[1103]INDEX.

—◆—

N.B.-Pages 1 to 507 incluslve are in Vol. I. ; the rest are in Vol. II.

ABROGATED, modes whereby law is 39

Absolute and relative duty 33, 65

— duties enumerated 66, 401 et seq.

— include duties towards the government 786

— rights, nature of certain rights so called by Blackstone 728, 788

— property defined 835

— — distinguished from estate in fee simple of English law 836

— — and from Roman Emphyteusis ibid

Abstract Science, Law the subject of 17

Abstract of Outline to the lectures 74

— — in a tabular form 77

Acceptance by the heir, whether necessary in English law 893

— — voluntary, in Scotch law, n. ibid

Accident, a ground of exemption from liability 477

Acquisition of ownership. (See Jus in rem)

Act, one of the leading notions 33

— tendency of, how to be estimated 114

— is the sum of its probable consequences ibid

— determined by intention and motive 161

— meaning of the term 365, 366

— the immediate consequence of volition 414, 415

— erroneously used to include consequences of act 415

— consequences of, are not willed 421

— they are only intended ibid

— sometimes not even intended ibid

— may be intended, though not desired ibid

— forbearances from act are not willed but intended 424

Actio in rem, of the Roman lawyers 378

— utilis, meaning of 602

Action, rights of (in outline) 64

— right of, as distinguished from mode of enforcing it 765

— Qu. Whether every right of, arises from an injury? 766

[1103c2] Action. It is always so assumed 767

— right of, is a jus in personam 936

— apparent exception of actions styled in rem ibid

Actions, ex contractu, ex delicto, necessary qualification of the distinction as generally conceived 62

Actionum jus, should be distributed between law of persons and law of things 42, 726, 727

Acts and forbearances, the objects of rights and duties 46, 367, 395

— are never insulated 161

Adjective and substantive law, explanation of the terms 591

— — objections to the terms 762

— — defect of the division and arrangement adopted by Bentham under these terms 765

Aditio, in Roman law, a necessary link in the chain of title 391 n., 895

Administrative and constitutional law 71

Administrator, a universal successor 57

— properly a condition or status 952

— why treated of, in law of things ibid

Æquitas sequitur legem, what if followed literally? 647

Agreement, or Convention in outline 54

Alienation (or Conveyance), distinguished from contract ibid

— dispositions restraining, prohibited by Roman law liberâ republicâ 59

— right of, not necessarily implied in right of unlimited duration 832

— — nor confined to rights of unlimited duration 834

— — was of the essence of dominium or property, in Roman law 836

— — and is so in theory in Scotch law, n. 834

— nature of solemnities attached to 901

Aliens, condition of 72

— their position in Rome 553, 554

1104 Altius non tollendi, servitus 811

America, Constitution of United States of 261

— authority of certain State Legislatures not respected by judges 656

American tribunals influenced by decisions in the English courts 668

Analogical reasoning, nature of 1007

— is (1) contingently, (2) necessarily true 1008

— distinction between contingent and necessary truth 1009

— analysis of analogical reasoning, as concerning contingent matter 1010

— how this reasoning is distinguished from syllogism and perfect induction concerning the same 1012

— use of syllogism 1012, 1015

— analysis of analogical reasoning as concerning necessary matter 1014

Analogies, competition of opposite, according to Paley, arises on the application of law 632

— as well written as unwritten ibid

— Romilly’s mistake as to Paley’s meaning ibid

— Paley’s explanation of it as a source of disputation 996

— examination of the difficulties arising from this source ibid

Analogy, objects improperly, but by close analogy, styled laws 87

— definition of the term as used in common parlance 167, 169

— examination of the various meanings of the term 1001

Analysis of law by Sir Matthew Hale, commended and quoted 42, 68

— of first six lectures 79, 85

Ancient lights, servitude not to obstruct 811

Anger, as a ground of exemption from liability 496, 499

Animals, in what sense irrational, n. 207

— are governed by instincts ibid

— not by laws ibid

— Ulpian’s error on this 209, 551, 552

Anti-social motives, not necessarily leading to evil though likely to do so 161

Appeals (outline) 64

— statute abolishing, in criminal cases 386, 947

Aristocracy, every supreme government which is not a monarchy is an 238

— different forms of 239

— of those usually styled oligarchies ibid

— of those styled aristocracies ibid

— in the specific meaning of the term ibid

— of those styled democracies ibid

[1104c2] Arrangement of Corpus Juris, how carried out in law treatises 725, 726

— facilitated by division between law of persons and law of things 691

— what included in law of persons ibid

— what, in law of things ibid

— reasons for postponing the law of persons to the law of things, and treating the last most in detail 727, 730

— Blackstone’s method of arrangement 735

— merits of his method ibid

— method adopted by Roman lawyers in their treatises 737

— method adopted by Gaius 738

— by Justinian, in the Institutes 740, 922

— in the Code and Digest 922

— arrangement adopted in the French codes 740

— its defects ibid

— Bentham’s method 741

— Falck’s method 742

— Hugo’s method 743

— great difficulty of, owing to the complication of each branch with another 768, 785

— great importance of adopting a clear method in any code or treatise on law 953

Arrêts réglémentaires of the French parlements 522

Assythement, a ground of action in the law of Scotland 386

Attempts to commit crimes, nature of 440

— are evidence of intention ibid

— as such, are called overt acts 441

— why overt act required to render party criminally liable 440, 441, 460

Autonomic laws, what 524

— sometimes opposed to public law 755

BACON, Lord, his proposal as to authentic records of judicial decisions 528, 654

Bailee, nature of obligation which is incurred by 472, 473

Bairns’ part, in Scotch law, antiquity of the principle of division, n. 617, 618

Benevolence, how to be estimated as a motive 160

— Hartley’s hypothesis concerning it 163

— mistaken views regarding Hartley’s hypothesis ibid

— refutation of the hypothesis as so distorted, n. 164

Bentham, classes rewards among sanctions 91

— not the Inventor of the theory of utility, n. 163

1105 Bentham first properly examined and stated the theory of utility 163

— his mistake in blaming judges for legislating 218

— his definition of sovereignty 234

— his objection to judiciary law 642

— his inconsistency in representing codification as a simple matter 654

— belongs to the historical school of jurisprudence 679

— his division of general and special codes 692

— his inconsistencies on the subject of status 690, 692, 699, 702

— his analysis of status 699, 702

— remarks on his method of arrangement 741, 765, 781

— his attempt to get over the difficulty inherent in a definition of property 800

— his criticism on the word ‘title’ 882

Besitzes, Das Recht des, by Savigny 53

Blackstone, his fancy that custom exists as positive law 36

— his misapprehension of the import of the division between the law of persons and things 42, 364

— his commentaries over-estimated 69

— his erroneous distinction between law and particular command 95

— his error in supposing that human laws are of no validity if contrary to Divine laws, n. 214

— his error In saying that a master cannot have a right to the labour of his slave 216

— his definition of right 399

— his erroneous distinction of civil injuries and crimes 404

— his account of promulgation of statutes 526

— his hypothesis about customary law 538

— his admirable historical chapter upon the Courts of Equity of this country 615

— his remark about the decreta of the Roman Emperors 633

— his mixing up status with law of things 694, 725

— his chapter on aliens, &c 718

— inconsistency of the system of division adopted by him 725

— logical inaccuracy of his division of law regarding rights and law regarding wrongs 726

— practically adopted Sir M. Hale’s order in putting law of things before the law of persons 727

— nature of the rights called by him ‘absolute rights’ 728, 730, 788

— his method 735

— in a tabular form (table facing p.) 984

[1105c2] Blackstone, in what points his method is superior to that of the Roman writers 735, 769

— he correctly places law of political conditions under law of persons 750

— errors and inconsistencies of his method 736, 737

— his reason for the exclusion of the half blood 881

Brown, Dr., his true exposition of the nature of the human will 412

Butler, his admission that Christianity as revealed is imperfect 143

— the ablest advocate of hypothesis of the existence of a moral sense 149

— but seems rather to embrace the compound hypothesis 153

CÆSAR, his purpose of codification mentioned by Suetonius 678

Canon law, ranked by Hale and Blackstone as particular 535

— but it is properly singular ibid

Capacity, meaning of the term 710, 723

Capacities (with rights, &c.), constitute a status 40, 684-690

Capitis diminutio, use of the expression by the Roman lawyers 353

Caput, how it differs from status 354, 716, 717

Carrier, responsibility of 478, 479

Casus (or mishap), a ground of non-imputation 33, 477

Cessio bonorum, insolvency, a succession per universitatem 59

Chancellors, Equity dispensed by 39, 614

Child, parent and (outline) 70

— rights of father over, are rights in personam 384, 938

— but right of father to custody, &c. of, are rights in rem 385, 939

— difficulty of assigning a place to these rights in a division of law into public and private 747, 748

Children, affection for, a species of narrow benevolence 160

Cicero, his perception of the true source of customary law 538

— his birth dates the commencement of the series of classical jurists 551, 562

Citizen, Roman, distinguished by more numerous rights 353

Civil, various uses of the word as opposed to criminal, military, ecclesiastical, &c. 753

Civil laws, use of the expression by Hobbes 32

Civil injuries. how distinguished from crimes 61, 62, 386, 404, 502

— error of Blackstone’s distinction 404

Civil liberty 33

— Paley’s erroneous definition of 216

1106 Civil liberty, true nature of 273

— is the absence of legal restraint 356

Civil procedure (outline of) 64

— nature of Roman 586, 588

Classes, persons distinguished to, by certain rights, duties, &c. 39, 684, 690

Classical Roman Jurists, fancy custom to exist as positive law 36, 540

— their jus gentium 82

— true merits of their writings 217, 551, 1087

— why called classical 563

Code, order adopted in Prussian 42

— nature of Justinian’s 605

— arrangement adopted by him purely unscientific 606, 922

— enormous fault of Justinian’s, if with Pandects considered as a code 623 et seq.

— ambiguity of term 649, 1023

— great difficulty of making 660

— expediency of consolidating law into, a question of time and place 662

— in the abstract is clearly expedient 662, 1021

— concerns the form not the matter of law 663

— does not necessarily involve innovation upon the matter 663, 1026

— objections to, in the abstract, and answers 663, 664

— objection of Portalis, that it is necessarily incomplete 664

— objection of Hugo 665

— alleged ill-success of French 666, 667, 1034

— and of Prussian ibid

— estimate of Savigny’s treatise stating objections to 1037

— judiciary law superinduced upon, in France and Prussia 667, 675

— inconsistency of Savigny in urging failure of French and Prussian 669

— circumstances under which French, was compiled ibid

— its deficiency in explanation of leading terms 669, 1035

— same defect in Prussian 671, 1036

— such explanations attempted by Justinian 671

— difficulty of supplying such explanations in a ibid

— but not impossible to do so 672

— ill-success of French and Prussian codes exaggerated ibid, 1034

— French, not intended to supersede all law 672

— supplements to, contemplated by authors of French ibid

— ignorance of Roman law evinced by authors of French 673

[1106c2] — similar blunder in Prussian 674

— necessity for continual supervision and amendment of a code 675

— Savigny’s objections to codification examined 675-680, 1037

— advantages which would flow from a good 680

— its probable effect on the legal profession ibid, 1025

— serviIe and hasty manner in which the French, was compiled 756

— practicability of a, considered generally 1021

— depends on the degree of skill which can be brought to the enterprise 1024

— must he planned by one mind ibid

—all importance of first intention ibid

— qualifications of English lawyers for making a code ibid

— although it does not necessarily involve innovation, yet for simplicity some innovation requisite 1026

— the idea of a code is modern ibid

— expediency of commencing with a digest ibid

— or digests 1027

— what should be the nature of these ibid

— new laws should be worked into 1028

— superiority of judicial decisions founded on, to those founded on ordinary law ibid

— a code is as convenient for application as judiciary law 1029

— is not unalterable ibid

— or less malleable than judiciary law ibid

— not peculiarly liable to produce competition of opposite analogies 1030

— not necessarily incoherent 1031

— not rendered unnecessary by private treatises ibid

— not unfitted to wants of community ibid

— objection from alleged infinitude of rules 1032

— objections to, derived from defects, errors, and alleged ill-success of existing codes 1033

— Justinian’s code 1034

— not a code sensu hodierno ibid

— French code 1035

— defects of it ibid

— Prussian code 1036

— was not intended to be complete ibid

— dispute of Savigny and Thibaut on codification 1037

— of criminal law (See Criminal Law)

— probability that some attempt will be made to frame a code in this country 1092

1107 — it must be accomplished, if at all, by scientific lawyers 1092

— not by public men 1094

— must be worked out on a preconceived plan ibid

— necessity that persons employed in constructing it should be versed both in theory and practice 1092-95

— Bacon’s opinion 1094

— general statement of the considerations on which the question of codification turns 1098

Codification, possibility and conditions of 17

— its place in the outline (see Code) 36

Cognitio, In Roman law 589

Coke, Lord, his mastery of English law 1093

Combinations, simple, of rights in rem and rights in personam 45, 54

Command, every law is a 79, 88

— but every, is not a law 92, 98

— analysis of the term 88-91

— is a signification of desire 89

— how related to duty and sanction ibid

— how distinguished from other significations of desire ibid

— not by violence of motive to compliance 92

— Paley’s error in that respect ibid

— it is a law when it obliges generally to acts of a class ibid

— it is not a law when it obliges to a pecific act or forbearance 93

— examples of each kind ibid

— distinction does not depend on whether it binds one person or more 95

— error of Biackstone and others in this respect ibid

— divine commands. (See Divine Law)

Commit and Omit, distinction between the terms 425

Common Law Procedure Acts, n. 467, 601

Common Sense, an expression founded on hypothesis as to the index of Divine commands 104

Commons, House of, possesses a portion of sovereignty 245

— powers of members are delegated absolutely by constituents 246

— but subject to an implied trust ibid

— the performance of that trust enforced by moral sanctions 247

— no legal sanction for the performance thereof could be created ibid

Compassing, meaning of term 440

Complexion, moral, of an act 162

Complication of each branch of a legal system with another 768

[1107c2] Composite State, nature of 257

Compulsion (Vis) a ground of non-imputation 33, 498

Condition. (See Status)

— or Status, constituted by rights, &c. 39, 684

— different classes of conditions distinguished 67

— professional and domestic conditions 756

Condominium or concurrent right in rem 798

Conduct, human, is guided by rules 115, 117

— and by authority 124

— utility is not the test of it 156

— but only the index to Divine commands ibid

— the antecedents which determine it 161

Confederation of States, nature of 233, 257

— differs from a federal government ibid

Conférences, preliminary to French Code 674

Consent of the people, in what sense governments exist by 295

— in no other sense than all law obeyed by 296

— in what sense governments originate by 298

Consideration, absence of, from contracts, how it affects third persons 909

— difference between vicious, and want of ibid

Consilium, or compassing, meaning of term 440

Constitution, theory of the British 245

Constitutional jealousy, its in jurious effect upon the form of law 613

Constitutional Law, meaning of the term 267

Constitutional and administrative law 71

Constitutions (Edictal) of the Roman Emperors, made in their legislative character 35, 517

— (Decretal), in their capacity of sovereign judges 35, 519

Construction of statute law 64

—differs widely from induction of judiciary law 621

Contingent remainders, Fearne’s treatise on 864

— how distinguished from vested remainders ibid

Contingent right, nature of 859

— not definable in same way as a contingent remainder 863

— future right is always 866

Contingent rights in rem opposed to vested 50

1108 Contingent truth, how distinguished from neoessary truth 1009

Contract, rights in personam arising from 54

— distinguished from conveyance 55

— false assumption, that government is based on298

— rights begotten by, are jura in personam 373

— and conveyance may be contained in the same instrument 376

— not distinguished by the mere consent of parties 377

— to sell, in the department of English law called Equity, vests jus in rem, and is therefore a conveyance ibid

— nature of obligee’s right which is violated by a person who prevents fulfilment of 391

— intention of parties to, what it means 442

— Paley’s definition of intention of, n. ibid

— a breach of contract is an injury 473

— why a promise is binding 906

— object of solemnities attached to contracts 907

— why solemnities not required when there is a consideration of 908

— how third persons are affected by absence of solemnities 909

— or absence of consideration ibid

— difference between vicious consideration and want of consideration ibid

— why a contract strictly so called gives no right in re as against third persons ibid

— in what cases it becomes an alienation 910

— implied contract not to be confounded with quasi-contract 913, 914, 984

— confusion of contract with conveyance 967

— importance of clearing up this confusion 973

— often used as synonymous with convention 981

— meaning of the term in Roman law ibid

— uncertain meaning of the term in English law982

Contractu, actions ex 62

Convention or agreements in outline 54

— definition of (Roman lawyers) 980

— meaning of the term 982

Conveyance (or alienation) distinguished from contract 55

— and contract may be contained in the same instrument 376

— are not distinguished by the mere consent of parties 377

— confusion of, with contract 967

[1108c2] — importance of clearing up this confusion 973

Conveyancers, practice of, not a source of law 546

— but adopted as law by judges 547, 635, 646

Corporation distinguished from universitas juris 55

Corporeal and incorporeal, division of things into 361, 777

Corporeal hereditaments in English law 362, 686

Corpus delicta, meaning of the term 464

Corpus juris, cannot be arranged with logical rigour 65

— arrangement of, founded on distinction between law of persons and of things 691, 695, 739, 922

— other possible divisions of 692

— inconsistency of the divisions adopted by the Roman lawyers and by Blackstone 725

— logical defects in all the best arrangements yet made 769

Covenant for title (conveyanoe with) vests jus in rem and jus in personam at once 55

— for quiet enjoyment, same remark applies to 372

Crimes, distinguished from civil injuries 60, 61, 386, 404, 502

— duties arising from 65

— infringements of primary and absolute duties are 66

— classed with reference to the respective rights and duties ibid

— error of Blackstone’s distinction 404

— divided into crimes juris gentium, and crimes juris civili 572

— meaning of this division 573

— this division tallies with the division into mala in se and mala prohibita 572

— what is necessary to a definition of crimes 1057

— what are the essentials of a crime, or the grounds of imputation 1057-1062

— (1) every act or omission which is a crime supposes criminal knowledge or negligence (vel scienter, vel negligenter) 1057

— (2) it must not be purely involuntary 1060

— (3) it must not proceed from an instant and well-grounded fear greater than the fear naturally inspired by the law ibid

— (4) it is not a crime if done in pursuance of a legal duty 1061

— (5) or of a legal right or permission granted by the law ibid

— (6) an overt act is necessary ibid

— scheme of the Roman law, lan1109guage in regard to the grounds of imputation 1057

— different meanings of culpa and dolus ibid

— of malice as a name for criminal design 1058

— inconsiderate assumption that malice or criminal design is of the essence of every crime ibid

— criminal design ibid

— criminal knowledge short of criminal design ibid

— criminal negligence 1059

— ignorance never, per se, a justification of crime1060

— the nature of an overt act which is of the essence of a crime1061

— attempts to commit crimes 1062

— rules for the application of punishments 1064

— tabular statement of the different kinds of crimes 1066

Criminal procedure 66

— jurisdiction, in whom it resided at Rome 585

Criminal Law, why generally excluded from Justinian’s Institutes 752

— very small portion of, therein treated 927

— difficulty of determining place which ought to be assigned to it 928

— necessary first to determine true distinction between public and private law ibid

— codification of, necessary 1040 et seq.

— inconveniences arising from the present state of common law 1040

— reports, records, and treatises ibid

— difference between interpretation of statute and common law 1041

— much of present law founded on antiquated notions ibid

— obscurity arising from partial adherence to antiquated notions 1042

— obscurity arising from extending rules to cases connected by remote analogies ibid

— inconsistent definitions of theft 1043

— inconveniences of the present statute law 1044

— inconveniences of having two bodies of law, one common and the other statute 1045

— advantages of combining these 1046

— method of arrangement adopted In the French Penal Code 1054

— indefinite extent 1055

— what crimes ought to be included in a criminal code ibid

— to what territory it should apply 1056

Cruelty to animals, duty to abstain from, an absolute duty 65

[1109c2] Cujus est solum ejus est usque ad cælum 811

Culpa 33

— analysis of 432, 457, 1057, 1059

— restricted application of term by lawyers, especially criminal lawyers 461

— Feuerbach’s analysis of the term ibid

— Rosshirt’s analysis of the term 462

Custom, is only positive morality until it receive the impress of the judge or legislator 36

Customary law, general and local 37

— true nature of 101, 199

— Roman notion of 527

— is a part of positive law 537

— Cicero’s account of how it is generated 538

— is not founded on consensus utentium 539

— Blackstone’s erroneous description of it 542

— is a species of judiciary law 543

DE DONIS, statute liberally construed 635

De jure possessionis, treatise by Savigny commended 53

Dead, universitates juris devolving from the dead as such 57

Decisions, process of extracting law from. (See Judiciary Law)

Declaratory laws, so called, are often imperative 98

— are not laws proper 214

— nature of 637, 638

Decretes of the Roman Emperors made in their judicial function 35, 519

Defence, persons whose duty is, against foreign enemies 70

Defences (incidental) conduct of 64

Definitions of leading terms in jurisprudence, absence of, in French and Prussian codes 669, 671, 1035, 1036

— importance of their being given distinctly 1075

— neglect of this in treatises on law ibid

Delegation of sovereign power to political subordinates 244

— to representatives 245

— may be subject to a trust, or may be absolute ibid

— in this country it is subject to a trust ibid

— how the performance of that trust is enforced 245, 246

— cannot be enforced by legal methods 247

Delict, or injury 33

— extensive meaning of, in Roman Law 62

1110 — actions arising out of, nearly allied to actions arising out of contract 473

— nature of quasi delicts 911

— distinction of from quasi delicts, is illogical and superfluous 927

Delicto, actions ex 62

Delicts are violations of rights or duties 43

— included in consideration of sanctioning rights and duties 44

— rights in personam arising from delicts 53, 60

Demand, peculiarity of English law in not requiring, before action brought 469

— consistency of Roman law in requiring 474

— without it, a person is not in morâ ibid

Democracy, definition of 239

— sovereign power of democracies 245

— the nature of popular government 277

— Hobbes’ remarks on democratical government 279

Deontology, science of legislation a department of 32, 83

— the science of, is Bentham’s name for ethics 83

— tendency to confound positive morality with it. (See Positive Morality) 217

Descent, notion of, involved with description of rights as limited or unlimited in respect of duration 831, 838, n.

Desire (or Wish), place of, amongst the leading notions 33

— explanation of the supposed conflict between, and will 447

— cannot be directly controlled by the will 448

— may be destroyed by the will indirectly ibid

Despotic government, nature of 276

Detention, Rationale of right of 63

Determinate and indeterminate bodies, distinction between 186

Detinue, nature of action formerly properly, and still in common legal parlance, so called 378

Digest, Roman, materials on which founded 605

— arrangement of, purely unscientific 606, 922

— enormous fault in code and, if together considered as a code 623

Dignity, whether rights belonging to a, are part of the law of status 945

Direct legislation 35, 36, 531

Divine Law, the ultimate test of positive law and positive morality 72

— analysis 79, 81

— meaning of term 86

[1110c2] Divine Law, one division of laws proper 86

— identical with natural law pro perly so called ibid

— how distinguished from human law 104

— is partly revealed and partly unrevealed ibid

— nature of Index to unrevealed 105

— different hypotheses as to nature of that index ibid

— hypothesis of a moral sense ibid

— hypothesis of principle of utility 106

— true statement of principle of utility ibid

— principle of utility Inferred from tendency of human actions. (See Utility) ibid

Division, main, of subject of the lectures 34

— of law with reference to its purposes 41

— between law of persons and law of things is arbitrary ibid

— — its use and history ibid

— — not perfectly distinct 42, 694

— of corpus juris 692, 760

— inconsistency of that adopted by the Roman lavyers and by Blackstone 726

Division of law of things 760 et seq.

Dolus, meanings of the term 431, 1057

Domestic, law of domestic growth 38

— conditions opposed to professional 67

Dominia—Obligationes, distinction between, by Roman lawyers, answers to that between jus in rem—in personam of the modern civilians 58

— consequence of misunderstanding of these terms by authors of French code 673

Dominion, various meanings of. (See Property) 789

Dominium, larger meaning of, with Roman lawyers 45

— but they excepted the right of a universal successor from 847

Dominium—Servitus, distinguished 48, 794

Dominius, possession of, not an exercise of the right of possession 52

Droits, intégraux, as opposed to Droits (Bentham) 800

Drunkenness, as a ground of exemption from liability 494, 496

Duration, a ground of distinction between rights in rem 50, 829

— Quære, Whether this distinction is of importance in general jurisprudence? n. 838

— according to Bentham, capacity of indefinite duration is an element in the definition of political society 234

1111 Duties, relative and absolute 33, 65

— with rights, &c., constitute status 40, 687

— relative, answering to rights in rem, are negative 44, 370, 933

— — an objection to this position answered 785

— sanctioning (in outline) 60

— arising from crimes 65

— are correlative to commands 89, 91

— are relative or absolute 401

— distinctions of, with regard to the objects to which they relate ibid

— self-regarding 402

— distinction of duties analogous to distinction between jus publicum and jus privatum 404

— distinction between those enforced civilly and those enforced criminally ibid

— those which are absolute are enforced criminally 406

— certain absolute duties belong to law of political status 786

Duty, one of the leading notions 33

— implied by command. (See Command) 81

EASEMENT. (See Servitude)

— distinction between, and property 794, 802

— meaning of the term 803

— difficulties which encumber the term 805

— not quite identical with servitude in sense of modern civilians 807

— but will be so used by author ibid

— is a fragment of property 803, 814

Economical conditions opposed to professional 756

Edict of Prætor, general and special, difference between 592

— why styled perpetual 593

— change made under Hadrian respecting 603

Edictal constitutions of Roman Emperors made in their legislative character 35, 518

Ejectment, is what Roman lawyers would call actio in rem 378

— its origin, n. 805

Eldon, Lord, his reluctance to extend a rule 647

— and to generalise 658

Elegantia, meaning of the term as applied to law 535, 655

Emperors, Roman, legislated directly by constitutions 35, 517

— and indirectly or judicially by decreta and rescripta 35, 519

Emphyteusis, right of 836, 848-851, 854, 855

Entails of English law 51

[1111c2] Equity, various meanings of 38, 576 et seq.

— contract of sale in 378

— origin of the term 557

— meaning of term as applied to jus prætorium 560

— meaning of, as denoting a body of law 583

— as a distinct body of law, is not universally present in all systems 614

— is nearly confined to Roman and English law ibid

— history of English courts of, well given by Blackstone 615

— difference between Roman and English 616, 620

— error of supposing Equity in England to depend on the arbitrium of the judge 619

Erle (Sir William), Mr. Austin’s letter to 17

Error, when a ground of exemption from liability479-487

Estate and effects, the totality of a man’s means 791

— in fee simple, not defined either by Hale or Blackstone 800

— — not absolute property 836

Ethics, ambiguity of the term 16

— (or deontology), science of legislation a department of 32

— leading principles of, may be attained by all 132

— causes of present imperfect state of knowledge of 133 et seq.

— importance of wide-spread knowledge of 133, 139, 140

— might be made to rank with sciences capable of demonstration 137

— Locke’s opinion to that effect 138

— definition of science of 173

— consists of (1) legislation, (2) morals ibid

— field of, surveyed in these lectures, circumscribed by an undefined boundary, n. 451

Event, one of the leading notions 33

Events, as causes of rights and duties 46

— how distinguished from persons and things 365

Evidence, rationale of 64

— of an act, frequently confused with the act itself 428

Ex contractu, ex delicto, rights arising 53

— — — actions 62

Ex delicto, obligations, nearly allied to obligations quasi ex contractu. (See Delict) 473

Execution of judgment 64

Executive and legislative, distinction of political powers into 248

Executor, a universal successor 57

1112 — properly a condition or status 695, 951

— why treated of, in law of things 952

Extensive interpretation 38, 991, 993

FACT, one of the leading notions 33

Facti ignorantia, a ground of non-imputation 33, 479 et seq.

Facts and events, as causes of rights and duties 46

Facts, how distinguished from persons and things 365

— sometimes, but not always, synonymous with events ibid

Facultas personæ competens sine respectu ad certam personam 45

— — — in certam peraonam ibid

Faculty, commonly denotes a right 710

— but also denotes capacity or ability to acquire a right ibid

Falck, his Encyclopedia 69

— remarks on his method of arrangement 742

— his mistaken criticism on Hale’s arrangement 751

Father, rights of, over child are rights in personam 384

— but rights of, to custody, &c., of child, are rights in rem 384, 938

Fearne, his treatise on Contingent Remainders 864

Federal Government, nature of 233, 257

— how it differs from a confederation of states ibid

Felonies and misdemeanours, qu. the use of retaining the distinction 1054

— how distinguished ibid

Feudal institutions, distinction between real and personal rights, a consequence of 58

— origin of 850, 854

Feuerbach, his analysis of guilt 462

— his agreement with the author upon the meaning of the distinction between dominium and obilgatio as understood by the Romans 384

Fichte, his remark about the functions of government 763

Fictions, why resorted to as a mode of altering the law 609, 610

Forbearance, one of the leading notions 33

— meaning of the term 366

— is not willed but intended 424

— how distinguished from omission 425

Forbearances (with acts) the objects of rights and duties 46, 366, 395

— only, the objects of jus in rem 563, 933

Foreign, law of foreign original 38

— sovereigns may have rights 289, 290

Foreigners, subject to laws of country which they inhabit 332

— their peculiar condition in ancient Rome 552

[1112c2] Formula, nature of, in Roman procedure 587, 588

Fountains or source of law 34, 36

— meaning of the phrase 510, 511

Franchise is a right in rem, not exercised over a determinate subject. (See Jus in rem) 389, 954

Frauds, statute of, liberally construed 635

Frederic of Prussia, the Great, his position in the German empire 253

— his intention in framing a code 667

Free Government, nature of 273

French Codes, method of arrangement adopted in 740

— their defects ibid

French law, sale of an immovable in 377

Fungible and not fungible, division of things into 779

Future rights, in rem, opposed to vested 50

— — — opposed to contingent rights 859

— rights are always contingent 866

GAIUS, how delicts considered by 61

— title de conditione hominum 363

— arrangement of his treatise on law 738

Gemeines Recht in Germany 667

General and local customary laws 37, 535

General jurisprudence, Austin’s proposed larger work on 16

— distinguished from particular jurisprudence 32, 1073

— preparative to the study of the science of legislation ibid

General Utility. (See Utility)

General and special codes 692

Gentium. (For Jus Gentium, see Jus)

Gentz, F. von, his mistaken views of the origin of government 325

German Empire, States, composing, how far independent 253, 262

— German Jurists, their misapplication of Kant’s language as to subject and object 285, 713

German Philosophers, their false notion of government 324

Germany, Roman law obtaining in 38, 635

Gilbert, C.B., his historical work on equity 666

Godwin, his mistake as to the theory of utility, n. 163

— that theory Involved in his principles of justice, n. ibid

— his speculations as to the possibility of doing without a government 763

Good name (right to) 47, 788

Government, Kant’s division of the different kinds of 251, 339, 340

— nature of free 273

1113 — popular, may be inferior to monarchical in a well-instructed community 283

— not so in one imperfectly instructed ibid

— does not exist by consent of people 295, 298

— false hypothesis of original contract as basis of 299

— false notions of German philosophers on the subject. (See Sovereign, Sovereignty) 324

— Fichte’s remark about the functions of 763

Grotius, his definition of rights in rem, in personam 45, 370

— his confusion of positive morality with what morality ought to be 216

— his definition of Sovereignty 235

Guardian, rights of, over ward, are rights in personam 384, 938

— but rights of, to custody, &c., of child, are rights in rem 938

— difficulty of assigning place to these rights in a division of law into public and private 748

Guilt, analysis of 457

— restricted application of term by lawyers, especially criminal lawyers 461

— Feuerbach’s analysis of the term 462

Rosshirt’s analysis of the term ibid

HABITATIO, not properly a servitude 824, 827

Hæres legitimus, in Roman law, a universal successor 57

Hæreditas jacens, in Roman law, what 354

Hale, Sir M., his correct notions on the relative order of the law of persons and the law of things 42

— and in rejecting the division between public and private law 68

— his error as to extent of law of persons 364

— his mastery of English law 777, 1093

— his share in drawing the Statute of Frauds 661

— his inconsistency in placing the relation of ancestor and heir in law of persons, but executors and administrators in law of things 695

— his use of the word ability 710

— correctly places the law of political condition in the law of persons 751

— his correct designation, ‘Pleas of the Crown’ 753

— his use of the word economical 756

Half sovereign states, nature of 252

Hanover, an independent sovereign state 255

[1113c2] Hartley, Dr., his hypothesis as to the nature of benevolence 163

Heedlessness, its place among the leading notions 33

— why necessary to analyse 410

— how it differs from negligence 427, 431, 459

— how from intention 428

— criminal heedlessness 1059

Heineccius, his erroneous notion of status 697

— his division of status into those qui ex ipsâ naturâ proficiscuntur and those qui ex jure civili descendunt 719

— his errors respecting acquisition of jus in rem 962, 963

Heir, a universal successor 57

— properly a condition or status 952

— why treated of in law of things ibid

Historical school of jurisprudence, how term understood by Germans 679

Hobbes, his Leviathan quoted 32

— his definition of sovereignty 234

— his proposition that ‘no law can be unjust,’ n. 268

— true meaning of the proposition ibid

— the main design of his writings misunderstood, n. 279

— not intended as a defence of monarchy ibid

— his capital errors, n. 280, 281

— priestly origin of the antipathy with which he is regarded 281

— no vestige of atheism in his writings, n. ibid

Honour, laws of, are rules of positive morality 183

Hugo, his history of the Roman law 32

— remarks on his method of arrangement 743

— his groundless objections to a code 665, 678

— his inconsistency in this respect 1032

Hume, assumes the existence of a moral sense as well as principle of utility 149

Husband, rights of, which are in personam 385

— rights of, which are in rem ibid

Husband and wife (outline) 70

Hypotheca 55, 851

Hypothèque légale in French law 897

IGNORANCE considered under grounds of non-imputation 33, 479

Ignorance of law, not generally a ground of exemption from liability 481

— reasons for the rule ibid

— existence of this ignorance is an inevitable consequence of judiciary law 652

1114 — whence this arises 652

— same evils may attend statute law 654

Immovable, sale of, in French law 377

Imperfect laws, nature of 99

Imputability, meaning of term 457, 458

Imputation, grounds of. (See Crime) 33, 1057, 1062

Incapacity, meaning of the term 710, 723

Inchoate rights in rem opposed to vested 50

Incident (with fact or event) one of the leading notions 33

— its meaning 365

Incorporeal and corporeal, division of things into361, 777

Independence, necessary to sovereignty 220

Index to the Divine commands 81-83, 451 n.

Induction, by which rules are gathered from judicial decision 64, 621-628, 656

— perfect, how distinguished from snalogical reasoning 1012

Infancy, a ground of non-imputation 33, 490

— excuse of, founded on presumed ignorance of law ibid

— Bentham’s explanation erroneous 494

— Blackstone’s also 495

Infeftment, meaning of, in Scotch law 381

Inferior, superior, &c., involved in the notion of command 81

Infringements of rights in rem, in personam, remedies for 62

Injunction (or interdict) belongs to general jurisprudence 63

— analogous to Roman interdict 589

In jure cessio, a proceeding in Roman law 590

Injuries are violations of rights or duties 45

— included in consideration of sanctioning rights and duties 44

— right arising from 53, 60

— is always a right in personam 378

Injury (or delict) its place in outline 33

— meaning of the term 458, 459

— intention or inadvertence is of the essence of 468 et seq.

— a breach of contract is an injury 476

— every right of action founded on an lnjury 765, 766

Injustice, analysis of the term, n. 268

In rem, meaning of the expression. (See Jus in rem) 957

In rem, in personam. (See Rights)

Insanity, a ground of non-imputation 33, 490

— the excuse founded on presumed ignorance of law ibid

— Bentham’s explanation erroneous 494

— Blackstone’s also 495

[1114c2] Insolvency, succession per universitatem by, treated of in out line 59, 60

Instinctive, meaning of the term 145

— is merely negative ibid

— does not furnish any explanation of the act to which it is applied ibid

— men as well as lower animals have instincts 209

— Ulpian’s mistake in classing instincts of animals with laws 210, 551, 566

Institutes of Justinian, method of arrangement adopted in 740, 922

— confined almost entirely to jus privatum 922

Institutes of Gaius, method of arrangement adopted in 738, 922

Instruction, public duties of those engaged in 70

Insulated, acts are not 107, 160

Intention, its place amongst the leading notions 33

— combines with motive to fix the quality of an act 161

— often confounded with motive 345

— (see Will, Acts, Forbearance), why necessary to analyse meaning of, in treatise on jurisprudence 410

— how confounded with will 415, 421, 436

— how it differs from negligence, rashness, &c. 428

— intention to do future act, analysis of 435

— — distinguished from a simple desire of the same object ibid

— — is a desire of an object with a belief that we shall do acts to attain it 436

— to forbear from an act, analysis of 438

— to do future act is always revocable 439

— meaning of the term intention, when employed without reference to wrongs 441

— intention of legislator. (See Interpretation of Statute Law) 441, 625

— of testator 442

— of parties to a contract ibid

— whether in any case intention alone can be treated as a wrong 460

— intention or inadvertence is of the essence of the injury 468

— equally so in breaches of contract as in other injuries 476

— this proved by grounds of exemption from liability 477

Interdict or injunction belongs to general jurisprudence 63

Interdict, procedure on 589

Intermediate hypothesis between theory of utility and hypothesis of a moral sense 37, 153

1115 International Law. (See Positive International Morality)

International morality. (See Positive International Morality)

Interpretation, statutes passed for purposes of, are not strictly laws 98

Interpretation, spurious kind of interpretation called extensive 39, 578, 631, 994

— of statute law 64, 624

— — differs from induction of judiciary law 628

— — Paley’s remarks on this difference 632

— — Sir Samuel Romilly’s remarks on the same ibid

— what is the true and proper object of interpretation 989

— how intention of legislator discovered ibid

— from literal meaning of the words ibid

— sometimes from other indicia 990

— causes which have led to extended or restricted interpretation 991

— this is really judicial legislation 992

— in what sense interpretation proper may be restrictive or extensive ibid

grammatical, how opposed to logical 993

— misapplications of the term 994, 995

Inter vivos, Alienee by transfer inter vivos, a singular successor 56

Intestato, succession ab, a species of universal succession 57, 60

Involuntary, uncertain meaning of the term 417

Issue, represented in Roman procedure by the formula 587, 588

JUDEX, his office and duty 587

— how his functions differed from those of an English jury 588

Judge-made law, the expression used by Bentham. (See Judiciary Law) 218

Judges, their legislative power. (See Judiciary Law)

— functions of judges, in outline 64, 70

Judgment, right arising from 65

Judgments, their place in the outline 64

Judicial legislation. (See Judiciary Law)

Judicial function of Roman emperors 35

— notice of certain customary laws 37, 534

— decision, induction of rule from 64, 622

— powers may be reserved by sovereign to itself 250, 520

— but are commonly delegated ibid

Judiciary Law, injudiciously spoken of with disrespect by Bentham 218

— — when on new point, is ex post facto 487

[1115c2] — — nature of, explained 530, 531

— — the term introduced 533

— — considered as contrasted with statute law 620 et seq.

— — the form, or mode, of its expression 622

— — is extracted from decisions ibid

— — mode of extraction ibid

— — difference between this process and that of interpretation 624-628

— — what is ratio decidendi 628

— — absurd fiction of its being merely declared by the judges 634

— — process by which it is formed by the judge 638

— — Bentham’s objection to it answered 642

— — Sir J. Romilly’s objection to it answered ibid

— — another current objection to it answered 644

— — influence of private lawyers upon it 645

— — other checks upon judges in construction of it 646

— — why it is so called 648

— — tenable objections to this kind of law 649

— — first tenable objection; it lies in concreto, or is implicated with the peculiarities of the particular case ibid

— — second tenable objection; it is made in haste 651

— — third tenable objection; it is ex post facto ibid

— — fourth tenable objection; it is dispersed, bulky, and difficult to extract 652

— — an evil not inherent in 654

— — not attested by authoritative documents ibid

— — resides in the memory of the judges, or is attested by the disputable records of private reporters ibid

— — this the effect of legislative negligence ibid

— — there might be authorised reporters, whose reports might be made official evidence ibid

— — fifth tenable objection; no fixed test of its validity 655

— — sixth tenable objection; its rules are wanting in comprehensiveness 657

— — seventh tenable objection; the statute law founded on it is necessarily unsystematic 659

— — evils of it might be remedied by a code 660

— — it is better than a badly expressed statute 661

1116 — — it is inferior to one well expressed 661

— — Rules of, are not cases, but rationes decidendi 666

Jura realia and personalia, distinction, by modern civilians 58

Jure, de jure possessionis, by Savigny 53

Juris Ignorantiâ, considered with reference to grounds of non-imputation 33, 481 et seq.

Juris Universitates 55

Jurisdiction, contentious and voluntary 64

— nature of the latter 766

— strict Roman meaning of the term 587

Jurisprudence, its reIation to ethics 16

— general and particular 32

— equity In Roman and English 39

— positive law is appropriate matter of 86

— is the science of positive law 172

— absurd definition of it by Ulpian in the Digest 217

— use of the word jurisprudence by the authors of the French and Prussian codes 671, 673

— what is meant by general jurisprudence 1073

— of the principles, notions, and distinctions in jurisprudence which are necessary ibid

— of those which are not necessary but almost universal 1074

— importance of ascertaining precisely the meaning of the leading terms of the science 1075

— of the different subjects to which the term ‘jurisprudeuce’ has been applied 1077

— inevitable and sometimes intentional implication of it with legislation 1078

— uses of the study of jurisprudence 1082

— does not render student less fit for practice 1082, 1083

Jury, how their functions differ from these of the Roman judex 588

Jus Actionum, should be distributed between law of persons and law of things 42, 726, 727

Jus (See Law), different senses in which the term is used in Roman law 285 n., 924

Jus ad rem, meaning of the term 375

— — an expression not used by classical jurists 960

— — opposed to jus in rem or jus in re (in extended meaning) ibid

— — is sometimes used as equivalent to jus in personam ibid

— — but this use of the term is improper 961

— — it is only a kind of jus in personam 960

[1116c2] — — answers to the obligation addandum aliquid or ad rem acquirendam 960

— — importance of distinguishing the broader from the narrower signification of the term 961, 962

— — confusion created by not distinguishing meanings of 962

— — distinction between titulus ad acquirendum and modus acquirendi 963

— — errors of Heineccius respecting them 964

Jus civile, division of law into, and jus gentium, founded on hypothesis of moral sense 154

— — original meaning of term, as opposed to jus gentium 559

— — later meaning of term, as opposed to jus gentium 563

— — analogous distinction of law into natural and positive 567

Jus Gentium, historical sketch of 38, 550 et seq.

— — of earlier Roman lawyers 38, 552 et seq.

— — of classical jurists 38, 84, 562 et seq.

— — origin of the term 557

— — sometimes identified with jus prætorium 561

— — absorbed into the jus civile ibid

— — later Roman notion of ibid

— — as meaning positive international morality 566

Jus in personam, denotes the compass, not the subject, of a right 369

— — that it avails against a determinate person or persons 370

— — answers to term ‘obligatio’ in Roman law ibid

— — examination of the meaning of the term 369 et seq., 932 et seq., 957

— — obligations correlating with, may be positive, but are generally negative [should read: “… negative … positive”] 371, 933

— — illustrations of meaning of term 373, 935

— — a right founded on contract is 370, 935

— — a right of action is 378, 936

— — of father against child 384, 938

— — of master against servant ibid

— — of guardian against ward ibid

— — of husband against wife 385, 939

— — jus ad rem sometimes used as equivalent to it 960

— — but erroneously so 961

— — jus ad rem is only a species of ibid

Jus in re (in the modern sense) not acquired by contract (stricto sensu) 909

— — in what cases acquired by a so-called contract 910

— — In Roman law = jus in re alienâ 959

1117 — — among modern civilians = jus in rem 960

— — in the latter sense opposed to jus ad rem ibid

Jus in rem (outline) 43, 45

— — avails against the world at large 44, 369

— — imports a right, the duties answering to which are negative, i.e. duties to forbear 44, 370, 933

— — an objection to this position, answered 785

— — denotes the compass, not the subject, of a right 369

— — examination of the meaning of the term 369 et seq., 932 et seq., 957

— — illustrations of the meaning of the term 371, 933

— — of father over child 385, 938

— — of master over servant ibid

— — of guardian over ward ibid

— — of husband over wife 939

— — it may exist without determinate subjects 388, 938, 954

— — e.g. rights to reputation, monopoly, franchise, status 389, 954, 955

— — if it is over persons, it belongs chiefly to law of status 787

— — over a thing, the only kind properly belonging to the law of things 789

— — is either indefinite in point of user (property), or definite (servitus) 790

— — may be limited in point of duration, or unlimited 830, 831

— — if unlimited, the duration may be definite or indefinite ibid

— — nature of, if unlimited in point of duration ibid

— — nature of, if limited in duration 832

— — vested and contingent 856 et seq.

— — uselessness of Kant’s modifications of the term 940

— — the term, if properly used, would be a most convenient one ibid

— — and jus in personam, the best expressions for two great classes of rights 955, 957 et seq.

— — — objections to other proposed analogous expressions 955-957

— — — e.g. jus in re, jus ad rem 955

— — — dominium and obligatio ibid

— — — jus reale and personale ibid

— — — potestas and obligatio 956

— — — absolute and relative rights ibid

— — — law of property and law of contract ibid

— — the expression jus in rem in its large generic sense not used by Roman lawyers 958

— — this use of the term originated with the Glossators ibid

[1117c2] — — by modern civilians jus in re used as equivalent to jus in rem 960

— — how it may be acquired 962

— errors respecting this ibid

— — propositions of Heineccius examined and refuted 964

— — sometimes arises from an incident which is styled a contract 967

— — but such an incident is really a conveyance as well as a contract ibid

— — or is a conveyance simply ibid

— — extent to which property said to be transferred by contract of sale in English law 968

— ditto in French law 989

Jus moribus constitutum. (See Customary Law)

Jus naturale, ambiguity of the term. (See Natural Law) 565

Jus personarum et rerum, outline of the division 39-43

— — true meaning of. (See Persons) 363, 684 et seq.

— — Thibaut’s essay on 706

— — Rights over persons and the correlating obligations belong to jus personarum 942

Jus prætorium, introduction to 38

— —history of 584 et seq.

Jus prudentibus compositum 37, 543 et seq.

Jus publicum and jus privatum, division of law into 404, 744 et seq.

Jus reale et personale, sometimes substituted for jus in rem et in personam 955, 977

— — ambiguity attaching to these terms 978, 979

Jus receptum 38, 635

Jus rerum, origin and meaning of the term. (See Things) 931

— — employed by certain German civilians to mean the law of dominia, or rights in rem 773

— — this not the meaning of the expression as used in the Institutes 774

— — peculiar use of the expression in the Prussian code ibid

Just and Justice, analysis of the terms, n. 268

Justice, functions of ministers of 65

Justices of the Peace, difficulties which they have in administering the law 1047

— growing importance of their functions ibid

Justification — action, different modes of asserting rights 62

Justinian, how delicts considered in his Institutes 61

— matter of his code and Pandects 605

— enormous faults in these, considered as a code 623 et seq.

1118 — intention of his compilations to be a perpetual code 636

— remarks on the arrangement adopted in his Institutes 740, 922

— on that adopted in his Code and Digest 922

KANT, his definitions of government, n. 251

— want of precision in his notions of ‘right,’ n. 285

— his definition of political liberty 339, 341

— his distinction of subjectivity and objectivity 713

— misapplication of these terms by German jurists ibid

— they nearly tally with Locke’s ideas gotten by reflection, and ideas gotten by sensation ibid

— his ‘Metaphysische Anfangsgründe der Rechtslehre’ 940

— uselessness of the new terms for jura in rem introduced by him ibid

Kenyon, Lord, his decision in Read v. Brookman 615, 658, 1098

King, maxim that he is incapable of committing wrong 272

— is not sovereign or supreme. (See Sovereign) ibid

Knowledge, importance of the spread of 132

— want of, makes form of government import, n. 283

— contrary opinion of Œconomists ibid

Kramer, Herr von, his influence in framing the Prussian code 674

LARCENY, inconsistent definitions of 1044

— not so good a term as Theft ibid

Law (see Jus) the subject of, an abstract science 17

— of nations, or positive International law. (See Positive lnternational Morality) 16, 72

— of nature, as employed by Hugo 32

— positive, essential difference of. (See Positive Law). 34, 330

— occasions of, sometimes confounded with its sources 36

— fashioned by judicial decision upon pre-existing custom 37

— fashioned by judicial decision upon opinions of private lawyers ibid

— of foreign original 38

— and equity, the distinction not based upon any principle ibid

— fashioned by judical decision upon positive international morality ibid

— of persons = Law of status 40

— division of, with reference to its purposes 39-43

[1118c2] — of things — of persons 39-43

— of things, conversant about rights and duties, &c. 40

— of things, outline of this department 43 et seq.

— public and private 67-69

— of persons in outline 67-72

— of Scotland, meaning of the words ‘real’ and ‘personal’ in n. (See Scotland, Law of) 380

— proper is a command 79

— proper, with improper laws, divided into four kinds; divine law, positive law, positive morality, and law metaphorical ibid

— imperative and proper essence of 80, 81

— marks of Divine law 81

— marks of laws, consisting of positive moral rules 84

— marks of laws, metaphorically so called 85

— character of laws positive ibid

— what properly included under the term 86

— as set by God to men ibid

— as set by men to men ibid

— Divine law, meaning of the term. (See Divine Law) ibid

— as set by political superiors 87

— as not set by political superiors ibid

— positive, meaning of the term ibid

— positive law is appropriate matter of jurisprudence ibid

— what improperly included under the term law ibid

— laws of vegetation 88

— laws of motion ibid

— every law is a command ibid

— analysis of the term ‘command’ 88-92

— is a signification of desire. (See Command) 89

— is enforced by a sanction ibid

— analysis of the term ‘sanction.’ (See Sanctions) ibid

— when a command is not a law 92

— though set by a sovereign 93

— a law is a command which obliges a person or persons to a course of conduct 96

— a law of interpretation is not properly a law 98

— nature of imperfect laws 99

— nature of declaratory laws 98, 214, 637

— nature of customary laws. (See Customary Law) 101, 199

— division of laws into natural and positive. (See Natural Law) 154, 567

— this division founded on compound hypothesis of moral sense and principle of utility 153

— division into jus gentium and jus civile founded on same hypothesis 154

— nature of laws which are analogous to laws proper 167

1119 — of metaphorical laws, why so called 169, 209

— two meanings of the term natural law 175

— law of honour is founded on positive morality 183

— international law is not law proper. (See Positive International Morality) 185

— Locke’s division of laws 200

— Montesquieu’s confused description of different kinds of laws 211

— law of God, Blackstone’s remark that human laws are of no validity if contrary to, criticised, n. 214

— law and fact, absurdity of inquiry whether a question is one of law or fact 230

— nature of constitutional law 267

— meaning of Hobbes’ dictum, that law cannot be unjust, n. 268

— rights created by law distinguished from natural and moral rights 343

— law of persons, true meaning of (See Persons) 364, 684 et seq.

— law of things (See Things) ibid

— division of law into jus in rem and jus in personam 367

— meaning of the terms (See Jus in rem and Jus in Personam) 370

— ignorance of law not a ground of exemption from liability 480

— reasons for the rule. (See Ignorance of Law) 481

— distinction between written and unwritten law. (See Written Law) 509

— sources of law 509 et seq.

— promulged and unpromulged 526

— canon law 535

— Prætorian law 560 et seq.

— statute and judiciary 531-533, 620 et seq.

— nature of the distinctions between jus gentium and jus civile 559

— the last two distinctions are analogous to the distinction between law natural and positive 569

— uselessness of the division of laws into natural and positive 570

— order in which law is generated 635, 636

— import of the distinction between law of persons and of things 684 et seq.

— uses of the distinction. (See Persons, Things) ibid

— arrangements adopted in various systems of, and treatises on, law. (See Arrangement)

— distinction between public and private law 744 et seq.

— passages of Roman law in which this distinction is explained 922, 923

[1119c2] — difficulty of settling true import of the distinction 928

— necessary to do so in order to determine the true place of criminal law in a complete code or treatise ibid

— advantage of the study of law as a gymnastic 1087

— opinion of Leibnitz upon this ibid

— necessity for a Faculty of Law 1088

Lawyers, opinions of, not a source of law 36, 543

— their influence over judiciary law 645

Legacy, succession to specific or particular legacy is succession rei singulæ 58

Legal Education should commence with study of general jurisprudence 1082

— system adopted in Prussian universities 1083

— what is generally necessary to a legal education 1086

— importance of the study of logic 1081, 1086

— value of the study of the rationale of law as a gymnastic 1087

— opinion of Leibnitz to that effect ibid

— necessity for a Law Faculty 1088

Legatee, of a specific thing 56

Leges, strictly speaking, only included those laws passed by populus 514

— also extended to plebiscita 515

Legislation, principles of, a name for the measure or test of positive law 16, 83

— science of legislation not the subject of general jurisprudence 32

— a branch of the science of ethics 173

— tendency to confound positive law with it. (See Positive Law) n. 217

— inevitable, and sometimes intentional, implication of it with jurisprudence 1078

Legislative and executive, distinction of political powers into 248

Legislator, what is meant by intention of 441, 624

— the qualifications necessary for the office of 1096

— must be versed in both theory and practice ibid

Legitima portio, of Roman law, its antiquity 617

Légitime of French law ibid

Leibnitz, his remark upon the mastery of their system by the Roman juris consults 677

— his opinion in favour of the study of law 1087

Lessee for years, not considered as proprietor 805

— had not originally jus in rem ibid

Liability, grounds of exemption from 477

1120 — — casus or accident 477

— — ignorance or error 479

— — infancy 490, 494

— — drunkenness 494, 495

Liberâ Republicâ, disposition suspending the vesting of a right prohibited 59

Liberty, political or civil 33

— erroneous definition of, by Paley 216

— is synonymous with right 356

— true nature of civil or political liberty 273, 274, 788

— is the absence of legal restraint 274

— Kant’s definition 339, 341

— classed by Blackstone with his so-called absolute rights 788

Liens made by judgments 64

Light, servitude not to obstruct 811

Living, universitates juris devolving from 57

Livy, his expressions upon the enormous bulk of the law 678

Locke, his opinion that science of ethics might approach the exactness of that of geometry 138

— his division of laws; 200

— tallies with that of Author ibid

— his observations on virtue and vice 202

— his ‘ideas gotten by reflection,’ and ‘ideas gotten by sensation,’ are the same as Kant’s ‘subjective’ and ‘objective’ existences 713

Logic, advantage to lawyers of the study of it 1081, 1086

Luminibus officiatur, servitus ne 811

MACKELDEY, his definition of ‘Recht’ 399

Mala in se and mala probibita, distinction of 485, 572

— tallies with distinction of crimes into those juris gentium, and those jure civil 572

Malice, use of the word to denote intention 345

— inconvenience of the term as a name for criminal design 1058

— inconsiderate assumption that it is of the essence of every crime ibid

Mancipi et nec mancipi, res 783

Mansfield, Lord, his decision that moral obligation is a good legal consideration 218

— his statement of the superior authority of common to statute law 663

— his endeavours to get to his court jurisdiction which had been engrossed by the Court of Chancery 615, 1098

Martens, Von, his correct views on international law 173, 216

[1120c2] — his definition of sovereign government 236

Master and slave (outline) 70

Master, rights of, over servant, are rights in personam 384, 938

— but rights of, to services, are rights in rem 385, 938

— his liability to a servant, n. 497

— difficulty of assigning place to these rights in a division of law into public and private 747, 748

Mathematical truths, taken upon trust 125

— cannot mean deductions of purely mathematical reasoning, n. ibid

Metaphor, the term as used in common parlance defined 167

Metaphorical laws 79, 167, 209

Method. (See Arrangement)

Might is right, meaning of proposition 284

Ministers of Justice, functions of 65, 70

Misdemeanors and felonies, qu. use of retaining the distinction between them 1053

— how distinguished 1054

Mishap (casus) a ground of non-imputation 33, 477

Mistake, action to recover money paid by, should be preceded by a demand. (Note. It has lately been so ruled in the Court of Exchequer, by Martin and Bramwell, B.B., Freeman v. Jeffries, May 6, 1869, L. R., 4 Exch. 199, 200. — R.C.) 472

Modes, law considered with reference to the mode in which it begins and ends 34, 35, 525 et. seq.

— whereby law is abrogated 39

Modus acquiriendi, a phrase devised by the modern civilians 883

— — error of dividing every acquisition of jus in rem into titulus ad acquirendum and 962

— propositions of Heineccius respecting, examined and refuted 964

— — in what cases distinguishable from titulus ad acquirendum 973

Monarch, not invested with a status (properly so called) 70

Monarchy, nature of 238

— limited, nature of 240, 241

— limited, is not true monarchy. (See Sovereign, Sovereignty) 241

Monopoly, a right in rem which has no subject 47[, 954]

— right of, is a right in rem 389

— is a right to forbearance only ibid

— is a right in rem without a subject [47, ]954

Montesquieu, his confusion of laws of various kinds with each other 211

Mora, meaning of the term 474

1121 Morality, or morals, meaning of term. (See Positive Morality) 87

Moral rights distinguished from legal 343

Moral sense, intermediate hypothesis between, and theory of utility 37, 153

— hypothesis of a 82, 105

— its existence must be assumed to be the index of Divine commands if we reject the principle of utility 144

— true nature of the hypothesis ibid

— analogous to hypothesis of animal instinct 145

— Butler its ablest advocate 149

— compound hypothesis of existence of a moral sense together with principle of utility 148

— this hypothesis adopted by Hume 149

— and apparently by Butler 153

— is the foundation of division of law into natural and positive 154

— and into jus gentium and jus civile ibid

— not to be confounded with sympathy, n. 165

Morals, or ethics, ambiguity of the term 16

Mortgage, or Hypotheca, vests jus in rem and jus in personam at once 55, 784

— of all future rights allowed by Roman law 867

Mortgagee, difference between his position in English and Roman law 851

Mos, is positive morality 16, 17

Motive, its place amongst the lead ing notions in jurisprudence 33

— for establishment of law some times confounded with its sources 36

— of human conduct not to be confounded with principle of utility 156

— goodness and badness of motives 160

— benevolent and selfish, n. 164

— origin of motives no part of theory of utility 166

— often confounded with intention 345

— why necessary to analyse the meaning of the term in treatise on jurisprudence 410

— precedes volition 416

Movable and immovable, division of things into, does not quadrate with the division into real and personal in English law 57

— — division of things into 777

Murat, his description of certain American legislatures 656

NATION, meaning of term, n. 243

Nationality, in the sense of [1121c2]independent political society, what constitutes 220

Natural Law as understood by modem writers, two disparate meanings 37, 175

— (1) law of God, (2) a portion of positive law and positive morality 176

— Ulpian’s mistake in extending the term to instincts of animals 209, 551, 569

— distinction of natural and positive law 154, 567, 573

— this division founded on compound hypothesis of moral sense and principle of utility 154

— uselessness of the distinction 570

— disparate meanings attached to the term natural law 573

Natural rights distinguished from legal 343

— — meaning of 573

— and positive. The distinction of human rules into, purposeless 38, 570

— procedure, approached by Roman system 589

Negative, the duties answering to rights in rem are 44, 371, 933

— — an objection to this position answered 785

Negligence, its place amongst the leading notions 33

— why necessary to analyse meaning of, in treatise on jurisprudence 410

— meaning of 426, 459

— how it differs from headlessness 427, 431, 459

— how from intention 428

— of criminal negligence 1059

Next of kin, a universal successor 57

Newly devised names, objection to 48, 49

Non-imputation, grounds or causes of 33, 477 et seq.

Notions, leading, in the science of law 32, 343-511

Obligatio, its technical meaning in the Roman law 45, 58, 923

Obligation, corresponding to right in personam 33

— is the appropriate name for the relative duty answering to a right in personam 45

— implied by command 81

— laws of Imperfect 99

— is positive or negative 346

— is relative or absolute 347

— in Roman law answers to jus in personam 370

— may be superadded to right of property 373

— is obnoxious to a sanction 444

— how it is distinguished from physical restraint 453

1122 — right cannot be enforced without imposing 575

— how it arises out of status 732

— scheme of Roman law language relating to (Table) 916

— in what sense the term is used by classical jurists 924

— borrowed from them by the authors of the French code who misunderstood it 673

— how it arises from quasi-contract 983

Occasions of law sometimes confounded with its sources 36

Occult qualities, absurdity of scholastic notion of 697

Occupancy does not found the right of possession 51

— nature of acquisition of property by 901

Œconomists, their political system, n. 282

Offences are violations of rights or duties 43

— some, are made thefts by a fiction 1042

— law relating to dispersed. (See Crimes) 1045

Offices, corresponding to rights in rem 33

— are duties answering to rights in rem 45

Oligarchy, nature of 239

Omission, one of the leading notions 33

— and Commission, distinction be tween acts of 425

— acts of, how distinguished from forbearance ibid

Operæ servorum, improperly called a servitude by the Roman lawyers 824

Opinion of private lawyers, influence of 36, 543, 645

— so-called law set by. (See Positive Morality) 79, 87

Original contract, false hypothesis of, as basis of government 300

Overt acts, are attempts which are evidence of intention 441

— why required to make party criminally liable 441, 460

— are of the essence of every crime 1061

Ownership distinguished from servitus 48

— a jus in rem. (See Property) 371

PACT (in outline) 54

— meaning of term 981, 983

Paley, his erroneous views of obligation and sanction 89, 90

— character of his treatise on Moral and Political Philosophy 135

— his erroneous definitions of civil and political liberty 216

— his rule for the interpretatlon of contracts 442

[1122c2] — his statement of the difficulty arising from the competition of opposite analogies 632, 995

— Romilly’s mistake as to Paley’s meaning 632

Pandects, nature of materials on which founded 605

— arrangement of, purely unscientific 606, 922

— enormous fault in, if (with code) intended as a code in the modern sense 623 et seq.

Parent and child (outline) 70

Parliament, its powers are both legislative and executive. (See Commons, House of) 250

Parliamentary Elections Act, 1868 258

Particular jurisprudence distinguished from general jurisprudence 32, 1072

Patria potestas involved with succession ab intestato 60

— — in great measure supplied the place of criminal law in early Roman law 497, 748

Penal, a wider term than criminal 1051

Peregrini, condition of, at Rome 552

Per se, rights in rem existing, a sub-department of primary rights 46, 784

— rights in rem existing 46, 786, 793

— rights in personam existing 53

Permission by the sovereign or state 33

Permissive, law is sometimes 355

Person, one of the leading notions 33

— (complex), corporation aggregate 55

— meaning of the term 348

— amongst modern civilians means a human being capable of rights ibid

— a slave, therefore, according to these, is not a person ibid

— Roman nation of, included all human beings 349

— sometimes used to denote condition or status 352, 357

— but used by author as equivalent to ‘man’ 353

— how it is distinguished from thing 364

— how from a fact or event 365

— considered as the subject of rights 368, 383

— when a subject of a right may be styled analogically ‘a thing’ 385

— rights in rem over a 938

Persona, sometimes synonymous with status 40, 352

— more frequently — homo or man ibid

— double meaning as employed by Roman lawyers, the source of confusion with moderns 363

Personal rights. (See Jus in personam)

Personal servitudes, why so called 979

Personal and real, application of 1123the terms in English law, a source of much confusion and obscurity 57, 58, 977

Personal and real, meaning of these words in the law of Scotland 380

— — how applied by the civilians 977

Personam, rights in. (See Jus)

Personarum, Jus. (See Jus)

Persons as subjects of rights and duties 33

— determined to classes by certain rights, &C 39

— Law of, in outline 66-70

— — and things, import of the distinction 364, 684

— — — the distinction is merely arbitrary 687

— — — uses of the distinction 691

— — — Thibaut’s essay on jus personarum et rerum 706

— — — how reIated 717, 718

— — — objections to division 734

— — — distinction is not perfect 950

— — — where they blend ibid

— — — importance of the distinction 952

— — is the law of status 696, 938

— — is concerned with the difference between persons 707

— — should follow law of things in a code or treatise 727, 730

— — the expression and its established equivalents are insignificant 734

— — origin of Hale’s error as to what is comprised in it 950

Personen-recht, how employed in Prussian code 774

Petitions of right 288

Philosophy of positive law an appropriate name for the subject of these lectures 32

Pignus 851

Pleading, rationale of 64

Plebiscita, equivalent to leges 515

Plebs, its legislative power ibid

Police, part of criminal procedure 66, 1054

Political and civil liberty 33, 273, 275

— — — true nature of 273

— — — Paley’s erroneous definition of 216

— — — Kant’s definition 339

— — — is the absence of legal restraint 356

Political conditions opposed to private 67, 71

Political society, distinguishing marks of independent 220

— — when it is not independent 226

— — is not capable of a precise definition ibid

— — origin or causes of 290

— difficulty of assigning the boundary between political and private conditions 747

[1123c2] Political subordinates, exercise sovereign powers 243

Politics, importance of applying principle of utility to questions of 120, 121

Pollicitation (in outline) 54, 72

Poor, relief of 70

Popular government, meaning of term 277

— may he inferior to monarchical in a well-instructed community, n. 282

— not so in one imperfectly instructed ibid

Populus, its legislative power 514

Portalis, his statement as to the necessary imperfection of a code 664

— his share in constructing the French code 674

Positive International Morality, law fashioned upon 38, 635

Positive International Morality (commonly called International Law) is a branch of the science of positive morality 173

— — is not law proper 182, 183

— — its rules are rules of positive morality 184

— — what is international law frequently confounded with what ought to be 216

— — Von Martens has avoided this confusion ibid

— — concerns the intercourse of independent political societies 225

— — sometimes styled jus gentium 566

— — founded on jus gentium of Roman law 569

— — narrower than jus gentium of Romans ibid

— — answers to jus feciale ibid

— — why considered as a branch of natural law 575

— — ought not to be treated, as it is by some continental jurists, under the head of political conditions 754

Positive Law 16, 17, 79

— Philosophy of, an appropriate name for the subject of these lectures 32

— essential difference of 34

— exists as such by the pleasure of the sovereign 36

— is appropriate matter of jurisprudence 86, 87, 172

— meaning of term 171, 330

— division of law into natural and positive. (See Natural Law) 154, 567-573

— every positive law is the direct or circuitous command of a monarch or sovereign number 178

— is therefore a law proper 179

— conflict between, and positive morality 197

1124 — tendency to confound, with the science of legislation, n. 214

— tendency to confound, with positive morality, and both with legislation and deontology ibid

— is a creation of sovereign authority 534

— cannot be created in any other way ibid

Positive Morality 16, 17, 79

— custom nothing more than 36

— some rules of, are not laws 87, 98

— meaning of the term 87, 171

— what laws are embraced by the term 170

— what is included in the science of 172

— international law (so called) is a branch of. (See Positive International Morality) ibid

— different kinds of rules of, which are laws proper 179

— different kinds of rules of, which are not laws proper 182

— conflict between, and positive law 197

— tendency to confound, with de ontology, n. 214

— tendency to confound, with positive law, and both with legislation and deontology ibid

Positive and natural, the distinction between rules of human conduct purposeless 38, 570

Possession, right of (in outline) 51, 53

Possessionis, de jure, treatise by Savigny 53

Practice of private lawyers, influence of 36, 645

— rules of our laws made in the legislative mode by subordinate political superiors 36

— inseparable from theory 115

— but all men are often not capable of equal proficiency in both 1095

— necessity that they should he combined for purposes of legislation and codification 1093, 1096, 1097

Præcognoscenda, more, contained in the law of things than in the law of persons 43, 721, 728

Præfectus Prætorii, his function in drawing up decreta 651

Præjudicia, or Precedents, denied authority by Prussian code 668

Præscriptio, postponed to analysis of right of possession 51, 873

Præscription as a mode of acquisition 53, 873, 965

Præscription, in Scotch law, both positive and negative, n. 493

Prætor, legislated directly 35, 617

— equity dispensed by 39

— jurisdiction of 586

— nature of civil proceediugs before 587

— nature of his perpetual edict 595

— supposition that his power was usurped 608

[1124c2] Prætor Peregrinus, origin of his appointment 555

Prætorian Law, origin of 558

— sometimes identified with jus gentium 559

— is founded on jus gentium 560

Precarium, combined with emphyteusis in the origin of feuda 853, 855

Precedents, denied authority by Prussian code 668

Presumptions, unsuitableness of the term 491

— different kinds of ibid

Primary, division of rights into primary and sanctioning 43

— rights, &c., arranged under four sub-departments 46

— rights with primary relative duties ibid

— rights and duties 760, 763

— — not always distinguished from secondary 768

— — how to be divided into classes 784

Principes, or Princes, the proper designation of the Roman Emperors 35

Principles of legislation, a name for the measure of positive law 16

Private or unauthorised lawyers, influence of their opinions and practice 36, 543, 645

— opposed to political conditions 67, 746

Private and public wrongs, distinction between 503

— law and public, distinction between 744 et seq.

Privilege, its meaning in Roman law 518

— and in common English parlance 519

— is the only kind of right arising immediately from laws 876

— is always strictly personal ibid

— meaning of, in English law 884

— not part of law of status 948

Procedure civil (outline of) 53

— order of, before the Prætor 587

— on an interdict 588

Professional and domestic conditions 67, 756

Projet of the French code 674

Promise (in outline) 55

— intention of party to 442

Promulged and unpromulged law in modern treaties 35, 526

— the terms misexpressive 526

Promulgation of a law, what it is ibid

Properly legislative opposed to judicial mode of legislation 35, 532

Property, distinguished from servitus 48

— (see Jus in rem), institution of, depends on principles of utility 129

— is jus in rem 371, 933

— various meanings of the term 789-792

1. strict sense—indefinite in user, power of alienation, and duration 790

1125 2. limited in duration only 790

3. a right distinguished from right of possession merely ibid

4. jus in rem generally ibid

5. by English law not applied to rights of tenure ibid

6. applied capriciously to some subjects and not to others 791

7. aggregate of a man’s rights or means ibid

8. legal rights in general 729, 788, 791, 792

— employed by author to mean any right in rem indefinite in point of user 794, 933

— distinction between, and easement or servitude 794

— different modes of 795

— never without restriction ibid

— even in its most absolute form 797

— but incapable of exact definition 798

— different modes of property always distinguishable 799

— difficulties with which the term is encumbered 805

— not applied in English law to interest of lessee for years ibid

— right of property may be resolved into right of user and right of exclusion 808, 933

— nature of absolute rights of (jus in re propriâ) 846, 933

— nature of rights of, not absolute (jus in re alienâ) 847

— why a contract does not confer 909

— obligations which correlate to 933

— how acquired 962

— errors respecting acquisition of ibid

— titulus ad acquirendum and modus acquirendi 963

— propositions of Heineccius examined and refuted 965

— sometimes said to be acquired by contract 966

— but then contracts are really conveyances ibid

— extent to which it is said to be transferred by contract of sale in English law 967

— ditto in French law 969

Prospectui officiatur, servitus ne 811

Prussian code adopts the order recommended by Hale (see Code) 42

— — mistakes in conception and arrangement of 674, 774

Prussian law-commission, their function in supplementing the code 638, 651, 659, 668

Public and private law 66-68, 744 et seq.

— instruction, works, &c. 70

— and private wrongs, distinction between 503

— different meanings of public law 744, 754

— law ought to be inserted in law of persons 748

[1125c2] — and private law, the terms tend to generate misconception 750

— wrongs, origin of this expression for crimes 751

— use of this expression by Blackstone 752

Puffendorf, his confusion of positive morality with what morality ought to be 216

Punishment sometimes annexed to injuries which are not crimes 1053

— rules for the application of 1064

Purposes, law considered with reference to its 39-43

QUALITY of action affected by motive 161

Quasi-contracts, rights in personam arising from 53

— nature of 911, 982

— not to be confounded with implied contracts 913, 914, 983

— illustrated by solutio indebiti ibid

— include all anomalous obligations 984

Quasi-delicts, nature of 911

— distinction of, from delicts and quasi-contracts, illogical and superfluous 927

Qui jure suo utitur neminem lædit. 800

RASHNESS, its place among the leading notions 33

— why necessary to analyse meaning of, in treatise on jurisprudence 410

— nature of 427, 459

— how it differs from heedlessness and negligence 427, 431, 460

— how from intention 430, 460

— how it differs from hasty intention 431

— criminal rashness 1059

Ratio decidendi, process of extracting 627, 628, 650

Real and personal, application of the terms, distinction of, in English law, a source of much confusion and obscurity 57, 58, 978

— — how applied in Scotch law 380

— — and by the civilians 978

— in a few cases the term real in English law corresponds to in rem in civil law ibid

Real servitudes, why so called 979

Real Rights. (See jus in rem)

Reasonable, necessary vagueness of this and similar expressions 230

Receptum, jus. (See Jus)

Recht, das, des Besitzes, by Savigny 53

— ambiguity of the word, n. 285

Registration, intention of the author to treat of 53

Relative and absolute duty 33, 65

1126 Relief, persons to administer 70

Religious Opinions, as a ground of legal incapacity 72

Rem, right in, meaning of the phrase. (See Jus in rem) 46

Reporters, whether authorised, should be appointed in law courts 528, 654

— Lord Bacon’s recommendation ibid

Representation, theory of, of people in Parliament 244

— delegation of authority may be absolute or subject to a trust 245

— in this country it in subject to a trust 246

— the performance of the trust can only be enforced morally ibid

— no legal sanction for the performance of such trust could be created 247

Republic, remarks on the term, n. 242

Republicâ, in liberâ, dispositions suspending the right of vesting where prohibited 59

Reputation, right to 47, 788

— love of, an a motive 160

— right to, is a right in rent 389, 788

— — is a right to forbearance only 389

— — could not exist in a savage condition 574

Rerum jus. (See Jus)

Rerum universitates 55

Res, different meanings of term in Roman Law 923

Res communes, nature of 840

Res nullius, occupancy of, does not give right of possession 51, 52

Res publicæ, nature of 841

Residuary Legatee, a universal successor 57

Responsa prudentium, not generally an immediate source of law 543

— whether jurisprudentes had ever judicial authority at Rome 546

Reus, ambiguity of the term 466-468

Revealed. (See Divine Law)

Revenue, persons who collect 70

Reward, is not a sanction 90

Right, legal, one of the leading notions 33

— implies a corresponding duty ibid

— in rem, meaning of the phrase. (See Jus in rem) 46

— of possession (outline of) 51, 53

— to satisfaction 63

— in rem—in personam, or real and personal rights. (See Jus in rem; Jus in personam) 33, 43, 45, 53, 369, 932

— in rem as existing per se 46, 47, 784, 786 et seq.

— distinguished with reference to subjects and objects 47, 787

— distinguished by limitations in duration 50

[1126c2] — vested and otherwise 50

— events by which rights arise said an extinguished 51

— arising from civil delicts 61

— in personam arising from civil delicts. (See Jus in personam) ibid

— with duties, etc., constitute a status 40

— arising from contracts, quasi-contracts, and delicts 53

— arising by universal succession 55

— sanctioning (outline of) 60

— arising from civil delicts, which are infringements of rights in rem 62

— to restoration, may be exercised extra-judicially ibid

— of vindication 63

— of action 64

— not necessary to determine exact meaning of, in order to determine province of jurisprudence 100

— to labour of a slave, Blackstone’s remark upon, n. 216

— sovereign has no legal rights against subjects 284

— meaning of position, that right is might, n. ibid

— different meanings of the term right, n. 285

— misuse of language by those who argued that the British Government had a right to tax the colonists 287

— legal rights distinguished from natural and moral rights 343

— every right resides in a person 367

— and is a right against a person ibid

— is sometimes over a person 368, 383

— analysis of the essence of 393 et seq.

— abstract meaning of the term 394

— Blackstone’s definition of it 399

— no general definition of, in classical jurists ibid

— Mackeldey’s definition ibid

— Mühlenbruch’s definition ibid

— Thibaut’s definition 400

— Blackstone’s absolute rights 728, 788

— of way and of common 810

— of limited and unlimited duration 829 et seq.

— nature of vested rights 856

— of contingent rights 859

Roman Emperors, or Princes, legislated directly by constitutiones 35, 517

— and indirectly, or judicially, by decreta or rescripta 35, 519

Roman Jurisprudence, equity as applicable to 39, 614

— jurists, peculiar merits of their works 217, 1087

— their philosophy contemptible ibid

— law, obtaining in Germany 38, 635

1127 Roman Law, superior for clearness to law of England 58

— — liberâ republicâ, prohibited dispositions restraining power of alienation 59

— — equity in Roman system contrasted with that in English system 616-620

— — value of the study of it 1079

— — in what its value really consists 58, 1080

Roman lawyers, inconsistency of the principles of division of the subject adopted by them 725

Romans, their relations with foreigners 552

Romilly, Sir Samuel, his remarks on interpretation 632, 640

— he applies the epithet ‘judicial’ to indirect legislation 648

— his objections to judicial legislation 642, 657, 676

Rosshirt, his analysis of culpa, or guilt 462

Rules of practice of the English Courts, made in the legislative mode by subordinate political superiors 36

— — — are not written law in the juridical sense 522

SACHEN-RECHT, its use in the Prussian code 774

Sale of an immovable in French law is a conveyance as well as a contract 377

— — the same in English Equity ibid

Sale and delivery (with warranty) vests jus in rem and jus personam at once 55, 785

Sanction, every law is enforced by a 89

— analysis of the term 89, 92, 443 et seq.

— Paley’s erroneous definition of 90

— a reward is not a sanction ibid

— how it is reIated to command and duty 91, 92

— obligation is obnoxiousness to a sanction 444

— operates on the desires, not on the will 445

— how distinguished from physical compulsion 453

— the ultimate sanction is always suffering 456

— not always physical compulsion or restraint 457

— civil and criminal 501

— various meanings of the word 507

Sanctioning, division of rights into sanctioning and primary 43, 760 et seq.

— rights with sanctioning duties 60

Sand, German enthusiast of that name 161

Satisfaction, Rationale of 63

[1127c2] — in lieu of specific performance 63

Savigny, Herr Von: his treatise Das Recht des Besitzes, eulogised 53

— his description of two elements in law by the expressions ‘political’ and ‘technical’ element 646

— his treatise on the call for a code in Germany 666

— faults in his criticism of the French and Prussian codes 669, 670

— his objections to codification examined 675-681

— his controversy with Thibaut on the subject 1038

Science of legislation, not the subject of general jurisprudence 32

Schuldner, ambiguity of the term 466-468

Scotland, law of, illustrations drawn from (notes by Ed.) 380, 386, 391, 480, 493, 497, 590, 617, 828, 834, 835, 849, 853, 893, 912, 1044

Security, right to, classed by Blackstone with his so-called absolute rights 728, 788

Seisin, the origin of many peculiarties in English law 867

Seisina facit stipitem, important rule of succession before 1st Jan., 1834 893

Selfish System, not to be confounded with theory of utility 163

— — the theory so-called is a distortion of Hartley’s hypothesis as to the nature of benevolence ibid

— — absurdity of the system, n. 164

Senatus-consulta, their binding authority 516

Servant, master and servant (outline) 70

— rights of master over, are rights in personam 384, 938

— but right of master to services of, are rights in rem 385, 938

Servitude, is a jus in rem 372, 809, 934

— may also give rise to a jus in personam 373

— distinction between, and property 794, 802, 934

— meaning of term 794, 802, 814, 934

— is hardly expressed by easement 934

— is a fragment of property 802, 814

— difficulties which encumber the term 805

— sometimes answers to what is called a right of property ibid

— distinction between affirmative or positive, and negative servitudes 807

— is a right to uses or forbearances generally of a class 810

— positive and negative servitudes ibid

— examples of positive, rights of way or common ibid

1128 — examples of negative, ancient lights, &c 811

— questionable whether there is any ground for the distinction of servitude into positive and negative ibid

— cannot consist in faciendo ibid

— whether, if negative, it is a jus in rem 812

— meaning of phrase res servit 813

— meaning of phrase nulli res sua servit 814

— not to be confounded with absolute duties, as in French code 815

— may co-exist with any mode of property ibid

— distinction between real and personal servitudes 815, 817

— meaning of terms servient and dominant 817

— in what sense every servitude personal ibid

— distinction between urban and prædial servitudes 822

— in French code ‘servitude’ is only applied to real servitudes ibid

— examples of real and personal servitudes 823

— what modes of property improperly included under the term 823, 934

— why so called 979

Servitus, distinguished from dominium. (See Servitude) 49

Severus, Alexander, dates the conclusion of the series of Classical Jurists 551, 562

— altius non tollendi 811

— ne luminibus officiatur ibid

— stillicidii ibid

Sic utere tuo ut alienum non lædas 768, 800

Singular successors 56

Skill, want of, as a ground of liability 497

Slave, master and (outline) 70

— a ‘person’ in language of Roman jurists 349, 387

— not a ‘person’ in language of modern civilians 348

— meaning of saying that he is a thing or chattel 352, 388, 390

Society, independent political, distinguishing marks of 220

— natural, nature of 225

— political, but subordinate, nature of 226

— not capable of a precise definition ibid

— number necessary to constitute political society 231

— origin or cause of society 290

Solemnities, adjected to conveyances by judgments 64

— attached to alienation 901

— annexed to contracts 907

[1128c2] Sources of law 34, 35, 509 et seq.

— — occsaions or motives some times confounded with 36

— — different meanings improperly assigned to 533-550

— — opinions of lawyers are not mediately sources of law 544

— but frequently are adopted by judges 545

Sovereign, law set immediately by 34, 35

— not invested with a status 70

— various meanings of the term, n. 242

— powers, maybe exercised through political subordinates 244

— powers, &c., must be so, in most instances ibid

— delegation of sovereign powers 245

— by commons to representatives ibid

— distinction of them into legislative and executive powers 248

— cannot be accurately so distinguished 249

— sovereign powers, limits of 263

— meaning of the term unconstitutional 265

— all persons exercising portions of sovereign power may be legally bound 269

— including the king 270

— sovereign power, incapable of legal limitation 263, 278

— origin of doubt as to this 278, 279

— admitted by Sidney 278

— and by Hobbes 279

— has no legal rights against subjects 281

— sovereign may be pursued before his own tribunals 288

— but rights against him are only quasi legal rights ibid

— this does not apply, necessarily, to king of England, who is not sovereign ibid

— but applies, owing to an accidental circumstance of his constitutional position ibid

— nature of rights of, over res privatæ 843

Sovereignty, analysis of the term 220

— implies habit of obedience to a common determinate superior 220, 221

— and independence on the part of the monarch, or sovereign number ibid

— it implies an independent political society 220

— not capable of a precise definition 228, 230

— definition of it by Bentham 234

— by Hobbes ibid

— by Grotius 235

— by Von Martens 236

— forms of it 237

— monarchy ibid

1129 — aristocracy 237-239

— limited monarchies 240

— includes the judicial power 520

Specie, things existing in, how they differ from things in genere 778

Specific legacy, succession to specific legacy is succession rei singulæ 58

Specific performance. The right to compel specific performance belongs to general jurisprudence 64

— delivery, in English Equity, not generally enforced unless the subject be land 780

Spes Successionis 838, 867

State, meaning of the term, n. 242

Status (or condition) composed of rights, &c 40

— the notion of status is the basis of the division between ‘Law of Things’ and ‘Law of Persons’ 41, 684, 686

— is juris universitatis 51

— sometimes confused with caput 354

— meaning of the term 350, 686, 719, 942

— great difficulty of fixing meaning 351, 943

— caput is not identical with it 351, 717

— right of, or in, is a right in rem 389

— is a right to a forbearance only ibid

— not susceptible of strict definition 687

— erroneous notions of 697

— error of Heineccius, that it is a quality ibid

— similar error of Bentham 699

— Bentham’s analysis fails to distinguish status 702

— distinguishing marks which have been assigned to it, apply equally to universitates juris ibid, 705, 706, 946

— or to other groups of rights 703

— not to be distinguished by the fact that the party bearing it has jus in rem in its constituent rights 706

— Thibaut’s definition of, criticised ibid

— Mühlenbruch’s error in supposing that it is a capacity or faculty 714

— wherein it consists 733, 942-953

— how obligations arise out of it 731

— may be purely onerous 945

— the right in, or to, is analogous to ownership 946

— privilegia do not belong to law of status 948

Statute, difficulty of expressing, so as to be intelligible 660

Statute de Donis and Statute of Frauds liberally construed 635

Statute law, construction of 64

— meaning of term 620

[1129c2] — distinction of, and judiciary law 621

— interpretation of. (See Interpretation) 624

Stillicidii servitus 811

Suarez : Reasons of the order adopted by, in compiling the Prussian code 42

— overruled by authority of Von Kramer in the arrangement of contracts 674

Subject of a right, person, or thing 33

— — is often a person 362

— — means the thing over, in, or to which a right exists 712

— — not the person who has the right ibid

— — the latter is the meaning of the German jurists 713

— — this is a misapplication of the language of Kant ibid

Subjects : Law considered with reference to, about which it is conversant 34

— rights distinguished with reference to their 47, 787

Subordinate laws, set immediately by subordinate political superiors 34, 35

— political superiors, authors of rules of practice 36

Substantive and adjective law, explanation of the terms 591

— — objections to them 762

— — defects of Bentham’s division and arrangement of law under these heads 765

Succession, universal, right arising by 55

— rei singulæ 58

— laws relating to, occuring at a death, belong properly to law of status 951

— why asserted in law of things 952

Suetonius, his remarks upon the vast bulk of the law 678

Sulpicius Servius, the friend of Cicero and first of the classical jurists 551, 562

Superficies 851

Superior, involved in the notion of command 81

Superiority, analysis of the term 96

— implied by the term command 97

Syllogism, how distinguished from analogical reassoning 1012

— use of ibid, 1015

Sympathy, confusion of, with moral sense, n. 165

— assumed by theory of utility, n. 166

— origin of, not connected with theory of utility ibid

TACITUS, his Germania 232

— his remarks on the vast bulk of the law 678

1130 Tangible and intangible, use of these terms in philosophy of Epicureans and Stoics 361, 685

Temerity, its place among the leading notions. (See Rashness) 33

Tenure, rights which are subjects of, do not quadrate with rights styled real in English law 57

Test of positive law and morality 16

Testamentary power, legislation of the Prætors regarding 617

Testamento, succession ex, a species of universal succession 57, 60

Testator, what is meant by intention of 441

Theft, inconsistent definitions of 1043

— better term than larceny 1044

Theophilus translates jus personarum—ἡ τῶν προσώπων διαίρεσις 363

Theory and practice inseparable 115

— — but men are often not capable of equal proficiency in both 1095

— — necessity that both should be combined for purposes of legislation and codification 1093, 1095, 1096

— — both were possessed in an eminent degree by the Roman lawyers and by Coke and Hale 1093

Thibaut 72

— his Pandekten Rechts ibid

— his understanding of the distinction between dominium and obligatio as the terms are used by the Roman lawyers 383

— his definition of right 400

— his definition of status criticised 706

— places patria potestas and tutela under public law 748

— his writings in favour of codification 1037

Thing, one of the leading notions 33

Things, law of, outline of this department 43

— proposed distribution into classes of, as subjects of rights and duties 46

— meaning of 358, 774

— are permanent external objects 358

— how distinguished from persons ibid, 364

— how distinguished from facts or events 365

— term extended by Roman lawyers to acts and forbearances 360

— and also to rights and obligations 362

— true notion of ‘Law of Things’ as distinguished from ‘Law of Persons’ 364, 683 et seq.

— persons may be considered as things, where they are subjects of rights 385

— distinction of ‘Law of Things’ [1130c2]and ‘Law of Persons’ merely arbitrary 687

— uses of the distinction 691

— Thibaut’s essay on law of persons and of things 706

— the relation of these two departments of law to each other 718

— law of, confused with law of persons by Roman lawyers 725

— law of, should precede law of persons 730

— — requires most detail ibid

— objections to the terms, ‘Law of Persons’ and ‘Law of Things’ 734

— Blackstone’s misapprehension as to ‘rights of things’ 736

— misapprehension of Roman lawyers cognate to this 737

— grand divisions of law of things 760 et seq.

— mancipi et nec mancipi 783

— difference in meaning of ‘res’ and ‘thing’ in Roman and English law 774

— divisions of things 775

— corporeal and incorporeal 361, 777

— movable and immovable ibid

— specific and generic 778

— fungible and not fungible 779

— res singulæ and universitates rerum 780

— origin and meaning of the term jus rerum 931

Tltle, in its strict sense, applicable to facts through which rights are conferred 874

— meaning of it as used by English lawyers 884

— the facts which constitute it are essential or accidental 976

— not to he confounded with right 977

— the ‘investitive fact or event’ ibid

Titulus ad acquirendum, meaning of 884

— — error in dividing every acquisition of jus in rem into, and modus acquirendi 963

— — propositions of Heineccius respecting, examined and refuted 964

— — in what cases distinguishable from modus acquirendi 973

Traders, insolvency of, distinguished according to English law. (This, of course, was before the Bankrupt Act, 1861. Although a trader may now be made a bankrupt, there is still (June 1869) a distinction between traders and non-traders under the English Bankrupt Law.—R. C.) 60

Trespass, nature of right arising out of 372

Trusts, in Roman law 51, 59, 618

— belong to all systems of law 618

1131 Truth, necessary and contingent, difference between 1009

Tutela, placed by Thibaut and other Germans tinder public law 748

Tyrannicide, the result of misguided benevolence 161

ULPIAN, his mistaken notion of jus naturale 209, 551, 565

— last of the classical jurists 562

Unauthorised lawyers, influence of their opinions 36, 645

Unconstitutional, meaning of the term 267

United States, government of, is a supreme federal government 261

Universal succession, rights arising by 46, 56

Universitates juris 56

— ordinary definitions do not distinguish them from status 702, 705, 706

— how distinguished from status 946

— why not so prominent in English as in Roman Law ibid

Universitates rerum distinguished from res singulæ 780

Universities of rights and duties arising by universal succession (a sub-department of primary rights, &c.) 46, 55

Unjust, analysis of the term, n. 268

Uupromulged and promulged law in modern treatises 35, 526

Unwritten law. (See Written Law) 512 et seq.

User, extent to be given to the meaning of the word 811

Usucapion, a mode of acquisition in Roman law 53

— as a mode of acquisition, examined 965

Usus, not properly a servitude 824

Ususfructus, not properly a servitude ibid

— Editor’s note on 827-829

Utilis actio, meaning of 601

Utility, on theory of, the distinc tion between natural and positive rules is purposeless 38

— theory of, referred to in preliminary analysis 82, 83

— brief summary of the theory of 106

— infers Divine laws from tendency of human actions ibid

— true tendency of human actions 107

— true test of that tendency ibid

— first objection as to application of theory that it were dangerous 110

— first answer to this objection 112

— second answer to this objection 113

— principle of utility admits the play of moral sentiments as [1131c2]the immediate motives of action 116

— accords with Divine rules as the ultimate standard 117

— importance of applying this principle to political questions 121

— second objection as to applicability of theory, that it were difficult 123

— answer to that objection 124 et seq.

— this objection common to all hypotheses 124

— cannot be completely removed ibid, 126, 127

— leading principles of theory may be discovered 124, 127

— example from institution of property 129

— difficulty of applying principles of the theory can only be removed by diffusion of knowledge 132

— principle of utility is the true key to ethical knowledge ibid, 133

— admitted to be an imperfect index of Divine commands, which are the test of human conduct 142

— not inconsistent with our notions of Deity that it should be so ibid

— Christianity as revealed, admitted by Butler to be imperfect 143

— if utility not the true index, we must assume a ‘moral sense’ 144

— true nature of this hypothesis ibid

— is analogous to hypothesis of animal instinct 145

— Hume assumes the existence of moral sense as well as principle of utility 149

— Butler the ablest advocate of the hypothesis ibid

— if it exists, it is a perfect index to the Divine commands 150

— no evidence that such a sense exists ibid

— moral sentiments are not prompt and inevitable 151

— nor are the moral sentiments of all men precisely alike ibid

— Butler probably assumes the existence of principle of utility as well as moral sense 153

— division of law into jus civile and jus gentium, founded on the compound hypothesis 154

— as also the division of law into natural and positive ibid

— according to true theory, utility is not test of human conduct 156

— is only the index to the Divine commands ibid

— as index to the test of human conduct, not to be confounded with motives 160

1132 — theory of, not to be confounded with the selfish system 162

— that system is an hypothesis as to the origin of benevolence 163

— statement of Hartley’s hypothesis as to benevolence ibid

— theory of utility not invented by Bentham, n. ibid

— but first properly examined and stated by him ibid

— it assumes sympathy, n. 166

— is independent of any hypothesis concerning origin of motives 160

VAGUENESS, inevitable in certain expressions 230

Vanity, how estimated as a motive 160

Vested rights in rem opposed to contingent, &c 50

— — what is meant by, as distinguished from contingent 856

Vicarious punishments as styled by Bentham 506

— — use of the expression suggested by Sir G. C. Lewis 856

Vindication, right of 63, 791

Virtue and vice, Locke’s observations on 202

Vis, or compulsion, a ground of non-imputation 33

Volition, its antecedent motive and intention 161

— the antecedent desire which precedes act 412

— Dr. Brown’s theory of ibid

— nature of volitions 414

Voluntary and contentious jurisdiction 64

— — nature of the first 766

Voluntary, ambiguity of the term 417

[1132c2] WARD, rights of guardian over, are rights in personam 384, 938

— but rights of guardian to custody, &c., of, are rights in rem 939

Wife, rights of, which are in personam 385

— rights of, which are in rem ibid

Will, its place among the fundamental notions 33

— why necessary to analyse meaning of term in treatise on jurisprudence 410

— analysis of term 411

— value of Dr. Brown’s analysis of 412

— does not differ from, a wish or desire ibid

— sometimes confounded with intention 415, 436

— Locke’s near approach to true notion of it 416

— produces acts only, not consequences of acts 421

— distinguished from intention ibid

— explanation of supposed conflict of, with desire 447

— cannot directly control desires 448

— may destroy desires indirectly ibid

Works, Public, persons engaged in 70

Written and unwritten law, distinction between (sensu modern civilians) 35

— — distinction between 512 et seq., 525

— — how understood by Roman lawyers 513

— — how, by modern civilians 512, 514

— — how, by Hale and Blackstone 529

— — use of the terms by Glanville, n. 530

Wrong, analysis of 457

THE END.

Printed by R. & R. Clark, Edinburgh.