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defined and inculcated by the precepts of morality and religion, but of which jurisprudence takes no notice. To illustrate,— when I insure your property, I incur the obligation to pay the damages which I have caused, and you acquire the right of invoking the aid of the law to compel me to indemnify you; this is an example of a legal or perfect obligation and corresponding right. On the other hand I am under the moral obligation to be grateful to my benefactor; but if I neglect the discharge of that duty, the law cannot coerce me to perform it; and, therefore, the obligation is an imperfect one.
A legal right is the faculty or power of acting with regard to its object in conformity to law : jus est facultas agendi. I have a legal right to my watch; that is I have the power to do what I think proper with the watch; I may sell it; I may give it away; or I may even destroy it; but in the exercise of this faculty, I am not permitted to violate any law or rule of morality.
Legal rights are either personal or general: they are called personal when they have their origin in a corresponding legal obligation, incurred by a particular person, or a designated number of persons; they are general, when they exist independently of any personal obligation, and equally against the whole world. Thus, when I borrow a thousand dollars of you, your right to the return of the money arises out of the obligation which I have contracted in borrowing the money; consequently it is a personal right to be exercised against me alone. But if I am the owner of a house, you are bound to respect my right of property, and to refrain from doing any act that would be an infringement of my right of property, but this duty or obligation is not limited to you—it is equally binding on all other persons, my right is therefore general—erga omnes.
There are four essential elements in every legal right.
Firstly.—A person to whom the right belongs, or who is its active subject.
Secondly.—A thing which forms the object of the right, or with reference to which it exists.
Thirdly.—A fact or event which is the source or origin of the right, or by the happening or occurrence of which the right is created, and
Fourtly.—A judicial action to protect and enforce the right, and to make it efficacious and perfect.
The law regarded persons only with reference to their capability of acquiring legal rights, and of incurring perfect obligations; if, therefore, a human being should be destitute of this capacity, he would not be considered as a legal person. Hence every natural individual is not necessarily a person, for without the capacity of acquiring rights and of incurring obligations, there is no legal person. This definition of what constitutes a legal person, of course applies only to the civil law terminology, for in the eye of the criminal law, every human being is viewed as a person without any regard to the capacity of acquiring rights or incurring obligations.
Persons are either natural, or merely juridical or fictitious; juridical persons are created by the law, they are legal abstractions, to which the law communicates the capacity of acquiring rights and of incurring obligations to this class of persons; belong all private corporations, such as banking institutions, insurance companies, as well as hercditas jacens, and many others.
Natural persons are subdivided into those who are in the untrammelled exercise of all their legal rights without the intervention of any other person or authority; and those who, on account of age, infirmity or body or mind, of in consequence of the relation in which they stand towards another person, are not permitted to exercise their legal rights without the co-operation, and in some cases exclusively through the agency, of another person. The latter class embraces minors, married women, and those who have been interdicted.
After having formed a general idea of persons, we must next direct our attention to the consideration of things, as the second essential element of rights. The law generally treats of things only so far as they are the object of legal rights, or as we observed before, a person is the subject, and a thing the object of every legal right.
In the same manner as persons are characterised by their capacity to have or acquire rights, to the term things comprehends whatever is susceptible of forming the object of a right. Here again the law exercises its power of abstraction, and creates things that have no existence in the physical world, things that are neither visible nor tangible.
In this last category of things, are included all obligations by which property is not directly and immediately transferred from one person to another. These things are called incorporeal: hence the great division of things into corporeal and incorporeal.
Whatever can be used to satisfy the wants, or conduce to the convenience or pleasure of man, is susceptible of forming the object of legal rights.
We have thus glanced at the subject and the object of legal rights; and this brings us to the inquiry how they are formed. It is evidently not sufficient that there should be a person with capability of becoming the subject, and a thing to be the object of a legal right, in order to create or give existence to that right: something else is requisite to call it into being; and that is the happening of some fact or event, which is the immediate or proximate cause of its creation or formation. Thus rights are acquired by contracts, quasi-contracts; offences, quasi-offenees; inheritance, &c.
These are all facts, acts or events, without the occurrence or happening of some one of which no legal right can have any existence. It is therefore evident that there can be no question of law unconnected with a certain state of facts. When we say that a case presents nothing but a question of law, we only assume that the facts on which the law is to operate are admitted, or not disputed; for otherwise the assertion would involve a contradiction in terms. It is absolutely impossible that any practical question of law can arise without a particular state of facts.
This distinction between questions of fact and questions of law seems to be plain enough, and no lawyer who has studied his profession as a science, and whose knowledge of law is not exclusively empirical, can ever experience any difficulty in perceiving the obvious line of demarcation which divides them. Yet the Supreme Court of this State, in the case of Cammayer, decided in the May term of 1853, confounded a clear, unmixed'question of law with a supposed question of fact. The case was briefly this; —Cammayer was prosecuted for the crime of larceny; after the evidence of the prosecution was closed, his counsel requested the District Court to charge the jury, that the facts proved, did not, in law, constitute the offence charged, i. e. larceny. This charge the judge refused to give, and a bill of exceptions was taken to the refusal, in which all the facts proved were incorporated, and certified by the District Judge. On the trial of the appeal, the only question to be decided by the Appellate Tribunal was, whether the state of facts set forth in the bill of exceptions, constituted the crime of larceny? That this was a dry, naked question of law, unmixed with any question of fact, would seem to be too evident to admit of controversy.
Nevertheless, the Court determined the contrary, and observed —" the jurisdiction of this Court extends to criminal cases on questions of law alone and if we were to examine the facts on which the jury found the verdict, in order to determine whether the Court below erred in refusing to charge them that those facts did not constitute larceny, we would certainly be exceeding our jurisdiction, and deciding on the facts as well as the law.'' That so glaring an error should have been committed by that high and enlightened tribunal is passing strange; that it should have been pertinaciously persisted in, when pointed out, is to be deplored.
But the concurrence of these three elements of rights (person, thing, fact), would frequently be of little avail if there were no means of effectually protecting and enforcing rights; this fourth and last element, which gives force and efficacy to the others, is called action. Legal action in its enlarged sense, means the exercise of the power of government through the judiciary for the vindication of rights and the enforcement of obligations. The definition of actions of the Roman Law has been copied almost literally into our Code—" actio autem nihil aliud est, quamjus persequendi in judicio, quod tibi debetvr." An action is the right given to every person to claim judicially what is due or belongs to him.
The history of actions, their various forms and ceremonies, in the gradual growth and development of the Roman jurisprudence, is one of the most curious and interesting subjects of inquiry. We shall have occasion to discuss this important matter in the progress of our labours; for it must be our constant endeavour to unite the theory with the practice of the law.
All rights may be classed under one of four divisions:
Secondly.—Rights iu and to things, or real rights.
Thirdly.—Rights arising from obligations; and
In the first division are included all those rights arising from the domestic relations, such as husband and wife, parent and child, master and servant, &c, &c.
The second comprises titles and claims of every description to things, whether moveable or immoveable.
Every obligation necessarily produces a co-relative right; hence the relation between debtor and creditor.
This class of rights constitutes the third division.
The last category of rights embraces those which have their origin in inheritance, either legal or testamentary.
Three of the elements of rights which have been thus faintly and imperfectly sketched, are developed and expounded in the Civil Code, and the last is treated of in the Code of Practice.
The Civil Code is divided into three books; each of which is devoted to one of these elements. The first, treats of persons; the second, of things and of the different modifications of the various rights that may be acquired in things; and the third, of the different modes of acquiring the property of things, or as we have stated, of facts, acts or events, by which rights are created.
Such is the simple and logical arrangement of the great heads of jurisprudence, adopted in the Code of Louisiana, which is the repository of the modern Civil Law, as contradistinguished from the Common Law which prevails in England, and in the other States of the Union.
A sort of rivalry seems to bo carried on between ignorance, prejudice, and arrogance, for the purpose of depreciating the merits of the Civil Law. Indeed, most of those critics. while indulging in their unbounded and extravagant admiration of the Common Law, at the expense of the Civil Law, dogmatically deny that the latter has any merit at all. Lord Mansfield, whose great legal mind and splendid judicial labours contributed so largely to give something like shape and symmetry to the uncouth and rude materials of the Common Law, was vilified and abused by Junius, for resorting for instruction, to that pure fountain of legal science—the Roman Civil Law. Among other charges which he urges against him, he says.
"I see through your whole life, one uniform plan to enlarge the power of the crown, at the expense of the liberty of the subject. To this object, your thoughts, words and actions, have been constantly directed. In contempt or ignorance of the Common Law of England, you have made it your study to introduce into the Court, where you preside, maxims of jurisprudence unknown to Englishmen. The Roman Code, the law of nations, and the opinions of foreign civilians, are your perpetual theme; but whoever heard you mention Magna Charta or the Bill of Rights with approbation or respect? By such treacherous arts the noble simplicity and free spirit of our Saxon Laws were first corrupted. The Norman conquest was not complete until Norman lawyers had introduced their laws, and reduced slavery to a system. This