CHAPTER I.

Of Property in General.

I.

THE second book of the Civil law, according to CHAP. the arrangement of the Institutes of Gaius and Justinian, treats of the rights of property, that is Rights of to say, the rights springing from those things property. which we have lawfully appropriated to ourselves; and which consist in the free use, enjoyment and disposal of such things without any interference or control. The origin of this right we will more fully consider in the next Chapter, the present object being to explain those things which can, or cannot, be the subjects of property, or in dominio privato.

The subjects of property are called Res, which Res. are thus defined, Quæ ejus sunt naturæ ut in bonis esse possint1. And here we have a distinction between res and bona. Res are such things as may become our property, and, according to the definition, may not yet have been appropriated by any one. After occupation and appropriation they then become bona, and are in patrimonio; by which term is meant that right of property in things which are lawfully possessed, and of which the possessor was deemed to be dominus, so that he could dispose of it by sale, or by testament; and which, according to the Civil law, would descend to his heirs in case he died intestate.

and incor

The Roman jurists divided res into, first, cor- Corporales porales; quæ tangi possunt. Secondly, incorporales; porales. quæ tangi non possunt. The latter of these and

BOOK the law relating to them constitute the subject of the third Chapter.

II.

In considering the law of private property, since those things only can be subject to it which are in patrimonio, things early became divided into two classes: first, res extra patrimonium, things incapable of possession, or incapable of being exclusively possessed by private individuals. Secondly, res in patrimonio, the property of private individuals, said to be in dominio privato.

The following analysis will explain the division:

1. Communes.

2. Publicæ.

Res Com

munes.

Publicæ.

tis.

Res communes are such things as are common to all mankind, e.g. the air, running water, the sea, and its shores. Res publica are rivers and their banks', seaports and highways, which are common Nullius. to some particular nation. Res nullius are the property of no one, either because they have not yet been occupied, or because they are incapable of Universita- being occupied by any private individual. Res universitatis, the property of a corporation. Res divini juris, which are classed under three heads: 1. Sacræ, temples dedicated to the worship of the Gods. 2. Religiosa, sepulchres and tombs, where a dead body was interred. 3. Sanctæ. It is difficult to draw the distinction between these and sacræ, though there was a wide difference; citywalls and ambassadors are examples. The colours

Divini juris.

1 I. II. I. 5.

of a regiment would perhaps in the present day be CHAP. an example.

I.

The above-mentioned things cannot be the subject of property, because they are said to be extra Extra Comcommercium humanum. Having therefore ascer- mercium. tained of what they consist, our attention must be confined to res in patrimonio, which are classed under two heads; corporales or incorporales.

lius.

Before however taking leave of res extra patri- Res nulmonium it is necessary to explain the double sense in which the Roman jurists considered res nullius. First, Res nullius actu et potentia simul. These are Actu et such things as neither are, nor can be, the property potentia. of any private person, because they have been appropriated to the use of the state, or of a corporation, or have been set apart for religious purposes. Secondly, Res nullius actu solo licet non potentia. Actu solo These comprise all things unappropriated, but licet non which are capable of being appropriated, such as waste lands, unoccupied islands, &c., the maxim being Res nullius occupanti cedunt.

Property, or dominium, in things may be either in possession, or in action. The former is called Jus in re; the latter Jus ad rem.

Jus in re is where the owner is in the entire and peaceable possession of his property. Jus ad rem is where the party was entitled to the property in question, but had not possession till some one gave him that possession on whom the obligation to do so rested. Five hundred aurei which I have in a bag would represent Jus in re; but five hundred aurei which Titius owes me on a stipulation is Jus ad rem, so long as the stipulation is unfulfilled. This will be more fully explained in the law of actions1.

potentia.

Jus in re

and Jus

ad rem.

The owner is called Dominus, and his property DomiDominium, which is defined to be Jus in re cor- nium. porali, ex quo facultas de ea disponendi eamque

1 See post. book IV.

BOOK vindicandi nascitur, nisi vel lex, vel conventio, vel testatoris voluntas obsistat1.

II.

Dominium Quiritarium.

Dominium was either plenum or minus plenum. Dominium plenum represents owner and occupier in one person; minus plenum was where the owner let his house to an inquilinus, or his land to a colonus. Here a double dominium is created; the former is called directum, which represents the property of the landlord, his right of sale, or of action to recover possession; the latter utile, which was the right of the tenant to his beneficial occupation for the rent he paid, under the conditions, and for the period agreed upon.

Dominium Quiritarium. This was the entire and indefeasible right of a Roman citizen in his property, which rendered him free from all actions which would impeach his title; and none but Roman citizens could possess it. Ulpian gives the different modes whereby it could be acquired, viz. "Mancipatione, traditione, in jure cessione, usucapione, adjudicatione, lege"."

If property were transferred to a Roman citizen, however lawfully, but unaccompanied by one of the above-mentioned legal forms, the receiver had no legal title. His possession was called Dominium Bonitarium, he was a bona fide possessor, and the thing possessed was said to be in bonis, but if deprived of it he could bring no action for its recovery, because he could not prove a legal title, and so would be non-suited. A year, dating from his first possession of the property, having elapsed he would then become Dominus quiritarius, usucapione3. This distinction between Dominium quiritarium and Bonitarium was abolished by Justinian1.

This brings us to res mancipi, and nec mancipi, and the difference between them. In the transfer

1 Hein. El. 335.
3 See post. ch. 5.

2 Ulp. Frag. XIX. 2.

4 C. VII. 25.