920-921 

922 

Notes to Table I.

[Note 1.] See Gaii Institutionum Commentarii iv; Ulpiani Libri Regularum Singularis Fragmenta; Justiniani Institutiones (‘ex omnibus antiquorum Institutionibus, et præcipue ex Commentariis Gaii tam Institutionum quam Rerurm Quotidianarum, aliisque multis Commentariis, compositæ’).

The Arrangement of Justinian’s Institutes (or, rather, of the earlier Institutes from which they were copied or compiled), is a systematic, or scientific one: that is to say, derived from distinctions lying in the matter of the treatise. Thus, the Roman Law (the matter of the Institutes) is divided, in respect of its sources, into Written and Unwritten, etc.: in respect of its subjects, into law of Persons (i.e. special or particular law), Law of Things (i.e. the general law of substantive rights and obligations), Law of Procedure, etc. But the arrangement (if such it can be called) of his Code and Digests, is an historical one. Instead of being founded upon distinctions lying in the matter of the compilations, it was taken from a circumstance purely extraneous and accidental: namely, the order or series (consecrated by reverence for antiquity), in which the various branches of the Roman Law had been modified, as occasion prompted, by the Edict of the Prætors. See the Constitution ‘De Conceptione Digestorum,’ in which the Emperor instructs Tribonian ‘in libros et titulos materiam digerere, tam secundùm Nostri constitutionem Codicis, quam Edicti perpetui imitationem.’ It is scarcely necessary to add, that each of these clumsy compilations is the merest chaos.

In the Table here submitted to the reader (which has been abstracted from the three treatises mentioned above, and also from the corresponding portions of the Digests or Pandects), the terms of the Classical Jurists are given exactly. With a view to the study of these admirable writers (who are incomparably the best teachers of the Roman law), this is a matter of the highest importance. Such a multitude of new, and, in some respects, preferable expressions, has been imported into the system by the later Civilians, that those who have only studied it in the writings of these last, scarcely know it again when they mount to the original sources.

[Note 2.] For the distinction between Jus publicum and Jus privatum, see Inst. lib. i. tit. i. § 4; Dig. lib. i. tit. i. Tit. i. l. 1. § 2.—And see below, Note 8. It seems that the Elementary writers commonly confined themselves to the latter. For 923Justinian’s Institutes briefly indicate the distinction, and then immediately subjoin ‘Dicendum est igitur de jure privato.’

[Note 3.] The Arrangement of Private Law exhibited in the Table above is formally announced by Gaius (i. § 8. ‘De Juris Divisione’), and also by Justinian (Inst. i. 2. § 12): And, in spite of the opinion now prevalent in Germany (see Tab. III.), it seems to be the arrangement which they intended and actually observed. Their adherence to it may be traced in the Institutes of Gaius, and is obvious in those of Justinian.

Compare the following places of the latter: Inst. i. 2. § 12.—ii. 1. in princip.—ii. 2. § 2.—ii. 5. § 6.—iii. 12, ‘De Obligationibus,’ in princip.—iv. 6, ‘De Actionibus,’ in princip.

For the scope or purpose of this Arrangement, see Table II. note 2.

[Note 4.] These various expressions for the Law of Persons may be found in the following places:—Gaii Comm. i. § 8, 9.—Inst. i. 2. § 12: t. 3. in pr.—Dig. i. 5. (‘De Statu Hominum’) l. 2.—Theophilus 4. 6. pr.

[Note 5.] Gaii Comm. ii. § 1.—Inst. ii. 1. in principio.

In the language of the Roman Lawyers, the term ‘Res’ has various meanings; and of these, the two following demand particular notice. It means, first, Things, Persons, Acts (or Forbearances), as subjects or objects of rights and obligations:—‘materia juri subjecta’—‘in quâ jus versatur’—‘ea quæ jure nostro afficiuntur’—‘quæ tanquam materia ei sunt propositia.’ Or it means, secondly, Rights and Obligations themselves:—‘res incorporales’—‘ea quæ in jure consistunt:’ velut ‘jus hereditatis,’ ‘jus utendi fruendi,’ ‘servitutes,’ ‘obligationes quoquo modo contractæ.’

See Inst. ii. 2. § 2.—lf this passage had been well considered, those differences about the arrangement of the Institutes, which are referred to in Note 3, would scarcely have arisen. See Table III.

For the import of the expression ‘Jus quod ad Res pertinet,’ see Table II. note 2.

[Note 6.] Dominium (in the large signification) and Obligatio (in the correct signification) are synonymous with the Jus in Rem and Jus in Personam (determinatam) of numerous modern 924 writers upon the Roman Law. For the import of which distinction, see Table II. note 3.

By the Classical Jurists, ‘Obligation’ is never employed in that large generic sense which it has acquired in subsequent times. In the language of these writers, it has commonly the following meanings.

1°. It signifies the Obligation which answers to a Right in personam.

2°. Inasmuch as they had no name specifically belonging to this last (rights of every class being embraced by the word jus), they used the term ‘Obligation’ to denote that Right (in personam) with which the Obligation correlates.

3°. It signifies the Right (in personam) which resides in the party entitled, with the Obligation which is incumbent upon the opposite party: ‘Vinculum inter utrumque.’

It is remarkable that a similar ambiguity (with a swarm of others) sticks to the term Jus. Thus, ‘in omne Jus defuncti succedere,’ is to succeed to the obligations as well as to the rights of the deceased. So of the German word Recht; in the legal, as well as in the popular, language of the Middle Ages. And so, in our own country, when a man is obliged to do a thing, it is not unfrequently said ‘that he has a right to do it’—an expression at which we laugh, but which, beyond a doubt, is good Saxon English.

As the Roman Lawyers had no specific expression for Rights against determinate persons, so had they no term appropriated to those general Obligations which correspond to rights in rem. A Roman Lawyer, speaking of such an obligation, would have used the generic term Necessitas; or, less correctly, Officium;—the former signifying obligations which are imposed and sanctioned by law; the latter denoting, properly, those religious and moral obligations, which, as wanting that cogent sanction, are frequently styled ‘imperfect.’

Consequently, the language of the Roman Lawyers stood (nearly) thus:

1°. For rights (universally,) they had ‘Jus:’ for rights in rem (generally), ‘Dominium’ (in its loose signification): for rights in personam, ‘Obligatio.’

2°. For obligations or duties (universally) they had ‘Officium’ and ‘Necessitas:’ for the special obligations which answer to rights in personam, ‘Obligatio.’—For the general duties or obligations which answer to rights in rem, they had no specific expression. But since obligations of this class were never denoted by ‘Obli925gatio,’ and since obligations of the other class were always denoted by it, ‘Officium’ or ‘Necessitas,’ when opposed to ‘Obligatio’ supplied the defect.—For a closer examination of the matter, see Table II. note 3.

[What follows, to the end of the Note, was found among ‘Loose Papers.’ It is marked ‘Note 6, to Table I.,’and is the only fragment to which a place is distinctly assigned.—S. A.]

[The Latin Jus (not synonymous with Law) sometimes means Right as opposed to Obligation. Sometimes, however, it is used collectively, and denotes right and obligation, or obligation alone. ‘Succedere in omne Jus defuncti,’ is to succeed to his obligations as well as to his rights.

The word ‘Obligation’ (stricto sensu) has also a double meaning. Sometimes it means the obligation which corresponds with Jus ad Rem; sometimes it means the right of the one party, as well as the obligation of the other. Thus the party who gains a right by a contract is said to acquire an obligation; i.e. a right against the party who is bound by the obligation. Thus, also, the theory of the Rights and Obligations which arise out of contracts, and of the rights and obligations which resemble these, though they originate in other incidents, are treated in the Institutes, Gains, etc. under the title of Obligations: an expression which denotes the rights of the parties entitled, as well as the obligations of the parties who are bound.

The French word ‘Engagement,’ which, though it properly mean not an obligation, but an obligatory incident of a certain kind (e.g. a contract), also means obligation, and is used by certain French writers as a collective expression for rights and obligations.

In the German, Rechtsverhältniss (a relation arising out of law) is also a generic name for right and obligation. Sometimes it denotes right or obligation; but then it always denotes the right or obligation as related to the obligation or right. It denotes the one and connotes the other.

An objection to these uses of Jus, Obligatio, and Engagement is, that the words thus used are ambiguous, and that when we want to discriminate between right and obligation, we must constantly annex to the term a declaration of the sense in which we mean to use it.

But there is another objection of a more general nature: an objection which applies equally to Rechtsverhältniss: namely, that each of these terms (used collectively) supposes that every 926right supposes an obligation;—that every obligation as well as every right is relative; that as the existence of a party invested with a right supposes the existence of one or more subjected to a corresponding obligation, so the existence of a party subjected to an obligation must suppose that some other party is clothed with a corresponding right. This, however, as we have already shown, is not true. There are absolute obligations, although there are no absolute rights.

The English language has this advantage, that though its vocabulary of leading terms is scanty, they are precise and unambiguous;—Law—Right—Obligation.

‘Befugniss’ and ‘Pflicht’ seem to denote right and obligation in abstract, but sometimes the same in concrete; ‘Recht’ and ‘Verbindlichkeit,’ the converse: i.e. more commonly in concrete, but sometimes in abstract.

‘Forderung’ (which corresponds with the Latin Debitum in its largest sense) denotes that which is to be done, positively or negatively, in consequence of the obligation; which last is rather the ‘vinculum.’

‘Officium’ is moral duty or obligation in the largest sense.

‘Necessitas’ (which rarely occurs) is legal duty or obligation, also in the most extensive meaning of the word obligation.

‘Obligatio’ is a species of ‘Necessitas:’ i.e. Obligation limited to a determinate person or persons. A specific name for the ‘Necessitas’ which corresponds with Jus in rem is not to be found.

In German there are single names for the party having a right, and for the party subjected to an obligation. In other languages, circumlocution must be resorted to. The English ‘entitled’ applies only to the first, and only denotes it in an indirect manner.

Right, Obligation, Duty (Devoir, Officium),—with their corresponding expressions, ‘it is, or is not right to do such an act,’ ‘such an act ought, or ought not to be done;’ ‘such an act is right,’ ‘such an act is a duty,’ etc.—are perfectly equivalent expressions; as denoting conformity with a rule (or rather performance or observation of the obligation which the rule prescribes).

Sometimes they simply denote approbation of some rule of conduct or of some act; as, ‘Law as it ought to be.’

Sometimes ‘ought’ (and devoir, the verb) denote, like Law, conformity with any established order of incidents: as ‘such an event ought to (or should, or must) have happened, on such and such suppositions.’

927The metaphorical sense in this case differs from that in the case of Law only to this extent: that whereas the metaphorical ‘Law’ denotes the customary order, ‘ought’ denotes the metaphorical obligation which that law is feigned to have imposed. Observance of a law, or of the obligation which that law imposes, are equivalent expressions; each being causes of the uniformity which it is intended to indicate.]

[Note 7.] The distinction between Obligations ex Delicto, and Obligations Quasi ex Delicto, seems to be superfluous and illogical. Obligations Quasi ex Delicto arise from two causes:

1°. Damage to the right of another by one’s own negligence (culpâ, impredentiâ, imperitiâ):

2°. Damage to the right of another by some third person for whose delicts one is liable (e.g. ‘filius in potestate,’ ‘servus,’ ‘aliquis eorum quorum operâ exercitor navis aut stabuli navem aut stabulum exercet’). Cases of the former sort fail within the notion of Delict; and many such cases are actually ranked with Delicts in the Lex Aquilia (one of the principal sources of the Roman Law for that department of it). In cases of the latter sort, the class of the obligation varies with the nature of the ground upon which the liability is founded. If the mischief be caused, though remotely, by the negligence of the party obliged (e.g. ‘si aliquatenus culpæ rem sit, quod operâ malorum hominum uteretur’), the case, as before, falls within the notion of Delict. And supposing that the party obliged is clear of intention and negligence, his obligation should be referred to that miscellaneous class, which are said, by analogy, to arise from (quasi) Contracts.

[Note 8.] The Institutes close with a short Title ‘De Publicis Judiciis,’ which only includes a species of Criminal Procedure, together with the Crimes and Punishments to which that species was appropriate.

See the Title in question, and also the following places in the Digests: xlvii. 1, ‘De Privatis Delictis,’ l. i. 3.—tit. 2. l. 94.—tit. 10. l. 45.—tit. 11, ‘De Extraordinariis Criminibus.’—tit. 20. l. 1, 2.—tit. 23, ‘De Popularibus Actionibus.’—xlviii. 1, ‘De Publicis Judiciis,’ to tit. 3, inclusive.—tit. 16, to the end of the Book, and especially tit. 19, ‘De Pœnis,’ l. 1. § 3.

It would seem that this Title in the Institutes is not a member or constituent part of the work, but rather a hasty and incongruous appendix added on as an after-thought. For, first, 928instead of expounding the subject in a systematic manner, it merely touches (‘per indicem’) a fragment of the subject. Secondly, It appears that Criminal Law was looked upon by the Roman Jurists as properly forming a department of Jus Publicum: And this, it is most probable, was not included in the Treatises from which Justinian’s Institutes were copied or compiled.

See above, Notes 1 and 2.—Whether a similar Title was appended to the Institutes of Gaius is uncertain; the concluding portion of the Manuscript being lost or illegible.

In order to determine the place which should be assigned to Criminal Law (or, rather, in order to determine the arrangement which should be given to the whole Aggregate of Law—‘Omne Corpus Juris’), it would be necessary to settle the import of an extremely perplexing distinction: namely, the distinction between Public Law and Private (or Civil) Law.—According to the large and vague meaning which is often attached to it, ‘Public Law’ comprises not only the whole of Criminal Law, but also much, if not the whole, of the Law which, commonly, is denominated ‘Private.’ And if the term be taken in this its loose signification, a distinct and intelligible arrangement of the Corpus Juris is simply impossible. According to the strict and determinate meaning which seems to have been annexed to it by some, ‘Public Law’ is included in the Law of Persons: that is to say, it is merely a subordinate member of that great Aggregate or Whole, which, under the absurd name of ‘Private Law,’ is frequently opposed to it. If ‘Public Law’ be taken in this its definite import, there is only a small, though weighty, portion of Criminal, that can possibly be referred to it with propriety.—See Table III. sub fine.