to bring under his control. PROPERTY represents that sovereignty of the will of an individual over objects of the external world which is recognised and protected by Law, ie., the objective control possessed by the will; in other words, it is the totality of external things by Law subjected to the control of a man's will, or, in general, of his legal relations that bear a monetary value. African. Bonorum appellatio universitatem quandam non singulares res demonstrat.-D. 50, 16, 208.1 Hermog. Pecuniae nomine non solum numerata pecunia, sed omnes res tam soli quam mobiles et tam corpora quam iura continentur. -1. 222 eod." Bonorum appellatio aut naturalis aut civilis est.-Bona intelliguntur cuiusque, quae deducto aere alieno supersunt. -1. 49 (Ulp.), 1. 39, § I (Paul.), eod. The arrangement of Private Law, accordingly, divides into the doctrine of Subjects of rights and their natural and legal differences, which is the Law of PERSONS; and into the doctrine of the Objects of rights and the legal control thereof by the individual, which is the Law of PROPERTY. Both doctrines must, however, be preceded by the doctrine of the origination and exercise of rights in general. The Law of Persons at the same time comprises FAMILY Law, in the Roman sense," i.e., the doctrine of See Savigny, 1 The designation 'goods' imports a kind of totality, and not individual things. 2 Under the name of 'wealth' is comprehended not merely money, but all things, both immovable and movable, and both corporeal objects and rights. * The designation bona has either a natural meaning, or that of the ius civile.-That is regarded as a man's property which remains over after subtraction of debts. i. p. 142 n. the legal relations of control and dependence which gather round Persons as members of a familia. Property Law has to do especially with the individual conditions of Property as such-the pure or simple Law of Property. According to the differences herein, we obtain a division into the Law of THINGS Mkby. s. 129; (or of real rights ") and the Law of OBLIGATIONS. The Holl. p. 108. one relates to the immediate legal control of the individual over objects of external Nature, i.e., of Things; the subject of the other is that partial and transitory control, recognised by Private Law, of the individual over another subject of rights, by virtue of which this latter is under obligation to him in respect of the performance of a definite act bearing a pecuniary value. Inst. iii. 13 pr.: Obligatio est iuris vinculum, quo necessitate adstringimur alicuius solvendae rei, secundum nostrae civitatis iura.' Every obligatory right avails against a certain person who is constrained to a positive operation of will, whilst with the real right of the individual correlates only the legal duty in general of all others to observe a negative attitude towards him, that is, not to interfere For actions in with it." rem and in personam, see § 24. Co-ordinate with the pure or simple Law of Property are the Law of Family Property and the Law of Inheritance, in which property is conceived of as a unit. The first is concerned with the modifications which the proprietary relations of a subject of rights undergo by reason of his position in a familia. The Law of Inheritance finds its subject in property as a whole enduring beyond the life of the previous owner, whose place is taken by another; it is the doctrine of 1 An obligation is the legal bond by which, according to the laws of our State, we are of necessity constrained to the performance of something. the transfer of the control of property that was possessed by deceased persons to others surviving them (Universal Succession)." : Ulp. Bona autem hic, ut plerumque solemus dicere, ita accipienda sunt: universitatis cuiusque successionem, qua succeditur in ius demortui suscipiturque eius rei commodum et incommodum. Nam sive solvendo sunt bona sive non sunt, sive damnum habent sive lucrum, sive in corporibus sunt sive in actionibus, in hoc loco proprie bona appellabuntur.-D. 37, 1, 3 pr.1 We shall therefore have to divide our subject as follows: : 1. The origination and maintenance of Rights. 3. Property Law. (a) Pure or simple Property Law: first, the Law of Things, and secondly, that of Obligations. (3) The Law of Family Property. (7) The Law of Inheritance. 4 The doctrine of the form of judicial enforcement of rights, or Procedure. The system followed in the Institutes of Gaius and of Justinian is different from this." There we are told (Gai. i. 8, Just. i. 2, 12) that 'Omne autem ius quo utimur vel ad personas pertinet.'-Gai. bk. i.; Just. bk. i. a Cf. §§ 17, 133. See Maine, 'Early Law and Custom,' xi. 1 But Inheritance, as we are generally accustomed to take the word, is here to be understood of succession to every whole, whereby there arises a succession to the rights of a deceased person, and the advantages and disadvantages of his property are taken over; for whether the succession admit or not of valuation, bring loss or gain, consist of corporeal objects or of actions, in this connection it will properly be called 'Inheritance.' a Cf. Moyle, edn. of Just. Inst. Introd. pp. 67-71. 'Vel ad res.' Singulae res, see Gai. ii. §§ 1-96, and Just. ii. 1-9; for acquisition by Universal Succession, especially the Law of Inheritance, Gai. ii. § 97-iii. § 87, and Just. ii. 10-iii. 12; for Obligations, Gai. iii. §§ 88-225, Just. iii. 1-iv. 5. Vel ad actiones.'-Gai. iv. and Just. iv. 6-17 (tit. 18 de publicis iudiciis). The Roman institutional works thus present a division into the doctrine of Persons (entirely agreeing with the second part of the following exposition); of the objects of rights corporeal and incorporeal (i.e., obligations), their acquisition-the Law of Inheritance being treated as a form of acquisition-and loss; and of legal remedies." Cf. Puchta, vol. i.; Rivier, • Introduction historique au droit Romain'; Karlowa, Röm R. Geschichte. e Cf. Clark, 'Early Roman PART II. OUTLINES OF THE HISTORY AND THE § 7. THE REPUBLIC. First Period. To the Legislation of the Twelve Tables. as one endowed legally The strained civil and thought and action, Law, pp. 136, ROMAN Private Law, like the Roman State, developed out of small beginnings. But from the outset the Roman People comes before us and politically like none other. military discipline, rigidity of steadily practical view, clearness in the apprehension of matters within the sphere of Politics and of Law, energy, circumspection and consistency in the pursuit of problems and objects once entertained; in fine, the sharpness of juristic conception and legal arrangement of the relations of life-all these hereditary qualities of the Roman mind give to that nation the appear ance of having been predestined to the cultivation of LAW. According to tradition, the original constitution comitia; Rivier, of Rome was monarchical." After the abolition of Rivier, pp. , III-125. royalty, the place of 'rex' was taken by two 'consules,' chosen yearly. Though they were invested with royal authority, their power was limited by the association with them of the Senate (at first composed of the heads of the gentes) in government and the Assembly of the People, or comitia curiata, centuriata," which had legislative functions, and was See Brown, s. the Supreme Court in respect of capital offences of pp. 129, $27. Roman citizens. But inasmuch as the governing power was vested alone in the Patricians, or original citizens, and the Plebeians were excluded not merely from the magistracy, but also from the sacral offices commanding influence (especially from the college of the augurs and pontiffs) and from the Senate, there had been in the constitution itself a jar, which evoked the struggle of classes that began in the infancy of the Republic and was for two centuries maintained with great persistency. By it the Plebeians gradually acquired political equality with the Patricians, and finally secured acceptance of the democratic principle in the constitution. The first result of the contest was the recognition of leaders and officers of the Plebs, the 'tribuni plebis,' upon whom should devolve the defence of that body against encroachment of the consular 'imperium,' as well as against Patrician oppression; and the recog nition of separate Plebeian assemblies, the 'comitia plebis' and 'comitia tributa,' whereby the Plebeians were constituted into a special order recognised by Law, and organized as well politically as socially." e Cf. Maine, A second gain of the Plebeians, in its significance far outlasting the struggle of the orders and the Republic itself, was the legislation of the TWELVE TABLES, which dates from about the year 305 U.C. Rivier, pp. This was known as the Lex XII tabularum,' or d 163-182. |