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BOOK II.

1. Superiore commentario de iure personarum exposuimus; modo videamus de rebus: quae vel in nostro patrimonio sunt, vel extra nostrum patrimonium habentur.

2. Summa itaque rerum divisio in duos articulos deducitur: nam aliae sunt divini iuris, aliae humani.

3. Divini iuris sunt veluti res sacrae et religiosae. (4.) Sacrae sunt quae Diis superis consecratae sunt; religiosae, quae Diis manibus relictae sunt. (5.) Sed sacrum quidem

1. In the preceding commentary we have treated of the law of persons: now let us consider as to things: which are either within our patrimony or without it.

2. The chief division of things, then, is reduced to two heads: for some things are divini juris, others humani juris1.

3. Of the divini juris class are things sacred or religious. 4. Things sacred' are those which are consecrated to the Gods above: things religious those which are given up to the Gods below. 5. Now land is considered sacred when made so by au

Thus we

1 It will be observed that the divi- Res divini juris form only a part of sions of things given in §§ 1, 2 are res extra patrimonium. not coincident but disparate divisions. may tabulate:A. In patrimonio-Res singulorum. B. Extra patrimonium—(1) Res communes.

Of which the use is common to all the world; the proprietas belongs to none.

(2) Res publicae: of which the use is common to all the members of a state; the proprietas is in the state.

(3) Res universitatis: belonging to a corporation.

2 See Festus sub veib. sacer.

(4) Things consecrated:

(a) Res sanctae.
(B) Res religiosae.
() Res sacrae.

Humani juris.

Divini

juris.

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Res divini juris: res humani juris.

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solum existumatur auctoritate populi Romani fieri; consecratur enim lege de ea re lata aut senatusconsulto facto.

6. Religiosum vero nostra voluntate facimus mortuum inferentes in locum nostrum, si modo eius mortui funus ad nos pertineat. (7.) Set in provinciali solo placet plerisque solum religiosum non fieri, quia in eo solo dominium populi Romani est vel Caesaris, nos autem possessionem tantum et usumfructum habere videmur. utique tamen eiusmodi locus, licet non sit religiosus, pro religioso habetur, quia etiam quod in provinciis non ex auctoritate populi Romani consecratum est, proprie sacrum non est, tamen pro sacro habetur.

8. Sanctae quoque res, velut muri et portae, quodammodo divini iuris sunt.

9. Quod autem divini iuris est, id nullius in bonis est: id vero quod humani iuris est plerumque alicuius in bonis est: potest autem et nullius in bonis esse. nam res hereditariae, antequam

thority of the Roman people: for it is consecrated by the passing of a lex or the making of a senatusconsultum in respect of it.

6. On the other hand, we make ground religious of our own free will by conveying a corpse into a place which is our own property, provided only that the burial of the corpse devolves on us. 7. But it has been generally held that in provincial land a place cannot be made religious, because in such land the ownership belongs to the Roman people or to Caesar', and we are considered to have only the possession and usufruct. Still, however, such a place, although it be not religious, is considered as religious, because that also which is consecrated in the provinces, not by authority of the Roman people, is strictly speaking not sacred, and yet is regarded as sacred.

8. Hallowed things also, for instance walls and gates, are in some degree divini juris.

9. Now that which is divini juris is the property of no one; whilst that which is humani juris is generally the property of some one, although it may be the property of no one. the items of an inheritance, before some one becomes heir3,

1 See note on I. 6.

2 See Long's Introduction to Cicero's orations De Lege Agrariâ; Savigny, On Possession, translated by

Perry, § 13.

For

3 The heir instituted in the will becomes heir only by entering upon the office and duties, therefore in the

aliquis heres existat, nullius in bonis sunt. (10.) Hae autem res quae humani iuris sunt, aut publicae sunt aut privatae. (11.) quae publicae sunt, nullius in bonis esse creduntur; ipsius enim universitatis esse creduntur. privatae autem sunt, quae singulorum sunt.

12.

Quaedam praeterea res corporales sunt, quaedam incorporales. (13.) Corporales hae sunt quae tangi possunt, veluti fundus, homo, vestis, aurum, argentum et denique aliae res innumerabiles. (14.) Incorporales sunt quae tangi non possunt: qualia sunt ea quae in iure consistunt, sicut hereditas, ususfructus, obligationes quoquo modo contractae. nec ad rem pertinet, quod in hereditate res corporales continentur; nam et fructus qui ex

are no one's property. 10. Those things again which are humani juris are either public or private. II. Those which are public are considered to be no one's property: for they are regarded as belonging to the community; whilst private things are those which belong to individuals.

12. Further some things are corporeal, some incorporeal. 13. Corporeal things are those which can be touched, as a field, a man, a garment, gold, silver and, in a word, other things innumerable. 14. Incorporeal things are those which cannot be touched: of this kind are those which consist in a right', as an inheritance, an usufruct, or obligations in any way contracted. Nor is it material that in an inheritance there are comprised corporeal things: for the fruits also which are gathered in2 (by the tenant) from land are corporeal, and that

interval between the death of the testator and the acceptance of the inheritance there was a vacancy and the Res were nullius.

1 We see therefore that incorporeal things are not, strictly speaking, things at all, but only the rights to things. We may also remark that "tangible" signifies in Roman law that which is perceptible by any sense, according to the Stoic notion that all senses are modifications of that of touch. Hence "acts" are corporeal things according to this classification. Austin, Lecture XIII. See Cicero, Topica, cap. v.

2 Without entering into the discussion of a subject which has engaged the attention and divided the judgment of many old authorities, and which occupied a leading position in the Roman law of Possession, it is sufficient to say that it was by the perception, i. e. the reduction into possession, that the tenant, usufructuary, and generally every one who derived his rights to the profits from the owner, acquired those profits. Savigny, On Possession, translated by Perry, Bk. 11. § 24, pp. 200 -204. See D. 41. 1. 48 pr., D. 7. 4. 13, D. 22. I. 25. I.

Res mancipi et nec mancipi.

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fundo percipiuntur corporales sunt, et id quod ex aliqua obligatione nobis debetur plerumque corporale est, veluti fundus, homo, pecunia: nam ipsum ius successionis, et ipsum ius utendi fruendi, et ipsum ius obligationis incorporale est. eodem numero sunt et iura praediorum urbanorum et rusticorum, quae etiam servitutes vocantur.[13 fere lineae desunt.]

15. Item [2 lin.] Ea autem animalia nostri quidem prae

which is due to us by virtue of an obligation is generally corporeal, as a field, a slave or money; whilst the right itself of succession and the right itself of the usufruct, and the right itself of the obligation, are incorporeal. In the same category are rights over estates urban or rustic, which are also called servitudes1.

15. (The first six lines are supplied from Ulpian, xIx. 1). All things are either mancipi or nec mancipi. Res mancipi are

1 Urban and rustic estates mean respectively lands with or without buildings on them: the situation of either, whether in town or country, is immaterial: cf. D. 8. 4. I. From the epitome of Gaius (II. 1, § 3) we get the substance of the missing thirteen lines: "The rights over estates urban or rustic are also incorporeal. The rights over urban estates are those of stillicidium (turning the droppings from your roof into your neighbour's premises), of windows, drains, raising a house higher, or restraining another from raising, and of lights, (i. e.) that a man is so to build that he do not block out the light from a neighbouring house. The rights over rustic estates are those of way, or of road whereby animals may pass or be led to water, and of channel for water: and these also are incorporeal. These rights whether over rustic or urban estates are called servitudes."

2 Res mancipi, it is clear, were such things as were objects of interest and value in the eyes of the early possessors of Roman citizen-rights, or probably of those who laid the foundations of ancient Rome. Hence we see, firstly, how small in number were

these objects, secondly, that they were such only as had a value to an agricultural people, and, thirdly, that the few rights (as distinguished from material objects) which appeared among them were rights or easements that almost necessarily formed parts of some of these material objects. Why they were called Res mancipi has puzzled a host of commentators, no less than when and how they grew into being, but neither question is insoluble. They were, in fact, such things as the old settlers cared to possess and as could be transferred by the hand and into the hand, manus, as we have said before, being the symbol of property; and since for a long time they were the only things worthy of consideration as property, they got a name in time, more for the purpose of classification and distinction than for any other. When is not of much consequence, but probably not till it was necessary to distinguish them from many other things that had become known to use and

practice, and which by way of opposition were called nec mancipi. See as to this subject Maine's Ancient Law, chapter viii. p. 277.

ceptores statim ut nata sunt mancipi esse putant: Nerva vero, Proculus et ceteri diversae scholae auctores non aliter ea mancipi esse putant, quam si domita sunt; et si propter nimiam feritatem domari non possunt, tunc videri mancipi esse, cum ad eam aetatem pervenerint, cuius aetatis domari solent. (16.) Ex diverso bestiae nec mancipi sunt, velut ursi, leones, item ea animalia quae fere bestiarum numero sunt, velut elefantes et cameli; et ideo ad rem non pertinet, quod haec animalia etiam collo dorsove domantur

quorum

mancipi esse;

quaedam non mancipi sunt. (17.) Item fere omnia quae incorporalia sunt nec mancipi sunt, exceptis servitutibus praediorum rusticorum in Italico solo, quae mancipi sunt, quamvis sint ex numero rerum incorporalium.

18. Magna autem differentia est mancipi rerum et nec man

estates on Italian soil, whether rustic, as a field, or urban, as a house: likewise rights over rustic estates, as via', iter, actus, aquae ductus: likewise slaves, and quadrupeds which are tamed by yoke and saddle (lit. by neck and back), as oxen, mules, horses, asses. These animals our authorities hold to be mancipi the moment they are born: but Nerva and Proculus and other authors of the opposite school consider that they are not mancipi unless they be broken in: and if through their excessive fierceness they cannot be broken in, then they are regarded as being mancipi on arriving at the age at which animals are usually broken in. 16. Wild-beasts

on the other hand, such as bears and lions, are nec mancipi: so are those animals which are usually in the category of wild-beasts, as elephants and camels, and therefore it is not material that such animals are (sometimes) tamed by yoke and saddle...... 17. Likewise, almost all things which are incorporeal are nec mancipi, with the exception of servitudes over rustic estates on Italian soil; which are mancipi, although they are in the category of incorporeal things. 18. Now there is a great difference between res mancipi

1 Iter=right of passage for a man only, according to Justinian:

Actus right of driving cattle as well:

Via=right of passage generally, including right of dragging stones, timber, &c. across. Inst. II. 3. 2 Cic. pro Flacco, c. 32.

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