THE DIVISION OF THINGS- GAIUS

BOOK II - OF SINGLE AND UNIVERSAL THINGS

DIVISION OF THINGS


§ 1. In the preceding book the law of persons was expounded; now let us proceed to the law of things, which are either subject to private dominion or not subject to private dominion.
§ 2. The leading division of things is into two classes: things subjects of divine, and things subjects of human right.
§ 3. Subjects of divine right are things sacred and things religious.

§ 4. Sacred things are those consecrated to the gods above; religious, those devoted to the gods below.

§ 5. Sacred things can only become so with the authority of the people of Rome, by consecration in pursuance of a law or a decree of the senate.

§ 6. A religious thing becomes so by private will, when an individual buries a dead body in his own ground, provided the burial is his proper business.

§ 7. On provincial soil, according to most authorities, ground does not become religious as the dominion belongs to the people of Rome or the Emperor, and individuals only have possession or usufruct, but such places, though not properly religious, are to be regarded as quasi-religious.

§ 7 a. Just as provincial soil, in default of the authorization of the people of Rome, is rendered by consecration not sacred, but quasisacred.

§ 8. Sanctioned places are to a certain extent under divine dominion, such as city gates and city walls.

§ 9. Things subject to divine dominion are exempt from private dominion; things subject to human dominion are generally subject to private dominion, but may be otherwise: for things belonging to an inheritance before any one has become heir have no actual owner.

§ 10. Things subject to human dominion are either public or private.

§ 11. Things public belong to no individual, but to a society or corporation; things private are subject to individual dominion.

OF INCORPORAL THINGS.

§ 12. Again, things are either corporeal or incorporeal.

§ 13. Things corporeal are tan gible, as land, a slave, clothing, gold, silver, and innumerable others.
§ 14. Things incorporeal are intangible; such as those which have an existence simply in law as inheritance, usufruct, obligation, however contracted. For though an inheritance comprises things corporeal, and the fruits of land enjoyed by a usufructuary are corporeal, and obligations generally bind us to make over the conveyance of something corporeal: land, slaves, money; yet the right of succession, the right of usufruct, and the right of obligation are incorporeal. So are the rights attached to property in houses and land. The following are rights attached to property in houses; the right of raising a building and thereby obstructing the lights of a neighbouring building; the right of prohibiting a building being raised, so that one’s lights may not be interfered with; the right of letting rain-water fall in a body or in drops on a neighbour’s roof or area; the right of having a sewer through a neighbour’s area, or a window in a neighbour’s wall (cf. Epit. 2, 1, 3). The following are rights attached to property in land: iter, a right of way on foot or horseback; actus, a right of way for ordinary carriages; via, a right of paved way for heavy-laden wagons; pecoris ad aquam appulsus, a right of watering cattle; aquae ductus, a right of conveying water through the tenement of another.

CIVIL ACQUISITION OF CORPORAL THINGS

§ 14 a. Things are further divided into mancipable and not mancipable; mancipable are land and houses in Italy; tame animals employed for draught and carriage, as oxen, horses, mules, and asses; rustic servitudes over Italian soil; but urban servitudes are not mancipable.

§ 15. Stipendiary and tributary estates are also not mancipable. According to my school animals which are generally tamed are mancipable as soon as they are born; according to Nerva and Proculus and their followers, such animals are not mancipable until tamed, or if too wild to be tamed, until they attain the age at which other individuals of the species are tamed.


§ 16. Things not mancipable include wild beasts, as bears, lions; and semi-wild beasts, as elephants and camels, notwithstanding that these animals are sometimes broken in for draught or carriage; for their name was not even known at the time when the distinction between res mancipi and nec mancipi was established.

§ 17. Also things incorporeal, except rustic servitudes on Italian soil; for it is clear that these are mancipable objects, although belonging to the class of incorporeal things.

§ 18. There is an important difference between things mancipable and things not mancipable.

§ 19. Complete ownership in things not mancipable is transferred by merely informal delivery of possession (tradition), if they are corporeal and capable of delivery.

§ 20. Thus when possession of clothes or gold or silver is delivered on account of a sale or gift or any other cause, the property passes at once, if the person who conveys is owner of them.

§ 21. Similarly transferable are estates in provincial lands, whether stipendiary or tributary; stipendiary being lands in provinces subject to the dominion of the people of Rome; tributary, lands in the provinces subject to the dominion of the Emperor.

§ 22. Mancipable things, on the contrary, are such as are conveyed by mancipation, whence their name; but surrender before a magistrate has exactly the same effect in this respect as mancipation.

§ 24. Conveyance by surrender before a magistrate (in jure cessio) is in the following form: in the presence of some magistrate of the Roman people, such as a praetor, the surrenderee grasping the object says: I say this slave is my property by title Quiritary. Then the praetor interrogates the surrenderor whether he makes a counter-vindication, and upon his disclaimer or silence awards the thing to the vindicant. This proceeding is called a statute-process; it can even take place in a province before the president.

§ 25. Generally, however, and almost always the method of mancipation is preferred; for why should a result that can be accomplished in private with the assistance of our friends be prosecuted with greater trouble before the praetor or president of the province?
§ 26. If neither mancipation nor surrender before the magistrate is employed in the conveyance of a mancipable thing . . . .
§§ 14 a-23. Mancipable things—things taken by the hand and so alienable—were at first, probably, the more important accessories of a farm, that is, slaves and beasts of burden—oxen, horses, mules and asses (1 § 120), land itself in Italy and rural servitudes attaching to such land being subsequently made mancipable.