Previously to the legislation of Justinian, there had been two other modes of acquisition jure civili, applicable both in the case of particular things and in that of a universitas rerum, which are treated of by Gaius at considerable length. (GAI. ii. 18-37. See also ULPIAN, Reg. 19. 2.) These were mancipation, the process by which res mancipi were conveyed from one Roman citizen to another (see Introd. sec. 59), and in jure cessio. The cessio in jure was a fictitious suit, in which the person who was to acquire the thing claimed (vindicabat) the thing as his own, the person who was to transfer it acknowledged the justice of the claim, and the magistrate pronounced it to be the property (addicebat) of the claimant. Mancipation and cessiones in jure were both abolished by Justinian. Ulpian (Reg. 19. 2) also notices two others, adjudicatione, i.e. by property held in common being judicially marked out, so that the separate portions were owned, and lege, by some special statute, as when legacies devolved under the lex Papia Poppaa. (Bk. ii. 20.)

The explanation of the term possession, which occurs frequently in this Title, may be conveniently deferred until we reach the sixth

Title.

Superiore libro de jure personarum exposuimus: modo videamus de rebus, quæ vel in nostro patrimonio vel extra nostrum patrimonium habentur. Quædam enim naturali jure communia sunt omnium, quædam publica, quædam universitatis, quædam nullius, pleraque singulorum, quæ variis ex causis cuique adquiruntur, sicut ex subjectis apparebit.

In the preceding book we have treated of the law of persons. Let us now speak of things, which either are in our patrimony, or not in our patrimony. For some things by the law of nature are common to all; some are public; some belong to corporate bodies, and some belong to no one. Most things are the property of individuals, who acquire them in different ways, as will appear hereafter. GAI. ii. 1; D. i. 8. 2.

Under the word res, thing, is included whatever is capable of being the subject of a right. The principal division of Gaius is into things divini juris and humani juris. Here the principal division is according as things are in nostro patrimonio, that is, belong to individuals; or extra nostrum patrimonium, that is, belong to all men (communes), to the state (publica), to no men (nullius), or to bodies of men (universitatis). The words bona and pecunia, it may be observed, are only used of things in nostro patrimonio.

1. Et quidem naturali jure communia sunt omnium hæc : aer et aqua profluens et mare et per hoc litora maris. Nemo igitur ad litus maris accedere prohibetur, dum tamen villis et monumentis et ædificiis abstineat, quia non sunt juris gentium, sicut et mare.

1. By the law of nature these things are common to mankind-the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and buildings, which are not, like the sea, subject only to the law of nations.

D. i. 8. 2. 1; D. i. 8. 4.

Of things that are common to all any one may take such a portion as he pleases. Thus a man may inhale the air, or float his ship on any part of the sea. As long as he occupies any portion, his occupation is respected; but directly his occupation ceases, the thing occupied again becomes common to all. The sea-shore, that is, the shore as far as the waves go at furthest, was considered to belong to all men. For the purposes of selfdefence any nation had a right to occupy the shore and to repel strangers. Individuals, if they built on it, by means of piles or otherwise, were secured in exclusive enjoyment of the portion occupied; but if the building was taken away, their occupancy was at an end, and the spot on which the building stood again became common. (D. i. 8. 6.)

2. Flumina autem omnia et portus publica sunt: ideoque jus piscandi omnibus commune est in portibus fluminibusque.

2. All rivers and ports are public; hence the right of fishing in a port, or in rivers, is common to all men.

D. i. 8. 4. 1; D. xlvii. 10. 13. 7.

The word publicus is sometimes used as equivalent to communis, but is properly used, as here, for what belongs to the people. Things public belong to a particular people, but may be used and enjoyed by all men. Roads, public places and buildings might be added to those mentioned in the text. The particular people or nation in whose territory public things lie may permit all the world to make use of them, but exercises a special jurisdiction to prevent any one injuring them. In this light eyen the shore of the sea was said, though not very strictly, to be a res publica: it is not the property of the particular people whose territory is adjacent to the shore, but it belongs to them to see that none of the uses of the shore are lost by the act of individuals. Celsus says, Litora in qua populus Romanus imperium habet populi Romani esse arbitror (D. xliii. 8. 3), where, if we are to bring this opinion of Celsus into harmony with the opinions of other jurists, we must understand 'populi Romani esse' to mean subject to the guardianship of the Roman people.'

'are

3. Est autem litus maris, quate- 3. The sea-shore extends as far as nus hibernus fluctus maximus ex- the greatest winter flood runs up. currit.

D. 1. 16. 96.

Celsus ascribes this definition to Cicero, who apparently borrowed it from Aquilius. (Cic. Top. 7.)

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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

4. The public use of the banks of a river is part of the law of nations, just as is that of the river itself. All persons, therefore, are as much at liberty to bring their vessels to the bank, to fasten ropes to the trees growing there, and to place any part of their cargo there, as to navigate the river itself.

prædiis hærent: qua de causa arbores quoque in iisdem natæ eorundem sunt.

But the banks of a river are the property of those whose land they adjoin; and consequently the trees growing on them are also the property of the same persons.

D. i. 8. 5.

The banks of rivers belonged to the proprietors of the adjacent lands; but the use of them, for the purposes of navigation or otherwise, was open to all. The proprietors, therefore, could alone reap the profits of the soil; but if they attempted to exercise their rights so as to hinder the public use of the bank, they would be restrained by an interdict of the prætor. (See Introd. sec. 107.)

5. Litorum quoque usus publicus juris 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 ejusdem juris esse, cujus et mare et quæ subjacent mari, terra vel harena.

5. The public use of the sea-shore, too, is part of the law of nations, as is that of the sea itself; and therefore any person is at liberty to place on it a cottage, to which he may retreat, or to dry his nets there, and haul them from the sea; for the shores may be said to be the property of no man, but are subject to the same law as the sea itself, and the sand or ground beneath it.

D. i. 8. 5. pr. and 1.

The shores over which the Roman people had power were not the property of the Roman people, although it belonged specially to the Roman people to see that the free use of them was not hindered. (See note to paragraph 2.)

6. Universitatis sunt, non singulorum, veluti quæ in civitatibus sunt theatra, stadia et similia et si qua alia sunt communia civitatium.

6. Among things belonging to a corporate body, not to individuals, are, for instance, buildings in cities, theatres, race-courses, and other similar places belonging in common to a whole city.

D. i. 8. 6. 1.

Universitas is a corporate body created by the state, such as municipalities or the guilds (collegia) of different trades; for instance, the collegium pistorum.

Both the state and corporate bodies might have property which they held exactly like individuals; as, for instance, the agri vectigales, or slaves and lands belonging to a collegium. Such things were not universitatis in the sense in which the words are used here. They were, like the property of individuals, in nostro patrimonio, the state or corporation being looked on as any other owner. But some universitates, such as muncipalities, had things which they owned for the use of the public; and it is these things that are here spoken of as res universitatis.

7. Nullius autem sunt res sacræ et religiosæ et sanctæ : quod enim

7. Things sacred, religious, and hallowed, belong to no one; for that

divini juris est, id nullius in bonis which is subject to divine law is not the property of any one. GAI. ii. 9.

est,

Res nullius are either things unappropriated by any one, in which sense things common, or unoccupied lands, or wild animals, are res nullius; or they are things to which a religious character prevents any human right of property attaching.

8. Sacra sunt, quæ rite et per pontifices Deo consecrata sunt, veluti ædes sacræ et dona, quæ rite ad ministerium Dei dedicata sunt, quæ 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 sacræ ædes ædificatæ sunt, etiam diruto ædificio, adhuc sacer manet, ut et Papinianus scripsit.

8. Things are sacred which have been duly consecrated by the pontiffs, as sacred buildings and offerings, properly dedicated to the service of God, which we have forbidden by our constitution to be sold or mortgaged, except for the purpose of purchasing the freedom of captives. But, if any one by his own authority makes anything as it were sacred to himself, it is not sacred, but profane. But ground on which a sacred edifice has once been erected, even after the building has been destroyed, continues to be sacred, as Papinian also writes.

D. i. 8. 6. 3; C. i. 2. 21.

The distinction between res sacræ and religiosa, in the older pagan law, was that the former were things dedicated to the celestial gods, the latter were things abandoned to the infernal-relicta diis manibus. (GAI. ii. 4.) In order that a thing should be sacra, it was necessary that it should be dedicated by a pontiff and with the authority of the people, afterwards of the senate, finally of the emperor. (D. i. 8. 9. 1.) Things consecrated were by law inalienable. The support of the poor in a time of famine (C. i. 2. 21), and afterwards the payment of the debts of the church (Nov. 120. 10), sufficed, as well as the release of captives, as reasons for the sale of consecrated moveables; but immoveables were always inalienable.

9. Religiosum locum unusquisque 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 ususfructus 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 religiosus locus fit.

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9. Any man at his pleasure makes a place religious by burying a dead body in his own ground; but it is not permitted to bury a dead body in land hitherto pure, which is held in common, against the wishes of a coproprietor. But when a sepulchre is held in common, any one coproprietor may bury in it, even against the wishes of the rest. So, too, if another person has the usufruct, the proprietor may not, without the consent of the usufructuary, render the place religious. But a dead body may be laid in a place belonging to another person, with the consent of the owner; and even if the owner only ratifies the act after the dead body has been buried, yet the place is religious.

D. i. 8. 6. 4; D. xi. 7. 2. 7.

Directly the body or bones of a dead person, whether slave or free, were buried, the ground in which they were buried became religiosus, although previously pure, that is, neither sacer, religiosus, nor sanctus (D. xi. 7. 2. 4), provided that the person burying the body was the owner of the soil or had the consent of the owner.

Although the place was a res nullius, yet there could be a special kind of property in it. There were tombs and burialplaces in which none but certain persons, as, for instance, members of the same family, could be buried; and this kind of interest in a locus religiosus was transmissible to heirs, or even to purchasers of a property, if the right of burying in a particular place was attached, as it might be, to the ownership of that property. (D. xviii. 1. 24.)

10. Sanctæ quoque res, veluti muri et portæ, quodammodo divini juris 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.

10. Hallowed things also, as the walls and gates of a city, are to a certain degree subject to divine law, and therefore are not part of the property of any one. The walls of a city are said to be hallowed, inasmuch as any offence against them is punished capitally; so too those parts of laws by which punishments are established against transgressors, we term sanctions.

GAI. ii. 8. 9; D. i. 8. 8; D. i. 8. 9. 3; D. i. 8. 11.

Res sanctæ are those things which, without being sacred, are protected against the injuries of men (sanctum est quod ab injuria hominum defensum atque munitum est (D. i. 8. 8)) by having a severe penalty attached to the violation of their security.

11. Singulorum autem hominum multis modis res fiunt: quarundam enim rerum dominium nanciscimur jure naturali, quod, sicut diximus, appellatur jus gentium, quarundam jure civili. Commodius est itaque a vetustiore jure incipere. Palam est autem, vetustius esse naturale jus, quod cum ipso genere humano rerum natura prodidit: civilia enim jura tunc cœperunt esse, cum et civitates condi et magistratus creari et leges scribi cœperunt.

11. Things become the property of individuals in various ways; of some we acquire the ownership by natural law, which, as we have observed, is termed the law of nations; of others by the civil law. It will be most convenient to begin with the more ancient law; and it is very evident that the law of nature, established by nature at the first origin of mankind, is the more ancient, for civil laws could then only begin to exist, when states began to be founded, magistrates to be created, and laws to be written. D. xli. 1. 1.

We now proceed to inquire how property is acquired in particular things. It is acquired either by natural or civil modes. The natural mode first treated of is occupation, of which there are two essential elements; that the thing, the property in which is acquired, should be a res nullius, and that the person acquiring it should bring the thing into his possession, that is, into his power,