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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. (Gal. 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 Poppæa. (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 persona- In the preceding book we have rum exposuimus : modo videamus de treated of the law of persons. Let us rebus, quæ vel in nostro patri- now speak of things, which either are monio vel extra nostrum patri- in our patrimony, or not in our patrimonium habentur. Quædam enim mony. For some things by the law of naturali jure communia sunt om- nature are common to all ; some are nium,quædam publica, quædam uni- public; some belong to corporate versitatis, quædam nullius, pleraque bodies, and some belong to no one. singulorum, quæ variis ex causis Most things are the property of indicuique adquiruntur, sicut ex sub- viduals, who acquire them in different jectis apparebit.
ways, as will appear hereafter. Gai, ü. 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 (publicæ), 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 com- 1. By the law of nature these things munia sunt omnium hæc : aer et aqua are common to mankind-the air, runprofluens et mare et per hoc litora ning water, the sea, and consequently maris. Nemo igitur ad litus maris the shores of the sea. No one, thereaccedere prohibetur, dum tamen fore, is forbidden to approach the seavillis et monumentis et ædificiis abs. shore, provided that he respects habitineat, quia non sunt juris gentium, tations, monuments, and buildings, sicut et mare.
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 por- 2. All rivers and ports are public; tus publica sunt : ideoque jus pi- hence the right of fishing in a port, or scandi omnibus commune est in in rivers, is common to all men. portibus fluminibusque.
D. i. 8. 4. 1; D. xlvii. 10. 13. 7.
the not the propertye, but it belong the act of individ habet pop
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 quæ 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 "are subject to the guardianship of the Roman people.'
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.)
4. Riparum quoque usus publi- 4. The public use of the banks of a cus est juris gentium, sicut ipsius river is part of the law of nations, just fluminis : itaque navem ad eas ap- as is that of the river itself. All persons, pellere, funes ex arboribus ibi natis therefore, are as much at liberty religare, onus aliquid in his repo- to bring their vessels to the bank, to nere cuilibet liberum est, sicuti per fasten ropes to the trees growing there, ipsum flumen navigare. Sed pro- and to place any part of their cargo prietas earum illorum est, quorum there, as to navigate the river itself.
prædiis hærent: qua de causa But the banks of a river are the proarbores quoque in iisdem natæ eorun- perty of those whose land they adjoin ; dem sunt.
and consequently the trees growing on them are also the property of the
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 5. The public use of the sea-shore, juris gentium est, sicut ipsius maris : too, is part of the law of nations, as is et ob id quibuslibet liberum est, that of the sea itself; and therefore casam ibi imponere, in qua se reci- any person is at liberty to place on it piant, sicut retia siccare et ex mare a cottage, to which he may retreat, deducere. Proprietas autem eorum or to dry his nets there, and haul potest intellegi nullius esse, sed ejus- them from the sea ; for the shores may dem juris esse, cujus et mare et quæ be said to be the property of no man, subjacent mari, terra vel harena. but are subject to the same law as the
sea itself, and the sand or ground be
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 singu- 6. Among things belonging to a lorum, veluti quæ in civitatibus sunt corporate body, not to individuals, theatra, stadia et similia et si qua are, for instance, buildings in cities, alia sunt communia civitatium. theatres, race-courses, and other similar
places belonging in common to a whole
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.
17. Nullius autem sunt res sacræ 7. Things sacred, religious, and et religiose et sanctæ : quod enim hallowed, belong to no one ; for that
divini juris est, id nullius in bonis which is subject to divine law is not est,
the property of any one.
Gai, ii. 9, 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 8. Things are sacred which have pontifices Deo consecrata sunt, veluti been duly consecrated by the pontiffs, ædes sacræ et dona, quæ rite ad as sacred buildings and offerings, proministerium Dei dedicata sunt, quæ perly dedicated to the service of God, etiam per nostram constitutionem which we have forbidden by our conalienari et obligari prohibuimus, ex- stitution to be sold or mortgaged, cepta causa redemptionis captivorum. except for the purpose of purchasing Si quis vero auctoritate sua quasi the freedom of captives. But, if any sacrum sibi constituerit, sacrum non one by his own authority makes anyest, sed profanum. Locus autem, thing as it were sacred to himself, it is in quo sacræ ædes ædificatæ sunt, not sacred, but profane. But ground etiam diruto ædificio, adhuc sacer on which a sacred edifice has once manet, ut et Papinianus scripsit. 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 sacro and religiosc, in the older pagan law, was that the former were things dedicated to the celestial gods, the latter were things abandoned to the infernal—relicto diis manibus. (Gal. 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 unusquis- 9. Any man at his pleasure makes que sua voluntate facit, dum mor- a place religious by burying a dead tuum infert in locum suum. In body in his own ground; but it is not communem autem locum purum in- permitted to bury a dead body in land vito socio inferre non licet : in com- hitherto pure, which is held in common, mune vero sepulcrum etiam invitis against the wishes of a coproprietor. ceteris licet inferre. Item si alienus But when a sepulchre is held in conususfructus est, proprietarium placet, mon, any one coproprietor may bury nisi consentiente usufructuario, lo- in it, even against the wishes of the cum religiosum non facere. In alie- rest. So, too, if another person has num locum, concedente domino, licet the usufruct, the proprietor may not, inferre : et licet postea ratum ha without the consent of the usufrucbuerit, quam illatus est mortuus, tuary, render the place religious. But tamen religiosus locus fit.
a dead body may be laid in a place be-
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 10. Hallowed things also, as the muri et portæ, quodammodo divini walls and gates of a city, are to a cerjuris sunt et ideo nullius in bonis tain degree subject to divine law, and sunt. Ideo autem muros sanctos therefore are not part of the property dicimus, quia poena capitis consti- of any one. The walls of a city are tuta sit in eos, qui aliquid in muros said to be hallowed, inasmuch as any deliquerint. Ideo et legum eas offence against them is punished capipartes, quibus pænas constituimus tally ; so too those parts of laws by adversus eos, qui contra leges fece- which punishments are established rint, sanctiones vocamus.
against transgressors, we term sanc
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 11. Things become the property of multis modis res fiunt : quarundam individuals in various ways; of some enim rerum dominium nanciscimur we acquire the ownership by natural jure naturali, quod, sicut diximus, law, which, as we have observed, is appellatur jus gentium, quarundam termed the law of nations ; of others jure civili. Commodius est itaque a by the civil law. It will be most convetustiore jure incipere. Palam est venient to begin with the more ancient autem, vetustius esse naturale jus, law; and it is very evident that the quod cum ipso genere humano rerum law of nature, established by nature natura prodidit : civilia enim jura at the first origin of mankind, is the tunc coeperunt esse, cum et civitates more ancient, for civil laws could then condi et magistratus creari et leges only begin to exist, when states began scribi coeperunt.
to be founded, magistrates to be crea
ted, 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,