Page:Gaii institutionum iuris civilis commentarii quattuor, or, Elements of Roman law by Gaius (Poste, Third Edition, 1890, gaiiinstitution00gaiu).djvu/50

24 to these Titles are transferred in their fundamental conception. A glance at the law (1) of Family, (2) of Property, (3) of Succession, (4) of Obligation will convince us of this.

(1) The loss by paterfamilias of the power of life and death over wife and children was an essential change in the Manus and Patria potestas. The introduction of tutor dativus and tutor Atilianus did not affect the nature of Guardianship: but its change from a private right (jus ac potestas) to a public duty was a transformation of its essence.

(2) The abolition of Mancipatio and In jure cessio and the extension of the period of Usucapio did not change the idea of Ownership; but at an earlier period society was revolutionized when common ownership was superseded by private ownership.

(3) The substitution of written instead of oral wills, and the introduction of military or privileged wills, did not change the nature of the right of Testation: but the earlier change from the Comitial to the Mancipatory will was essential; for whereas before to exclude intestate devolution an act of the legislature was required, afterwards a solemn Disposition by a private individual sufficed. Again, the nature of a universal Trust (fidei-commissum) instituted by the Senatus-consultum Trebellianum was not essentially changed by the Sc. Pegasianum: but the introduction of Codicils was an essential change in testation for it introduced partial dispositions in a sphere where formerly the legislator only permitted universal dispositions. And Justinian's benefice of inventory, entirely changing the character of the heres, was another fundamental change in hereditary succession.

(4) Promises assumed a new character at the prehistoric period when they passed from the moral to the legal code; and after the historic period obligations continued to be modified in proportion as the growing ascendancy of acquitas over jus strictum enabled the tribunals to conform more closely to the presumable intentions of a wise legislature. But the most remarkable innovation in this department was the modern invention of paper obligations (papers payable to the bearer or holder), whereby obligation, otherwise incapable of detachment from the person of the original creditor, became as tansferrible by singular succession from creditor to creditor as property from proprietor to proprietor. (See Ihering, Gest des Eoemischen Rechts, on the variability of the institutions of the civil code.