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V. Of Civil INJURIEs.
VI. Of CRIMEs.
“While the general method differs thus widely from that of the former commentaries, yet the two works are often in coincidence, so far as regards the interior or more specific divisions; and the chapters of the present volume in particular, will be found to correspond very frequently, both in title and order of succession, with those in the earlier portion of the second volume of Blackstone. Yet even in parallel chapters, the reader will discover that the same subjects are not invariably embraced; several topics being detached from the place which Blackstone has assigned to them, and either actually inserted, or destined for future insertion in other departments of the work. Thus in the seventeenth chapter, the remarks on leases comprise no notice of leases by tenants in tail, or by married women, for which the nineteenth chapter was thought to afford a more convenient opportunity; nor of leases by ecclesiastical persons, which will more naturally present themselves for discussion, in a subsequent volume, in connection with the general law relating to the church. In like manner the fourteenth chapter (on forfeiture) passes by the subject of simomy, to which the church seems again to have a preferable claim ; and that of waste, reserved (as it is conceived) with more propriety, for the division relative to civil injuries. To these deviations from Blackstone, in point of arrangement, it is also proper to add, that the present volume contains several chapters involving a complete departure from the method of that author, and altogether of new construction; among which the most important are the ninth (on uses and trusts), the eighteenth (on conveyances under the statute of uses), and the nineteenth (on conveyances by tenants in tail and married women).”
The division adopted by Blackstone, which arranges the whole law under the head of rights, on the one side, and of wrongs, on the other, seems to us to be nothing better than a mere play upon words;" while the subdivision of the former, into the rights of persons and the rights of things, was evidently suggested by the use of the word jus in the Roman law, in which it has a sense somewhat different from that of the word right, as commonly used in the English language. The word jus is employed by the Roman jurists to designate what we call the law, meaning thereby the whole body of the legal provisions and rules by which a state is governed. The word right is generally used to designate a privilege belonging to some individual, distinct from others, as a right of way, &c., or to signify that portion of the general law which is centered in a particular individual, as when we speak of one's right to life, liberty, or property.” Both these meanings are explained by a celebrated German writer (Mackeldy) on the Roman law, in the following paragraph:
“Recht (right), like the Latin word jus, and the French word droit, has a twofold signification. In its so-called objective sense, it signifies those laws and rules, which men, considered as reasonable beings, are bound to observe in their relations towards one another, as the rules of their free action (jus est norma agendi). When these laws and rules are of such a nature, that men living in a state may be constrained to their observance by the supreme authority therein, they constitute juridical right proper, in contradistinction to those rules, which are merely moral and only commanded by conscience, and the observance of which cannot be constrained by any external force. When the actions of men, grounded in a free determination of their will, correspond with the requisitions of right, this agreement is denominated justice (justitia). In its so-called subjective sense, on the other hand, right signifies nothing more than the faculty of acting, that is, the moral possibility of being able to do something of ourselves, or to demand that another person should do or omit something for our benefit (jus est facultas agendi). In this sense, consequently, the word right indicates also the relation of superiority in which one man stands to another, and in which it is synonymous with what we are sometimes accustomed to call privilege, as a right of chase, or of way, &c.”
* Nothing strikes us more forcibly in reading the Commentaries, than the author's fondness for giving a reason, of some sort or other, for every thing which he finds established. This propensity, so to speak, is carried almost if not quite to the ridiculous, in the reason which he suggests for the policy of English legislators in regard to sumptuary laws. “Baron Montesquieu,” he says, “lays it down, that luxury is necessary in monarchies, as in France, but ruinous to democracies, as in Holland. With regard therefore to England, whose government is compounded of both species, it may still be a dubious question how far private luxury is a public evil, and as such cognizable by public laws. And indeed our legislators have several times changed their sentiments as to this point; for, formerly, there were a multitude of penal laws existing, to restrain excess in apparel; chiefly made in the reigns of Edward III., Edward IV., and Henry VIII., against piked shoes, short doublets, and long coats; all of which were repealed by statute of 1 Jac. I. c. 25.” What an interesting inquiry it would be, to trace the progress of the democratic principle in the English government, during the reigns of the first-named princes, and especially Henry VIII., manifesting itself in sumptuary laws against long coats and other aristocratic enormities, – till it was finally smothered in the first year of James the First
* See the declaration of rights, prefixed to the constitution of Massachusetts.
We have said that Blackstone's division of rights into those of persons and those of things was suggested by terms used in the Roman law; but the Roman jurists do not, as we recollect, ever use the word jus in the plural, in any such connection; nor do they, according to the best of our recollection, make use of the term jura or jus rerum or rights of things at all. Tribonian, in the Institutes, commences the third title of the first book as follows: Omne autem jus quo utimur, vel ad personas pertimet, vel ad res, vel ad actiones. Et prius de personis videamus : namparum est jus mosse, si persona quarum causa constitutum est ignorentur. Summa itaque divisio de jure personarum hac est, quod omnes homines aut liberi sunt, aut servi. Title eight begins : Sequitur de jure personarum alia divisio; and
title thirteen, Transeamus nunc ad aliam divisionem personarum. In regard to persons, therefore, the word jus seems to be used or omitted, according to the taste or fancy of the writer; but when we come to the second book, which treats of things, we find the first title inscribed de divisione rerum et qualitate, and commencing: Superiore libro de jure personarum exposuimus : modo videamus de rebus, &c.; and, if we do not mistake, the word jus is not used in connection with things, or with actions, or in connection with any of the other subjects treated of in the other books of the Institutes.
We have long been of opinion, that the word right might properly enough and should be used in the objective sense of the word jus, which would enable us to translate that word and its corresponding German recht and French droit more appropriately than by the word law. There is no want of words in English to compel us to use the term law in a double sense; nor, on the other hand, would the use of the word right in the sense above suggested be entirely an innovation, since it is frequently so used by the English translators of Grotius. We hope, therefore, that some adventurous spirit will soon set the example of using the terms right of nature, Roman right, civil right, &c.; and we have no doubt, that the innovation (if it can be called one) will soon be forgiven, in consideration of the very great convenience which will result from having corresponding terms in the three great dialects of modern times, the English, French, and German.
L. S. C.
ART. IX. — OFFICE AND DUTY OF A NOTARY PUBLIC.
A Treatise on the Office and Practice of a Notary of England, as connected with Mercantile Instruments, 3-c. By RICHARD BRooke, Solicitor and Notary. London: Saunders & Benning. 1839.
We believe this is the first work ever published in English on the office and duty of the notary public; an officer of no inconsiderable importance in England and in this country, though possessing inferior and much less extensive authority and consideration, than in most of the states of continental Europe; in which his functions seem to include many of those usually attributed with us to the office of attorney; whereas in countries governed by the common law, the business of the notary is confined, for the most part, to matters of a commercial and maritime character. This difference between the functions of the notary in England and on the continent accounts for the fact stated by Mr. Brooke, that whenever any question has heretofore arisen in the English courts, concerning the notarial practice, resort has been had to foreign writers, for information. The need of a work like the present is thus alluded to by the author in his preface:
“The rules to be observed, respecting the presentment and dishonor of bills of exchange, and the general practice of a notary of England, both as connected with those, and other instruments of a mercantile nature, are in accordance with, and are governed by usage and by the law merchant, except in one or two rare instances in which there have been legislative enactments; yet whenever any mercantile question arises in an English court of law, in which it becomes necessary to discuss the notarial practice, the information which could easily be afforded by experienced and