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but however solemnly entered into, and however faithfully its natural tie acknowledged, it was never in the eye of the law regarded as anything better than promiscuous intercourse.
47. It was possible that any one who possessed a complete status should undergo a change of status, and this Deminutio change might happen in any one of the three com- capitis. ponent parts of the status. The capability of exercising all those rights implied in a perfect status was frequently spoken of as a man's caput, and the change in each of these component parts was said to be a deminutio capitis, a lessening or impairing of the caput. First, a man might lose his freedom; he might be taken prisoner by an enemy, or undergo a very severe criminal sentence. The loss of this element of the status, called capitis deminutio maxima, involved the loss of the remaining two, the person who ceased to be free ceasing also to have the rights of citizenship or family rights. Secondly, he might lose his rights of citizenship, and this loss, called capitis deminutio media, involved the loss of family rights, but still left him free. Thirdly, by what was ! called capitis deminutio minima, he might lose his position in his family by emancipation or arrogation. In early times there were rights, principally those forming part of the jus sacrum, which a person who passed out of his family really lost; but in later times, as in every case the person who underwent this capitis deminutio either entered another family, or became the head of his own family, his status was really not made at all less perfect by the change. Of course this capitis deminutio involved the loss of neither of the two other component parts of the status.
48. When a person was possessed of a perfect status, he was considered to enjoy a high dignity and reputation in the eyes of others. This reputation (existimatio) the cu Romans considered as one of the chief possessions of a person. It was even to a certain extent regulated by law. If a person ceased to be free, his existimatio was gone. Certain offences were treated by law as impairing it. If the offence was so grave as to impair the existimatio very seriously, its diminution was said to amount to infamia. For example, a partner, or a mandatary, condemned in an action pro socio or mandato, was stamped with infamy. The consequences of infamy were, that the guilty person could not b; a witness, could not receive public honours, and could not bring a public prosecution. If the offence was rather
'an action proof infamy wet
less grave, the consequence was turpitudo; and if the person was in some inferior position, as, for instance, an actor, he was said to be marked with a levis nota, a slight brand of disgrace. 49. It only remains to be observed that, although persons
e that were the mere creations of law, as corporations, existence of ceased to exist when the law in any way put an end persons.
to their existence, as by the dissolution of the corporation, yet the person of individuals, that is, their legal, as opposed to their natural being, did not become extinct by their death. At the moment of death it was shifted to those who represented them, The son was clothed with the person of the father, the heir with that of the testator. What we mean by saying that the deceased is represented, that is, agaiu made present and brought before us, the Roman jurists expressed by saying that his person had been shifted to those who succeeded in his place.
II. THINGS. 50. The word thing (res) has, in Roman law, a sense as artiUse of the ficial and as wide as the word person. As person comword res. prehends every legal being that has rights and is subject to them, so thing comprehends all that can be considered as the object of a right. The object of a right may be incorporeal, or the pure creation of law, and need not be limited to things corporeal and visible. The law can separate the right to possess a field and the right to walk in it, and the object of each right is called indifferently a thing. When we attempt to classify these objects of rights, we are unable to select any one principle of division according to which we may distribute them. The aspects in which we may view them are too various to admit of a simple arrangement; we may, however, make a division approximately accurate by considering, first, those heads of things which we arrive at hy examining the nature of the things themselves; and secondly, those which we arrive at by inquiring into the interest which persons have in them. 51. First, then, things may be corporeal or incorporeal ; or,
e as the jurists expressed it, tangi possunt or tangi non Division of things. possunt. We see a house or a field; we do not see
nd a right to inhabit the one or reap the fruits of the incorporeal.
other. The physical tangible object of sense is a corporeal thing; the intangible abstraction of the mind is an incorporeal thing. Incorporeal things always consist in a right; if we see a stream flowing, or a path winding through a field, the mind sees, as something distinct from the object of sense, the power of using the water or of following the path. This power is, in the language of the law, an incorporeal thing; and a person may have a right to possess it just as he may have a right to possess a house or field. Strictly speaking, the right to own a field, and not the field itself, is what the law takes cogrisance of, and this is as much incorporeal as the right to walk over it. But Roman law has adopted or introduced the popular way of speaking, according to which we say, 'I have a field;' • I have a right of way over a field.
52. We may again speak of corporeal things as moveable and immoveable (res mobiles, se moventes, and res soli, res , immobiles), a distinction so obvious that it needs no able and imother remark than that some moveable things are so
movcable. incorporated with immoveables, or so constantly associated with their use, that the law treats them as immoveables ; as for instance a house, each brick of which is a moveable, is itself an immoveable, because attached to the soil.
53. Things are also either divisible or indivisible. We cannot divide a slave or a horse so that the several parts mindim have the same value which they had when they were sible and in
divisible. parts of a whole ; but if we divide a field into four, we have four small fields.
54. They are also principal or accessory; that is, they are the direct object of rights, or are only so as forming Things portion of, or being intimately connected with, some- cipal and acthing that is; thus a tree is a principal thing, its cessor fruit an accessory.
55. Another distinction relating to things familiar to the Roman jurists was that between the genus and the Genus and species. By the genus was meant a whole class of Species. objects, such as horses, or the general name for an object, such as wine, oil, wheat. Species was the particular member of the class, or particular portion of the object comprehended under the genus, as this horse, or the wine in this bottle. If a purchaser bought a horse, or a certain quantity of oil, the thing bought was said to be determined genere ; if he bought a particular horse or the oil in a certain vase, the thing bought was said to be determined specie. All things which are included under a general name, such as oil or wheat, are commonly divided by being weighed, numbered, or measured, and were therefore spoken of
by the jurists as being those things quæ pondere, numero, mensurave constant. 56. We may, lastly, regard things as particular, or as col
lected under some head, when the whole collection is Res singu lares and a thing in law. Thus a sheep is a particular thing
ver- (res singularis); a flock, composed ex distantibus uni sitates.
nomini subjectis, is a collection of things, or, as the jurists expressed it, is a rerum universitas (or simply universitas). As also, of course, are such comprehensive things as an inheritance, a marriage portion, the peculium of a slave.
57. In proceeding to the second division of things according to the persons who have rights over them, and to the extent of those rights, we must first notice the distinction in things caused Res
by certain things having a sacred character (res divini sacra. juris). These were res sacro, consecrated to the superior gods ; or res religiosa, such as tombs or burial-grounds, consecrated to the infernal gods; or, lastly, res sanctæ (hallowed), things human, but having a sort of sacredness attaching to them, such as the walls and gates of cities.
58. The State, again, impressed on some things a peculiar character. All things which were held by peregrini and not by citizens were peregrina. The soil which was included in the terri
tories of the early State, the ager Romanus, was disRomanus. tinguished from all other land by being alone capable of being the subject of a sale by mancipation, and being alone held by the especial tenure of the jus Quiritium.* In later times, a greater portion of the soil of Italy was placed on the same footing with the soil of the ager Romanus, and solum Italicum came to be the name of all soil wherever situated to which the privileges of the old ager Romanus were accorded, as opposed to solum provinciale, which always remained, at least in theory, the property of the State, and of which a perfect ownership could not be acquired.t Justinian abolished this difference in the tenure of the soil. 59. In the older law there also prevailed a distinction,
. abolished by Justinian, between res mancipi and res Res mancipi.
nec mancipi. We know from a fragment of Ulpian, what things were res inancipi. They were prædia in Italico solo, whether in the country or the city, servitudes (a term to be
explained presently) over these prælia when in the country, slaves and four-footed animals, as oxen and horses, tamed for the service of man. All other things were nec mancipi. We also know that property in res muncipi could only be transferred by mancipatio, that is, by a form of sale, in which the purchaser took hold with his hand of the thing purchased, and, claiming it to be his, tendered a piece of copper to the seller. * The list of res mancipi is evidently a list of the possessions of an early agricultural community, and there can be scarcely any doubt that the form of sale required to transfer the property in them was the ordinary form of sale in such a community. At some period, and in some manner of which we have no knowledge, these possessions of an early agricultural community were contrasted with other forms of wealth, and the mode of transfer customary in the one case was found not to be customary in the other. The law, sanctioning and embodying the custom, made the form of mancipatio necessary to pass res mancipi, and declared it not to be necessary to pass other things. Manus, as signifying power,' † is, probably, the root of the phrases mancipi and mancipatio. Thus res mancipi meant originally things in the hand, or taken by the band, of the owner, and the taking by the hand in the form of transfer was symbolic of the purchaser holding or acquiring the thing in the way in which the seller had held or acquired it.
60. If we look at things according to the persons by whom they are owned, we have a division into res communes,
Res communes. as the sea and the air, which cannot be appropriated by any particular individuals; res publicce, things which belong to the State, as the State land (ager publicus), navi
Res publicæ. gable rivers, roads, &c.; res universitatis, things which belong to aggregate bodies, as to corporations; and res private, things which belong to individuals; and,
Res privata. these were said to be in nostro patrimonio, i.e. we could, in one way or another, have a property in them : whereas things common, or public, or dedicated to the gods, In nostro were extra patrimonium, i.e. could not become the patrimonio. subject of private property. Lastly, there were res nullius, things
* The form of mancipatio will be more fully noticed ir. sec. 81.
† How manus signifies power is a further question ; it may be that the hand is merely a metaphor, as we say 'in the hands' for ' in the power' of a person; or it may mean the hand of a conqueror or plunderer, and thus originally things manu capta would be the booty of plunderers.