The rules of procedure, relative to the necessity and the manner of alleging and proving, judicially, the facts upon which it is intended to rely, are distinct from the proof of custom no less than of law; thus the judge cannot recognise a fact which has not been duly stated or proved, before him, by one or other of the parties, but he is bound, on the contrary, to pay attention to customary law, and to apply it ex officio, even thongh the parties may neglect to invoke it. 1)

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The force of customary-right is fully equal to that of written law. L. 32. § 1. D. de legg. (1. 3). It may perfect, modify, or indeed abrogate the existing law; 2) even thongh that law should, in advance, have declared null and non-obligatory any custom to the contrary which might be adopted. 3) In fact the written law cannot prevent a right from establishing itself as such; and consequently any provision which invalidates, by anticipation, a future custom, is as inoperative as one which should, in the same manner, prohibit a future enactment.

§ 16. ABSOLUTE, OR IMPERATIVE LAW:

COMPLEMENTARY, OR

REGULATORY LAW. (ABSOLUTES, GEBIETENDES RECHT:

VERMITTELNDES, ERGÄNZENDES RECHT; AD JUS,

VOLUNTATEM PERTINENS. L. 12. § 1. D. DE
PACT. DOT. (23. 4)).

AD

By imperative law are meant the rules, which, founded upon public

1) Sav. I, 188. Windscheid, § 17. Vangerow, I, § 17. Kierulff, 1. c., p. 14, says, very justly, "custom, as such, is a fact, but it is not so with customary-law. The latter is not strictly a fact, but only finds in the fact its expression, or manifestation."

2) This rule is contradicted, only in appearance, by L. 2 C. quae sit longa cons.: Consuetudinis ususque longaevi non vilis auctoritas est, verum non usque adeo sui valitura momento, ut aut rationem vincat aut legem. This law only expresses the difference between custom as a fact, and customary law as an expression of the general will. See Puchta, Vorles, I. 451; and other less plausible explanations in Sav. Syst. II, appendix I. Vangerow I, § 16, Kierulff, 1. c.

3) Windscheid, § 18.

order,

the pecuniary or administrative interests of the State, or good morals, leave no room for the exercise of individual will. They are enforced, whether individuals desire it or not. Jus publicum, privatorum pactis mutari non potest. L. 38. D. de pact. (2. 14). Pacto jus publicum infringi non potest. L. 20. pr. de relig. (11. 7). Quoties pactum a jure communi remotum est, servari non oportet. L. 7. § 16. D. de pact. L. 42. D. eod. L. 12. § 1. D. de pact. dot. (23. 4). ') Complementary, or regulatory law, on the contrary, leaves an ample field for exercise of individual will, and operates only when the parties interested have neglected to determine their respective legal rights to their full

extent.

1) Ex. ne dolus praestetur, ut tutores aneclogisti sint, ne divertere liceat, ne quis Falcidia utatur. L. 23. D. de R. J. L. 5. § 7. D. de adm. tut. (26. 7). L. 15. § 1. D. ad. leg, Falc. (35. 2). L. 5, 6, 14, 15, 16, D. de pact. dot. (23. 4). L. 13. § I. D. de Pollicit. (50. 12). "Conditiones donationibus adpositas, quae in Rempublicam sunt, ita demum ratas esse, si utilitatis publicae interest: quod si damnosae sint, observari non debere: et ideo non observandum, quod defunctus, certa summa legata, vetuit vectigal exerceri: esse enim tolerabilia, quae vetus consuetudo comprobat." See art. 187, 195, 470, 1112, 1200, 1223, 1556, 1557, Netherlands' Civil Code; and art. 14, of the Law containing general provisions.

CHAPTER II.

The idea of rights, and their divisions.

§ 17. WHAT CONSTITUTES A RIGHT.

A Right in its subjective sense, is the power) given, by

1) From the fact that a right is a power, it follows that no conception of it can be formed except as attached to a person. Windscheid, Pand. § 49, note 2, and other authors whom he cites, reject, in the vacant inheritance, the fictitious personality. Among other reasons, they rest upon the fact that the law possesses the absolute power of prolonging the existence of an assemblage of patrimonial rights, without any positive necessity for the presence of a subject to govern that assemblage. But Kuntze objects, very justly, (die Obligation, § 95), that, even in the domain of pure reason, arbitraryabsolutism cannot reign, and that even the jurisconsult and the legislator must respect the laws of logic. If it be, still, asked, why the rights and the obligations which were attached to a determinate subject cannot continue to exist in their collective unity, after the disappearance of this subject, (person,) [Windscheid, Actio des Röm. Civil-Rechts, § 234], I answer that if we admit this possibility, for the sole reason that the patrimony has once had a subject, this is, in reality, equivalent to a recognition of the fiction of a continued personality. Finally, Windscheid, starting from the principle, that a determinate subject is not essential to the existence of a right, deduces thence the conclusion that there is no necessity for a subject at all! But, Unger (Krit. Ueberschau, VI, 160), wittily asks him what would be said to the following specimen of reasoning: "Inasmuch as it is indifferent by what actor this part may be played, there is no need of any actor whatever for this part." Windscheid is, also, sharply attacked by Ihering, Jahrb. f. d. Dogmat., I, 28, note 9. Our assumption that an existing right cannot be imagined except as attached to a subject or possessor, is not contradicted by the circunstance that it is sometimes uncertain, and not to be known until subsequently, upon which person, among several, a right will devolve. L. 70, § 1. D. de usufr. (7. 1): “pendere, eorum dominium, ut si summittantur, sint proprietarii, non summitantur, fructuarii. Quae peculiari nomine servi captivorum possident, in suspenso sunt." L. 22. § 3. D. de capt. (49. 15).

right in the objective sense to the will of a person 1), relatively to a certain object. To such a right there corresponds, if not a positive obligation on the part of another specified individual, at least a negative obligation 2) on the part of every one, not to disturb the possessor of the right in the exercise of the power conferred upon him by its possession. (by the objective right.)

1) Fitting, (die Natur der Correalobligation, p. 28, note 31), protests against this definition. He asserts that it can be applied only to real rights, and to those derived from the potestas, and not in any way to family-rights; because the wife, for example, has no power over her husband, nor children over their parents. I do not perceive the grounds of this objection, When the law recognises certain rights on the part of children as towards their parents, and of the wife as towards her husband, is not this a power created and admitted by the law, in favour of the one or of the other? In regard to obligations, Fitting observes, that only that which is objective and durable can be the object of power and of submission, and that it cannot apply to that which is fugitive and changeable; as for example an action by a man. But, it must be observed that the question is not as to the empire of physical force, but in reference to a power of a special nature, of which the effect. assured by legal prescriptions, is to regulate and limit, in different ways and according to the difference of its objects, the subjective will of others. This remark suffices, also, to answer this other objection of Fitting, that the idea of power implies, necessarily, that the creditor should be able directly to force the debtor to fulfil his obligation. He objects, still further, that no constraint or power can be conceived in regard to natural obligations; but this is inexact, inasmuch as natural obligation, according to the Roman Law, has, undeniably, several effects; and a right does not. the less exist, because political or legislative reasons cause its exercise to be limited. A debtor, for example, who becomes a creditor by the operation of a natural obligation, has THE RIGHT to enforce his claim by way of compensation: Is not this is a power which is accorded him by objective right? The definition given by Fitting himself; "We term right, in the subjective sense, every power recognised by right in the objective sense," signifies, merely, that a right is a right. Vide, Sav. Syst. I, 7; Kuntze, 1. c., § 2 et s.; Windscheid, § 37, note 1; Arndts, § 21, note 1. (3.)

2) right, to which corresponds the negative obligation of every one to respect it, is called an absolute right; that to which corresponds the obligation of a specified person, to do or to forbear from doing some act, is a relative right. See Unger, § 59. Arndts, 21, note 2.

§ 18. DISTINCTION OF RIGHTS, ACCORDING TO THE OBJECT UPON

WHICH THE WILL MAY ACT.

The will of a person directs his power, First: directly upon a physical object in nature, exterior to himself. When this is the case, one is said to have a right over the thing. (jus in re). Among rights of this kind, the foremost place belongs to property; which, by its nature, submits something completely to our power. There are also other rights, of lesser extent, by operation of which we exercise our power upon something of which another is proprietor; without, however, controlling it in every respect or from every side. (jura in re aliena). Or, Second: the direction of the will consists in exacting that some particular person shall perform, or shall forbear to perform, some particular act; and so that to this performance or this forbearance shall attach an interest appreciable in money. Rights of this kind are termed debts or obligations.

These two categories of rights are comprised in the generic name of patrimonial rights, or rights of property; and both have this in common, that they are capable of inheritance; by which must be understood the entrance of a person upon the general rights and obligations of another person, whose natural existence has ceased. (Hereditary right.) To patrimonial rights, properly so called, are opposed family ties, which being founded upon the permanent and personal relations of man to man, and consequently of a moral rather than a legal nature, 1) are nevertheless recognised as obligations

1) Windscheid, § 41. "The family relation is not exclusively, nor even principally, a question of legal right. It derives its rules directly from the moral law. It imposes duties without conferring rights, and those duties involve the maintenanee rather of a certain sentiment than of a specific line of external conduct. The law finds the family thus governed, and seeks, as far as possible, to procure an external sanction for the moral rules which, in the family, manifest themselves spontaneously. So far as it thus commands one to submit his own will to that of another, it may be said to confer a right upon the latter. But such a right is, still, very different from all others. It is derived from a duty. Duty is the mainspring, the right is only a consequence. No other right presents this peculiarity; born of duty; all, on the contrary, exist before duty, and call it into being.

none is