questionably mixed together the notions of legal Right and legal Duty. They considered the parties as bound together by a vinculum juris, a bond or chain of law, and 'Obligation,' which is the name for this chain, signified rights as well as duties; the right, for example, to have a debt paid as well as the duty of paying it. As I have said elsewhere, 'the Romans kept, in fact, the entire picture of the "legal chain" before their eyes, and regarded one end of it no more and no less than the other.' But it was the Court of Justice which had welded this chain, and the explanation of this and other blended ideas which we can detect in Roman legal phraseology is, I presume, that the dominancy of the Court of Justice over all legal notions still continued to influence the Roman view of law. Although, however, the authors of the Roman Institutional manuals did not invent, and could not have invented, arrangements of law based on classification of Rights, they did, as we have seen, attain to the conception of law as something distinct from Procedure, and they did conceive it as distributable into the Law of Persons and the Law of Things. The exact relation of these two departments to one another has been keenly disputed by modern writers, and it cannot be conveniently considered here; but anybody who can bring home to himself the ancient ideas of law on which I have sought to throw light may, perhaps, convince himself that the
conception of a Law of Things, at all events, was a great achievement in mental abstraction; and that it must have been a man of legal genius who first discerned that Law might be thought of and set forth apart from the Courts of Justice which administered it on the one hand, and apart from the classes of persons to whom they administered it on the other.
CTIONS, law of, place assigned to Ait by Roman Jurists, 388, 389 Adams, H. C., his Historical Studies' referred to, Note A, 330 Adoption, practice and importance of
at Rome and Athens, 96, 97; its survival as an institution on the Con- tinent, 96; practice of among Hin- dus and in India generally, 97, 154; Roman usage of referred to, 198 Aged men among Hindus, withdrawal
of into 'religion,' 21, 22; status of, 22 et seq.
Agnatic kindred, 238, 239 Agnation, system of, among Romans referred to, 198; among words re- ferred to, Note A, 283
Alice in Wonderland' referred to, 35 Allod, the, meaning and description of, 338 et seq.; its difference from the feud, 341, 342; how it passed into the feud, 343 et seq. Amatongo, the, worship of referred to,
Ancestor-worship, incumbent upon heirs
in most early communities, 53; theory of its origin, 67-70; subsequent to recognition of Paternity, 75, 76; its tendency to dissolve the family, 77; its connection with Inheritance, 53, 78, 79; intense desire for male off- spring created by, 85; among Chi- nese, described, 60 et seq.; expense of, 61; honours not originally paid to women, 72, 73; in reference to fu- neral rites, 80; intense desire for male offspring created by, 86; among Christians and Mahommedans merely accidental, 59; its relation to Con- fucianism and Buddhism, 63, 64
among Greeks compared with Hindu worship, 57, 58; among Hebrews re- ferred to, 58; among Hindus, in which it is to be regarded, 53; proximity in time essential to, 54; reverence paid to remote ancestors later in point of time, 54; its ela- borate liturgy and ritual, 55; law of Inheritance dependent upon, 55; as it affects daily life, 56; distinction between general and daily worship, 57, 64; under name of Pitris referred to, 57; difficulty of reconciliation between it and Purgatory and Trans- migration, 70, 71, 72; honours not originally paid to women, 73, 74; Vishnu's summary of, 74; its exist- ence in the Punjab, 76; in reference to funeral rites, 81; its effect upon law, 81-83; analogy between such effect and that created by media- val Church, 84; intense desire for male offspring, 85; consequence of that desire, 86; eldest legitimate son of father if possible to offer sacrifices, 88, 89; this spiritual primacy as relating to primogeni- ture and succession, 89, 90; failing legitimate son of father, eldest son of wife to sacrifice, 90; failing either, son of appointed' daughter to sacri- fice, 91; modifications of, Note A, 122, and changes in, 116, 118; among Romans, distinction between general and daily worship, 57, 64; compared with Hindu worship, 57, 58; decline of private celebration of, 64; its effect on Civil law, 66; result of this effect upon English and Continental law of Inheritance, 66; in reference
to funeral rites, 80; intense desire for male offspring, 86 Ancient Societies, kings judges in, 160 et seq.
Andaman Islanders, the, account of, Note A, 229 et seq.
Apastamba, Law-Book of, quoted, 13, 17, 30, 73, 81, 89, 94, 127; referred to, 43, 107, 109, 115
Aphorisms, as determining dates of an- cient law-books, referred to, 9, 10 Appointment, explanation of, 91; sacer- dotal formula of, 91; customs akin to, 92; practice of among Athenians, 92; theory of in medieval law, 93; theory upon which Edward III. of England based his claim to throne of France, 93; effect of upon right of women to inherit, 94; Hindu testi- mony as to female right of inheri- tance, 94
Aristotle, his view and illustration of Patriarchal theory of Society re- ferred to, 196, 198; his treatise on 'Barbarian Customs' alluded to, 197 Austin, the jurist, his speculations on legal Classification mentioned, 364, 389
Austrian Code, the, referred to, 265
Baudhayana, Law-books of, referred to, 43, 107, 109, 112 n.; his judgment upon 'affiliation referred to, 87 Beaumarchais, his Mariage de Figaro' alluded to, 313
Belgian Constitution, the, referred to, Note A, 285
Beneficium, the, stage in the history of land law marked by, 345; its simi- larity to the Emphyteusis, 345; dis- pute as to application of, 345; called the Feodum, 346
Bentham, the jurist, referred to, 351, 360, 362, 389
Bogišic, Professor, his opinions referred to, 195, 241, 242, 244 m, 255, 261, 263
Bonitarian Ownership. See Possession, law of, and 343
Boulnois and Rattigan, Messrs., their 'Notes' on Punjab law referred to, 115 n.
Bracton, his legal treatises referred to, 341; his treatise on Villeinage quoted, 305 n, Note A, 333 Brahmanism, system of, its superstition, vitality, and perpetual growth, 48,
Brahmans, sacred schools of, alluded to, 12 et seq.; relations between teachers and pupils, 13; likeness to Ho- meric Clans and Irish Brehon Law Schools, 14, 15
the, their absolute ascendency, 46; their self-denial, 47 et seq.; support of, alluded to, 82; compared with that encouraged by early Christian Churches, 84, 85
Brahmanical legal authors, priestly character of, as affecting their books, 27, 28
Brehon Law Schools, the, referred to, 14, 15
Brehon laws, the, alluded to, 84, 348, 375, 376
British Constitution, the, referred to, Note A, 285
'Broken Man,' the. See Fuidhir Brosses, De, President, his 'Lettres Ecrites d'Italie' referred to, Note B, 124
Buddha, Buddhism, 30, 31
Bühler, Dr., his preface in 'Sacred Books of the East' quoted, 87 Burning of the Châteaux,' meaning and object of, 296 et seq.
CAHIERS, them, 291; rea-
YAHIERS, the, neglect of informa-
sons for this neglect, 292 et seq.; examination of these reasons by De Tocqueville, 292; collections of them published by Prudhomme and Lan- rent de Mézières, 294; statements in referred to, 311
Callaway, Canon, his observations quoted, 54
Capetians, the, Royal House of referred to, 138, 142, 152, 154, 155 Carolingian power, the dissolution of noticed, 349 et seq.; this dissolution compared with that of Mogul, 351 Carpenter, Dr., his observations referred to, 204 n.
Chancery, English Court of, referred to, 165; its origin mentioned, 190; its
identity with, and difference from Court of Star Chamber, 190 Chassin, Mons., his 'Le Génie de la Révolution' referred to, 293 Chronicles, 2nd Book of, referred to, 134
Cicero, his 'De Legibus' quoted, 6 Classificatory Relationship, theory of, referred to, 201, Note A, 289 Colebrooke, Lieutenant, his 'Asiatic Researches' quoted, Note A, 230 Commentaries of Gaius, discovery of by Niebuhr, 197
Common Pleas, English Court of, former relation of the King to, 187 Commune, the, its displacement of the Fief, 326
Communities, barbarous Aryan, infor- mation about most valuable, 233; difficulty in obtaining such informa- tion, 233
Comte, Auguste, his philosophy alluded to, 166
Consanguine marriage, practice of, al- luded to, 201
Copyhold Commissioners, the, their work referred to, 310, 322 Copyhold, tenure by, actual origin of, 302 et seq.
Copyholder, the, difference of status be-
tween him and the tenant-farmer, 322 Coulanges, Fustel de, M., his opinions generally referred to, 66, 75, 80, 105 n., 118, 120, 203, 317, 350; his La Cité Antique' specially referred to, 57; his opinion of the Beneficium alluded to, 345
County Courts in England, system of, referred to, 189
Court Baron, in England and on the Continent, the, its analogy to Home- ric Agora, 303 Court of Justice, the, its paramount authority in the eyes of early code- makers, 380, 381, 383; its position in ancient Iceland described, 384; its paramount tendencies as illus- trated by British India, 385 et seq.; its early authority enhanced by its tenderness to barbarism, 387 Court of the Hundred, the, referred to,
168 et seq.; peculiarity of, 170; penalty for disobedience to, 170; re- lation of the King to, 171; duty of attendance at, 176
« PreviousContinue » |