their legal attributes were trees, plants, and fruits generally, while not separated 1 L. 44, D. (vi. from the soil;1 and accretions, alluvions, and 1). L. 40, D. (xix. 1). buildings erected upon land which could not be easily removed (superficies). Among things L. 50, D. (ix. habitually and exclusively used as auxiliaries to the use of other things were things placed on land solely with a view to its better cultivation, as straw and manures; but not cattle or implements of L. 17, § 2, D. husbandry, because they were regarded as not (xix. 1). subserving, or at least as not essential to serve the primary purpose of the land (instrumentum fundi), and would vary with the enterprise or wealth of the cultivator. L. 14, D. Among the class of things regarded solely as (xxxiii. 10). appurtenances were drains for water, covers for 2 L. 12, § 24, wells, keys and locks or padlocks not attached.2 D. (xxxiii. 7). But all that belonged to the trade and profession of 1 |