Corpus Juris Secundum

“ Voigt, Die Wiederbelebung des classischen Alterthums, ed. 3, vol. II., pp. 477-484. Gradually, so I understand, philologians such as Budé (d. 1540) began to discover that there was matter interesting to them in [39] the Corpus Juris, and a few jurists turned towards the new classical learning. See Tilley, Humanism under Francis I., in English Historical Review, vol. XV., pp. 456 ff. In 1520 Zäsi, writing to Alciato, said ‘All sciences have put off their dirty clothes: only jurisprudence remains in her rags.’ (Stintzing, Ulrich Zasius, p. 107.) ”

“ THE OATH AND ITS ACCESSORIES.
Between the commission of an offence and its proof in a court of justice there lies a wide field for the exercise or perversion of human ingenuity. The subject of evidence is one which has taxed man’s reasoning powers to the utmost; and the subtle distinctions of the Roman law, with its probatio, præsumptio juris, præsumptio juris tantum: the endless refinements of the glossators, rating evidence in its different grades, as probatio optima, evidentissima, apertissima, legitima, sufficiens, indubitata, dilucida, liquida, evidens, perspicua, and semiplena ”

“ The constitutions in the Liber Sextus, Clementina, and Extra-
vagants are all genuine.
The Liber Septimus Decretalium, which appears in a supplement to some editions of the Corpus Juris, is a mere private collection formed by Peter Matthaeus, a lawyer of Lyons, in 1590. The Institution.es Juris Canonici of J. P. Lancelottus of Perugia are of the same character, but they form a useful and trustworthy compendium and are of considerable authority. They were written, as the author tells us in his preface, to complete the parallel between the two Corpora Juris, civil and canon. ”

“ As linguistic science differs from philology in so far as it treats of the general evolution of language and not of particular languages, even so comparative jurisprudence differs from the history of law as a study of general legal evolution distinct from the development of one or the other national branch of legal enactment. ”

“ The fourteenth section of the Judiciary Act granted to all the courts power to issue writs of scire facias, habeas corpus, and all other writs necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law ”

“ I observe that not a few continental jurists have much difficulty in comprehending the nature of the connection between the conceptions blended in a universal succession, and there is perhaps no topic in the philosophy of jurisprudence on which their speculations, as a general rule, possess so little value. But the student of English law ought to be in no danger of stumbling at the analysis of the idea which we are examining. Much light is cast upon it by a fiction in our own system with which all lawyers are familiar. ”

“ Quando verba statuti sunt specialia, ratio autem generalis, generaliter statutum est intelligendum.
When the words of a statute are special, but the reason general, the statute is to be understood generally.
Quemadmodo non respondent judices, ita, ea quæstionem juris non respondent juratores.
As judges do not reply, so, from that the jurors do not answer a question of law. [See Transcriber’s Note.]
Qui ab alio derivatum jus habet, non alia lege obtinebit ac is unde derivatum est.
He who hath a right derived from another, will not obtain it by any other law than he from whom it is derived. ”

“ PREJUDICE (Lat. praejudicium) , literally 'judgment or decision beforehand, which in classical usage meant a precedent, a preceding judgment, also a special form of judicial examination precedent to a trial, especially in matters relating to status. The transferred sense, of injury or damage inflicted by decisions or judgments disregarding interests affected, does not appear till post-classical times in Latin. ”

“ It may here be observed that we know enough of ancient Roman law to give some idea of the mode of transformation followed by legal conceptions and by legal phraseology in the infancy of Jurisprudence. The change which they undergo appear to be a change from general to special; or, as we might otherwise express it, the ancient conceptions and the ancient terms are subjected to a process of gradual specialisation. An ancient legal conception corresponds not to one but to several modern conceptions. ”

“ A clear addition has been made to the precedents, and the canon of law elicited by comparing the precedents is not the same with that which would have been obtained if the series of cases had been curtailed by a single example. The fact that the old rule has been repealed, and that a new one has replaced it, eludes us, because we are not in the habit of throwing into precise language the legal formulas which we derive from the precedents, so that a change in their tenor is not easily detected unless it is violent and glaring. ”

“ The characteristic of such a formula was that it contained in the “intention” such phrases as the following—ejus esse ex jure Quiritium, praestare oportere, [167] dare oportere, dare facere oportere, or damnum decidere oportere. [168] Such words were employed where the right to be vindicated or the obligation to be enforced had its sanction directly in the jus civile whether in the shape of statute, consuetude or interpretation. Where, on the other hand, the right or obligation had its sanction solely from the praetor's edict, special formulae had to be framed. ”

“ The only exception to the rule, that the virtute cujus, pretextu, or per quod, are not traversable, is when they are compounded of law and fact, which are connected together. Then a traverse may be taken for the purpose of trying the fact which is connected with the law. ”

“ The writ of coram nobis was available at common law to correct errors of fact. [9] It was allowed without limitation of time for facts that affect the 'validity and regularity' of the judgment, [10] and was used in both civil and cirminal cases. [11] While the occasions for its use were infrequent, no one doubts its availability at common law. ”

“ He has not simply said, ad quaestionem juris respondent judices, nor in like manner ad quaestionem facti, respondent juratores, but he has placed them in a striking opposition and contrast, and drawn a well-defined limit around the functions of both the court and the jury, and informed them, in terms too unequivocal for misapprehension, that the limit, thus prescribed, neither has the power to transcend; has declared to each what it shall not do. ”

“ English case-law is sometimes spoken of as unwritten, and there are some English theorists who assure us that if a code of English jurisprudence were prepared we should be turning unwritten law into written—a conversion, as they insist, if not of doubtful policy, at all events of the greatest seriousness. ”

“ It says to teach that man is a descendant of any lower form of life—if that had not been there—if the first sentence had been the only sentence in the statute, then these gentlemen might come and ask to define what that meant or to explain whether the thing that was taught was contrary to the language of the statute in the first sentence, but the second sentence removes all doubt, as has been stated by my colleague. ”

“ The scientific and philosophic usage has grown out of an early conception of jurisprudence, and is really metaphorical, derived from the phrase “natural law” or “law of nature,” which presumed that commands were laid on matter by God (see T. E. Holland, Elements of Jurisprudence, ch. ii.) . The adjective “legal” is only used in the first sense, never in the second. ”

“ Sententia contra matrimonium nunquam transit in rem judicatam.
An opinion against marriage, never passes into a matter decided.
Sententia contra minorem indefensum lata nulla est.
An opinion given against a minor undefended, is void.
Sententia facit jus; et legis interpretatio legis vim obtinet.
A sentence makes law, and the interpretation of the law obtains the force of the law.
Sententia facit jus, et res pro veritate accipitur.
A sentence makes law, and the matter is received for truth.
Sententia interlocutoria revocari potest, definitiva non potest. ”

“ I may add that an Englishman should be better able than a foreigner to appreciate the historical fact that the "Themistes" preceded any conception of law, because, amid the many inconsistent theories which prevail concerning the character of English jurisprudence, the most popular, or at all events the one which most affects practice, is certainly a theory which assumes that adjudged cases and precedents exist antecedently to rules, principles, and distinctions. ”

“ In deciding whether words should be severed from a provision or whether words should be read into one, a court pays careful attention first, to the need to ensure that the provision which results from severance or reading words into a statute is consistent with the Constitution and its fundamental values and secondly, that the result achieved would interfere with the laws adopted by the legislature as little as possible. ”

“ The principle finds expression in more than one form in the maxims of the common law. In civil cases the doctrine is expressed by the maxim that no man shall be twice vexed for one and the same cause. Nemo debet bis vexari pro una et eadem causa. It is upon the foundation of this maxim that the plea of a former judgment for the same matter, whether it be in favor of the defendant or against him, is a good bar to an action. ”

“ So jurisprudence is compelled to regard something more than law simply, if it is to comprehend law. It has for its subject-matter the study of the relation of the fact law to all of the other facts of society, and so it goes back of positive law and seeks its springs and motives in systems like the early Roman and the Hindoo, where rites, liturgies, prayers, moral ordinances, and what we know distinctively as civil laws, appear to be mingled in mere senseless confusion. ”

“ Law in the concrete is lex, loi, gesetz, legge. Law in the abstract is jus, droit, recht, diritto. It is not the case, indeed, that the distinction between these two sets of terms is always rigidly maintained, for we occasionally find the concrete word used in the abstract sense. Medieval Latin, for example, constantly uses lex as equivalent to jus, and the same usage is not uncommon in the case of the French loi. The fact remains, however, that the Continental languages possess, and in general make use of, a method of avoiding the ambiguity inherent in the single English term. ”

“ Relevancy of certain judgments in probate etc., jurisdiction A final judgment, order or decree of a Competent Court, in exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or to take away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing not as against any specified person but absolutely, is relevant when the existence of any legal character, or the title of any such person to any such thing, is relevant. ”

“ It is dedicated in remarkably good Latin, 'Augustissimo Principi omnique virtutum genere splendidissimo Jacobo Magno Dei gratia Britannise Regi.' It consists of four books. The first treats of what is now called jurisprudence, and is mainly devoted to expounding the distinction between natural and 'positive' law. ”

“ The first were adaptations of actions of the jus civile to cases that did not properly fall within them; the second were actions entirely of praetorian devising, for the protection of rights or redress of wrongs unknown to the jus civile. [169]
Utilis actio may be translated as analogous or adapted action, i.e. analogous to a direct action. Where a direct action was Actiones utiles. inapplicable to particular cases or persons, according to the terms of a lex, edict, &c., the praetor frequently adapted the statute, &c., to such cases and persons by granting an actio utilis. ”

“ Antonyms: PRECEDENT. Synonyms:
A precedent is an authoritative case, example, or instance. The communism of the early Christians in Jerusalem is a wonderful example or instance of Christian liberality, but not a precedent for the universal church through all time. Cases decided by irregular or unauthorized tribunals are not precedents for the regular administration of law. An obiter dictum is an opinion outside of the case in hand, which can not be quoted as an authoritative precedent. ”

“ To get at the thought or meaning expressed in a statute, a contract, or a constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them. If the words convey a definite meaning, which involves no absurdity, nor any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the legislature have the right to add to it or take from it. ”

“ A law, instead of having more meanings than one, may have none at all, the different parts of it being repugnant, so as to destroy each other’s significance. In this case it is the duty of the judicature to ascertain in some other way the true sententia legis, and to correct the letter of the law accordingly. ”

“ The duty of the judicature is to discover and to act upon the true intention of the legislature—the mens or sententia legis. The essence of the law lies in its spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it. Nevertheless in all ordinary cases the courts must be content to accept the litera legis as the exclusive and conclusive evidence of the sententia legis. They must in general take it absolutely for granted that the legislature has said what it meant, and meant what it has said. ”