The Ancient Library
 

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202

GAIUS.

butable to permanent differences in persons, and natural or conventional differences in things, there are new and altered rights, which arise from ex­ternal events and from voluntary acts. Of external events, death, which necessitates the devolution oi property by succession, is in law of the utmost im­portance. From the voluntary legal dealings of men, and other changes of the circumstances in which they are placed, result transitory and par­ticular rights of various kinds, with their cor­responding obligations. Further, in order to redress any violation of those earlier rights^ which alone would have to be considered, if men acted legally, the law establishes secondary rights—remedies for violation of right, and rights of action. The first book of the Institutes of Gains treats of the dis­tinctions of persons. In this it follows the genius of the Roman law, which owes milch of its dis­tinctive character to the great legal differences that originally subsisted between different classes of men. There are systems of jurisprudence in which it might perhaps be better to begin with an average law, not resting on peculiarities of class or status. Rights commonly rest, in modern systems, on an average level, from which the student may rise or sink to those inequalities of surface which depend on anomalous distinctions ; but the law of Rome may rather be compared to a country which has its surface disposed in separate platforms or terraces of considerable extent. Gaius first considers men as free (liberi) or slaves (servi); freemen he sub­divides into ingenui and libertini; and libertini he Distinguishes as they are cives Romani, aut Latini, aut Dediticiorum numero. Here naturally he speaks of manumissions.' Next, following a divi­sion which crosses the former, he divides personae into those who are sui juris., and those who are alieno juri subjectae. Under the latter head he speaks of the child in potestate parentis, of the wife in- manu mdritij of the slave in mancipio domini. Persons who are sui juris are divided into those who are under tutela, those who are under cura, and those who are under neither tutela nor cura. With the second book begins the law, quod ad res <periinet. Some things are divini juris, others Jiw-mani juris; some, again, are corporales, some in-corporales. After explaining these distinctions, Gaius proceeds to the distinction of things into res mancipi and res nee mancipi. From the latter distinction (which depends upon technical rules relating to the mode of transferring property), he goes on to investigate the various modes of ac­quiring and transferring singulae res, as opposed to the acquisition and devolution of property in a lump. He is then naturally led to consider quibus inodis per universitatem res nobis acquiruntur, and herein, to treat of Iiereditas. He treats of testate succession before intestacy, and arranges under the former head, as a kind of appendix, the law of legacies (legato) and ,fdeicommissa; for though these are not proper examples of acquisitio per universitatem, they cannot be conveniently sepa­rated from the law of Iiereditas. The third book begins with the law of intestate succession, and proceeds (Hi. 88) to the doctrine of obligationes. There has been great controversy among modern jurists whether ilie laiv relating to actions does not begin where obligationes are first introduced to our notice. The great modern maintainer of the pro­position that the law of actions commences with obligationes was the late Hugo, who discussed the

GAIUS.

subject at large in his Civilist. Mag. (vol. iv. p. 1, and vol. v. p. 385), and returned to his favourite proposition in one of his latest essays. (Gotting. Gelehrte Anzeigen, 1840, p. 1033—1039.) He has undoubtedly in his favour the express declaration of Theophilus (iii. 14. pr., and iv. 6, init.), but the opposite view (adopted by Vinnius, Thibaut, and others), which ranks obligationes with res, appears to be more in accordance with the form of the In­stitutes of Gains. After treating of corporeal things—things which entitle their owner to the name of dominus—Gaius passes easily to obligati* owes, which are res incorporales, and give name ta a kind of ownership distinct from dominium. The word obligatio properly expresses the connection be­tween the person who has a right and the person who owes the corresponding duty; hence, in or­dinary language, its meaning has been transferred to denote the duty, whereas in legal phraseology it is often employed to signify the right* It is not unlikely that, from the close relationship between the law of obligationes and the .law of actions, and from the ambiguity of the word actio, which may apply to acts unconnected with judicial procedure, Gaius, and other jurists who succeeded him, may have avoided any precise definition of their grand division of law, and have placed obligationes in an intermediate situation, where they might be held to occupy an independent territory, or whence they might be transferred to the territory either of res or of actiones, as convenience might dictate. If we class them with res, we must admit that they require special and separate attention, seeing that they are differently created, transferred, and ended from other res. The summa divisio of obligationes is into two species—obligatio ex contract^ and ob­ligatio ex delicto (iii. 88). In this Gaius differed from the Institutes of Justinian, which, out of the anomalous obligationes that remain, make two other general species, namely, obligationes quasi ex con-tractu and oHligationes quasi ex delicto. Of obligati­ones ex contractu there are four kinds : re contra-Jiuntur, aut verbis, aut literis, aut consensu (iii. 89). Of obligationes ex delicto, Gaius also instances four kinds: veluti si quis furtum fecerit, bona rapuerit, damnum dederit, injuriam commiserit (iii. 182). With the fourth and last book Gaius begins the law of actions, as connected with judicial pro-1 cedure. After the general division of actiones into actiones in rem and actiones in personam, he treats of the ancient legis actionesand of formulae, excep-tiones, and praescriptiones, and he gives an account of the several kinds of interdicta. With these topics are mingled various rules of law relating to different branches of judicial procedure.

The above is an imperfect sketch of the topics handled in the Institutes of Gaius. As to his mode of handling them, it is to be observed, that tie treats rather of the dynamics than of the statics of law,—rather of those events or forces by which lasses of rights begin, are modified or terminate, than of those rights and duties which accompany a given stationary legal relation. Thus, in treating of the jus quod ad personas pertinet, when he comes to the patria potestas, it is not his object to ex­plain the mutual rights and duties of parents and children, but to point out the cases and events in which those rights and duties arise or cease.

A new edition of this work was loudly called •or when the first edition of 1821 was exhausted, and in 1824 Blume made a fresh collation of codes

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