The Institutes of Justinian Part 5

3 The next point is to see what persons may bring this accusation; and it is to be observed that the action partakes of a public character, that is to say, is open to all. Indeed, by a rescript of Severus and Antoninus even women are made competent to bring it, but only those who can allege a close tie of affection as their motive; for instance, a mother, nurse, grandmother, or sister. And the praetor will allow any woman to prefer the accusation in whom he finds an affection real enough to induce her to save a pupil from suffering harm, without seeming to be more forward than becomes her s.e.x.

4 Persons below the age of p.u.b.erty cannot accuse their guardians on suspicion; but by a rescript of Severus and Antoninus it has been permitted to those who have reached that age to deal thus with their curators, after taking the advice of their nearest relations.

5 A guardian is 'suspected' who does not faithfully discharge his tutorial functions, though he may be perfectly solvent, as was the opinion also of Julian. Indeed, Julian writes that a guardian may be removed on suspicion before he commences his administration, and a const.i.tution has been issued in accordance with this view.

6 A person removed from office on suspicion incurs infamy if his offence was fraud, but not if it was merely negligence.

7 As Papinian held, on a person being accused on suspicion he is suspended from the administration until the action is decided.

8 If a guardian or curator who is accused on suspicion dies after the commencement of the action, but before it has been decided, the action is thereby extinguished;

9 and if a guardian fails to appear to a summons of which the object is to fix by judicial order a certain rate of maintenance for the pupil, the rescript of the Emperors Severus and Antoninus provides that the pupil may be put in possession of the guardian's property, and orders the sale of the perishable portions thereof after appointment of a curator. Consequently, a guardian may be removed as suspected who does not provide his pupil with sufficient maintenance.

10 If, on the other hand, the guardian appears, and alleges that the pupil's property is too inconsiderable to admit of maintenance being decreed, and it is shown that the allegation is false, the proper course is for him to be sent for punishment to the prefect of the city, like those who purchase a guardians.h.i.+p with bribery.

11 So too a freedman, convicted of having acted fraudulently as guardian of the sons or grandsons of his patron, should be sent to the prefect of the city for punishment.

12 Finally, it is to be noted, that guardians or curators who are guilty of fraud in their administration must be removed from their office even though they offer to give security, for giving security does not change the evil intent of the guardian, but only gives him a larger s.p.a.ce of time wherein he may injure the pupil's property: 13 for a man's mere character or conduct may be such as to justify one's deeming him 'suspected.' No guardian or curator, however, may be removed on suspicion merely because he is poor, provided he is also faithful and diligent.

BOOK II.

t.i.tLES I. Of the different kinds of Things II. Of incorporeal Things III. Of servitudes IV. Of usufruct V. Of use and habitation VI. Of usucapion and long possession VII. Of gifts VIII. Of persons who may, and who may not alienate IX. Of persons through whom we acquire X. Of the execution of wills XI. Of soldiers' wills XII. Of persons incapable of making wills XIII. Of the disinherison of children XIV. Of the inst.i.tution of the heir XV. Of ordinary subst.i.tution XVI. Of pupillary subst.i.tution XVII. Of the modes in which wills become void XVIII. Of an unduteous will XIX. Of the kinds of and differences between heirs XX. Of legacies XXI. Of the ademption and transference of legacies XXII. Of the lex Falcidia XXIII. Of trust inheritances XXIV. Of trust bequests of single things XXV. Of codicils

t.i.tLE I. OF THE DIFFERENT KINDS OF THINGS

In the preceding book we have expounded the law of Persons: now let us proceed to the law of Things. Of these, some admit of private owners.h.i.+p, while others, it is held, cannot belong to individuals: for some things are by natural law common to all, some are public, some belong to a society or corporation, and some belong to no one. But most things belong to individuals, being acquired by various t.i.tles, as will appear from what follows.

1 Thus, the following things are by natural law common to all--the air, running water, the sea, and consequently the seash.o.r.e. No one therefore is forbidden access to the seash.o.r.e, provided he abstains from injury to houses, monuments, and buildings generally; for these are not, like the sea itself, subject to the law of nations.

2 On the other hand, all rivers and harbours are public, so that all persons have a right to fish therein.

3 The seash.o.r.e extends to the limit of the highest tide in time of storm or winter.

4 Again, the public use of the banks of a river, as of the river itself, is part of the law of nations; consequently every one is ent.i.tled to bring his vessel to the bank, and fasten cables to the trees growing there, and use it as a resting-place for the cargo, as freely as he may navigate the river itself. But the owners.h.i.+p of the bank is in the owner of the adjoining land, and consequently so too is the owners.h.i.+p of the trees which grow upon it.

5 Again, the public use of the seash.o.r.e, as of the sea itself, is part of the law of nations; consequently every one is free to build a cottage upon it for purposes of retreat, as well as to dry his nets and haul them up from the sea. But they cannot be said to belong to any one as private property, but rather are subject to the same law as the sea itself, with the soil or sand which lies beneath it.

6 As examples of things belonging to a society or corporation, and not to individuals, may be cited buildings in cities--theatres, racecourses, and such other similar things as belong to cities in their corporate capacity.

7 Things which are sacred, devoted to superst.i.tious uses, or sanctioned, belong to no one, for what is subject to divine law is no one's property.

8 Those things are sacred which have been duly consecrated to G.o.d by His ministers, such as churches and votive offerings which have been properly dedicated to His service; and these we have by our const.i.tution forbidden to be alienated or pledged, except to redeem captives from bondage. If any one attempts to consecrate a thing for himself and by his own authority, its character is unaltered, and it does not become sacred. The ground on which a sacred building is erected remains sacred even after the destruction of the building, as was declared also by Papinian.

9 Any one can devote a place to superst.i.tious uses of his own free will, that is to say, by burying a dead body in his own land. It is not lawful, however, to bury in land which one owns jointly with some one else, and which has not hitherto been used for this purpose, without the other's consent, though one may lawfully bury in a common sepulchre even without such consent. Again, the owner may not devote a place to superst.i.tious uses in which another has a usufruct, without the consent of the latter. It is lawful to bury in another man's ground, if he gives permission, and the ground thereby becomes religious even though he should not give his consent to the interment till after it has taken place.

10 Sanctioned things, too, such as city walls and gates, are, in a sense, subject to divine law, and therefore are not owned by any individual. Such walls are said to be 'sanctioned,' because any offence against them is visited with capital punishment; for which reason those parts of the laws in which we establish a penalty for their transgressors are called sanctions.

11 Things become the private property of individuals in many ways; for the t.i.tles by which we acquire owners.h.i.+p in them are some of them t.i.tles of natural law, which, as we said, is called the law of nations, while some of them are t.i.tles of civil law. It will thus be most convenient to take the older law first: and natural law is clearly the older, having been inst.i.tuted by nature at the first origin of mankind, whereas civil laws first came into existence when states began to be founded, magistrates to be created, and laws to be written.

12 Wild animals, birds, and fish, that is to say all the creatures which the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor by the law of nations; for natural reason admits the t.i.tle of the first occupant to that which previously had no owner. So far as the occupant's t.i.tle is concerned, it is immaterial whether it is on his own land or on that of another that he catches wild animals or birds, though it is clear that if he goes on another man's land for the sake of hunting or fowling, the latter may forbid him entry if aware of his purpose. An animal thus caught by you is deemed your property so long as it is completely under your control; but so soon as it has escaped from your control, and recovered its natural liberty, it ceases to be yours, and belongs to the first person who subsequently catches it. It is deemed to have recovered its natural liberty when you have lost sight of it, or when, though it is still in your sight, it would be difficult to pursue it.

13 It has been doubted whether a wild animal becomes your property immediately you have wounded it so severely as to be able to catch it.

Some have thought that it becomes yours at once, and remains so as long as you pursue it, though it ceases to be yours when you cease the pursuit, and becomes again the property of any one who catches it: others have been of opinion that it does not belong to you till you have actually caught it. And we confirm this latter view, for it may happen in many ways that you will not capture it.

14 Bees again are naturally wild; hence if a swarm settles on your tree, it is no more considered yours, until you have hived it, than the birds which build their nests there, and consequently if it is hived by some one else, it becomes his property. So too any one may take the honeycombs which bees may chance to have made, though, of course, if you see some one coming on your land for this purpose, you have a right, to forbid him entry before that purpose is effected. A swarm which has flown from your hive is considered to remain yours so long as it is in your sight and easy of pursuit: otherwise it belongs to the first person who catches it.

15 Peafowl too and pigeons are naturally wild, and it is no valid objection that they are used to return to the same spots from which they fly away, for bees do this, and it is admitted that bees are wild by nature; and some people have deer so tame that they will go into the woods and yet habitually come back again, and still no one denies that they are naturally wild. With regard, however, to animals which have this habit of going away and coming back again, the rule has been established that they are deemed yours so long as they have the intent to return: for if they cease to have this intention they cease to be yours, and belong to the first person who takes them; and when they lose the habit they seem also to have lost the intention of returning.

16 Fowls and geese are not naturally wild, as is shown by the fact that there are some kinds of fowls and geese which we call wild kinds. Hence if your geese or fowls are frightened and fly away, they are considered to continue yours wherever they may be, even though you have lost sight of them; and any one who keeps them intending thereby to make a profit is held guilty of theft.

17 Things again which we capture from the enemy at once become ours by the law of nations, so that by this rule even free men become our slaves, though, if they escape from our power and return to their own people, they recover their previous condition.

18 Precious stones too, and gems, and all other things found on the seash.o.r.e, become immediately by natural law the property of the finder:

19 and by the same law the young of animals of which you are the owner become your property also.

20 Moreover, soil which a river has added to your land by alluvion becomes yours by the law of nations. Alluvion is an imperceptible addition; and that which is added so gradually that you cannot perceive the exact increase from one moment of time to another is added by alluvion.

21 If, however, the violence of the stream sweeps away a parcel of your land and carries it down to the land of your neighbour it clearly remains yours; though of course if in the process of time it becomes firmly attached to your neighbour's land, they are deemed from that time to have become part and parcel thereof.

22 When an island rises in the sea, though this rarely happens, it belongs to the first occupant; for, until occupied, it is held to belong to no one. If, however (as often occurs), an island rises in a river, and it lies in the middle of the stream, it belongs in common to the landowners on either bank, in proportion to the extent of their riparian interest; but if it lies nearer to one bank than to the other, it belongs to the landowners on that bank only. If a river divides into two channels, and by uniting again these channels transform a man's land into an island, the owners.h.i.+p of that land is in no way altered:

23 but if a river entirely leaves its old channel, and begins to run in a new one, the old channel belongs to the landowners on either side of it in proportion to the extent of their riparian interest, while the new one acquires the same legal character as the river itself, and becomes public. But if after a while the river returns to its old channel, the new channel again becomes the property of those who possess the land along its banks.

24 It is otherwise if one's land is wholly flooded, for a flood does not permanently alter the nature of the land, and consequently if the water goes back the soil clearly belongs to its previous owner.

25 When a man makes a new object out of materials belonging to another, the question usually arises, to which of them, by natural reason, does this new object belong--to the man who made it, or to the owner of the materials? For instance, one man may make wine, or oil, or corn, out of another man's grapes, olives, or sheaves; or a vessel out of his gold, silver, or bronze; or mead of his wine and honey; or a plaster or eyesalve out of his drugs; or cloth out of his wool; or a s.h.i.+p, a chest, or a chair out of his timber. After many controversies between the Sabinians and Proculians, the law has now been settled as follows, in accordance with the view of those who followed a middle course between the opinions of the two schools. If the new object can be reduced to the materials out of which it was made, it belongs to the owner of the materials; if not, it belongs to the person who made it. For instance, a vessel can be melted down, and so reduced to the rude material--bronze, silver, or gold--of which it is made: but it is impossible to reconvert wine into grapes, oil into olives, or corn into sheaves, or even mead into the wine and honey out of which it was compounded. But if a man makes a new object out of materials which belong partly to him and partly to another--for instance, mead of his own wine and another's honey, or a plaster or eyesalve of drugs which are not all his own, or cloth of wool which belongs only in part to him--in this case there can be no doubt that the new object belongs to its creator, for he has contributed not only part of the material, but the labour by which it was made.

26 If, however, a man weaves into his own cloth another man's purple, the latter, though the more valuable, becomes part of the cloth by accession; but its former owner can maintain an action of theft against the purloiner, and also a condiction, or action for reparative damages, whether it was he who made the cloth, or some one else; for although the destruction of property is a bar to a real action for its recovery, it is no bar to a condiction against the thief and certain other possessors.

27 If materials belonging to two persons are mixed by consent--for instance, if they mix their wines, or melt together their gold or their silver--the result of the mixture belongs to them in common. And the law is the same if the materials are of different kinds, and their mixture consequently results in a new object, as where mead is made by mixing wine and honey, or electrum by mixing gold and silver; for even here it is not doubted that the new object belongs in common to the owners of the materials. And if it is by accident, and not by the intention of the owners, that materials have become mixed, the law is the same, whether they were of the same or of different kinds.

28 But if the corn of t.i.tius has become mixed with yours, and this by mutual consent, the whole will belong to you in common, because the separate bodies or grains, which before belonged to one or the other of you in severalty, have by consent on both sides been made your joint property. If, however, the mixture was accidental, or if t.i.tius mixed the two parcels of corn without your consent, they do not belong to you in common, because the separate grains remain distinct, and their substance is unaltered; and in such cases the corn no more becomes common property than does a flock formed by the accidental mixture of t.i.tius's sheep with yours. But if either of you keeps the whole of the mixed corn, the other can bring a real action for the recovery of such part of it as belongs to him, it being part of the province of the judge to determine the quality of the wheat which belonged to each.

29 If a man builds upon his own ground with another's materials, the building is deemed to be his property, for buildings become a part of the ground on which they stand. And yet he who was owner of the materials does not cease to own them, but he cannot bring a real action for their recovery, or sue for their production, by reason of a clause in the Twelve Tables providing that no one shall be compelled to take out of his house materials (tignum), even though they belong to another, which have once been built into it, but that double their value may be recovered by the action called 'de tigno iniuncto.' The term tignum includes every kind of material employed in building, and the object of this provision is to avoid the necessity of having buildings pulled down; but if through some cause or other they should be destroyed, the owner of the materials, unless he has already sued for double value, may bring a real action for recovery, or a personal action for production.

30 On the other hand, if one man builds a house on another's land with his own materials, the house belongs to the owner of the land. In this case, however, the right of the previous owner in the materials is extinguished, because he is deemed to have voluntarily parted with them, though only, of course, if he was aware that the land on which he was building belonged to another man. Consequently, though the house should be destroyed, he cannot claim the materials by real action. Of course, if the builder of the house has possession of the land, and the owner of the latter claims the house by real action, but refuses to pay for the materials and the workmen's wages, he can be defeated by the plea of fraud, provided the builder's possession is in good faith: for if he knew that the land belonged to some one else it may be urged against him that he was to blame for rashly building on land owned to his knowledge by another man.

31 If t.i.tius plants another man's shrub in land belonging to himself, the shrub will become his; and, conversely, if he plants his own shrub in the land of Maevius, it will belong to Maevius. In neither case, however, will the owners.h.i.+p be transferred until the shrub has taken root: for, until it has done this, it continues to belong to the original owner. So strict indeed is the rule that the owners.h.i.+p of the shrub is transferred from the moment it has taken root, that if a neighbour's tree grows so close to the land of t.i.tius that the soil of the latter presses round it, whereby it drives its roots entirely into the same, we say the tree becomes the property of t.i.tius, on the ground that it would be unreasonable to allow the owner of a tree to be a different person from the owner of the land in which it is rooted.

Consequently, if a tree which grows on the boundaries of two estates drives its roots even partially into the neighbour's soil, it becomes the common property of the two landowners.