of procedure dictated by strict logical principles, and so to arrange his matter that that which is first treated of may render what follows as intelligible as possible. From considerations such as these, and no others, the author has been induced to divide the present work into four books, of which * The doctrines relating to prescription are contained in an appendix, both because they can only be understood after a knowledge of all the above subjects has been acquired, and because a separation of these doctrines and distribution of them amongst the body of the work can only lead to confusion and to superficial attainments.d 2. Roman Systems. The Romans cannot be said to have done much towards systematising law. In their division of law into Jus sacrum, publicum and privatum,e or publicum and privatum,f so confused was the most important notion of all, namely, that of their Jus publicum, which is merely directed to the public welfare, that very many doctrines deemed in modern times to belong to the division of private law, can be referred to the other Roman division; yet, in this matter the most accurate discrimination was requisite in consequence of the important principle, that the public law cannot be altered at the will of private individuals.h * i. e. in the 8th edition, from which this § is translated. d Notwithstanding the last lines of the text, the learned editor of the ninth edition broke up the Appendix on Prescription, and placed a great portion of it amongst the General Principles, and the rest of it elsewhere in the bulk of the work. So much of this branch of the law as can be understood without a knowledge of the contents of the second and subsequent books of the original system, will be found in the present translation. Trans. • Quintilianus inst. orat. II. 4. Ausonius Idyll. XI. 61. ' Livius III. 34. Plinius epist. I. 22. L. 1. § 2. de iust. et iure (1. 1). Hänsel Handbuch der Institutionen Bd. 1. Leipz. 1842. p. 188–198. * Burchardi Grundzüge des Rechtssystems der Römer. Bonn 1822. L. 38. de pact. (2. 14.) L. 5. § 7. de admin. tutor. (26. 7.) Those works of the Romans in which a sort of attempt at a system is made are not worthy of imitation. Their endeavours to generalise are very feeble, and the order of the Pandects (which, with some trifling exceptions, is followed in the Code), is so faulty that the arrangement of the Institutes, bad as it is, is comparatively excellent. Even if we admit that the Pandects were arranged to suit the convenience of judges, still everything in them is most immethodically put together,k and the matter is not mended by being told that the order was nearly the same as in the Prætor's Edict, and was borrowed from the Twelve Tables, or had reference to the old Legis actiones.1 The arrangement of the Institutes is, for beginners, tolerably good,m and being adapted to the Roman definition of Jurisprudence," is not altogether illogical. But even granting that the Jurist has to take everything into account in every matter, and therefore to bear in mind all the doctrines relating to the subjects of rights (Jus personarum), and all the doctrines relating to that which is not the subject of any right (Jus rerum), and has moreover correctly to apply both of these (Jus actionum), still if rights and duties are looked upon as the great objects of law, it is logically incorrect to treat that which is of most importance, as if it were only of secondary consideration, and to discuss the doctrines relating to rights and duties as incidental to those relating to incorporeal things, and to make a third principal division of the law relating to actions, which in reality is a branch of that relating to things. It is at * See the first titles in the Institutes and Digest, and the attempt at generalisation which is often most successful when it comes last, in Dig. L. 8. T. 4. L. 30. 31. 32. and Cod. L. 3. T. 38. L. 6. T. 43. 59. L. 7. T. 15. 30. * Donelli comment. L. 1. c. 1. This opinion is entertained by Heffter im Rheinischen Museum 1. Ihrg. 1. Hft. Nr. 2. A. F. Schilling Institutionen B. 2. Leipz. 1837. § 2. appx. " Given in L. 10. § 2. de iust. et iure (1. 1.) It has been much observed upon. Brissonii antiqu. L. 14. c. 16. Thibaut Vers. 2. B. 6-8. Welcker Rechts-, Staats- und Gesetzgebungslehre. Stuttg. 1829. p. 512-518. • With regard to the Institutes of Justinian and Gaius, I unhesitatingly retain the opinions formerly held by me, and which have been also defended by others. They have, however, again been attacked by Hugo civ. Mag. B. 4. any rate indisputable that those principles which pervade every branch of Jurisprudence should be at the outset brought together, and what is in German treatises commonly called the General Part, should consequently contain such explanations of the elementary notions of Positive law, Rights and Duties, as may be requisite for the thorough understanding of more special matters. Nr. 1. 9. B. 5. Nr. 15. deserved by one of us. B. 6. Nr. 15. The reproach of obstinacy is certainly See Savigny System B. 1. § 59. CHAPTER II. OF LAWS WITH REFERENCE TO THEIR SOURCES. I.-OF NATURAL LAW AND ITS LEGAL FORCE. 1. Jus naturale, &c. WITH respect to the sources of Law the Romans had the following notions: every individual member of a political community is, as an animal, subject to the laws of Instinct; as a human being, to those which are dictated by the reason of mankind; and, lastly, as an individual member of a political community, to those laws which are sanctioned by the sovereign powers of that community. These three sorts of laws are respectively designated by the Romans jus naturale, jus gentium, sometimes also jus naturale, and jus civile, in its most extensive sense. The proper source of this jus gentium is what in modern times is called the moral sense, or the natural feeling of justice; this, together with the moral notions at the time common to all nations, the Romans were not backward in recognising as authority, although they did not feel themselves compelled to found their jus gentium wholly upon it.s The jus gentium of the P pr. I. de jure natur. (1. 2.) L. 1. § 3. de iust. et iur. (1. 1.) a Cicero pro Sextio c. 42. 11. § 1. 11. I. de rer. div. (2. 1.) Theophilus L. 1. T. 2. pr. L. 11. de iust. et iur. (1. 1.) L. 2. 3. 4. de rer. div. (1. 8.) L. 4. § 2. de grad. (38. 10.) L. 32. de R. I. (50. 17.) Savigny System B. 1. Beilage I. L. 6. pr. de iust. et iur. (1. 1.) In a narrower sense jus civile means the law peculiar to the Roman State. L. 1. pr. de A. R. D. (41. 1.) Sometimes it is opposed to jus honorarium v. prætorium. L. 7. de iust. et iur. (1. 1.) Sometimes it means that which is fixed by the interpretatio prudentium. L. 2. § 5. 12. de O. I. (1. 2.); and lastly it is opposed to criminal law. Tit. C. quando civilis actio (9. 31.). Cicero de inventione II. 22. Gaius I. 189. L. 6. 11. de iust. et iur. (1. 1.) Romans, being dependent entirely upon natural feeling, did not rest upon any abstract principle. They did, however, recognise many principles as general rules, particularly the principle, that by the natural law all agreements should be observed, and that, in the absence of any special right, no one ought to enrich himself to the damage or from the property of another." § 8. The jus civile, or, in the language of modern writers, jus positivum, has every possible civil effect, and, whether based on the principles of natural law or not (jus positivum mixtum, et merum), can be taken advantage of as well by action as by plea (exceptio). The jus gentium, as a general rule, can be taken advantage of only by way of defence; and only those duties with their correlative rights which can be enforced by an action founded on the jus civile are, strictly speaking, obligationes, although this term includes such duties as are enforceable by action by the practice of the Roman Courts, e.g. the duty which arises in case of an improper acquisition of property to the damage of another.z The German courts, following the Canon Law, hold that the performance of a duty arising merely from natural law can be enforced by an equitable action (actio in factum, imploratio officii judicis), and that such duties, like those founded on positive law, Theophilus L. 1. T. 2. pr. Puchta Gewohnheitsr 1. Bd. 1—44. Also in his Cursus der Institutionen B. 1. 357. See contra, Dirksen im Rhein. Mus. 1. B. 1-50., and in his Vermischten Schriften B. 1. Nr. 9. * L. 1. pr. de pact. (2. 14.). L. 17. § 4. de inst. act. (14. 3.) L. 6. § 2. de iure dot. (23. 3.) L. 206. de R. I. (50. 17.) cap. 48. de R. I. in 6. (5. 13.). W. Sell Versuche 1. B. Nr. 1. See further, § 8. & Weiske Rechtslexikon B. 1. 925. * L. 10. 178. § 3. de V. S. (50. 16.). A. F. E. Lelievre quid sit obligatio naturalis ex sententia Romanorum. Lovan. 1826. p. 37-42. 69-71. See contra Weber v. d. natürl. Verb. § 43-47. 51. 55. 88. 99. Compare Unterholzner die Lehre von den Schuldverhältnissen B. 1. Leipz. 1840. § 6-9. ꞌ pr. I. de obligat. (3. 13.). See § 7, note u and L. 15. de dolo L. 1. § 2. L. 2. 3. pr. commod. (13. 6.) L. 14. § 1. de reb. auct. iudic. (42. 5.). Cap. 6. X. de iudic. (2. 1.) Abhandlungen. Giess. 1833. Nr. 6. a (4. 3.) L. 23. § 4. 5. de R. V. (6. 1.) |