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But, as the recorded historical testimony of the juridical reason of many nations and countries, its value has been so repeatedly acknowledged in English jurisprudence' that reference to it is indispensable to ascertain any legal rule which can be attributed to universal jurisprudence and received into the common law of England as the law of natural reason.

149. The jurisprudence of the Roman state has been considered by many of the modern civilians as asserting the identity of law with all rules of right action binding on the conscience of the individual subject, to a greater degree than has been recognized in any modern system. This view would appear to be supported by the meaning given to such words as justitia, jurisprudentia, and jus, in the exposition of the basis of legal science given by many jurists of the later imperial period. But a particular examination of a very few of the specific topics of Roman jurisprudence would show that the law of judicial tribunals was confined with them, as with the moderns, to the enforcement only of those duties as legal which the supreme power had made such by positive enactment, or through definite juridical recognition and application of natural reason, and had accompanied by a remedial sanction."

In the view of resting the foundation of law on a moral criterion, or of expressing its jural character, the Institutes of Justinian, Lib. I., tit. 1, § 1, give to the term jurisprudence a more extended signification than that allowed to it by limiting the meaning of law to the sense herein before given as the ordinary practical meaning of the word (ante, § 17). Jurisprudentia est omnium rerum humanarum atque divinarum notitia

depends upon judicial precedent-the fact that it has been recognized as an exposition of those principles which actually do prevail among all nations. But the theory of Domat on this point is very commonly held by English writers, in justifying a reference to the Roman law. See Browne: Civ. & Adın. Law, p. 4. Bowyer: Univ. Pub. Law, passim.

'Hale's Hist. Com. L., p. 24. Holt, C. J., in 12 Modern R., 482. 3 Kent's Comm., p. 490. Wheaton's El. Int. Law, Introd., p. 22. Wheaton's Law of Nations, p. 31. Duponceau: on Jurisdiction, p. 86. Reddie's Treatises, passim. Dr. Duck's Treatise on the Use and Authority of the Civil Law in the Kingdom of England. Robertson's Hist. Charles V., vol. I., note, xxv., BB.

2 Mackeldey's Comp., § 112. Tr. by Kaufmann, "Law was considered by the Romans as primarily founded on morality, and on a voluntary respect for all that was good and noble. In their view, compulsion was no essential element of a law," &c. The translator's note, to this section, points out the error of this statement.

justi atque injusti scientia; a definition nearer to the modern conception of moral philosophy. Justitia is used in the sense of the English words uprightness, honesty, integrity; justitia est constans et perpetua voluntas jus suum cuique tribuendi; jus here having its sense of a right, while immediately following jus is used in the sense of law as a rule,' juris præcepta hæc sunt, honeste vivere, alterum non lædere, suum cuique tribuere; without indicating the authority which is to determine what is honestum, what it is alterum lædere, and what is suum cuique, or the right of every man.

150. In the analysis of the law which immediately follows these definitions, the first distinction is made according to the

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By some of the German jurists, jus-taken in the sense of a rule of action,-jus est norma agendi-is said to have its objective meaning, and when used with the signification of a right,—jus est facultas agendi-it is said to have its subjective sense. Vide Mackeldey's Comp., Introd., § 2. Savigny Heut. R. R., § 5.

It may be doubted whether this designation of the different uses of the word jusfounded on a well known Kantian distinction, is even philosophically correct; because either a law or a right-the effect of a law-may be considered both objectively and subjectively. And it is here important to notice that, in jurisprudence, both are used objectively only, that is, each is regarded as having an existence independent of the moral sense of the concipient person.

The subjective apprehension of jus, in the sense either of a rule or of a right, properly occurs only in ethics, where the law or the right is conceived of as something that is because it ought to be: that is, in fact, as something which results from the moral nature of the concipient: whereas, in jurisprudence, jus-a law, and jus—& right, are conceived of as the result of the will of an assumed legislator.

Bentham, Introd. Pr. Morals and Legisl., ch. XVII., 23, note, employs the terms abstract and concrete to designate the subjective and objective conceptions of jus in the sense of the rule-norma agendi. "In most of the European languages there are two different words for distinguishing the abstract and the concrete senses of the word law; which words are so wide asunder as not even to have any etymological affinity. In Latin, for example, there is lex for the concrete sense, jus for the abstract: in Italian, legge and diritto: in French, loi and droit: in Spanish, ley and derecho: in German, Gesetz and Recht. The English is at present destitute of this advantage.

"In the Anglo-Saxon, besides lage, and several other words for the concrete sense, there was the word right, answering to the German Recht, for the abstract; as may be seen in the compound fole-right and in other instances. But the word right having long ago lost this sense, the modern English no longer possesses this advantage."

But the terms Recht, diritto, droit, &c., are also used, in jurisprudence proper, in the sense of facultas agendi, the sense of the English term a right; and this is a concrete sense as much as that of Gesetz, legge, loi, &c. In English, the substantive word a right is used only in the sense of facultas agendi, while the words Recht, diritto, droit, &c., signify, in their respective languages, not only this but also a rule which is right in the abstract, that is, the rule of natural equity: which may, or may not, be identified with lex-the positive law. Comp. Dig. Lib. I., tit. 1, § 11: Paulus: libro XIV., ad Sabinum. Jus pluribus modis dicitur. Uno modo, quum id quod semper æquum ac bonum est, jus dicitur, ut est jus naturale. But, in the jurisprudence of every nation, positive law is a jural rule, (leges juris); and the Recht and Gesetz, loi and droit, &c., are presumed to be identified. And see Austin: Prov. of Jurisp., p. 305, note, p. 308, note, in respect to this use of the words jus and Recht.

object or relations of persons on which a law operates. Hujus studii duæ sunt positiones, publicum et privatum. Publicum jus est, quod ad statum rei Romanæ spectat, privatum, quod ad singulorum utilitatem.' Here publicum jus appears to be equivalent to what would now be called the public law of some one state, public municipal law, or constitutional law; or, if a more extended meaning is to be attributed to it, it may be taken to correspond with what the moderns denominate political law, or the science of political ethics, and that only with reference to the relations of a single state. In the mind of the Roman lawgiver, indeed, quod ad statum rei Romanæ spectat, comprehended the laws of the empire of the world, and, so far as compatible with the admission of supremacy in that single state or nation, the idea of international law in the modern sense."

§ 151. The analysis of private law, which next follows, is founded upon the nature of its origin. Dicendum est igitur de jure privato, quod tripartitum est: collectum est enim ex naturalibus præceptis, aut gentium, aut civilibus. From the immediate sequence of the definition of natural law as being that quod natura docuit, it may be taken to be identical with "natural precepts." But this natural law, as there defined, can hardly be considered a part of public or private law in the primary meaning of the word as a rule of action. The definition is only a recognition of a state of things independent of human action, or a law in the secondary sense; and includes not only the nature of man but of all animated existences. Jus naturale est

quod natura omnia animalia docuit. Nam jus istud non humani generis proprium est, sed omnium animalium, quæ in cœlo, quæ in terra, quæ in mari nascuntur. Hinc descendit

"Quod

1 Vinnius: Comment. Lugd. Batav. 1726, B. 1, tit 1, not. a Heinecc. ad statum Rom. etc. Quod a utilitate publicum est, non quod sola auctoritate; est enim hæc divisio a fine sumpta, non a causa efficiente. Singulorum utilitatem. Quod privatim ad cujusque civis rem pertinet familiarem. Quanquam et hoc per consequentiam publice, et illud privatim, utile."

2 Mackeldey's Compendium, p. 125, note by Kaufmann. Compare ante, § 25 and Virgil: Æneid, B. VI. 1. 851.

notes.

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"Tu regere imperio populos, Romane, memento."

Gravina; de Rom. Imp. §§ 1. 2, and Gravina: Origines L. II. § 10. Huber. Conf. Leg, Lib. I., tit. 3; Lib. II. tit. 3. § 1. "In jure Romano non est mirum nihil hac de re exstare, cum populi Romani per omnes orbis partes diffusum et equabili jure gubernatum imperium conflictui diversarum legum non æque potuerit esse subjectum." Wheaton Int. L. p. 20.

maris atque fœminæ conjunctio, quam nos matrimonium appellamus; hinc liberorum procreatio; hinc educatio; videmus etenim cetera quoque animalia istius juris peritia censeri.

§ 152. The distinction next drawn between jus civile and jus gentium, introduces a law of nations, as a source of the private law, in a sense more nearly corresponding with the modern idea attached to the terms law of nature and natural law, when employed in jurisprudence, and with 'universal law' as it was defined in the first and second chapters. Jus autem civile vel gentium ita dividitur; omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum jure utuntur. Nam quod quisque populus ipse sibi jus constituit, ipsius civitatis proprium est vocaturque jus civile, quasi jus proprium ipsius civitatis. Quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peræque custoditur, vocaturque jus gentium, quasi quo jure omnes gentes utantur. This law of nations, the offspring of naturalis ratio, is afterwards made to overrule the natural law, jus naturale, in the origin of slavery; though that natural law, if implied in 'natural precepts'-naturalibus præceptis, is before made a source of private law-the jus privatum.' The definition of jus

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Mackeldey's Compendium, p. 126; Kaufmann's note. Savigny: Heutige Röm. R. Vol. I. Appendix I. (Tr.) "The Roman jurists notice two divisions of law, founded upon the general nature of its origin. One is a division into two parts: viz., 1, Law as it existed for the Romans only, civile; 2, Law as existing for all nations, gentium or naturale. The other is a division into three parts: viz., 1., Law existing for the Romans only, civile; or 2, existing for all nations, gentium; or 3, existing both for all mankind and for the brute creation, naturale.

"I not only consider the first of these divisions the only correct one, but I also assert that it is even to be regarded as the ruling division among the Roman jurists, and that the other can only be regarded as an attempt at an extension of the subject which never received general recognition; nor ever had any influence in determining particular questions of law. The division into two parts is most carefully carried out by Gaius, in several instances. He places this division at the introduction of his work without the recognition of a third part. Jus gentium is with him the older portion, as ancient as the human race. It arises from the naturalis ratio of all men; hence he elsewhere names it jus naturale; as in referring the natural acquisition of property by voluntary exchange, in one place to jus naturale, and in another to naturalis ratio. This division in two parts is found also with Modestin, Paulus, Marcian, Florentinus and Licinius Rufinus, * The division into three parts is most distinctly made by Ulpian, and after him by Tryphonius and Hermogenian. It rests on the following theory. That there was a time wherein men knew only such relations to each other as were common to them and the brute creation; those of the sexes, generation, and education. Thereafter followed a second period of time, wherein states arose; slavery, private property and obligations were introduced: and this in like manner among men wherever found. Lastly arose law in each state as peculiar to itself; partly by the

*

civile, in this place, is derived from its origin, or the source to which in judicial apprehension it is referred for its existence, that is, the will of some one state or nation, and it is therefore also here called 'its own,'-proprium. After this definition the Roman people is said to use not only its own law, proprium, but also the principles of this law of nations, as the dictates of natural reason, without further mention of 'natural precepts '— Et populus itaque Romanus partim suo proprio, partim communi omnium hominum jure utitur. And in most instances wherein the term jus civile is used in the Roman law it means all that the Roman state uses, utitur, or enforces as a rule of action; that is, it includes both the jus civile, or proprium, and the jus gentium as here defined; and is equivalent to the term 'municipal law' as employed by Blackstone, or to the term 'national law' according to Bentham's terminology.

§ 153. The jus publicum, whether exclusively relating to internal, or to external relations also, must have had the same origin in the will of the state, or in the rules of 'natural reason,' being also a part of the law used by the Roman people. International law, so far as it existed, and whether included under that here called public law, or not, is implied to rest also on the law of nations or principles commonly received among all mankind, by the description of the origin of slavery, which is justified on those principles while it is ascribed to wars, which are necessarily international, and are also justified by the same 'law of nations.' Jus autem gentium omni humano generi commune est. Nam usu exigente et humanis necessitatibus gentes humanæ quædam (jura) sibi constituerunt; bella etenim orta sunt et captivitates secutæ sunt et servitutes; by which are meant, not private wars or piracies,' but those appeals to force

modification of those general institutions by particular circumstances, partly by the addition of new institutions or rules. On this particular point the Institutes of Justinian take a very inconsistent position. The text of Ulpian is first used, giving the tripartite division, and making it apply to the origin of slavery. Then the text of Gaius, Marcian or Florentinus is either followed in terms, or plainly referred to. One passage is particularly remarkable, where the words of Gaius are used, but with the express addition that jus naturale is the same as jus gentium, and that this had already before been so stated; § 11, I. de div. rer. (2, 1.) quarundam enim rerum dominium nanciscimur jure naturali; quod, sicut diximus, appellatur jus gentium; quarundam jure civili." Compare on this subject, Austin, Prov. Jurisp. 188-190. "Quod si bellum caret solemnibus

1 Huberus, de Jure Civitatis, lib. 2. c. 3. § 8.

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