EXPLANATION OF ABBREVIATIONS.

Inst. Institutes of Justinian.

Dig. or D. Digest or Pandects of Justinian.

Cod. or C. Codex of Justinian.

The meaning of the numbers that follow these abbreviations will be obvious to any one who opens a volume of the Corpus Juris.

Pr. stands for principio, meaning, in the first paragraph of a title of the Institutes, or of a fragment of a title of the Digest.

The Commentaries of Gaius are referred to by numbers indicating the book and the paragraph: e. g. 2 § 5, indicates the 5th paragraph of Book 2.

When Ulpian or Paulus is quoted, the works referred to are the Regulae of Ulpian and the Sententiae Receptae of Paulus.

ERRATA.

Page 22, last line, for premisses read premiss.

53, 1. 27, for (decuriae Senatores) read (decuriae) Senatores.

65, l. 16, for judicium read judicum.

79, § 80, 1. 18, for Romano read Romana.

294 (5), 1. 3, for on him and on the heres read on him or on

the heres.

ELEMENTS OF ROMAN LAW.

BOOK I

DE PERSONIS

THE following treatise is a portion of a particular jurisprudence'; it is an exposition of the Civil Law of Rome, that is to say, of her Private law (jus privatum) as opposed to her Public law (jus publicum) in both acceptations, in other words, as opposed both to her Criminal law and to her Constitutional law.

A scientific jurisprudence and a well-arranged code would imitate the method of the natural sciences in proceeding from the universal to the particular, from the general to the special: that is, before expounding the special branches of law, would enunciate the ideas and principles common to all the branches. The advantage gained by this arrangement would be simplification and the avoidance of repetition. Thus Biology expounds the general doctrines of anatomy and physiology before it treats in detail of the separate classes of vegetables or animals; and the best German jurists follow a similar method in their Pandects or systematic expositions of Roman law. Gaius, however, in his Institutions, thinking, perhaps, that the concrete should be presented to beginners before the abstract, omits the general or transcendental basis of jurisprudence and plunges at once into the special divisions of the code. A commentator on Gaius, accordingly, must reduce the generalizing portions to the most necessary dimensions, and confine himself

B

to unfolding the import of some of the pivot terms and most pervading conceptions; and we shall find most of the definitions we require already elaborated for us in the writings of Austin, to whose valuable but unfortunately unfinished Lectures on Jurisprudence I am indebted for many of the definitions and divisions. that will be employed in this introduction.

:

A few definitions will suffice. The words which denote the instruments and materials of legislation and the subject-matter of jurisprudence are Law, Sanction, Title, Right, Obligation. The definitions of these five terms, may, indeed, be regarded as a single definition, for the things denoted by these five words are merely the same thing looked at from different sides at least they are correlative ideas, indissolubly connected parts of the same indivisible whole..The.definitions of these terms which we proceed to give are then definitions, it is to be observed, as used in jurisprudence, that is, in the exposition not of natural or moral laws but of positive or political laws, and are accordingly unconnected with the hypotheses of any particular school of Ethical speculation. A Law is a command; that is to say, it is the signification by a låwgiver to a person obnoxious to evil of the lawgiver's wish that such person should do or forbear to do some act, with the intimation of an evil that will be inflicted in case the wish be disregarded.

Points to be noted here are the author and the subject of law. Every law is set by a sovereign person or a sovereign body of persons to a member or members of the independent political society wherein that person or body is sovereign or supreme: it is set by a monarch or sovereign number to a person or persons in a state of subjection to its author. A Sovereign is a determinate human superior, who receives habitual obedience or submission from the bulk of a given society, and is not in the habit of yielding obedience to a like superior.

A Sanction is the evil annexed to the command of the lawgiver. Obligation or duty is the burden imposed by the command of the lawgiver on a person obnoxious to the evil annexed to the command.

Right is the capacity of exacting by the power of the sovereign certain acts or forbearances; or, it is the capacity of the person benefited by a doing or forbearance commanded by the lawgiver to enforce that performance or forbearance from the person to

whom it is onerous, that is, to whom it is commanded, by an appeal to the sovereign power to whom such person is subject.

Dealing at present with the Civil code, we shall confine ourselves, in treating of Rights, to rights of subject against subject, that is, to rights which imply a common superior. Whether a sovereign can have rights against his own subject, whether, that is, the conception of rights permits the same person to be party and sovereign, is a question that may be left to the theory of the Political code. The question whether a sovereign, in his civil courts of judicature, shall accord rights to a foreign potentate, that is, to one who owes him no allegiance, may be left to the theory of the salutary but sanctionless code called the Comity of nations.

Title is the fact, event, or circumstance defining or designating the person on whom the lawgiver confers a right or on whom he imposes an obligation. The word Title is employed in a limited application by English lawyers, to denote the mode of acquiring a Real right; but we use it without any limitation to any branch of law, to denote universally the fact originating any right, real or personal, and not only to denote the fact originating any right, but also the fact originating any obligation, civil or criminal; nay, further, not only to denote the mode in which any right, or obligation is originated, or begins, but also to denote the mode in which any right or obligation is terminated or comes to an end. To use the nomenclature of Bentham, a Title is a fact Collocative1 of Rights and Obligations. The generic term Collocative splits into Investitive and Divestitive. Title, then, is a fact Investitive or Divestitive of Rights and Obligations. Investitive again splits into Collative and Impositive, and Divestitive into Privative and Exonerative. Title, then, definitively, is any fact Collative or Privative of a Right and Impositive or Exonerative of an Obligation.

Every Right implies a Law by which it is created, a Title to which it is annexed, a Sovereign by whom it is enforced, a Sanction by means of which it is enforced, a person in whom it resides, and a person on whom a correlative obligation is incumbent. The same, mutatis mutandis, may be said of every relative Obligation. We say of every relative obligation, for not all obligations are relative. Obligations are either relative or absolute; relative are those which imply a private person invested with a corresponding right, absolute

1 As the term Disposition is presently used in a narrower sense, the term Collocative has been substituted for Bentham's term Dispositive.

those which do not involve a private person invested with a correlative right. For instance, the duties violated by smuggling, by polygamy, by breach of prison, by cruelty to brute animals, are not obligations to a private person but to the Sovereign, and the rights of the Sovereign, if he has any, have no limits but the limits of his might, and bear no resemblance to the rights contemplated by the Civil code, which are acts or forbearances, enforcible by appeal to a common human superior; for the Sovereign, ex vi termini, has no human superior. All rights, then, imply correlative obligations, but not all obligations imply correlative rights.

Every legislation or system of laws is composed of a vast number of particular laws, having the same or analogous features, just as every tissue is composed of an infinity of threads, and every vegetable or animal organism of an infinity of cells: and having before our eyes the cardinal points of any individual law, by considering the division or differentiation of these cardinal points we may anticipate the leading divisions of the general mass of legislation.

Having given the definitions of these cardinal points, we will now notice some of their fundamental divisions.

The primary division of Rights, the one most necessary for forming clear conceptions on the subject, a division which, as far as my acquaintance with juristic literature extends, Austin was the first to make clear and luminous, is the division into Sanctioned rights and Sanctioning rights. This division of rights depends on a corresponding division of the Titles to which they are annexed.

Sanctioned, or primary, or final rights, are such rights as exist antecedently to any Wrong, rights whose Title or origin from which they spring, and which defines the person on whom they are conferred, is some circumstance other than a Wrong. Sanctioning, secondary, or instrumental rights, are rights engendered by a Wrong committed by some other person, rights conferred upon a person whose title to them is the fact that he has suffered a Wrong.

Wrong is the violation of right or duty, and may be defined as disobedience, intentional or negligent, to the command of the sovereign, entitling the wrongdoer to the Sanction, that is, to the evil threatened by the lawgiver. Examples of Sanctioned rights are the right of a proprietor to enjoy the fruits of ownership, the right of a contractor to the performance of the promise made by the person with whom he contracted, the right of every respectable member of society to have his honour unstained, his character