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Of Law in general, and of the divisions and parts of the Civil law.
"JUSTICE is a disposition of mind to render to every one his right. Rights are perfect or imperfect from the idea of right is produced that of obligation."
Justice is defined by Ulpian to be constans et perpetua voluntas jus suum cuique tribuendi1, and Præcepta the three præcepta juris are honeste vivere, alterum non lædere, suum cuique tribuere2. Hence we arrive at rights and obligations, which are the Rights and creatures of the Civil law. In entering upon the obligations. consideration of the rights of persons it is necessary to have a correct understanding as to rights and obligations. Until human society began to be formed they could have no existence, nor could they be perfectly defined until the Jus Civile of society was established. Rights and obligations can only have a place in civil society, and they arise by the application of law to objects. For example, if I agree to sell my horse to my neighbour for £20, and he having paid into my hands the £20 so agreed on, if I then refuse to deliver to him the horse, the law will compel me. The law of buyer and seller applied to the above-mentioned transaction creates the right, and its reciprocal obligation. I am bound, and may be forced, to satisfy his just claim, his right, by performing my obligation.
From the idea of right is produced that of obligation; that is to say, they are reciprocal; the
one cannot be established without at the same CHAP. time creating the other. They are also perfect and imperfect. A perfect right is that in which the Perfect law will compel the performance of its reciprocal perfect. obligation; but a right, however perfect in a moral sense, if it do not come within the province of the law is unable to enforce its reciprocal obligation, and is therefore an imperfect right. The law will compel me to pay my just debts: this is a perfect legal obligation. But there is no law to compel me to relieve the beggar, however great his distress; a moral obligation rests upon me, but the law will not help him: there can be no doubt as to his right and my obligation in a moral sense, but inasmuch as they cannot be enforced they are reciprocally imperfect.
We here see the distinction between Jurispru- Ethics. dence and Ethics. Law compels the performance of our duties by public authority, while the science of Ethics only teaches us our duty and the reasons of it.
Jurisprudentia est divinarum atque humana- Jurispru rum rerum notitia, justi atque injusti scientia'. I. UniverJurisprudence is either universal or particular; sal; the former relates to the science of law in general, ar and investigates those principles which are common to all systems of law alike. Particular jurisprudence refers to the laws of particular states, which have been drawn from the rules and principles of universal jurisprudence, and adopted by those states.
Law is a rule of action prescribed by some Law. superior, and which the inferior is compelled to obey. This is the definition of law in its most extensive signification. The solar system will furnish us with an example; or, to test the accuracy of this definition more minutely, place two weights connected together by a cord over a pulley, one of
1 D. I. I. 10. 2.
BOOK which is heavier than the other, it would be impossible to balance them; the heavier in its descent would continue to send up the smaller to the end of time. Make them equal, and they will remain at rest. There is no longer any superior, and the rule of action is gone.
Law in its more confined sense denotes the Municipal rules of human action and conduct. Municipal law is a rule of civil conduct, prescribed by the supreme power in the state, commanding what is right and prohibiting what is wrong.
All law is natural or instituted. The law of Nature, the law of Nations, and the Civil law were distinguished from each other by the Roman lawyers.
Jus is defined by Celsus as Ars boni et æqui1. Jus Natu- It is divided into-1. Jus Naturale. 2. Jus Gentium. 3. Jus Civile. "Jus Naturale est quod natura omnia animalia docuit 2;" e.g. self-preservation, the Jus Gen procreation of the species, &c. Jus Gentium is defined by Justinian as "quod naturalis ratio inter omnes homines constituit." Puffendorf defines it as ipsum jus naturale integrarum gentium negotiis et causis adplicatum. By modern writers it is reduced to the simple term jus inter gentes, that law which governs the intercourse of civilized nations with each other.
Jus Civile est quod quisque populus sibi constituit, et cujusque civitatis proprium ests. It is the law by which each independent state is go
Jus Singulare, called also Privilegium, was where any privilege was granted to a person or class of persons, contrary to the Jus commune. The will of a soldier, and the Senatusconsultum Velleianum, may be taken as examples.
Jus Feciale. The Feciales were a body of
priests said to have been established by Numa, CHAP. whose business it was to declare war, and to ratify peace with neighbouring nations. The rules and regulations established by them were called the Jus Feciale1.
Lex is defined by Papinian as commune præ- Lex. ceptum, virorum prudentium consultum: delictorum quæ sponte vel ignorantia contrahuntur coercitio: communis reipublicæ sponsi2. Laws are classed under four heads by Modestinus, Legis virtus hæc est: imperare, vetare, permittere, punire3. Lex differs from Jus as the species differs from the genus.
Lex is what was enacted by the whole body of the Roman people, assembled at the Comitia Curiata or Centuriata, at the recommendation of one of the greater magistrates.
The oldest legislative assembly of the Romans Comitia was the Comitia Curiata, divided into three tribes, the Ramnes, Tities, and Luceres, which were subdivided into thirty curiæ consisting of patrician families. Servius Tullius, the sixth king of Rome, introduced a material change U.c. 176. It became necessary to recognise the plebs as part of the populus, which was not the case in the Comitia Curiata. He established the census1, and arranged the citizens when assembled for legislative purposes according to their order when on military service, that is, according to their property. This arrangement considered the whole state as forming a regular army, and it consisted of 195 centuries, thence called the Comitia Centuriata, which con- Centuriata. tinued to be the form of the legislative body until its functions were suspended and finally extinguished by the emperors5.
The Comitia Centuriata met in the Campus Martius. The consul presided, and put the question to the people when the moment for voting
1 Colq. I. 287.
2 D. I. 3. I.
5 Colq. 25.
3 D. I. 3. 7.
BOOK came; hence Lex is said to be quam populus Romanus constituit superiore magistratu rogante'.
The institution of the tribunes and the Comitia Tributa date from the year U.c. 260. The plebs then acquired the right of holding their own comitia, Lex Hora- and of passing laws by the Lex Horatia obligatory only upon themselves. This assembly was summoned by the tribune who presided; it did not meet in the Campus Martius, but generally in the Flaminian Circus. The laws passed by the plebs were called Plebiscita, i.e. quæ plebs plebeio magistratu interrogante, veluti tribuno constituebat. So long as a plebiscitum bound only the plebs it dif fered from a lex, but in the year u.c. 468,3 when Lex Hor the Lex Hortensia was passed, the patricians were compelled to acknowledge the obligatory force of the plebiscita, and from this time they were in fact leges. The Lex Aquilia, Falcidia, Voconia, and many others, were plebiscites.
Mode of passing a Lex.
In passing a Lex the proceedings observed were as follows:
First, it was drawn up in writing.
Secondly, permission to lay it before the populus was asked of the senate. If this were granted, Thirdly, it was published by being fixed up in some public place during trinundinum, three market days, that the voters might be made acquainted with its provisions.
Fourthly, due publication being made, a herald ascended the rostrum in the Campus Martius, and Recitatio. made the recitatio, i.e. he read the law to the assembled voters; then followed,
Fifthly, the suasio and dissuasio, the debate. This being over, a pause took place in the proceedSortitio. ings during the sortitio, which was the arranging the order of voting of the centuries by ballot. 195 tallies, the number of the centuries, marked from I to 195, were put into an urn and drawn out.
1 Hein. El. 46.
› Haub. II. 38; Hein. Ant. 1. 2. 18.
2 Haub. II. 32.
Bach. II. I. 17.