should be to the latter, as being accessible to a larger range of readers. I have only to add a notice, which by oversight was omitted in the Preface to the first of this series of Titles, viz. that the Latin text follows almost uniformly the text of Mommsen, "Berolini apud Weidmannos MDCCCLXXII.," variations of importance being mentioned and defended in foot-notes. Dominium in the Roman Law Sources is frequently an equivalent term for Jus in Rem, or rather for that species of jus in rem which is exercised over a material subject; and may mean, according to the connection in which it is used, Ownership, or Easement, or Possession'. But the Dominium intended throughout the present title of the Digest is Ownership or Dominium Plenum, which we may define with Austin as "a right indefinite in point of user, unlimited in point of duration, unrestricted in point of disposition, over a determinate thing." The right of user is indefinite, but not unlimited; it is, however, "merely limited generally by the rights of all other persons, and by the duties, relative or absolute, incumbent on the entitled party3." The right is unlimited in point of duration, "that is, capable of going over to a series of successors ab intestato, which may possibly last for ever." It is also unrestricted in point of disposition, or "alienable by the actual owner from every successor (save the sovereign), who in default of such alienation might take the subject"." These explanations are complex, but those Jurists who aim at brevity in definition are apt to leave the true nature of Ownership involved in obscurity. Thus Huber's explanation requires itself to be explained, when he defines Dominium as "jus de re corporali perfecte disponendi, aut eam vindicandi, nisi conventio vel lex prohibeat":" and Mackeldey's is not 1 See Austin's Jurisprudence, Third Edition (Campbell's), p. 818. D. 41. 1. 52. 2 Id. p. 817. 4 Id. p. 866. 5 Id. p. 866. 6 Huber, Praelect. Fur. Rom. ad D. 41. I. 3 Id. p. 822. perfectly clear and satisfactory: "jus illimitatum et exclusivum; itaque comprehendit jus quocunque licito modo de rei substantia disponendi, eam possidendi, ea utendi, et aliorum dispositiones ab ea arcendi1." Dominium then, and consequently Adquisitio dominii, are terms which in strictness can be used only in reference to a determinate corporeal thing: but for convenience, and because an universitas, or aggregate of things, rights and duties, may vest through some single fact, we have in juristic writings the contrasted expressions, Adquisitio rei per se and Adquisitio rerum per universitatem3. This point needs to be noticed here, because occasionally things which do not admit of acquisition per se, can be acquired as items of an universitas. D. 41. 1. 62. Various subdivisions of dominium are to be found in the Sources and the writings of the Commentators. For instance, he who has Dominium plenum may alienate such of his proprietary rights as he pleases, retaining to himself the residue; or may grant away the whole of his rights in parcels; hence we have the opposition of Dominium and Servitus, or Dominium and Jus in re aliena: and when, in either of the modes just mentioned, the entire usufruct is severed from the ownership, the residuum is styled Dominium minus plenum or Nuda proprietas. When the usufruct is alienated in perpetuum, as in the case of emphyteusis, the emphyteuta is usually said to have Dominium utile, and the grantor to have Dominium directum. These distinctions are perhaps worth mentioning, though not having much direct bearing on the title we are analysing and discussing; but another classification of dominium, found in certain commentaries, that namely into Dominium Legitimum and Dominium Naturale, seems altogether misleading. All dominium, with which a Roman lawyer living in Justinian's reign was concerned, was legitimum. If the laws did not recognize and protect it, it was valueless. It is true, as we shall see further on, that such dominium might be acquired either 1 Mack. Syst. Jur. Rom. § 240. I. 42. Pothier ad 41. 1. § 2. through civil or natural modes', but the resulting dominium was of one and the same kind. Occupatio, accessio and specificatio made a man owner ex jure Quiritium even in early days; and so also did traditio, in the case, at any rate, of a res nec mancipi. Bonitary ownership, or Possessio in bonis, was a practical ownership conferred by the Praetor in certain cases where the Jus Civile did not recognize a creation or transfer of dominium: but wherever the Jus Civile did recognize the creation or transfer, as in the case of the natural modes of acquisition discussed under the title D. 41. 1, the dominium was invariably legitimum or ex jure Quiritium. If any ancient jurist denotes Praetorian ownership by the phrase dominium naturale, we must remember that after the enactment of C. 7. 25. 1 by Justinian, the nudum jus Quiritium was reunited to the possessio in bonis (just as in England the Statute of Uses reunited the legal to the equitable estate), and thus Bonitary ownership became in every sense dominium legitimum. The excerpts in the Digest contain, nevertheless, many references to the old distinction. Esse in bonis, or habere in bonis, well-known phrases occurring pretty frequently (e.g. in l. 52 of this Title), do not of necessity imply ownership at all, but simply a right to possess or detain. For the acquisition of ownership there must be i. A person competent to acquire, either for himself or for another; for we must take note that persons unable to acquire for themselves, either generally or in a particular instance, are frequently able to acquire for the benefit of others. These cases will be found tabulated under the heading II. 2-8, below. A madman or an idiot cannot therefore acquire in general; but he can when no exercise of will on his part is requisite, e. g. in the case where he is heres necessarius or heres suus et necessarius. See Just. Inst. 3. 1. 3: D. 29. 2. 63. 1 These really are both civil, for naturalis modusmodus civilitercom probatus, and civilis modus = modus civiliter constitutus. ii. A thing capable of being acquired. Hence there is no possible acquisition of res communes, in the strict sense (though res nullius, often, though improperly, called res communes, may be acquired), nor of res publicae in patrimonio publici (though a temporary acquisition of res publice communes is allowable, as we see from D. 41. 1. 14; D. 41. 1. 50), nor of res sacrae, res religiosae, rés sanctae. iii. A lawful mode of acquisition. (Modus legitimus adquirendi.) Acquisition of ownership is founded on Title, that is to say, a man does not become the owner of a thing because he is a particular individual, A or B, but because he does some act or fulfils some condition, to the doing or fulfilling of which the law attaches ownership of the thing as a consequence. We might indeed say that Title depends in general on the existence of a remote and a proximate condition, the first of which we may designate causa, the second modus'; e.g. when the ownership of an article is transferred from A to B, the law acknowledges the change of ownership, because there has been first of all some causa, gift, for instance, or stipulation3, which is followed by a recognized modus adquirendi, viz. delivery from hand to hand; or again in title by occupancy, there is the causa, that the article is ownerless, the modus, that A takes possession; or, thirdly, when a bona fide possessor makes himself owner of the fruits of the land which he possesses, there is firstly the causa, that he has whilst in possession spent time and trouble on the cultivation of the land, secondly the modus adquirendi termed perceptio fructuum, for until he severs the fruits from the land they are not his. But there is no need to dwell on this topic; for although an adequate causa is always presumed as the remote foundation of dominium, or any other jus in rem, the proximate modus adquirendi is chiefly regarded by the Roman Jurists in their 1 See Huber, Praelect. Jur. Rom. § 17 ad Inst. 2. I. 2 Clearly beyond these there is a more primary causa still: "that nothing is so consistent with natural equity as to hold valid the wish of |
