CONTENTS
OF
THE SECOND VOLUME.
—◆—
LAW IN RELATION TO ITS SOURCES.
LECTURE XXVIII.
| Prospective view of the remainder of the course.—Meanings of the phrase ‘Sources of the Law.’—1. The direct or immediate author of the law; 2. The earliest documents by which the existence of law is evidenced.—Law written and unwritten.—As understood by the modem Civilians, and by Hale and Blackstone.—Written and unwritten law sensu Roman lawyers. Written and unwritten law, according to the improper and juridical meaning of the terms, is an important distinction.—The distinction stated in appropriate terms.—Examples of laws made directly by the sovereign:—1. Acts of the British Parliament; 2. Ordinances made by the ‘Etats Généraux’ in old France, while they subsisted, and by the king afterwards; 3. The leges, plebiscita, and senatus-consulta of the Romans; 4. The constitutions of the Roman Emperors.—General Constitutions.—Special Constitutions.—(a) Extraordinary. mandate.—(b) Privilegia.—(c) Decreta and rescripta.—Judicial powers are implied in sovereignty, but commonly delegated.—Nature of oblique legislation, or judiciary law introduced.—Examples of law not made directly by the sovereign or supreme legislature:—(1) Laws made by the Irish Parliament, 1719-1782.—Colonial Assemblies; (2) Bye-laws made by collegia or corporate bodies; (3) Laws made in the way of direct legislation by Courts of Justice.—(a) Regulæ praxis of our own Courts.—(b) The arrêts réglementaires of the French Parlements.—(c) The edicts of the Roman Prætors.—(4) Laws made in the way of judicial decisions.—Laws originating in customs, and in the opinions of the jurists, not distinguishable from other laws in respect of their source.—(5) Autonomic Laws | 509 |
LECTURE XXIX.
| Re-statement of the distinction between written and unwritten law.—The same distinction sometimes improperly expressed by the terms promulged and unpromulged.—Written and unwritten law sensu grammatico, disparate from the distinction sensu juridico.—Written and unwritten law sensu Hale and Blackstone.—Their confusion of the two senses.—Distinction between law established in the direct or legislative mode and law obtaining obliquely | 525 |
vi LECTURE XXX.
| Recapitulation.—Supposed kinds of positive law.—Customary laws; notorious, and needing proof.—Civil and Canon laws, as recepta, ranked by Blackstone with particular customs.—A custom is only a moral rule until enforced by the tribunals.—When turned into a law, it is law emanating from the sovereign, or from a subordinate legislator or judge.—Extension of ‘source’ to every ‘remote cause’ of law.—Generation of customary law per Cicero.—Hypothesis of Blackstone, etc. about customary law.—The prevalent notion about nature of customary law suggested to modems by passage in Pandects.—Blackstone’s supplement to Julian.—Jus prudentibus compositum. Law supposed to arise from the unauthorised opinions of private lawyers.—Customary law and law suggested by the opinions of jurisconsults compared.—God, or nature, not a source of positive law.—Extension of ‘source’ to every ‘remote cause’ of law, leads to confusion.—Supposition that the sovereign merely declares pre-existing law, criticised. | 533 |
LECTURE XXXI.
LECTURE XXXII.
| The distinction of positive law into natural and positive, as commonly understood by modern writers on jurisprudence.—Rationale of the distinction.—This natural law, as positive law, is closely analogous to the jus gentium of the earlier Roman lawyers, etc.—Natural law of moderns, and jus gentium of Justinian’s compilations, embrace positive morality (especially international) as well as positive law.—Argument for the distinction of viipositive law and morality into natural and positive: with purposelessness of it, if general utility be the only index to law of Deity or Nature.—A distinction of crimes into ‘mala in se’ and ‘mala quia prohibita,’ which, though utility be the only index to the laws of the Deity, might not, perhaps, be ill founded.—‘Natural Law,’ as meaning certain rules of human position; and ‘Natural Law,’ as meaning some standard to which human rules should conform.—Natural Rights | 567 |
LECTURE XXXIII.
| Origin of term Equity as meaning Iaw.—Equity as meaning impartiality.—Equity as meaning any law, or principle of legislation, which the speaker means to commend.—Confusion of Equity as meaning Law, with Equity in its other senses.—Supposition that ‘Law and Equity’ is a universal and necessary distinction.—Confusion of Equity as meaning Law, with Equity as meaning arbitrium.—Equity = universality. Ergo, Impartiality.—Ergo, applicable to any good law, etc.—Equity as meaning extensive (or restrictive) interpretation, ex ratione legis.—Equity, as meaning judicial impartiality.—Equity as meaning arbitrium.—Equity, as meaning standard, legislative (or other ethical) principles.—Equity, as meaning performance of imperfect obligations.—As meaning Morality.—Origin of application of term to equity as meaning Law. | 576 |
LECTURE XXXIV.
| Various equivalent circumlocutions for ‘Equity’ as meaning positive Law, or a portion or department of a system of positive Iaw.—Equity of Prætors called jus prætorium; æquitas not being the Law which he makes, but the (pesonified) principle of legislation (utility or other) which determines him to make it.—English Equity ought to be called, rather, Chancery Law.—Taking equity as not meaning law, Courts of Equity and Courts of Law are equally concerned with it, or equally strangers to it.—Equity as a department of law: an historical and particular notion.—Criminal Jurisdiction liberâ republicâ, with distinction of wrongs into public and private.—Civil Jurisdiction of Prætores Urbani.—Order of procedure before the Prætor as exercising his judicial functions.—Jurisdictio: Coercitio: Imperium merum: mixtum.—Procedure before Prætor compared with that in our Common Law Courts.—Approximation of the former to natural procedure.—Afterwards altered.—Procedure on an Interdict (see next Lecture).—Cognitio, or proceeding extra ordinem.—Ultimately cognitio, or proceeding extra ordinem, universal. | 583 |
LECTURE XXXV.
| The direct legislative power of the Prætors was originally confined to Procedure, but afterwards extended to Substantive Law.—Difference between general and special Edicts.—Why the general Edicts of the Prætores were styled perpetual.—Edictum tralatitium, or the Edict of the Prætor or Prætors.—The ‘jus prætorium’ was formed by the Edicts of the Prætors.—The jus prætorium a part of the jus honorarium.—Materials out of which the jus prætorium was formed.—The term Equity.—Æquitas = Utilitas, or other approved principle of legislation.—Justitia, as meaning utilitas, or other approved principle, etc.—Jus Prætorium, an incondite heap of insulated rules.—Implication of substantive law, and in particular viiiof substantive prætorian law, with procedure.—Actiones Utiles et In factum.—History of the Prætorian edict from the end of the popular government to the reign of Justinian.—Change under Hadrian.—The Prætorian Legislation after the change under Hadrian—Sources of the law administered by the tribunals; from Alexander Severus to the accession of Justinian | 591 |
LECTURE XXXVI.
| Matter of the Code and Pandects.—Arrangement of the Code and Pandects.—Supposition that the direct legislative power exercised by the Prætors was usurped and introduced per artes.—Why judges have employed fictions.—Examination of some current and erroneous opinions concerning the rationale of the distinction between strict Law and Equity.—Examination of the opinion that the distinction of law into law and equity is necessary or essential.—The distinction is accidental and historical.—Is nearly confined to Roman and English Law.—Differences between Roman and English Equity. | 605 |
LECTURE XXXVII.
| Subjects of Lecture.—The principal or leading difference between statute and judiciary law.—The principal difference between statute and judiciary law lies in a difference between the forms in which they are respectively expressed.—An enormous fault of the Pandects and Codes, considered as a Code.—Ratio legis ei ratio deciendi.—The interpretation or construction of statute law, and the peculiar process of abstraction and induction, etc.—Competition of analogies:—Paley and Romilly.—Blackstone’s remark concerning the decretes of the Roman emperors.—The order in which law is naturally generated.—Cases apparently intermediate between judiciary and statute law.—How law derived from anterior law is formed.—How the competition of opposite analogies may arise.—Q. Whether difficulties may not arise from inconsistency of competing rules of statute law? | 620 |
LECTURE XXXVIII.
| Bentham’s objection to judiciary law, that it is not law.—A second groundless objection to judiciary law: want of public control over legislators.—A third groundless objection to judiciary law: that judges legislate arbitrarily. | 641 |
LECTURE XXXIX.
| Remarks on the terms ‘judiciary law,’ ‘code,’ etc.—Tenable objections judiciary law.—First tenable objection: implicated with the particular—A second tenable objection: haste.—A third tenable objection: ex post facto.— A fourth tenable objection: enormous bulk.—An evil not inherent in judiciary law: no authoritative record.—A fifth tenable objection to judiciary law: no certain test of its authority.—A sixth tenable objection: rules not comprehensive.—A seventh tenable objection: its injurious effect on the form of the collateral statute law.—Introduction to question of codification.—First leading objection to codification: necessary incomixpleteness.—Second objection.—Failure of the French and Prussian codes—examined.—These codes have failed, not as codes, but by reason of their faulty construction.—First defect in the French code, it is totally devoid of definitions of the technical terms, and explanations of the leading principles of the French law.—So the Prussian code.—Failure of the Prussian and French codes grossly exaggerated.—The French code never intended by its authors to be a code, properly so called—that is, to supersede all other law; but meant to be eked out by various subsidia.—Monstrous ignorance of the authors of the French code with regard to the Roman law.—Extreme haste with which the French code was drawn up.—No provision for amending the Prussian and French codes, and for keeping down the growth of judiciary and supplemental law by working them into the code from time to time.—Savigny’s objections to codification examined. | 647 |
LAW: ITS PURPOSES AND SUBJECTS.
LECTURE XL.
| What constitutes a status, or condition.—The distinction between the rights and duties capacities and incapacities constituting a status, and any other rights duties capacities and incapacities, not susceptible of any strict definition.—No generic character common to them all; but they bear the following marks: 1. They reside in an individual as belonging to a class.—2. The rights and duties capacities and incapacities constituting a status, commonly impart to the party invested with them a conspicuous character, and have an extensive influence over his social relations. This not a certain mark of status.—3. They regard specially the class of persons by whom the status is borne.—This last circumstance constitutes the rationale of the distinction between the Law of Things and the Law of Persons.—An objection answered.—The class must be such as from its nature cannot include all or nearly all persons.—Uses of the distinction: 1. Repetition, and consequent voluminousness, avoided; 2. The portions of law specially affecting peculiar classes, rendered more accessible and cognoscible.—Identity of the division into Law of Things and Law of Persons with Mr. Bentham’s division into General and Special Codes.—Two other possible divisions of the Corpus Juris.—The division into Law of Things and Law of Persons preferable to either.—The distinction not correctly and consistently followed out by its authors. | 683 |
LECTURE XLI.
| Recapitulation.—Certain erroneous definitions of the idea of status and of the distinction (founded on that idea) between jus personarum et jus rerum. First erroneous definition: Status an occult quality (modem civilians).—Second erroneous definition: ‘Consequences of the same investitive fact’ (Bentham).—Third erroneous definition : Status constituted by the divisibility of the collection of rights and duties into those arising immediately from the title which engenders the aggregate, and those arising mediately from that title, through special titles.—Fourth erroneous definition: Status constituted by jus in rem in the complexion or aggregate of rights.—Thibaut’s definition of status criticised. | 695 |
x LECTURE XLII.
| Fifth erroneous definition: Status a capacity or ability (facultas, rechtsfahigkeit).—Nature of a capacity or ability.—Subject of a right.—Status, a capacity, etc.—Tria capita.—The true nature of the idea of status, and of the distinction between jus personarum and jus rerum resuggested. | 709 |
LECTURE XLIII.
| Supplementary remarks.—Jus actionum co-ordinated by the Roman lawyers with jus rerum and jus personarum. This is a logical blunder.—Logical inaccuracy of Blackstone’s division of the corpus juris into law regarding rights and law regarding wrongs.—The law of things should precede the law of persons in the corpus juris.—Natural or inborn rights, what?—Gross absurdities of Blackstone on this subject.—Notes on methods. | 725 |
LECTURE XLIV.
| Jus publicum: Two senses.—Narrower sense : the law of political conditions.—An account of public law in this sense must comprise some of the rules of positive morality.—Difficulty of distinguishing political from private conditions.—Public law, or the law of political conditions, should not be opposed to the rest of the legal system, but should form one member or head of the law of persons.—Public law in its large and vague signification, originates with the use made of the term by the Roman lawyers.—Logical mistake of the distinctions built upon it.—Various other meanings of the phrase ‘public law.’—An anomaly in the arrangements of the Continental jurists noticed.—No intelligible basis for the distinction between public and private law as co-ordinate departments, whether public law be taken in its large or its narrower sense. | 744 |
LECTURE XLV.
| Division of the law of things (or the law minus the law of persons) into primary and sanctioning rights, etc.—Bentham’s terms ‘substantive’ and ‘adjective’ law commented on.—Explanation of author’s terms and reasons for adopting them. | 760 |
LECTURE XLVI.
| First great division of primary rights into rights in rem and in personam.—A mistake of modem German jurists respecting the signification of jus rerum.—Various meanings of the word thing in the Roman law.—In English law.—Distinctions among things in established systems of law:—1. Corporeal and incorporeal; 2. Movable and immovable; 3. Res mancipi and res nec mancipi; 4. Things determined specifically, and things determined by their kind; 5. Fungible and not fungible; 6. Res singulæ and universitates rerum. | 778 |
xi LECTURE XLVII.
| Primary rights, with primary relative duties.—Postponement of primary absolute duties.—Distribution of primary rights under four sub-departments.—This division, why preferable to that of the Roman lawyers.—An objection to a former position examined.—Positive duties (or duties to do or perform) which lie upon persons generally and indeterminately.—Rights in rem as existing per se, with reference to differences between their subjects.—Rights to liberty, what?—Rights in rem over things, the only rights which I shall treat directly.—Distinction between property or diminion and easement or servitus.—Various meanings of ‘property’ or ‘dominion,’ etc. | 783 |
LECTURE XLVIII.
| Recapitulation.—Distinction between dominion or property and servitus or easement.—Property is susceptible of various modes.—Property pre-eminently so-called: viz. which is accompanied with the largest power of user, and therefore with a power of aliening from contingent successors.—Property pre-eminently so-called, is not unlimited in respect of the power of user.—Property pre-eminently so-called, or any of its modes, cannot be defined (in respect of the power of user) exactly.—The modes of property are distinguishable from one another by precise lines of demarcation.—The definitions (or no definitions) of property, in various codes or systematic treatises. | 798 |
LECTURE XLIX.
| Recapitulation.—Speaking generally, a right of servitude is a fraction of a right of property residing in another or others.—But a right of servitude may exist over a subject which has not an owner properly so called.—Primary rights, etc., ; Rights in rem, per se.—Difficulties encumbering the terms ‘property,’ ‘servitus,’ and ‘easement.’—Quære, Whether a negative servitude be a right of using the subject? And whether it be not merely jus in personam against the owner or occupant?—Order wherein the nature and kinds of servitudes will be considered.—Distinction between affirmative or positive, and negative servitudes.—Every servitude is jus in rem.—A servitude is not a right to specifically determined uses, or to specifically determined forbearances on the part of owner or other occupant.—Positive or affirmative servitudes (quæ in patiendo consistunt) and negative servitudes (quæ in non faciendo consistunt).—Doubtful whether there is any scientific foundation for this distinction.—No right of servitude can consist in faciendo.—Whether a negative servitude be jus in rem?—Res servit.—Nulli res sua servit.—‘Servitus’ means the onus, or the jus in re.—A right of servitude may co-exist with any mode of property, etc.—Absolute duties (positive or negative) annexed to property are not servitudes. | 802 |
LECTURE L.
| Distinction between real and personal servitudes.—Examples of real and personal servitudes.—The modes of property, which, in the language of the Roman law, and of the modern systems borrowing its terms and classifications, are improperly styled ‘servitudes’. | 815 |
xii LECTURE LI.
| Primary rights, etc.—Rights in rem, per se.—Of such distinctions between rights as are founded on differences between their durations.—Such distinctions inseparably implicated with modes of acquisition, or titles.—Rights considered in respect of duration are of limited duration: Of duration, limited but not definite: or, of definite duration.—Right of unlimited duration.—Right of limited duration.—A right of unlimited duration does not necessarily imply alienability by the party actually bearing the right.—Nor is alienability confined to rights of unlimited duration.—Restrictions on alienation, when allowed in practice.—Absolute property defined.—Power of alienation from every possible successor is of the essence of absolute property.—Absolute property in land distinguished from our estate in fee simple.—And from the Roman emphyteusis.—Unlimited duration, though coupled with absolute property in all established systems, is not necessarily involved in it. | 829 |
LECTURE LII.
| The distinction between Jus in re propriâ and Jus in re alienâ: jus in rem in re alienâ.—Property pre-eminently so-called, absolute property, dominium (s.s.) or jus in re propriâ.—Res publicæ (in the largest sense of the expression).—Res publicæ (in the narrower sense) and res privatæ.—Classes of res publicæ (in the narrower sense of the term).—Quasi-servitus over a thing, reserved by the state to itself.—Quasi-servitus reserved by the state over a res privata.—Absolnte property, dominium (s.s.), or jus in re propriâ.—Jura in re alienâ.—Different jura in re alienâ are different fractions of the various rights which constitute the dominium from which they are respectively detached.—The classes of jura in re alienâ which are noted by expositors of the Roman law: viz. Servitus, Emphyteusis, Superficies, and Jus pignoris et hypothecæ.—Servitus.—Emphyteusis.—Superficies.—The jus in rem of the creditor in a thing pledged or mortgaged.—Remarks on the term ‘jura in re alienâ,’ sometimes called jura in re, or jura.—Rights of which it is difficult to fix the class. | 839 |
LECTURE LIII.
| A present of vested right, what—A future or contingent right, what.—No rights can be future without being contingent.—Rights subject to a contingency, or condition resolutive. | 856 |
LECTURE LIV.
| Recapitulation.—Primary rights, etc.—Rights in rem, per se.—Introduction to the consideration of Titles, or of Investitive and Divestitive Facts. | 870 |
LECTURE LV.
| Titles considered generally.—Rights ex lege immediatè.—Functions of titles.—Bentham’s criticism on the word title.—Proposed use of title with extended meaning. | 874 |
xiii LECTURE LVI.
| Titles distinguished into simple and complex: but really always complex.—Component elements of a complex title.—Principal and accessory.—Improper application of the expressions ex lege immediatè, etc.—1st. Their use to indicate whether or not an act of the party entitled is part of the title.—2ndly. To distinguish certain well-known titles. | 886 |
LECTURE LVII.
| Titles by which rights im rem are acquired or lost.—Various attempts at classification.—Doubtful whether any successful. | 898 |
| FRAGMENT ON QUASI-CONTRACTS AND QUASI-DELICTS | 911 |
| TABLES AND NOTES | 917 |
| ESSAYS ON INTERPRETATION AND ANALOGY | 989 |
| NOTES ON CODIFICATION | 1021 |
| NOTES ON CRIMINAL LAW | 1040 |
ON THE USES OF THE STUDY OF JURISPRUDENCE.
| Proper subject of Jurisprudence.—Inevitable (and sometimes intentional) implication of legislation with jurisprudence.—Value of the study of Roman law.—Uses of the study of jurisprudence.—System adopted in Prussia.—Training of a lawyer.—Necessity for a law faculty. | 1071 |
CODIFICATION AND LAW REFORM.
| Probability of some attempts at codification.—Re-construction must be accomplished, if at all, by scientific lawyers.—All attempts at codification must be wrought out on one preconceived plan.—Legislation must be accomplished by scientific lawyers.—Résumé of the question of codification. | 1092 |
| INDEX | 1103 |