it avoided the danger involved in every application for a definite § 57. formula, the danger, namely, of applying for the wrong formula, or of falling into some error in fixing the wording of the formula. It was not, however, till the fourth and fifth centuries respectively that this whole course of development was definitely brought to a close by means of two imperial constitutiones, one of which forbade the use of the 'hair-splitting juris formulae' (1. 1 C. de formulis sublatis 2, 57; A. D. 342), while the other, following up the first, provided that the defendant in an action should not be allowed to plead in defence that the plaintiff had failed to apply for an actio, i. e. for a formula (1. 2 C. eod.; A. D. 428). The abolition of the formulary procedure was thus brought about by a process as gradual and as spontaneously progressive as that which had once resulted in its growth and adoption. The upshot of this course of development was that, in point of form, every action became, in its entirety, a proceeding in jure, conducted before the magistrate or his deputy (in other words, a proceeding 'per cognitionem'), and that, in point of form, the extraordinary procedure became the ordinary procedure. In its material aspect, however, the new procedure was nothing more than a machinery for applying the law, and retained therefore, to this extent, the features of the ancient judicium. The formula ceased to be granted, and the place of the litis contestatio was taken by the act by which both parties submitted their case to the magistrate (1. un. C. de lit. cont. 3, 9). The disappearance of the formula removed the necessity for a money condemnation and, with it, that peculiar narrowness which, as we have seen (supra, p. 282 ff.), continued to characterize even the classical procedure. The magistrate could now decree specific satisfaction, and since his judgment was the judgment of an official, his decree could be followed by specific execution supported by the power of the state. The practice of decreeing specific execution led to the development, on a general scale, of that system of 'special' execution by pignoris capio which enabled an individual creditor to obtain satisfaction, without having to resort each time to the circuitous method of first attaching his debtor's entire estate (supra, p. 303). On the other hand, § 57. the fact that the judgment was the judgment of an official resulted in the full development of that system of appeals the aim of which was to substitute, in place of the decision of the lower official, the decision of a higher one, and, in the last instance, the decision of the emperor himself as representing the highest court of appeal (p. 240, note 5). The later procedure is thus characterized by greater freedom and elasticity, more especially in regard to the proceedings on judgment and execution. At the same time we observe a tendency to utilize the practice of appealing to the imperial power for the purpose of establishing a uniform system of jurisdiction throughout the whole vast empire'. The disappearance of the formula marked the disappearance of the last formal element of the old type and, with it, the disappearance of the last trace of the ancient magisterial sovereignty. Every judge was now a public officer in the modern sense of the term; every judgment was a judgment in the emperor's name, subservient to, and controlled by, the imperial authority. In a word, the procedure of the later empire marks the first stage in the development of the modern action at law". For further details on the procedure of the later Empire v. Bethmann-Hollweg, Der Civilprocess des gemeinen Rechts in geschichtlicher Entwickelung, vol. iii. (1866). For some recent contributions on points of detail v. A. Pernice, ZS. d. Sav. St., vol. vii. part 2, p. 129 ff.; ⚫ Cp. Schultze, loc. cit. p. 562 ff. CHAPTER II. THE LAW OF THINGS. $58. The Conception of a Thing. THE Romans applied the term 'res' to anything that can form § 58. part of a person's property, and divided res, in this sense, into 'res corporales,' or corporeal property (i. e. 'things' in our sense of the term), and 'res incorporales,' or incorporeal property, such as a right of inheritance, jura in re aliena, rights and liabilities under an obligation. With us the term 'thing' is generally only used in the narrower and technical meaning of a res corporalis, a thing, in the legal sense, being a material object which is capable of human dominion and is intended for human dominion, intended, that is, for the satisfaction of the economic needs of men. The sphere of real rights is thus determined. Things must necessarily be the objects of private rights. There can be no real right in respect of that which is not a thing, in respect, for example, of a mere fraction of a thing. pr. I de reb. corp. (2, 2): Quaedam. . . res corporales sunt, quaedam incorporales. § 1: Corporales eae sunt quae tangi possunt, veluti fundus, homo, vestis, aurum, argentum, et denique aliae res innumerabiles. § 2: Incorporales autem sunt quae tangi non possunt, qualia sunt ea quae in jure consistunt: sicut hereditas, ususfructus, obligationes quoquo modo contractae. v. supra, p. 164, note. $59. 859. The Different Kinds of Things. I. Certain things are prevented by a rule of law from being the objects of private rights. Such things are called 'res extra commercium.' Of res extra commercium we have three classes: res divini juris, res publicae, res omnium communes. (a) Res divini juris include 'res sacrae,' or things dedicated to the gods, such as temples and altars; 'res sanctae,' or things enjoying the special protection of the gods, such as the walls of Rome; 'res religiosae,' or things dedicated to the dii Manes, i.e. burial grounds. (Cp. supra, p. 198.) (b) The term 'res publicae,' or public property, originally embraced everything owned by the populus Romanus (state property). Whatever belonged to the Roman people lay outside the pale of private law (pp. 197, 198). It was not till, in the first instance, communities, and then the state, had come to be regarded as (private) juristic persons, that things used for the purpose of carrying on the separate establishments of the state or community-e.g. things used for the maintenance of schools or for the paving and lighting of streets (cp. p. 205, note), things, therefore, by which the individual members of the state or community were only indirectly benefitedwere admitted to rank with res privatae, and were, as such, treated as fit objects of ownership and commercial dealings in accordance with the rules of private law. Thus we find that, in Justinian's law, the term res publicae denotes, technically, only such public things as are 'publico usui destinatae,' things, that is, which are devoted to the common use of all, things-such as public roads, public places, public rivers-which directly benefit all individuals alike, and are never, therefore, on principle, the objects of exclusive individual rights after the manner of private rights. Things of this kind continued even in Justinian's law to be classed as res extra commercium, i. e. they continued to be withdrawn from the domain of private law. (c) Res omnium communes are the open air, the water of a natural stream, the sea, and the bed of the sea. Res communes are not, properly speaking, 'things' in the legal sense of the term, just as § 59. little as the sun, the moon, and the stars, or the atoms and ultimate particles of the naturalists, are 'things.' For the atmosphere of the earth, the ocean, and the flowing water of a natural stream (aqua profluens) are not, as such, susceptible of human dominion. GAJ. Inst. II § 3: Divini juris sunt veluti res sacrae et religiosae. § 4: Sacrae sunt quae diis superis consecratae sunt; religiosae, quae diis Manibus relictae sunt. § 5: Sed sacrum quidem hoc solum existimatur quod ex auctoritate populi Romani consecratum est, veluti lege de ea re lata aut senatusconsulto facto. 6: Religiosum vero nostra voluntate facimus, mortuum inferentes in locum nostrum, si modo ejus mortui funus ad nos pertineat. § 8: Sanctae quoque res, velut muri et portae, quodammodo divini juris sunt. § 9: Quod autem divini juris est, id nullius in bonis est. § 1 I. de rer. div. (2, 1): Et quidem naturali jure communia sunt omnium haec: aër et aqua profluens et mare et per hoc litora maris. Nemo igitur ad litus maris accedere prohibetur: dum tamen a villis et monumentis et aedificiis abstineat.... § 2: Flumina autem omnia et portus publica sunt, ideoque jus piscandi omnibus commune est in portu fluminibusque. §3: Est autem litus maris, quatenus hibernus fluctus maximus excurrit. § 4: Riparum quoque usus publicus est juris gentium, sicut ipsius fluminis; itaque navem ad eas appellere, 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 eorundem sunt. II. Res in commercio are all equally capable of being objects of private ownership. Among them the following distinctions are legally of importance: (a) 'Res nullius,' or ownerless things, are things which, as a matter of fact, belong to nobody, e. g. wild animals in a state of freedom. Ownership in them can be acquired by occupatio (infra, P. 335). (b) 'Consumable things' (res quae usu minuuntur vel consu |