168-181 EXTINCTION of Obligation 182-225 Obligations founded on DELICT 399-406 1-10 CLASSIFICATION of Actions 11-31 31-38 FORMULARY Procedure, FICTION 88-102 SECURITIES to be given by the parties to an action 103-109 STATUTORY actions (1) in a wider sense, as actions required by the lex Julia to be terminated in eighteen months from their institution; and (2) in a narrower sense, or such of the former class as in respect of NOVATION or CONSUMP- TION of the right of action are assimilated by the lex Aebutia to the statute-process (legis actio) of the older NON-STATUTORY actions, or actions founded on the executive authority of the Praetor, are required to ter- minate within twelve months from their institution, and have no power at civil law of consuming or novating a right of action, but bar a subsequent action when pleaded by the exceptio rei judicatae. Actions with a pendency or duration of eighteen months, but without a power of NOVATION or CONSUMPTION at 110-114 PERPETUAL actions, or actions which can be instituted 458-466 467-473 EXPLANATION OF ABBREVIATIONS. Inst. Institutes of Justinian. Dig. Digest or Pandects of Justinian. Cod. Codex of Justinian. The meaning of the numbers that follow these abbreviations will be obvious to any one who opens a volume of the Corpus Juris. Pr. stands for principio, meaning, in the first paragraph of a title of the Institutes, or of a fragment of a title of the Digest. The Commentaries of Gaius are referred to by numbers indicating the book and the paragraph: e.g. 2 § 5, indicates the 5th paragraph of Book 2. When Ulpian or Paulus is quoted, the works referred to are the Regulae of Ulpian and the Sententiae Receptae of Paulus. ELEMENTS OF ROMAN LAW. BOOK I. DE PERSONIS. THE following treatise is a portion of a particular jurisprudence; it is an exposition of the Civil law of Rome, that is to say, of her Private law (jus privatum) as opposed to her Public law (jus publicum) in both acceptations, in other words, as opposed both to her Criminal law and to her Constitutional law. Law is the common subject both of Jurisprudence and of Political or Legislative science: but these sciences differ herein, that Jurisprudence treats of laws as they are, Political or Legislative science treats of laws as they ought to be. To the statesman or legislator laws are only means to an end; to the jurist they are what figure is to the geometer, i.e. a subject-matter independent and final, into whose investigation the relation of means to end never enters except occasionally and incidentally, e.g. so far as the end proposed by the lawgiver may be indicated by jurisprudence as a clue to guide the judicature in the interpretation of a law. Statesmanship or legislation may be regarded as a master science to which jurisprudence is ancillary, as furnishing the statesman or legislator with an exact knowledge of the instruments and materials at his disposition, and of the methods which he may employ. The expounder of Roman law, and indeed of any law, must constantly make use of certain terms, expressing generalizations of B jurisprudence, and more or less technical; and the due understanding of these terms, accordingly, is necessary to the due understanding of any systematic exposition of law. As Gaius has omitted to supply any preliminary definitions of his leading terms, instead of occupying ourselves with the orts and scraps of philosophy or forensic rhetoric that oddly garnish the entrance to Justinian's Institutes, or the more copious but equally ill-selected aphorisms huddled together at the beginning of his Digest, and attempting to wring from them more significance than they really contain ; it may be expedient to unfold, independently of our Roman authorities, the import of some of the pivot terms of the subject; and we shall find the definitions we require already elaborated for us in the writings of Austin, to whose valuable but unfortunately unfinished Lectures on Jurisprudence I am mainly indebted for the leading definitions and divisions that will be employed in this commentary. A few definitions will suffice. The words which denote the instruments and materials of legislation and the subject-matter of jurisprudence are Law, Sanction, Title, Right, Obligation. The definitions of these five terms may, indeed, be regarded as a single definition, for the things denoted by these five words are merely the same thing looked at from different sides: at least they are correlative ideas, indissolubly connected parts of the same indivisible whole. The definitions of these terms which we proceed to give are their definitions, it is to be observed, as used in jurisprudence, that is, in the exposition not of natural or moral laws but of positive or political laws, and are accordingly unconnected with the hypotheses of any particular school of Ethical speculation. A Law is a command; that is to say, it is the signification by a lawgiver to a person obnoxious to evil of the lawgiver's wish that such person should do or forbear to do some act, with the intimation of an evil that will be inflicted in case the wish be disregarded. Points to be noted here are the author and the subject of law. Every law is set by a sovereign person or a sovereign body of persons to a member or members of the independent political society wherein that person or body is sovereign or supreme: it is set by a monarch or sovereign number to a person or persons in a state of subjection to its author. A Sovereign is a determinate human superior, who receives habitual obedience or submission from the bulk of a given society, and is not in the habit of obedience to a like superior. A Sanction is the evil annexed to the command of the lawgiver. Obligation or duty is obnoxiousness to the evil annexed to the command of the lawgiver. Right is the capacity of exacting by the power of the sovereign certain acts or forbearances; or, it is the capacity of the person benefited by a doing or forbearance commanded by the lawgiver to enforce that performance or forbearance from the person to whom it is onerous, that is, to whom it is commanded, by an appeal to the sovereign power to whom such person is subject. Dealing at present with the Civil code, we shall confine ourselves, in treating of Rights, to rights of subject against subject, that is, to rights which imply a common superior. Whether a sovereign can have rights against his own subject, whether, that is, the conception of rights permits the same person to be party and sovereign, is a question that may be left to the theory of the Political code. The question whether a sovereign, in his civil courts of judicature, shall accord rights to a foreign potentate, that is, to one who owes him no allegiance, may be left to the theory of the salutary but sanctionless code called the Comity of nations. Title is the fact, event, or circumstance defining or designating the person on whom the lawgiver confers a right or on whom he imposes an obligation. The word Title is employed in a limited application by English lawyers, to denote the mode of acquiring a Real right; but we use it without any limitation to any branch of law, to denote universally the fact originating any right, real or personal, and not only to denote the fact originating any right, but also the fact originating any obligation, civil or criminal; nay, further, not only to denote the mode in which any right or obligation is originated, or begins, but also to denote the mode in which any right or obligation is terminated or comes to an end. To use the nomenclature of Bentham, a Title is a fact Dispositive of Rights and Obligations. The generic term Dispositive splits into Investitive and Divestitive. Title, then, is a fact Investitive or Divestitive of Rights and Obligations. Investitive again splits into Collative and Impositive, and Divestitive into Privative and Exonerative. Title, then, definitively, is any fact Collative or Privative of a Right and Impositive or Exonerative of an Obligation. Every Right implies a Law by which it is created, a Title to |