Page images
[ocr errors]

The Proem, Cur introductæ bonorum possesiones ; contains in Harris's edition, the first section ofFerriere's ; which begins at SJuos autem, solus Prætor, &c. p. 232 of the present edition, prope mediam pagiAam. § 1. De speciebus ordinariis. }us vetus, p. 233. A nostra constitutione.] This constitution is not extant. Extraneo manumissori,] “ Extraneus manumissor erat, qui non com“ tracta fiducia emancipasset.” Mynsinger. h. l. Tanquam ex familia.] “ Puto familiam significari patroni ; i. e. hac “bonorem possessione vocari patroni agnatos.” Vinn. Harris. § 2. jus novum, p. 233. I have already dwelt sufficiently on the different kinds of bonorum possessiones in the note to the beginning of this title. JVostra constitutio.] Cod. 8. t. 49. l. ult. * Hæc constitutio, quam de * emancipationibus conscripsit imperator, omnibus parentibus et ma“ numissoribus præsumptionem contractæ fiduciæ admisit, ut ipsa e** mancipatio tacitè id in se habeat ; meritò igitur præfata bonorum ** possessio pro supervacuâ habenda est, cum extraneus posthac manu“ missor nullus, inveniatur. Theoph. Per constititionem nostram.] * Hæc est eadem græca constitutio, * cujus superius quoque aliquoties meminit imperator ; et quâ totam * se causam successionis libertorum plene definivisse testatur : non ex* tat hæc constitutio, sed epitomen ejus nobis ex Basilicis repræsentat * Cujacius.” lib. 20. obs. 84. Harris. . The Basilica, were the new ordinances and code in Greek, beganby Leo Philosophus in 886, and finally published by Constantine Porphyrogoneta, in 920. § 4. De successorio edicto, p. 235. Certum tempus. Dig. 38. 9. De succ. edicto. § 5. De jure accrescendi et iterum, &c. p. 836. Ex successorio edicto. Dig. 38. 9. § 5. Explicatio dicti temporis, p. 236. Dies utiles,] “ Dies in jure nostro alii sunt continui, alii utiles. Con** tinui, qui sinè interruptione, nullisque exceptis, currunt : utiles sunt; ** illi duntaxat, quibus experiundi sui juris potestas est; et hi neque * ignoranti, neque agere non valenti, currunt, J/. 44. t. 8. l. 1 Vinn. ?Theoph. h. t. Harris. Tit. XI. De acquisitione per adrogationem, p. 237. Formerly under the acquisition by adrogation, the adoptive fathes zwcceeded to all the property of the son who was adopted by adroga

tion, and died in that state. But latterly, the father succeeded to the usufruct only, unless when the son died impuber, and without children, and under power of his adoptive father. § 1. et ult. Cod, commun. de success. 1. Sgta hoc mod, acquiruntur, jus vetus, p. 237. This is entitled in Ferriere, Nanam olim acquirebantur per adrogationem' Prohibuit nostra constitutio. Cod. 3. 33. 16. De usufruct. Freed men, were generally bound in services of labour to their patrons, fabriles seu artificiales opera, which might be prolonged or com-o. muted ; and the right passed to the heir of the patron. Dig. 31. 10.6. Dig. 33. 2. 2. So, duties of personal respect on account of the gift of libery conferred : these were attached to the person of the patron only. Dig. 31. 10 9. 1. juncto Cujacio, lib 17. ch. 14. These did not c: on the smaller change of state. Q 2. / novitri, p. 2 8. Ex constitutione nostra Cod. 6. 59. ult. Comm. de -ucc, 55. This section is entitled oranam jure novo per a rogationen acouiruntor, in Ferriere. Justinian in this section has properly limited the rights of adoptive by those of natural parents; except in the case already mentioned of deceace within puberty, without chidren, and under power of the adoptive father. Ti’. XII. Pe ea cro l'oertatis causa bona addicuntur, p. 239. § 1. Rescription Divi Marci, p. 239 This requires, 1st, That the application and adjudication shall be judicial. 2dly, That there shall be no heirs or persons called to the succession, civil or praetorian. l. 1. Cod, fideicom. libert. 3dly, That the person petitioning, shall give so curity, if the adjudication be in his favour. 4thly, This relates to liberty given by testament. § 3. Uhi locum habeat, p. 241. This section is otherwise headed, &ots casious hitic rescripto locus est. From the 4th circumstance just above mentioned, Cujas appears to be right in supposing that instead of certe si intestatus decesserit, we ought to read certe si testatus decesserit. § 7, De specieşus additis a joustiniano, p. 242. Joeniosima constitutio, Cod. 7. 2. 15. de test. manumiss. Tit. XIII. De successionibus sublatis, &c. p. 243. This section is divided by Ferriere, at the words Erat et ex senatus consulto Claudiano, &c. &alis fiterat bonorum emptio.] “Bona debitoris, postguam aliquan“din celeberrimis in locis proscripta pependissent, ex edicto possideri “jubcbantur; deinde magister postulabatur et creabatur, per quem

“distrahebantum et emptori addice bour, qui omnibus in solidum sa“tisfaciebat: aut, antequam emeret, cum creditoribus de coro parte “decidebat” vid. Theophilum in hunc locum, et Heineccii antiz. Rom. jur lib. 2. tit. 17. This exact species of sale is not in use in Figiand; but there is a sale not very unlike it in the case of bankrupts, whose estates and goods are sold and divided among their cro divors by commissioners, appointed for that purpose, vid. 13. Eliz cap 7. 1 jac. 1 cap. 15. 21 jac. 1. cap 19. 10 Ann. cap. 15. 7 Geo. 1, cap. 31. 5. Geo. 2 cap. 20. - Ex lationibits digestorum libris.] D. 42. t. 5 De rebus auctoritate judicis possidendis. D. 42. t. 4. &tibus ex causis in possessionein eafter. &iod indignum nostris temporibus.] vid. God. 7. t. 24. De senatusconsulto Claudiano tollendo. Harris. Tit. XIV. De obligationibits, p. 244. Justinian begins first with obligation, and then proceeds to those contracts and agreements, from whence obligation arises. He confines it within the bounds of practice, namely to that motive of action which the sanction of the law presents to us. The civil law indeed treats of duties of impersect obligation, but so far only as they are aided by the sanction which the legislative or judicial authority may annex to them. Obligation may be divided into moral obligation, or that which receives its sanction fora conscientia, alone: and civil obligation, or that which receives its sanction from the positive law of political coininunities. The tree source and foundation of moral obligation, has been a dio vexata 7uestio. With me it is settled: it has but one rational source and foundation, self interest: our own happiness: our greatest and most permanent good upon the whole. I considered this subject at full length formerly, in an essay published among a collection of essays on ethical and metaphysical subjects (1737); and as I have had no reason hithertoto alter my opinion, I shall briefly abridge that essay, and adopt the same view of the argument here. - * It is universally allowed, that in certain cases, I ought (morally speaking) to act in a certain manner. But why ought I to do so? What is the ultimate reason or motive which on an attentive consideration of the subject should induce me to act in this, rather than in that manner: Because, say some, o

I. It is agreeable to the will of God, a II. To the eternal and necessary fitness and congruity of things. * III. It is the dictate of the moral sense. c IV. is the dictate of common sense: of the goira, syrata, d V. You are conscious of a sensation that impels you so to do. e VI. Your understanding represents such an action to you as right, and of course that you ought to do so, f VII. It is agreeable to right reason. g. VIII. It is agreeable to the truth of things. h IX. It is conducive to general utility. i X. It is conducive to the bene esse, to your own greatest good upon the whole. A The above is the substance of the answers which the authors in the notes may be supposed to give to the question. Each of these hypothesis, except the last, admit of a further question. You tell me I ought to act agreeably to the will of God to the eternal fitness of things—to the dictate of the moral sense, &c. &c. why ought I to do so It is evident this question may be put

a Acquinas, Occam, Scotus, Suarez, Hobbes, Leibnitz, Barbeyrac, Warburton.

b Grotius, Rust, Clarke, Balguy.

c Hutcheson.

d Lord Herbert, Reid, Beattie and Oswald.

e Ellis.

f Cudworth, Butler, Adams, Price.

g Burlamaqui.

h Wollaston.

i Hume

k Gastrell, Cumberland, Puffendorf.” Morris,; Gay,; Turnbull's Rutherforth," Soane Jenyns,” Dr. johnson.H

* Law of N and Nbook I, ch. iv. § 5 and the note thereon of Barbeyrae.

# 4/7 cellanies, p. 214.

# Preliminary Dissertation, and note to King's Origin of Evil, p. 66. quart “dit.

§ Note to Heineccius, p. 16. * Essay on Virtue, ch. vii.

** 2rogio of Evil, Letter IV.

4f ort of Szamo jenyn's Origin of Evil, in the Miscellanies pub.' fished by Davies, 3 vok.

reasonably: if so, the solution lies deeper than the hypothesis that admits of the question. This question cannot reasonably, or consistent with common sense be put on the tenth or last hypothesis. It is manifestly, palpably absurd to ask, why ought I to pursue my own happiness : why ought I to follow that course of conduct which upon the whole of my existence will most effectually afford me the greatest sum of happiness 2 For in fact, are not all our motives of action, founded upon this consideration? Does it not arise from the very nature and constitution of man : Why should I obey the commands of God? Because it is my interest so to do: I shall be happy if I do, and miserable if I do not. But put the case, that any clear and precise command of the creator, would upon the whole of my existence and all things considered. afford not a balance of happiness but of misery, can I be under any obligation to pursue it?—The controversy then, can only be settled, by an answer, that does not reasonably admit of any further question; and this is it. But in the course of education in civilized society, we are taught incessantly by our parents and tutors, we hear in their conversations, and in discourses from the pulpit, and we learn from our intercourse. with society even from our childhood, that certain conduct ought to be pursued, and certain actions ought to be shunned. That we should obey and reverence our parents, love our kindred, perform acts of kindness to our neighbours, speak truth, pay our debts, perform our promises, &c. &c. : these complex associations give rise at length to that feeling that we call conscience, and to the ideas of obligation and duty, which are associated with many actions that positive law cannot expediently embrace. Actions that mankind generally agree, ought to be performed or abstained from, when not sanctioned by the laws of society, give rise to imperfect obligations: actions that are enjoined or forbidden by those laws, are called actions or duties of perfect obligation. By the civil law, rights and duties of imperfect obligation, such as arose from the acknowledged precepts of natural law, or the dictates of conscience, or ex nudo pacto, (naked promises not binding for want of consideration,) although they could not of themselves supportan action, might be brought in aid of the law in certain cases. They gave rise to compensation, or set off; to detention of a pledge; to fide justion or action against a guarantee ; to a constitutum, or promise founded on natural obligation; to novation; and to retention of money paid under a mistaken notion of its being legally due. To instance each of these. As to compensation : A owes B a hundred dollars, on a legal claim. Bowes A fifty dollars, on a considera

« PreviousContinue »