990 P9Z no 1^261. e 3M) uo sajntoai (O asjnos e: mbi tsajoj cia'oszz ax Ajejqn AijSiaAjun ||3UJ03 (TorneU XDlntvetsit^ Xibrar^ OF THE IRew l^orF? State College of iToreetri? -j^^^r- W^- 3766 / The date shows when this volume "was taken. To renew this book copy the call No. and give .to the librarian. JA|\| |""4'ji(8t/ J U P HOME USE RULES All Books subject to recall All borrowers must regis- ter in the library to bor- row books for home use. All books must be re- turned at end of ooUege year for inspection and repairs, limited books must be returned within the four week limit and Z|,o1^newed. Students must return all , books before leaving town. ' Officers should arrange for the return of books wanted during their absence from town. Volumes of periodical and of pamphlets are held in the library as much as ' possible. For special pur- poses they are givfeu out for -a limited time.'' Borrowers should not use their library privileges for . the benefit of other persons. Books of special value and gift books, when the ^ver wishes it, are not al- lowed to circulate. Readers are asked to re- port all cases of books marked or mutilated. Do not deface books by marks and writing. I Cornell University d Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017254065 FOREST LAW. FOEEST LAW. A COURSE OF LECTURES ON THE PRINCIPLES OF CIVIL AND CRIMINAL LAW AND ON THE LAW OF THE FOREST. {CHIEFLY BASED ON THE LAWS IN FORGE IN BRITISH INDIA.) of ^irghmrincj:, Coopers' JiiU. B. H. BADEN-POWELL, C.I.E., Hon. M.A. Oxon. (late of the bengal civil service.) »" LONDON: BRADBURY, AGNEW, & CO. Ld., 8, 9, 10, BOUVERIE STREET. 1893. LONDON : BRADEURr, AGNEW, & CO LD., TRINTERS, WHITEFRIAE3. PEEFACE. A FEW words are necessary to explain that the present work is intended to replace my "Manual of Forest Jurisprudence," published for the Government of India in 1882, and now out of print. Ten years have moreover passed away, and consequently the work needed to be brought up to date, to say nothing of its receiving improvements in arrangement and matter. I have decided to omit the sketch of Indian Civil Procedure, and the Stamp and Registration Laws. In its present form, it is hoped that Forest Officers (in India especially) will find the work more easy to refer to than its predecessor. I have only to add that these Lectures are not published with any official imprimatur whatever. B. H. BADEN-POWELL. Oxford, 1893. ABBREVIATIONS. The following works frec[ueiitly quoted are referred to by short titles to save space : — CJUOTED AS Aii(j.-Ind. Codes C'ude Forestier CarassoH Cooke Dalloz et Meaume Danckelmann Eding . Oanfjhofer Orabner 'Kdnara Case' ; The Manwood Markhy Meaume FULL TITLE. The Anglo-Indian Codes, 2 vols., edited by Whitley Stokes, D.C.L. (2 vols., with a series of supple- ments). Oxford : Clarendon Press, 1887. Code Forestier, aveo expose des motifs, sous la direction de M. Le Baron F. de Langlade. Paris : Ch. Bdchet, 1827. And in a pocket volume — ' ' Code de la Legislation Forestiere." A. Puton. Paris: J. Eothschild, 1883. Le Code Forestier, conf ere et mis en rapport aveo la Legislation, &c., 2 vols. Paris, 1828. , Cooke's Wingrove on Enclosures, 4th ed. London, 1864. (No later edition has appeared.) Articles, "Usage" — "Usage Forestier," reprinted (Nancy, 1861) from the Eepertoire de Legislation. Die Ablosung und Eegelung der Waldgrundgerechtig- keiten. Dr. Jur. B. Danckelmann (2 vols., with a vol. of Tables). Berlin : J. Sprenger, 1888. Die Eeohts Verhaltnisse des Waldes (Berlin, 1874). Das Forstgesetz f iir das Konigreich Bayern. Nbrd- lingen, 1889. (The revised law of 1879.) Die Forstwirthschaftslehre. Vienna : Wessely, 1866, 3rd ed. Bhaskarippa versus the Collector of Kanara ; Indian Law Eeports, Bombay series. Vol. III., pp. 452-785. , A Treatise of the Laws of the Forest, &c., collected as well out of the Common Laws and Statutes of this Land ; as also out of sundry learned ancient Authors and out of the Assises of Pickering and Lancaster (first pubKshed about 1598) 3rd ed., London, 1665. (Sir W.), Elements of Law. Clarendon Press : Oxford, 1889. Des droits d'usage dans lesForets. (Commentary on the Code. Tit. IIL, sec. 8.) 2 vols. Paris: A. Durand, 1851. VIU ABBREVIATIONS. QUOTKD AS FULL TITLE. Olshausen . . Dr. Justus: Grundriss zu rechtswissenscliaftliclieii. Vorlesungen, 2vols. Berlin, 1889. (Text book of the Eberswalde Forest Soliool.) Pfeil . . . Anleitung zur Ablosung der 'Waldservituten, 3rd ed. Berlin, 1854. Puton . . . Manuel de Legislation Porestiire (Paris : A. Coin, 1876). (Manual of the Nancy Porest School.) Qvenzel . . ESchtskundefurPorstbeamte inKonigreicheSachsen, &c., with Supplement. Dresden (undated). Both . . . Handbuch des Porstreohta. Miinchen, 1863. (See Ganyliofer. ) von Berg . Die Staats-Porstwirthschaftslehre. Leipzig, 1850. Williams . . (Joshua, Q.C.) Eights of Common and other Pre- scriptive Eights. London, 1880. ANALYTICAL TABLE OF CONTENTS. PART I. ELEMENTARY KOTIOXS OF CIVIL LAW. LECTURE I. PAUE Introdl-ctoey — The Study of Law in Relation to Fokest Education . 1—16 Forests regarded as estates — how this separation of estates comes about — Forest officers as managers need to linow something about the lights and obligations which arise from the legal existence of the estate, i.e. of the relation of the ''owner" to the forest itself, and to other persons who are right-holders, and to contractors and employes and the public — The basis of law and what it is concerned with — "Persons" related to "Things." — "Persons" related in a, variety of ways to other "Persons." From this variety arise several branches or departments of law — Constitutional law — Public law — Private (Civil) law — Private law deals with various kinds of indi- vidual relations — rights by birth and from status — from family con- nection—from transactions, events, and voluntary acts. How we are to proceed in our study, in order to make it as limited and as useful as possible : — ■ Conspectus of Scheme (Part I.) 13 Explained — It gives ns the preliminary information we need, about Rights and obligations in general — About Persons and about Things. Conspectus of Scheme (Part II.) 15 Explained — It follows a convenient classification of rights — We only deal with some of the rights. LECTURE II. Of Eights and Obligations; of "Things" and of" Persons" in General 17—37 Legal right, what it means. How rights are recognized by law — Remarks on the kinds of laws (Statutes or Acts — Common-law — X TABLE OF CONTENTS. PAOB Custom)— Eules made under authority of Acts— Rules made by executive authority, their validity. — How rights arise out of voluntary dealings, and out of events— Difference between "act" and " event "—Legal act and its requisites— Effect of events, and lapse of time— The protection of rights and enforcement of obliga- tions—Preventive action ; injunction ; specific performance ordered ; remedial action— Right to bring a suit or action at law— Damages Suits against Government, or public officers. General ideas about Persons— Natural persons may be normal or abnormal— Artificial, moral, or juristic, persons ; Corporations, how distinct from mere joint owners, &c. General ideas about Things — Corporeal and incorporeal ; moveable and immoveable, &c. LECTURE III. Principles op the Law op Persons and Things (Private Civil Law) 38—48 (A) The parties concerned — Person conditionally concerned — Responsibility for servants' act — Change of parties by assignment, death, &c. (b) The substance or content of the right — In case it is to do something or have something ; in case it is an abstinence from something. (c) How the right arises. L Contract. Essentials of a valid contract — Proposal — Acceptance — Acting by agent : impossibility of thing agreed on ; when it is immoral or illegal — Consideration — General list of forms of contract. LECTURE IV. Principles op the Law op Persons and Things (Private Civil Law) (cotit'm-ued) 49 — 56 Obligations may arise out of events, &c., where there is no contract — II. Obligations out of TORT (or Civil wrong) — How the obligation is operative ; performance in a certain way, time, &o. How the obli- gation ceases— When completely performed ; tender — effect of new agreement or alteration — ' Condition subsequent ' ; set-off ; release ; non-performance — Thing hecoming impossible— Operation of law- Lapse of time. LECTURE V. Rights op Persons in and over Things 57 -jq (A) Possession ; its legal nature and forms ; what things are capable of it ; its loss. (B) Ownership and Property — How acquired ; TABLE OF CONTENTS. XI Prescription — Accession — Eights of chase and fishery — Transfer^ Natui'e and features of ownership ; Restrictions on ownership for the public good. LECTURE VI. Rights of Peesons in and over TB.uiGS{contin)(ed). (c) Eights belonging to one Party existing over the Property of another 77- Oeneral aattire of such rights — Long leases ; Mortgage ; Pleclge or pawn ; Pre-emption. Eights of user ; easements ; servitudes. Use of term ' easement ' in England and in India ; easements of necessity — 'Servient 'estate — Eeal and Personal easements — the' Domi- nant' estate — "Appendant" and " Appurtenant " — Forest rights not always ■ real ' in India — Easements are incorporeal Things ; — dis- continuous easements ; effect of ' intermission ' and of allowing an 'interruption'; — no easement to do an unlawful or mischievous thing ; — must be of some benefit ;- -not temporary but permanent ; — {continuing and continudK.? distinguished) ; — indivisible — Origin of easements — Loss or extinction. PAGE PART IL CRIMINAL LAW. Consj)iictus of Subatanthe Criminal Law 89 LECTURE VII. General View of the Law of Crimes 91 — 107 The Indian Fenal Code referred to as a standard — General, special, and local law — Definition of terms — Acts (and omissions) which constitute offences. General exceptions (which take acts out of the category of offences) — Acts authorized or required by law ; accident and misfortune ; acts by child, lunatic, &c. ; act done with consent ; acts for benefit of person ; act in emergency to save life or prevent greater harm ; acts under compulsion — acts of very trifling or petty character — act in defence of self (or another person) —i.e. both person and property. XU TABLE OF CONTENTS. LECTURE VIII. PAGE The Classification and Description or Offences . . 108 — 117 Against the State— Against Public Justice and the authority of Public Servants ; and by Public Servants against their duty — Affecting the Human Body ;— Murder ;— Culpable homicide — Other offences — Hurt ; simple and grievous — Assault — Criminal force. LECTURE IX. The Classification and Desoeiptionj op Offences (continued') 118—125 Offences against Property ; theft ; robbery ; extortion ; aggravated forms; "dacoity" ; criminal misappropriation: criminal breach of trust ; receiving stolen property — Mischief — Criminal Trespass — Offences relating to documents, and to Property and Trade Marks — Criminal breach of Contract — Defamation — Insult and intimidation. LECTURE X. Abetment — Attempts — -Legal Punishment. Conclusion . 126 — 137 Abetment in general ; what constitutes — Special cases ; difference in intention or in the result produced. — Attempts to commit offences how dealt with. Not applicable to Forest, or other Special Law offences — Punishment; death, &c. ; imprisonment ; fine ; whipping — Some special incidents of punishment ; second conviction — Limit of time for prosecution — Concluding remarks on prosecutions. (Consjiectus of Criminal Procedure I^aw) 138 LECTURE XI. Ceiminal Peoceddbe Law 140—157 Introductory remarks — terms used— Constitution and Powers of Criminal Courts— Justices of the Peace— Why are there grades of Courts and powers ?— Judicial and executive powers.-— Competence as regards extent of sentence— E.^ecutive powers— General rules •— aid to Magistrate— Arrest and its incidents— Arrest without warrant by police ; by any person. Classification of cases ; bailable and non- bailable, cognizable and non-cognizable ; " Warrant case ; " " Sum- mons case "—Execution of warrants and service of summons— Search warrant. TABLE OF CONTENTS. XlU LECTURE XII. Criminal Peoceduee (continvcd) 158—171 The Prevention of offences — investigation by the Police —Trials ; in what place held— Itow they are set in motion — rolioo cases — Com- plaint to Magistrate — Form.il enquiry for committal to High Court or Sessions — The -'charge" — Formal trial by Magistrate himself (Warrant case) — Trial of "Summons case "--Summary trial — In- cidents of trials — Queen's evidence — dei'ence of prisoner by pleader — ■ examination of accused persons — withdrawing complaint or com- pounding cases — The form of recording evidence. The judgment. LECTURE XIII. Criminal Peoceduee (concluded') 172—182 The procedure of execution of sentence — second trial on the same facts when allowed — Appeal — tlie Appellate Courts — powers — Revision ; by Sessions Court or District Magistrate — by the High Court — Special Proceedings — Trial of European British subjects — other cases — The Public Prosecutor — Evidence by commission — Orders about property at trial — Effect of Irregularity in trials. Miscellaneous Provisions. PAET III. THE FOREST LAW. LECTURE XIV. General Observations on Forest Law . . . . 183-201 ■Why is there a special law for Forests ? — Present state of Forest Law ; in England ; the Colonies. Indian Forest Law ; its history ; list of Acts and Eegulations — Provision oE details by " Rules " having the force of law — their subject — must not include matters of executive, order, or practice ; meaning of " Local Government" — The topics of Forest Law ; five main heads or subjects stated — Preliminary matters ; attempts to define the term " forest " for legal purposes — definition of other terms. XIV TABLE OF CONTEXTS. LECTUEE XV. On Public ok " Goveenment " Propeety .... 202 — 224 In general — In India — Main heads of property— (1) That held in virtue of Ancient State rights — Law of escheat— Forfeiture by Act of State — for crime — Claim to land as security for the assessed Land-revenue — Houses, lands, &c., the property of past rulers, as such — " Royal trees " — Property in alluvial islands — by accession — Law of alluvion and diluvion alluded to— State right to minerals— Eight to all Waste Land, not expressly included in holdings and estates ; historical re- trospect of right in land (in India) ; the right to waste, long neglected — at length formally declared and acted on — Disposal of waste in making Land-Eevenue-Settlements — Places where waste still re- mained — '-Rakh" land — "District forest;" Madras and Bombay (2) Public property in roads, canals, &c (3) Law for the acqui- sition of Land for Public Purposes. LECTURE XYI. Legal Classes of Foeest— Lakds made subject to the Forest Law 225—244 Variety resulting from the condition of the available waste after long neglect — Legal position actually existing — Sec. 3 of the lud. Forest Act and corresponding declaration in other Acts — Classes of Forests enumerated ; in India ; under the Burma Act ; under the Madras Act. — "Reserved Forest" and "Protected Forest" — history of the distinction ; original intention of the framers of the draft Act with reference to the impossibility of taking in hand all available forest or " jungle " lands : these views not accepted — modified provi- sions resulting in a distinct class of Forests — these not properly or permanently secured — Argument that they can be sufliciently so, ex- amined — Cases where " Protected Forest " may be satisfactory — Village Forests— difference between India and Burma Acts. Policy of Madras against Village Forests explained — The Ajmer Kegula- tion— The Hazara Hills Eegulation— Forests in which Government has only a share, or some other limited rights — Care of "Eoyal trees " — Control over Private forests or waste land. Appendix A (Giving an abstract of the chief European laws for the control of Forests belonging to Institutions, Corporate bodies. Communes, ice.) 24.5—248 Appendix B. (Giving a similar abstract of the European laws for the preservation of Forests (Public and Private), in mountainous countries, or where the forests have a protective character against torrents, floods, erosion of soil, &c. &c. 248 — 259 TABLE OF CONTENTS. XV LECTURE XVII. The Legal Steps in Constitution of Forest Estates . 260 278 Kegnlar Procedure under Chap. II. 'Reserved Forests' — Notifica- tion of intention — Intermediate steps to maintain the status quo Proclamation inviting claims to rights — Efforts also to find out such claims — In the end, claims not discovered formally abate — What sort of claims arise — -to land, or plots in the forest ; to rights of way, Sec. (not involving produce) ; to rights of grazing, woodcutting, and other produce — to practise shifting cultivation — The last named not being a rigJit is reserved for later consideration. Claims to land — How dealt with ; their nature and origin ; means of disposal. Claims to rights — Must be taken down and decided on, whetiier they are to be admitted or not ; if admitted, their nature and extent to be defined and recorded. Produce rights, how they are dealt with ; by transfer to some other locality — by admission to the Forest when constituted, subject to conditions — ^by commutation or process of buying out. Eemarks on the transfer of easements and on the legal position of the locality to which they are transferred — Under what circumstances easements are retained in the Forest — Details about the mode of definition of easements claimed indefinitely, and about the regulation to which they are subject on admission to the Forest and about buying ovt or comjiensation reserved for separate Lectures — These steps involve a hearing of the case and argument ; Procedure provided : Person to represent the Forest interest. Appeal from orders — Subsequent (double) power of local Governments to modify — Sec. 22, prohibiting any new rights growing up— Caution about infringing this rule by form of order acknowledging rights — Power of Government to grant new rights ; not advisable to exercise ; better to substitute revocable concession or licence — French law (of tolerance) useful on this subject. Final notification of the Forest — Publication of translated notice — Final establishment of boundary marks — reserved for future consideration (Protection of Forests by law) — Forest once " Reserved " cannot be disforested without express sanction — Rights do not revive in lands disforested — Remarks on form of Registering rights for future easy reference. Constitution of Protected Forest — The steps requisite — Constitution of Village Forest — Action in special cases — Private Forest, etc. LECTUEE XVIII. (Inteodtjctobt to the Subject op Definition and Regulation of Easements) ; the Nature of Forest Easements ; and the Relations between the Forest Owner and the Easement Holder 279—301 The legal basis on which Forest rights stand in India— Question whether strict easements exist at all — Customary practices grew up Xvi TABLE OF CONTEXTS. PAQE in waste and forest for which no one eared-State of the case under Native rule-Object of the Act to provide for equitable adjustment The special features of Forest Easements.-Details that could not have been given in Lect. VI.-They do not make the holder m any sense a co-owner of the estate-Proudhon and the Bevolutionary Law in France-Code of 1827-Kight always a limited one, as existing without defeating the owner's right and enjoyment— Sali-d re suhstantU ; meaning of the phrase discassed. Limita- tion may be equally (in the end) beneficial to the easement. The right-holder, what he is entitled to. Object or sphere of the right— Generally claimed in vague form— Cannot be unlimited- Extent determined by actual need of the Right-holder for his own (or family) use according to his normal occupation, and the normal working of his farm, &c.— Easements cannot be separated from person or estate ; nor the produce of it sold. The Eight-holder's duty as regards the Forest—" sparing " the forest- can have his right only so far as the Forest is able to supply it- Difficulty arising when the agcjveijate of a number of rights over- taxes the forest resources— The Forest-owner, what he is entitled to His right to manage and work the forest normally — Conversion of forest— Case of restoration of ill-used forest — Eight of owner to share produce with the easement-holder — case (in India) where it may be important — Sammaryof right — Includes the carrying out of a regular ' working scheme.' Duty of the Forest-owner— Must give reasonable facilities for exercise of easements — Must not manage badly or wastefuUy. Appendix. European authorities as to limitation of rights . . . 302 LECTURE XIX. The DEFiNiTioif, Eegulation and buying out of Foeest Ease- ments. (I.) Definition 307—326 General reflections — Eemarks on drafting laws for India — Various details not mentioned in the Forest Acts — How the want may be supplied — Defects of Forest Settlements — Value of Appendix A. (at the end of these Lectures) — should be studied — Importance of Forest- easements ; advantage and disadvantage of Indian law and conditions generally as to their settlement, valuation, Inc. — Why definition is specially needed — Eight of way — Water-course — Use of water — Definition of Produce-eaeemeuts — Use of term " easement " not made by the Acts (note) — List of Produee-easemeuts— Difference between definition and regulation — Provisions of the Act as to definition — Question of the right to sell produce— Preliminaries to definition— There may be a written grant or order —How to be interpreted — Easements need not be absolutely gratuitous — Growth TABLE OF CONTEKTS. XVll PAGE of new rights— Provision for n fully developed farm or other business. LECTURE XX. The Definition, Regulation, and buying out of Foeest Base- ments (continued). Definition of the several produce rights . . . . 327—343 (A) Wood rights— (1) For building and repairs- Form of building- Quantity of wood — Caution about increased size, &o., of buildings — (2) For industry and agricultural implements — (3) For fuel — Dead wood — (4) For conversion or production of some substance, by calcining, boiling, or distilling— (B) Pasture rights — Number of cattle how fixed — Not for whole villages as they may be in future, but at the time — Local claims and those of travelling graziers — Himalayan flocks and herds — Kind of cattle. (C) Eight to grass- cutting — As a compromise for grazing right. (D) and (E) Eights of litter and lapping trees — Remarks on Streunutzung in Germany ; and in India — " E^b " in Bombay — Definition how effected. (F) Eights to minor (accessory) prodace. (&) Hunting and fishing — (H) The practice of shifting cultivation (on Forest slopes) — Gives no right in the soil — And none to an easement of any kind — Practice described — Reflections — Necessity of the practice locally — Efiorts to stop it — Mistaken sympathy — Cases where an equitable right to the soil may be possible. ' LECTURE XXI. The Definition, Regulation, aud buying out of Foeest Ease* MENTS (continued), (II.) Regulation 344—366 Legal requirements — Important provision allowing Rules to be made — this in time will obviate the deficiencies of the Acts. (A) Wood rights — (1) For building and repairs — Use of indents or applications — Wood taken in advance — Destruction of building by fire, &o. (2) For industry and agricultural implements — Large pieces for canoes, mills, &c. (3) For fuel — Mode of getting — Torches and splints from stumps and ill-grown conifers — For kilns and boiling cutch, Sec. — (B) Pasture rights. Subjects to be considered — (1) Exclusion of dangerous animals — Elephants— Camels — Goats — European laws on the subject — Possibility of dealing with the question under Indian law — Sheep — Buffaloes — (2) Knowledge of the grazing capacity of different soUs and kinds of Forest — Steps that may be taken — (3) Closing portions of the Forest for reproduction, &c. — Forest in an abnormal condition — Use of grass-cutting as a substitute b XVIU TABLE OF CONTENTS. PAGK in suoli cases — Compartments opened and closed — European law as to age, height of trees, proportion of area closed, &c. (4) Other protective regulations — Season of grazing where not settled by the definition— Grass not to be cut first — Eesponsible herdsman— Cattle bells— Marks indicating closed portions of Forest — Fencing— Erecting of huts and sheds — Grazing by night. (C) Grass cutting— Its dangers— Height of trees. (D) and (E) Lopping— Litter-rights— Age of lopping — Height up the stem— Size of boughs to be removed — '■ Edb " cutting in Bombay — Plantation of belts for lopping — Ground litter — Principles of regulation — Plans for working the right — Open and closed compartments — Season — Time of leaf-fall — Mode of collection— Rules as to implements, &c. (F) Collection of minor produce — Usually no difficulty — Eemarks about tapping for resin, wood-oil, rubber, &c. (G) Hunting and fishing — To protect the forest — To protect the game itself — Conclusion — Arrangement of working schemes expressly so as to provide for easements — Im- portance of the subject. LECTUEE XXII. The Definition, EEGtTLAiioN and buying out of Forest Ease- ments (concluded'). (III.) Buying out ok Commutation . 367 375 No mention of voluntary agreement — nor of buying out at a time sub- sequent to the Forest- Settlement. Compulsory under the orders of the F. S. 0. — legal provisions — have respect to both the continuance of the enjoyment of the right and the safety of the Forest— Study of the forest— Case of aggregate rights being impossible to satisfy— Question of the easement being indispensable to holder— Not applic- able to right of way, &c.— Sec. 24 of the Act disposes of these— Land —always cultivable required— need not be part of the Forest (as it is in Germany)— Value of land as a means of compensation— compared with money— Valuation of the right— First ascertain the value of one year's exercise— How this can be done in India— Next to capitalize this— Eate of interest (giving ' number of years' purchase ') considered —Arbitrary (but equitable and liberal) rule unavoidable. Valuation of the land (or other compensation) given as an equivalent— Yearly- produce value of land— Money in a lump sum always bad— Periodical payment and how it should be applied— Possibility of money payment in form of a remission of the Land Revenue on easement holder's cultivable holding. Appendix A. Abstract of the German law as to definition. Regulation and buying out of rights, with the method of valuation, and the official procedure 376—393 TABLE OF CONTENTS. XIX LECTURE XXIII. This Legal Peotkctiox of Foeests and their Peoduck in Transit. (I.) Of Forests ... . ... 39i— 405 Applicable to diflEerent classes of Forest — Indirect protection — Boundaries — Punishment for damage to marks — Kegulation of ease- ments ali'eady considered — Direct protection — preventive — remedial — Protection against fire — Information and aid legally requirable — Forest offences — ^under the Forest Act and under the I. P. Code — Forest Act offences — In Reserved Forests — In Protected Forests — In land not subject to formal Forest constitution — Special offences under the Forest Law regarding boundaries, and timber marks — reason for them. LECTURE XXIV. The Legal Protection of Foeests and theie Peoduok in Transit (continued'). (II.) TiMBEE, &c., in Teansit . . ... 406—422 General explanation — Subjects on which rules have to be made — Transit by Land — Transit by Water — Meaning of the control over rivers and their banks — Prevention of cutting up, concealing, and marking timber — Sawpits, prohibition of — Tampering with marks — Eegistra- tion of property marks — Prohibition to carry marking tools — Lia- bility of Government for loss of timber at depots, &c., by accident — duty of certain persons to aid in preventing loss — Drift timber — Prima facie property of Government in, and its object — Salving — " Waif " timber — custom and rights regarding — Timber stations — pro- cedure for ascertaining owner of timber — Not liable to seizure during process — Arbitration by forest Officers — Recovery of dues. LECTURE XXV. The Legal Peotection of Foeests and theie Peoducb in Transit (concluded') 423—444 Use of the I. P. Code in Porest or timber cases — Relation of the Code to the Acts — Some cases where the Forest Act alone applies or has special provisions — Cases where either law applies — where the I. P. Code alone applies — The first already disposed of — Oflfences which can or which viust be dealt with under the I. P. Code refer either directly to Forest (or timber in transit) or indirfectly, i.e. to sub- jects connected with the Forest Administration and Forest Service — Theft and misappropriation — " Receiving " — Mischief — Criminal Trespass — Abetment — Neglect or refusal to give aid or information to XX TABLE OF CONTENTS. PAGE Forest Officer— Offences indirectly connected with Forest adminis- tration—False evidence— Harbouring and concealing offenders- Breach of trust— Offences ly Forest Officers considered under the head of " Service." Penalties for Forest Offences— Imprisonment and fine— Aggravated offences— Note on the Bavarian law on this subject -Special penalties— Suspension of rights— Payment of compen- sation— Confiscation— Eestoratiou of Forest produce unlawfully obtained— Cattle trespass— Scale of fees in Forests— General pro- visions. Appendix A. Abstract of the Chief Continental Laws on the subject of Fire Protection .... ^** Appendix B. Note on the Citll Law of Trespass 4:47 LECTURE XXVI. The Legal Oegakization of the Forest Seevice . . . 449—466 The nature of Public Service in general — Appointments, how made — Duties and obligations under English Government largely depend on Contract rather than direct legislation — Duration of service — Appoint- ment of Forest OfScers and Organization of their Service — Explana- tion of the terms "a" or "any" Forest Officer; "the" Forest Officer ; Officer " specially empowered." — Enrolment — Discipline — Uniform. Special obligations of Forest Ofioers — Not to trade or be interested in Forest leases, &o.- — The Departmental Code on this subject — Penalty for vexatious arrest and seizure — General provisions of I. P. Code applicable — Bribery — indirect bribery — Public servants acting contrary to law, with criminal intent — Framing incorrect documents — Offences connected with official duty generally — False certificate — false charge with intent to injm-e — Breaches of 4uty not criminal — Criminal offence by officers, as private persons — their pos- sible effect on official capacity. Commission to enquire into cases of miscondiict. LEOTUEE XXVII. The Legal Organization of the Forest Service {cmi- chided') 407—481 The protection extended by law to Forest OfScers.— Liability to become obnoxious through faithful discharge of duty— Civil and criminal action will not lie for acts done according to law- Explanation— Subordinate's duty if ordered to do what is illegal- Prosecution of Forest Officer when legal, requires sanction.— The Legal Powers of Forest Oflaoers— Power of arrest— Seizure of illicit produce — Interposition to prevent offences — Power to regulate TABLE OF CONTENTS. XXI carrying or kindling fire — To demand aid — aid by Police ; aid of other Forest Officers — Use of force — Weapons, &j. — Power to " compound " offences in certain cases — Powers under sec. 71 of the Forest Act, explained — Note on French law of the statement of offences \>j procis verbal of Forest Officers — Comparison of this with the power under sec. 71 — Conduct of prosecutions ; appearing and acting in Criminal Courts — Powers in connection with receipt of Forest revenue and public expenditure — Powers in connection with Government contracts for work, materials, &c. — Offences against the legal authority of Public Servants — " Contempt " of authority — Refusal to obey, or receive summons ; tearing down public notice ; refusal to take oath or affirmation ; or to answer ; or produce documents.— Giving false information with intent to cause injury, &c. — Resistance to seizure of property, or arrest of person — Refusal to give aid and information — Obstruction of officer in exercise of his duty^Threats of injury, &c. — Obstruction to sale lawfully ordered — Personating public servant — Offering bribe to public servant. LECTUKES ON FOKEST LAW. PART I. ELEMENTARY XOTIOXS OF THE CIVIL (PRIVATE) LAW. THE LAW OF PERSONS AND THINGS. LECTUEE I. INTRODUCTORY. THE STUDY OF LAW IN EELATION TO FOREST EDUCATION. On commencing this course of lectures, it will be desirable to offer some introductory remarks, explaining liow the subject of law which we are now to deal with, stands in relation to the general study of " Forestry." Hitherto you have been regarding forest-lands in the light both of a natural feature in the organiza- tion of the earth's surface, and in that of an agency for the pro- duction of a certain class of materials. You have considered that forests "are a necessity for the physical well-being of most countries, almost as much as rivers, mountains, and seas, or any other natural features, are. You have also considered that l<'orests constitute a storehouse, or rather a growing stock, of materials which are practically indispensable to human welfare, and of a kind for which no complete substitute can be found. The major products are timber for building and wood for indus- tries and for fuel ; the minor (or accessory) products are of many kinds, gums, resins, pitch, wood-oil, bark, dye-stuffs, tans and fibres, leaves, moss, and sometimes the dead leaves and humus. You have also considered that from the point of view of this F.L. B 3 POEEST LAW. direct utility, it is necessary to preserve, manage properly, and cultivate, forests; for otherwise they will — perhaps in a long time, but surely — deteriorate and cease to be of use; or at any rate will become of much less use, being inferior and degraded in their produce. It has also been an important branch of your study to observe how you can vary the treatment of forests so as to develop the production of the sort of material you want ; or in other words, so as best to attain to different objects which the public interest may demand. You have also learned something of the " economy " of forest management,- — noting how the forest is a peculiar kind of producing-agency ; it differs for instance from an orchard, which, though consisting of a number of trees, is yet destined only to yield fruit gathered from the branched year by year : it differs from a field of ^vheat or turnips where the entire area is stocked at once by a single operation, and the produce realized over the whole area at once, also by n single operation. A forest as it stands growing, is a permanent source of profit, and has to be regarded as a " stock " or capital, to be maintained, and indeed increased and improved, and to be handed on from one generation to another, while only its annual increase — the interest or profit of the capital — is utilized. But when you look on the portions of a country devoted to " Forest," in whatever form or fashion, and note that large returns are ob- tained either of useful material or in money, you are led naturally to remember that whatever areas are capable of yielding value, are sure to be appropriated, and more or less jealously guarded, by some one- — either by individuals or by the State itself. They cease to be regarded as the air or open sea, — as merely natural objects free to the world at large; they become "Estates" or pieces of iiroperty of a certain kind. Forests as j^roperty or estates. There are still, in some parts of the world, enormous areas where forests have not yet become " property." The vast forests of Central Africa, may contain what would, if it were in India or in Germany, be untold wealth ; where it is, this great stock of material is of no present use to any one. And if any tribes are found on the borders of such a forest .tract, every one INTEODUCTORY. 3 ■will probably be at liberty to appropriate it, or clear and cultivate as his own, any bit of land lie likes. A similar state of things has existed in most countries in the distant past ; but it gradually ceased, only leaving behind it a sort of lingering feeling in the minds of the ignorant — still experienced, by the way — that forests are somehow free to any one to do what he likes in or with. But as society now exists, in every civilized, fally populated, and well-governed country, nearly the whole surface of the land is of some value, and has accordingly been " appropriated," either by individuals, or bodies, or by the Crown, or by the public regarded as a cor- porate or united owner. Even where there are large areas of barren waste, moor, or marsh-land, and these, perhaps, are neither enclosed nor put to any definite use, still, they are no longer regarded as " no man's goods," to be seized and held by the first comer at will ; they are recognized as the " property " of the Crown, the State, or the nation ; and can only be dealt with in a specified way — a way which in time becomes pre- scribed by law. In India, for example, British rule commenced (a.d. 1765—1772) in Bengal, and it is said that in those days as much as one-half of this now populous province was covered with jungle, uncultivated and unappropriated. At first, for some years, the Government took no notice of the waste which adjoined already occupied estates : people seized on it, and encroached, and settled on it as thej- pleased. As late as the year 1819, the law still took no notice of the right of propcrtij over such waste ; only then it began to think of making the new occupiers pay the contribution to the State called land-revenue : and it was not till 1828 that the law (by Eegulation III., still unrepealed) declared (what had always been the law or custom), viz., that " waste " land was Government property, and could not be seized upon at pleasure. Gradually the Government realized the value of its waste lands ; and " rules " began to be made for their disposal, by lease or sale to intending cultivators. But still a long time elapsed before the Government of India con- ceived the idea of definitely setting apart large areas of such land to form village and public or State forests. In older nationalities, the surface of the country became much earlier appropriated, and is now completely divided up into B 2 4. FOKEST LAW. " properties." At the present clay the area of any civilized State may he likened to a chess-hoard, on which the different squares represent so many "pieces of property." Indeed, if you took a large scale map (such as we call a cadastral map) of any European district, and coloured separately each " estate " or piece of property according to its nature, or the kind of owner it had you would find that the whole map would present a patchwork of many colours ; here a block of private agricultural land, next a moor appropriated to the Crown ; next an estate belonging to a university, a school, or a hospital ; next an estate belonging to a commune, or to an association of some kind, next a churchyard or a cemetery, also regarded as a property, though not of any indi- vidual. Next there might be a forest belonging to some great land owner ; next a smaller wood belonging to a private owner, and indicating his circumstances by the fact that it is only a coppice wood or worked by some form of "petite culture;" lastly, perhaps in a less populous part, along a great mountain range, there will be a vast tract of timber forest held by the State. Hence we are able to consider forests in a new light ; we regard them as ^Jtcce.s of property, as " estates " of a pecuHar kind, and (as we shall see later on) having special characteristics. This is not only a matter of words : it is an important and most practical conception. Failure to grasp it in our colonies, and in other countries too, has been the cause why so little progress has been made in putting forest conservancy on a rational basis. For if you realize the idea of a forest estate to be cared for as a piece of property and protected by law, you will also acknowledge that a "piece of property," if it is to be cither managed or protected, must be defined as to its limits,, and all questions of right and obligation arising within those limits must be settled.' If that is not done, the forest is still ' No practical conservancy of forests, siicli as the economic conditions of an entire country demands, can ever be elt'ected witliout tlie definite constitution of compact public estates, large enough to be thoroughly manageable with reference Id all soi-ts of economic conditions — production of timber and provision for f;i-azing and other useful rights of user. It is sometimes supposed that the wholesale destraction or cutting away, by lumbermen, of the natural forest, can be sufficiently compensated for by encouraging the plantation of individual lirees, or of small groves or woods (on such odd bits of land as ordinary farmers can .spare for the purpose) all over the State or country. Even if the future of such plantations could be for ever insured, the utmost result obtainable would be the greater amenity or pleasantness of the locality. Nothing would be done economically for the national iimicr svpply ; because the trees at best are so scat- INTRODUCTORY. 5 in a fluid, uuciystallized state ; it hardly deserves to be called "property," and in consequence any real conservancy will bo unattainable. And it will at once occur to you, that if forest and other estates are to be recognized as pk'ces of pvopertij in the above sense, the recognition can only be made practical and operative by some action on the part of the national legislature or central authority, whereby, the State, the person, or body (as the case may be), who has become the owner, is protected in his enjoyment within certain local limits, and other persons are prevented from wrongful interference. Law is the declaration of the nation (through its sovereign, its constituted parliament, or other legislative authority) that certain things are, or are not, to be done ; and this declaration is enforced — to put it very broadly - — by the public authority making things unpleasant for the party who disobeys or fails to acknowledge the rights and obligations declared. The provision of the disagreeable consequence, what- ever it is, whether to pay damages, or suffer imprisonment, or pay a fine, is what gives effect to the law, and is called its "sanction : " or, to put the whole matter in other words, law declares or recognises, that some persons have the riglit to appropriate things or become their owner ; and other persons have the corresponding ohligation to respect the right and to abstain from acts of interference, the law threatening some remedy, or some punishment, in case of disobedience. We have then to study law as creating or recognising rif/lits and ohlif/ations ; and as constituting property by declaring certain rights to exist in a person (called the owner), and possibly also other rights, existing in favour of other persons, not being ownership rights. In each case the law enforces the declaration by imposing penalties or liabilities on persons infringing its terms. Now Forest officers are the managers and controllers of forest estates ; and as such they enter into various relations with the public, and with individuals. They require to know something of the principles on which the right of property is based, and about rights of user ; something about their own legal tered, that in endeavouring to realise any cousidei'able amount of wood, it would Ije necessary to glean single trees over an enormous extent of country : and tliis ■would be very costly. This, however, is only one of the objections, by way of illustration. 6 FOREST LAW. duties and their position as public officers ; and something about the principles which regulate their contract relations with workmen, buyers of forest produce, and others. We have to keep our study, however, within the narrowest limits possible, because forest officers are not lawyers : a knowledge of law is not their primary requisite, but only a secondary or subsidiary one. The basis of laic. In law, as in every other science or art, we begin with certain very simple and elementary conceptions. Science is, after all, only common knowledge systematized and arranged. It always starts from the simplest facts of observation and experience, and places those facts in a right relation one to the other ; it then proceeds from simple to more complex relations ; and gradually we are able to advance to the connection of whole sets of such relations to other whole sets. So it is in law. We commence accordingly with a very simple and obvious fact. The world around us — that with which our bodily life is directly concerned — obviously consists of two broad classes of constituent objects, the PEESONs or human beings in it ; and the things in it — the soil, trees, and articles generally, whether artificially made or natural, and whether they are fixed or can be moved from hand to hand. Animals are regarded as thiiKjs, because they have not the characteristics of persons, i.e. (as we shall afterwards see), they do not possess rights, except in a secondary sense, as when we prohibit cruelty to animals by law. And then the ijersons stand in some relation to the things : for the soil and other objects are mostly of use ; some of them are absolutely necessary to human livelihood. Consequently, at an early stage, some form of appropriation of things or different parts of things, began to be recognised. How this idea of appropriation and ownership grew up and advanced to its modern form, we do not now enquire ; that is a matter for the historical jurist to trace out ; and a very interest- ing study it is : but we cannot concern ourselves with it here. It may be permitted to remark, however, that the idea of individual permanent appropriation is one that only has slowly grown into its modern form. The idea is at first most readily THE BASIS OF LAW. 7 accepted with regard to moveable articles, especially those which are made by the exercise of individual skill, labour, and thought. In early historic or pre-historic times, a tree in a forest was probably regarded as no more the subject of property than the air or the sea ; but if a man cut a bit of wood and fashioned it into a cup or a platter, it soon came to he felt that he had some particular claim to the finished article, which his fellows had not. And in the course of time, the same thing would happen when bits of land were laboriously cleared or made into fields. So it has come to pass that as the relations of men widened and the wants of more civilized life increased, nearly everything that, by nature, is capable of appropriation, has been appropriated ; and in our own times it is looked on as quite a natural condition — a matter of course --that " everything should have an owner." But how is this sentiment that one person has a special claim to any object, or to a piece of land, given effect to ? In the course of time there is always some king or council of elders, or other central authority, which, at first fitfully and perhaps tyrannically, but afterwards in a more regular way, gives effect to or enforces the general sentiment. In the end, rights of property become formally established and enforced by the power of the State. To put it shortly, the way in which the central authority gives effect to the sentiment of ownership, is (as already stated) by acknowledging that the person we will now call owner, has a right to the thing he owns, which others have not : and if one has a ric/lit, some others or all others (as the case may require) have a corresponding duty or obligation not to interfere with that right. But it is not only in the case oi jJersons and the things around them, that this question of right on one side and ohligation on the other, arises. For "persons," at any rate where they live in a tolerably civilized society and form a nation, also stand in some definite relation to one another, and to the whole body. In the first place, a person has certain rights in virtue of his mere being and birth. He is recognized as having a right to his personal freedom, and to safety from being killed and robbed and injured ; he has a right to his good name and character ; and to a certain station in life, as a citizen, a prince, a peer of 8 FOREST LAW. the realm, etc. A corresponding oUhjation lies on all other persons, not to infringe the right. Again, as a citizen or member of the State, he has both obligations and rights as well ; he has a right to call the public authority to his help if he is wronged : he has a right (however regulated by law) to a vote concerning the representation of his town, county, etc., in the different legislative assemblies or Local Government Boards ; he is obliged to pay taxes, and to do various things required for the general convenience. He is required to abstain from various acts that threaten or destroy public peace and security, and if he fails in this respect, the law will inuiish him, as an offender against the community at large. Then again, persons stand in a natural relation to each other in the family, as parent and child, husband and wife ; guardian and ward : and here other rights and obligations arise. And lastly, a vast variety of relations between persons, do not exist naturally, but are called into existence by some voluntary act on the part of either of them ; and here again the result of such action is to create a right on one side, and an obligation on the other. Very often, too, the occurrence of some involnntary event, or some wrong-doing on either side, gives rise to rights on one side and obligations on the other. You will observe that not only is there always an obligation corresponding to a right (for you cannot have a right without someone also being obliged to respect it) ; but also these rights and obligations are (when they arise out of human dealings) in many cases reciprocal, i.e., not only does one person have a right and the other an obligation, but vice versa, the person who has the obligation has also a right. If A. enters into an agreement with B. that B. shall take £1 and make a box for A.; A. has the right to B.'s services in making the box, and also to the box itself when finished ; and B. has the obligation to make the box and hand it over ; but then again B. has the reciprocal O'ight to get his £1 and A. has the obligation to pay it. According to the fact just stated, that i^crsons may have rights (and bear obligations) in various capacities, i.e., in themselves as human beings ; as men in a certain State or community ; as citizens of a certain country, and subjects of a certain Govern- ment; in their family relations, and also as brought into DIFFEREXT KINDS OF LAW. 9 voluntary (or iiivoluntar}') relations with other persons ; we have a natural and convenient standpoint from which to regard the laus which create, define, and enforce these rights and obliga- tions. Rights and obligations, and the laws that create or define them, may be regarded (1) as concerning "persons" in the aggregate, i.e., as concerning the whole community as represented by the Government or the State. Thus there are laws which define the constitution of the central and subordinate Governments, regulate the appointment and the duties, powers, and privileges of the Crown and of the Ministers of State, and of Parliaments and State departments (in England, Secretaries of State and Government boards or councils). Under this head we therefore speak of constitutional rights, and of constitutional law, as regulating these matters.^ (2) Next, the law creates rights and obligations which we can distinguish as attaching to the individual persons (who are the subjects of the State), in their imhlic relations, that is, in their individual relation to the collective body, and its repre- sentative — which is the State or the Government in whatever form it exists. And here we speak oi public rights and duties, and of public law. Such are laws (and obligations enforced by them) concerning the payment of taxes, tolls, and customs duties : criminal law and procedure : laws regulating the procedure of Courts for enforcing the (civil) law of private rights : laws regulat- ing postal, telegraphic, and other communications ; regarding rail- ways, canals, &c. : laws for establishing and protecting State or national forests : laws regulating the public currency in paper and in coin : laws regulating public health, e.g., sanitary laws ; laws regarding prisons, lunatic asylums, &c. (3) Lastly, there is a vast body of rights and obligations existing between private persons as such, with which the State, or other people generally, have no direct concern. Such rights arise (a) out of natural relationship — as between parent and child, husband and wife, &c. ; (b) out of agreements, viz., all forms of contract ; (c) out of acts which give rise to claims for compensa- tion, i.e., wrongful acts, which are called "torts" or ^jj-Zrafe ^ Including, also, the relations of colonies to the mother country : the declaring of war or peace, control of the army and navy, and the law of succession to the throne and to other State offices. 10 FOREST LAW. wrongs (as distinct from crimes, misdemeanours, or offences which are2mUic wrongs), and (d) out of certain circumstances or involuntary acts or events, which give rise to special rights and obligations. Laws dealing with this class of rights and obliga- tions are often classed under the head of "private (civil) law." This three-fold distinction of constitutional law, public law, and private law, is obvious ; but it cannot be carried too far, nor can it be made the basis of our classification throughout. It is obvious that these relations of life — private and public — often intermingle and cross each other. When the State, for instance, for various reasons, undertakes the management of forests, and does so in virtue of its being the owner, it has many rights and duties of a proprietor which are governed by the same laws as those which affect private proprietors. Forest officers as such, may be subject to public law as regards their duty, but may also be subject to the rules of private law, as regards sales of forest produce, and contracts they make for works, or acts they may perform in excess of their duty. This crossing or intermingling of relations would give rise to confusion. In order therefore to have a greater facility for study, wo proceed to classify rights and obligations in another way. But before we proceed to consider this scheme of classification, let us pause a moment to answer the question — to what extent are we to carry our study of the law ? However classified, the entire series of " rights " and " obligations " arising in one way or another, is a very large one ; and it is desirable to be re- assured at the outset, and not to start with the feeling that we are going to commit ourselves to a wide sea which has no shores; Let us at once be satisfied that our survey of law will be an extremely limited one. There are however several ways in which we might effect a limitation ; and these ways are not all equally desirable. I might for instance, start with special enactments (or the unwritten laws, as explained in text books), which relate directly to Forests ; and I might simply read out and comment on, those provisions, saying nothing about general principles. This course would however soon prove to be both difficult and unprofitable. And at best it could be followed only with the result of obtaining a very empirical knowledge and one which would be difficult to retain in the memory, and THE LIMITS OF OUR STUDY OF LAW. 11 still more difficult to enlarge or apply properly, as occasion hereafter might require. It has been said, " he knows not the law who knows not the reason (or underlying principle) of the law." Therefore it is desirable to lay a certain foundation, and to understand the general framework — the main ideas on which the specific laws we are concerned with, rest. Only I shall try and make this general study of principles as simple as possible and confined to what directly leads up to the forest law and concerns it. A forest officer approaching the study of law, is in the position of a person entering a library, the books of which are all devoted to one large subject, and which are arranged in shelves — efich shelf belonging to a special branch of the whole. Practically, he is concerned only with certain shelves, and, indeed, only with certain books in the shelf; but there are obvious advantages to be gained from understanding what the whole library consists of, and how its shelves or divisions are arranged. In the first place, I must observe that we at once discard from our consideration a large body of law which goes beyond the individual and the public of any one nation or State, and deals with the relations of nation to nation. This is called Inter- national Law; it is both " public " and " private." Public International Law deals with the questiors of war and neutrality, the laws of capture, of contraband of war, ifec. ; here it is a question of right between one nation as a whole and another. Private International Law deals with questions ^\hich arise out of in- dividual rights in one coi^ntry, in their relation to the law of another country. A very common instance, is the question of the effect in England of a judgment of a Court (say) of France or Germany. We also pass over the entire body of law, concerned with the Constitution, the Crown, and the Government of the country, its Parliament, and law of election and representation. Of Public law, also, we shall have very little to say, except as regards two branches — (1) the Forest law, (2) the Criminal law, or law preventing and punishing acts of individuals, when those acts concern the security of the public. For the rest, the laws of taxation, of health, of inland revenue, and regarding com- munications — post-office, railways, and others, will not occupy us. As to the 2)Hi-ate laiv of persons and things we will speak 12 FOREST LAW. presently. Here, however, we can note generally, that our study will exclude all that part of private law which relates to natural relationship, and status in life. Our whole study will, in fact, be limited to (1) certain branches of the private law of persons and things ; (2) to a sketch of criminal law and procedure ; and (3) (in more detail) the Forest law. In the continental schools, a somewhat more extended pro- gramme is undertaken ; and the text hooks go through the entire scheme of constitutional, public, and private law, of course only touching on the main heads and principles. I have not thought it practicable to attempt so much. I will, however, present you with an outline of the general framework of the (private) law of persons and things : and for this purpose I will first of all give you a table or conspectus (in two parts) which I have abridged and adapted from that given by Dr. Justus Olshausen in his text book for the Eberswalde Forest Academy. It is not expected that you will remember or be able to write out this table as a whole, but it will be available for reference, and will serve as a guide to the order and sequence of the remarks I have to offer. In order to explain the table, let us revert once more to the question of classifying rights. As a basis of grouping, we make use of the obvious distinction of " persons " and " things," already alluded to (p. 6). All rights and obligations reside in, and attach to, " persons." " Things " are the material (but sometimes the incorporeal) objects around us, and in respect of which, rights exist. And we commence by briefly examining, and trying to lay hold of, certain general ideas concerning (A) the nature of rights and obligations in themselves ; (B) con- cerning rights as they subsist between person and person, or, as the lawyers say, concerning " personal rights ; " and (C) lastly, concerning rights to and over things, or, as the lawyers say, concerning " rights in re." C'0^"SPECTUS. 13 CONSPECTLTS. PAST I. (PRELIMINARY LEGAL NOTIONS.) A. GENERAL IDEAS ABOUT RIGHTS AND OBLIGATIONS. I. The meaning attached to the term Legal right (ideas involved in "a right.") II. Rights regarded as the creation of Law. — (Written Law. — ■ Unwritten or "Common" law — Custom. — Characteristics of law. — Extent and binding force of law. — Laws and " execu- tive " orders. — Interpretation of laws.) m. Rights regarded as arising out of human dealings and acts, and out of events. — (Causes which produce rights or divest persons of them. — Facts are either "Events" or "Acts." — Necessary characteristics of a legal act. — («) Done volun- tarily for a purpose. — (Ij) consciously. — (c) manifested out- wardly. — Remarks on these three characteristics. — Legal acts affected by conditions. — Effect of events. — Effect of lapse of time.) IV. The protection of rights and enforcement of obligations in general 1. Private force or self-help. 2. Preventive action of law. ■?. Remedial action of law. — {Injunction — specific perform- ance — damages. ) B. GENERAL IDEAS ABOUT PERSONS. {Natural persons — Normal and ahnormcd persons — Artificial or Juristical pier sons. ) C. GENERAL IDEAS ABOUT THINGS. {Classification o'l' things — corporeal — incorporeal — moveable — ■ immoveable, &c.) ]4 FOREST LAAV. Eeferring to this conspectus it is easy to understand that under the heads— A, B, and C, we shall have to consider some general points which we need always to bear in mind, in order to understand almost everything that follows. Having thus gained some elementary conception of what is involved in the terms " right," " person " and " thing," in general, we next come to (Part II.), those general legal principles which relate to particular kinds of rights and obligations (Private Civil Law). How are we to classify or arrange these rights and obligations conveniently, according to their kind, so as to be able to examine them ? There are several methods of classification recognized ; and they are discussed in the standard works on Jurisprudence. I am not going to trouble you with any details, and I therefore adopt without discussion, a classification that will best suit us. This classification of rights (according to their kind) depends on the fact already alluded to, that " jiersons" are the subject of rights ; and these persons have (I.) rights arising without any kind of action, dealing, or agreement, on their part, and merely by the fact of their birth or existence — as members of a certain Civil society, or as in a certain condition of life, or as members of a family and having a certain natural relationship to one another. This class is distinguished by the fact that the right comes into being independently of any action of the parties. (II.) Eights which arise solely in consequence (a) of some dealing, or relation voluntarily entered into, with other persons : or (b) arising under certain circumstances. (HI.) Rights which exist in connection with "things." CONSPECTUS. 15 PART 11. GENERAL PEINCIPLES OF THE LAAV OF PERSONAL RIGHTS AND OBLIGATIONS. (CIVIL (PRIVATE) LAW.) I. STATUS EiaHTS, &c. II. RIGHTS AND OBLIGATIONS OF PERSONS ARISING OUT OF DEALINGS WITH OTHER PERSONS. (A) The parties concerned. (The right-holder (creditor) — the obligation holder (debitor). Cases where there are one or more than one party on either side, e.ff. principal and surety.) (B) The substance of the right and ohligation. (Performance — compensation for failure to perform — interest on debt.) (C) How the right, &c., arises. 1. Out of contract or agreement, (here we consider what a contract is : when it is valid and when it is void. ) 2. Out of some relations that resemble contract, but there is no aciital agreement, either express or implied. 3. Out oi U'rong-doinr; or "tort." (D) How the obligation, &c., acts or operates. (Nature of performance, as to extent, mode, time, and place.) (E) How the obligation, &c., ceases or comes to an end. III. RIGHTS (OF PERSONS) IN AND OVER THINGS. (A) Possession. 1. Its legal nature and various kinds. 2. What things are capable of possession. 3. How it may be lost. 4. Legal conseq[uences of possession. (B) Ownership or right of property. /'I. Prescription. , ,_ - . .... I 2. Accession (including rights in 1. Modes of acquisition^ ^^^^ ^J^ ^^^^^.^^^ \ 3. Forms of transfer. 2. Nature and special features of ownership. 3. Legal restrictions on the right of ownership, (a) in general, (6) special in Forest estates. (C) Rights enjoyed by one party on or over the property of another. 1. General nature of such rights. 2. Mortgage — Pre-emption and other special rights. ■ 3. Rights of Mser—" easements " or "servitudes" — in- cluding usufruct. 16 FOREST LAW. I have explained that it is not my intention to include class I. iu our study. Eights of persons as citizens (right to freedom of person, to protection, to vote, &c. &c.) and family rights, as father of a family, husband of a wife, guardian of a ward, &c., we shall pass over. We shall confine ourselves to heads II. and III. These it will be observed, have a feature common to both, on which account the German writers call them collectively, " vei-mogens-rechte " — a term for which I wish I could find a neat English equivalent.' I can only explain the common feature by saying that these rights are all concerned with some benefits, interests or advantages which the law recognizes and enforces, as constituting or contributing to a man's means of livelihood : or which go to enable him to live or carry on his worldly existence in comfort, in his natural station, occupation or position. I think this general scheme — or abstract of the contents of some of the shelves in our imaginary law library — will be at once intelligible to you. The remarks which follow, will deal seriatim with so many of the headings as it is desirable to comment on ; others will be passed over with hardly any notice. For example, in the case of rights arising out of contract and tort II. (C. 1, 2, 3,) which would occupy a long course of lectures and require detailed study for the barrister or solicitor, we shall only briefly deal with general outlines. But head III. (A. B. C.) on the other hand, so directly concerns the basis of the special Forest law, that we shall have to consider more carefully a number of points coming under each of the sub-heads. The group of subjects represented by the headings of the Conspectus (Part I. and Part II.) will constitute the whole of our study of the General jrrincijyles of the Civil (Private) Laic. We shall then proceed to deal with the general features of Criminal Law and Criminal Procedure. The remaining part of our course will consist of lectures on Forest Laiv — i.e. on the special treatment of Forest property (and rights concerning it) as provided by law : on the legal protection of forests, by means of the special Forest Acts and also the general Criminal Law ; and (finally) on the Forest Service, regarded as the subject of legal regulation. ' In the dictionary " Vermogen " means ability, faculty, &c., and in the phrase above, it refers to the whole of the ' ' means " or ' ' facilities " which a man possesses lor continuing his daily life and occupation. MEAXIXG ATTACHED TO THE TEEM " RIGHT. 17 LECTURE II. (A) OF EIGHTS AND OBLIGATIONS IN GENERAL. 1. The meaning attached to the term " Right." The term which will most naturally iirst attract our attention is one that we have been obliged already freely to make use of. By " right " we mean only (for our present course) such a right as the law recognizes ; in short we deal with legal rights only. A person who has only his own force or power of persua- sion to enable him to do something, may possess the " ability " or "might" to act, but not necessarily a " right." If, further, public opinion approves of his doing something, and disapproves of others interfeiing with him in so doing, he is said to have a "moral right; " but this again is not necessarily a legal right. A man who loses money at a game of whist is "bound in honour " to pay it, and society has a distinct feeling on the subject ; but no legal right to recover the amount would be re- cognized in a court of law. If, however, irrespective of a man's own ability, or of the public approval or sentiment, the State will protect him in doing as he wishes, and will compel such acts or forbearances on the part of other people as are necessary in order that his wish may be carried out, then he is said to have a " legal right." In the notion of rigid it will be observed, four terms are involved : — 1. A person entitled ; 2. An object ; 3. An act or forbear- ance ; 4. A person obliged. But it is not necessary that all four should actually exist together. To take Professor Holland's example : a testator leaves his daughter a silver teapot ; the daughter is the peison entitled (1), the teapot is the object (2), the delivery of the article to her is the act (3), the executor or person having care of the deceased's estate, is the person obliged (4). The " object " may not always exist : e.g. A. has a right to B.'s services under agreement, here A. is (1) the person entitled, service is the act (3), B. is the person obliged (4); there is F.ii. 18 FOE EST LAW. no direct ohject (2). Or the " object " may be more or less ideal or metaphorical, e.g. I have a right to my reputation and the law will give damages against any one who defames me. Here I am the person entitled (1) ; my reputation is the (rather metaphorical) object (2), the forbearance to injure it is (3), and the person obliged is (4) — in this case, all my fellow subjects. This leads me briefly to note that some rights exist against one or more persons in special relation to the right-holder (jura in personam of the Roman lawyers) ; others against all the world {jura, in rein).^ It may here be repeated that whenever there is a right which is declared, recognised, or defined by law, there is always an ohligation on some one person, or more than one, or on the public at large (all persons subject to the law) to respect that right — to do or not to do something. Without this the right would be inoperative ; it is hardly possible to conceive a person having a right and yet no one having any correspond- ing obligation at all. And whenever there is a right, and it is infringed in any way, there is always a legal remedy ; a suit will lie. 2. Eights regarded as the creation of law : Remarks on the " Common " (or imwritten) law. Custom, and Statute law. The rights that we are concerned with being only legal rights, these rights are established and defined, or are at least recog- nised, either by written law (Statute or Act of the Legislature) or by " Common " law. " Custom " is also recognised, as applying generally to all classes, or as a special rule applying to a particu- lar class of persons, or to a particular part of the country, or to a particular trade, or subject. • In England what is known as the " Common law " is really general customary law which has become fixed by the growth of centuries and has been formu- 1 Tlie student will not confuse between the terms jura in re and jura in rem. lhe(oi-mer refers to rights in rcsrert ot " things " (SachenredU) ; tilt latter refer to rights w nch do not concern any "thnig,"but wl.ichavail against everyone in general, not only against some determinate person : the "person obliged ''is here so general or indeterminate, that attention is turned rather to the object or the act ot forbearance {rem). So a judgment which declares an absolute right or status, ecj., that a woman is or is not lawfully married, is said to he a iudoment m rem, because it concerns the whole body of subjects of the realm, a id is n t like a judgment which merely decides that B. owes A. (and not the ^hole world) a certain debt, duty ol service, tc. ""uie wouu; REMARKS ON WRITTEN AND UNWRITTEN LAW. 19 lated in the course of the administration of justice, by courts and judges ; it is now known from " precedents " and " reported cases," and is explained in text books. Particular customs ot places (and tribes or castes in Lidia) are allowed to be enforced, provided they are proved to exist as certain, uniform, and always observed ; provisions will often be found in Acts of the Legislature directing that certain sections of the Act are to be taken subject to any custom of trade or business, or to a local custom. Customs, besides being uniform and of long standing, must not be opposed to public morality, or policy, or to any positive law. Whatever the form of the law — written, unwritten, or custom- ary, it has (as regards rights) this feature, that it declares or recognises a rii/ht in one or more persons, and a corresponding duttf or obligation lying on one or more other persons. The law is always armed with a sanction (p. 7), but the sanction is not always directly mentioned. In fact it is much oftener a matter of principle, forming a branch of law in itself, as (e.g.) the law of damages. If the right is infringed, the court, before which a suit is brought, will decree the appropriate remedy or award ■damages ; the application of these is the sanction of the law. Criminal law, however, which threatens specific fines or other penalties for breach of its several provisions, is an instance of law where the sanction is directly expressed in all cases. As rights may be created by law or custom, so there may be a ■cessation of rights by law ; or one custom may have become changed or abrogated by another custom. A few words have to be said about the written law. In Eng- land, the Parliament can make laws for the whole dominion. But India and the colonies have Legislatures of their own as pro- vided by constitutional law.' There is nothing to prevent the British Parliament from passing (e.g.) a Forest Law for India ; l)ut in practice such matters are left to local legislation. Laws usually declare their local extent, i.e., whether applying to the whole empire or to some part of it ; ^ and in their nature ' For example, India is governed pursuant to an Act of Parliament of 1858, ■called " An Act for the better Government of India." And its local and central Legislatures are provided for and regulated by the " Indian Councils Act," 1861. Both statutes have since been amended and added to by later Acts. ^ In India, before 187i, owing to the way in which the various provinces were c 2 20 FOREST LAW. also (as apparent from their language) apply, either to all persons, or to some particular class. " Acts " of the Legislature come into force either from the day of their final "passing" {i.e., assent of the Crown, or in India, assent of the Governor-General, or Local Governor as the case may he) ; ^ or from some day which the Act itself provides ; and in some cases it is left to some local authority to notify (in the Official Gazette) on what day a law is to " come into force." Sometimes the "Act" contains the whole law; but often it provides that subsidiary matters, regarding which local require- ments may vary, shall be provided for by "rules" (having the force of law) to be made by local authority ; such rules must not of course contain anything inconsistent with the Act itself. It is often the case that companies or corporations (local boards, municipalities, railways, etc.) are empowered to make bye-laws carrying penalties. Other such bodies make rules, but these bind the members and persons dealing with them, not as laws^ but as agreements, or conditions of business. All persons, in general, are supposed to know the law ; and that although in reality few people know more than a small part of it ; this is usually explained on the ground that the business- of life could not be carried on if people were allowed to escape- on the plea that they did not know that such and such was the law. As a matter of fact, a good deal of difference is made- between alleged ignorance of common rules of natural obliga- tion, such as not to steal, forge, &c., and purely technical rules. In a criminal charge for instance, of breach of some technical or artificial law, a magistrate would deal more leniently with a person who appeared really ignorant than with one who had knowingly offended." acquired and added on to the existing dominions, it became douttful whether- certain laws applied to all provinces or only to some of them. An Act {XT. of 1874, called the Laws Local Extent Act) was passed to remove such douhts. And in order to make provision for the judicious application of laws in cei-taiu. districts which were in a backward condition, and required special treatment, another Act (XIV. of 1874) constituted "Scheduled Districts," in which the- Local Government is empowered to declare what laws are in force and what are not. After 1874 all Acts specify their local extent. ' For which reason, in authorised editions, it is alwaj's noted that the Act, &c., " received the assent of the Governor-General on such and such a date." - The Roman law allowed ignorance to be x>ls*^iicd by certain classes and iit RULES AND ORDERS WHICH ARE NOT LAW". 21 It should here be remarked that a number of rules and regulations of much practical value are made, not by legislative authority, but by the executive ; they are expressed in " circular orders," " ordinances," " general orders of Government," etc.^ These deal with matters which do not create or restrict j-'n/hts dlrectli/, but provide for the convenient despatch of business, or prescribe the way in which public servants are to conduct them- selves or to manage property entrusted to their care, or how private persons are to proceed in getting what they want from public offices. By such rules Government can regulate terms of service, questions of precedence, age of joining and retiring, pension, leave, subordination of one grade to another, mode of correspondence, forms of keeping accounts, modes of leasing or selling Government property, conditions of spending public money, public duties of reporting facts and preparing returns of business and statistical information. But when Government desires to subject its employes to certain liabilities as public servants, e.g., to regulate their trading or holding land, it usually does so by legislation. Except within the obvious lines of the principle that rights can only be abridged, and that responsibilities carrying direct liability to (criminal) penalties, can only be imposed hj law, it is matter for the policy of each Government to determine whether a legislative enactment is needed. The tendency cf the English Government is to leave as much as possible to be matter of agreement and '' terms of service ;" and not to invoke legislative a.clion beyond what is absolutely necessary. In other countries, we find many things regulated by elaborate provisions of law, that in our Government are regulated only by official rules or by executive order, or agreement, as the case may be. certain branches of law (not those, e.g., of natural obligation, not to steal, that debts must be x^aid, &c.) : and in English law there are some traces of an allow- ance for ignorance, as in the case of a man's selling land in ignorance of his want of title (Student's Austin, p. 239). In the Contract law, specific provisions will often be found as to the effects of mistake of law and mistake of fact. ' Such orders may have the "sanction " of penalties ; but indirectly. A public servant, for example, may be liable to suspension, degradation in rank, or dis- missal from the service for disobedience to them ; but the penalty is theoretically a matter of contract : — by entering sei-viee and taking pay, the public servant (expressly or impliedly) " binds himself, or undertakes, to obey the orders of Government, and to submit to the usual penalties (above mentioned) if he disobeys. 22 rOREST LAW. Apart from this consideration, it will also depend on the state of advance in civilisation and on the complexity of the relations of social life and of commerce, to what extent the Legislature interferes. In India, for example. Forest Law is a much more simple and elemen- tary thing than it is in Prussia or Saxony. In England "Forest Law " as such, is, owing to difference of local circumstances, hardly known. And, generally, taking a German text-book on such a study of law as we are now making, we shall find many references to distinctions, as well as to national institutions, which are quite unknown in England or in India : this is due to differences in the stage of society or in the historical surroundings under which institu- tions developed themselves. But to return to the consideration of formal Statute law. When a law declares certain things, it is, in general, understood to apply to the future, i.e., from a certain date onward, and not to have retrosj)ective effect unless that is expressly provided. As to the right understanding or true meaning of laws (and legal documents generally), as the clauses are framed in a precise and formal manner and in language (more or less technical) that is familiar to experts in drafting Acts, it is also a matter for lawyers to. make out the meaning (in case of doubt) according to established rules. It is not necessary for us to go into the question ; but I will just mention that text books often assert the broad rule, that when an Act restricts rights or imposes onerous obligations or penalties, it is to be construed strictly — because no one should be burdened beyond the exact limit intended ; but that if the law is an " enabling " one or intended to confer a benefit, or a useful power of action, it should be read more liberally. This principle however should be taken with some caution.^ It would be more generally true to say, that subject to certain rules of interpretation, the fair import of the terms of the Act should be considered ; and, whether civil or criminal, penal or beneficial, the due effect should be allowed to those terms ; neither confining them in one direction or enlarg- ing them in another, but using them to promote justice and. effect the objects of the law. 1 See the remarks in Dr. 'Whitley Stokes' Anglo-Indian Code, Yol. I., p. 70. The Privy Council applied the rule in one case at least. RIGHTS ARISIKG OUT OF HUMAN DEALINGS. 33 3. Rights arising oiit of human dealings or actions ; and out of events. It is not enough, however, merely to refer to custom and " Common Law," or to written or Statute law, as the founda- tion of rights. Without them, indeed, rights and obligations in the abstract would have no regular legal existence or enforce- ment. But in a very large number of instances, in order that specific rights may arise in the case of A., B., or C, as indi- viduals, there must be the occurrence or existence of certain facts which give rise to certain relations. These facts are either "events" — /.('., movements of external nature not ordinarily under human control (as birth, death, a shipwreck, an accidental fire), or " rtcis " of men; which, in the wide sense, are the result of will, and are therefore under the control of the doer.^ Acts are only legally recognised (a) when voluntarily directed to a purpose, (&) when done consciously, (c) when manifested by some external sign ; — inward acts, which exist only in the unmanifested thought, we do not take count of. As to («) an act being done voluntarily or with a purpose, it is onl}' necessary to call attention to the difference between "will " and " intention." "Will" has to do with acts; "intention" with the consequences of acts. I may 2vill to make the muscular movement or action necessary to pull the trigger of a gun, but I may not intend that the discharge of the gun should result in hitting or wounding any one. But for practical purposes, an act is held to be done " voluntarily " when there is either an actual intention to produce a certain effect, or a know- ledge (or reason to believe), that such an effect will, in the ordinary course of nature, be produced. And so also when there is a total carelessness or indifference as to what will happen — practically it is the same as if an intention to cause the (natural, or inevitable) result had existed." 1 An act is distinguished as having a, purpose. "He jumped from a tower in order to kill himself ;" that is an art. "He fell from a tower and broke his neck ; " that is an event ; there is no exercise of the will, or action with a 2 Thiis the Criminal law holds a man responsible, when his carelessness, i.e., utter want of attention to the natural conseriaences of his act, is such as is inex- cusable. He is as much responsible for the resulting mischief as if he had in- tended it. A person who without any excuse, or "for fun," should fire a loaded 24 FOREST LAW. In connection with this subject, " neghgence," or inattention to probable results, may be mentioned.^ A man is constantly held responsible to exercise a certain amount of care and atten- tion, omission to do which is "negligence." And there are recognized degrees — gross negligence, slight negligence, &c. — ■ which correspond to the requirement to take great care, ordinary care, or slight care, as the case may be. Very often the amount of care demanded (and therefore the responsibility for corre- sponding negligence) varies with the amount of benefit which the person obliged has received : e.g., if A. lends B. a valuable horse to use, under such circumstances that the benefit is wholly on the side of B., the latter is bound to use the greatest care, and will be liable for even a slight degree of negligence. If the loan is for hire, so that each party gets a certain benefit, then B. is bound to take ordinary care, and is liable for ordinary negligence; should the horse be left in B.'s charge solely for the benefit of A. (and none whatever for B.) , the latter would be bound to take ordinary care, and would only be legally liable for " gross " negligence. Then as to (6) consciousness in an action. An act [e.g., a will or an agreement) of a lunatic is not binding, because there is no capacity to judge of consequences ; so minors or " infants " are in many cases regarded as having no sufficient conscious volition to make their acts valid. Drunkenness destroys consciousness, and therefore it will invalidate an agreement, or at any rate make it voidable if the party on recovery does not choose to confirm or ratify what he did.^ As a matter of defence, i.e., excusing the responsibility for crime, in Indian law, intoxication can be pleaded only if it was involuntary, i.e., caused by the administration of some substance against the will of the person, or without his knowing that it would make him intoxicated. gun into a crowd, would be guilty of murder if lie killed any one. He may not have designed to lrevent infringements of rights, and it provides a remedij when rights have been infringed. Legal action is thus said to be (1) preventive, (2) remedial. The preventive means, whereby the commission of offences and (in general) all acts tending to the infringement of rights or the omission of duties, are sought to be obviated or prevented, consist in certain powers of civil courts (and also magistrates) to issue " injunctions " and orders regulating various matters, in anticipation. They are more especially exemplified by the legal powers of the police force, and those conferred on special ofdcers of Excise, the Post-Oface, Railways, &c. The powers of the Forest guard or protective staff of a forest district often come under this head. In general, the police or other force which the law arms with powers aiming at 2]yevention, has also the duty of discovering and investiijatinf/ offences and bringing the offenders to justice when an offence has actually happened. When it comes to enforcing private rights that have been infringed. Civil Courts, under judges (with various titles), are constituted to give redress and settle doubts. Where the whole society would be injured by certain acts, or where peace and social order are threatened by them, those acts are called " crimes " or " offences." ^ They are dealt with by the (public) ^ For this reason a man cannot safely or legally protect liis estate from trespass by putting about steel traps or spring guns or other devices of a dangerous character : for should any one be injured, he would be liable, and very seriously, if death were caused or any grievous hurt ; for though the person might be com- mitting (the merely civil wrong of) trespass, or even (conceivably) a criminal trespass, still it is not for the ]n'ivate owner to make such a form of reprisal. - It is .hardly necessary to add that in some cases arbitration may be a means of settling cases. Th.it is usually by consent of parties (sometimes specially pro- vided by law without consent) and the law usually makes provision for enforcing the decision of arbitrators, in case one of the parties will not voluntarily obey it. ^ Diiferent names are often applied according to the gravity of the act ; thus in England we have " misdemeanours " and • ' felonies, " and elsewhere " delicts " and " crimes," &c. ENFORCEMENT OF EIGHTS. 2i) criminal law and punished. The public officers who decide these cases and award the penalty, are criminal judges, and magistrates. The term "judge" is used both for Civil and Criminal Courts, but " magistrate " means only an officer dealing with criminal law. Of course, the same persons may preside both in Civil and Criminal Courts. It may often be the case that an act which is a criminal offence is also a private wrong calling for compensation to the individual. It used to be held in English law, that the minor case was "merged" in the criminal act, and there was no separate remedy : but this rule has later on received such large modifica- tion that it can now hardly be said to exist. In India it never applied at all. Both remedies are available. In Civil cases, where it is only a question of right between man and man, the law provides a means of enforcement by an Action at law ; that is, the injured party can bring a " Civil suit." This right to bring a suit (klagereclit) can only be piirsued where there is a " cause of action " which the law recognizes — a question of some lec/al right (p. 17). If you brought a suit to recover from a friend the amount of a bet at a horserace, or the sum lost to you at whist, the Court would reject your suit ; you would have no " cause of action " — no legal right (whatever moral right or claim in honour, &c. you might have) on which, your plaint is based. But supposing your claim is legally admissible, and is proved, and not based on error ; the means which the Court can adopt (in a Civil suit or action) to give relief, are various. To some extent they are ])reventive, but most commonly they are remedial. As already remarked, the Court can issue an Injunction which will prevent a threatened evil, or prevent the repetition or continuance of one. Injunc- tions are perpetual or temporary, according to circumstances.^ In some cases the Court will enforce the " specific performance " of an agreement. In India, an Act of 1877 regulates this. " Specific performance " (it is perhaps unnecessary to explain) 1 Magistrates (i.e. officers -with criminal judicial authority) are also able under the Criminal Procedure Law or the Police Law, to issue orders of the nature ol iniunctions : as where they order a crowd to disperse, or a person to remove an ohstructionfrom a public roadway, or stop some nuisance, or regulate a process-.on moving in a certain direction. We shall speak of this hereafter. 30 FOEEST LAAY. means, making the defendant do the very thing he had under- taken to do — and not merely to pay damages for non-performance. It is not however practicable in all (or even in most) cases to enforce the performance of the actual contract — make a man do or deliver the very thing he has undertaken to deliver or to do ; specific performance can be decreed only in certain cases ; and those, speaking generally, arc cases in ivhicli money equivalent is impossible, or is of no use ; as where there exists no standard for ascertaining the actual damage caused ; or where it is probable that no pecuniary compensation can be got. But it is provided expressly by the law, that a contract to sell houses or lands (immoveable property) shall be held to be among those things for which pecuniary compensation is not available, because it is iisually the case that money would be no real sati-sfaction ; and moreover it is nearly always possible, if not easy, for the person to transfer the actual property bargained for — much more easy than it is to estimate the pecuniary loss arising from his refusal or neglect. There are some cases where it is a sufficient aid to a plaintiff, to give a " declaration " of his rights in the matter of the suit : this will protect him in future. In most cases where actual relief or remedy is sought, it is only a substitute for specific performance that the law can give. That substitute is a pecuniary compensation for the loss occasioned by the breach of the right or obligation, in the shape of "damages." "Damages" are awarded by the Court for a breach of contract or for a ivrong. In the former case there is often no great difficulty in fixing what the damage really was : in some cases however there is ; and there are various rules of law (and well-known text-books exist on the subject) explaining how damages are ascertained or calculated. It is obvious how- ever that, especially in cases of " tort " or " civil wrong," it may be more difficult to assess the injury done at a money value. For though all legal wrongs give a man the right to have them redressed (by the Court), yet there are many cases of infringe- ment of righti in which the actual loss measured in money, is ' As when, for instance, a person had a right to vote at an election and his name was wrongfully excluded by an officer, from the list of voters ; here the pecuniary loss would be nil ; but the Courts held that the plaintiff having a LAW OF DAMAGES. 31 small, or it is impossible to fix ; then the plaintiff will get his right declared but " nominal damages " are enough. In most cases of slight wrong, " ordinary damages " are awarded ; or in a gross case, what are called " exemplary damages." In contract cases, where the damages are not easily ascertained, it is usual for the parties to agree that a certain sum shall be paid in the case of breach ; and this is called " liquidated damages." Generally they are allowed in cases where the real pecuniary loss cannot be ascertained, and where the Court will hold that the parties intended to fix a sum, knowing of this difficulty; hut the Court will not award a "penalty" entered in a contract, or a large sum of damages specified as " liquidated damages " where it can ascertain the real loss. In Indian law, the rule is somewhat difl'erent. The Court will never give more than the sum fixed, but in any case it will only give what it finds reasonable under the circumstances. This does not apply to bail bonds, &c. (bonds binding a person to appear under a certain penalty), or bonds for the performance of public duty or of some act in which the public is interested : here the whole penalty may be enforced, the details may be seen in sec. 74, Act IX. of 1872 — the Indian Contract Act.^ I have spoken of the civil courts as enforcing lec/al rights and giving a remedy. They are open to every one who is of age to act (and to the guardian or representative otherwise). The Crown in England cannot be sued ; but redress is obtained by an analogous procedure called a " petition of right," which is heard in certain courts only, but like any other suit, with pleadings and argument. In India, by express provision of law, the Secretary of State for India in Council (practically representing the Crown) can be sued, because he is placed by the law in the right, had also a remedy ; and here, no doubt, the Court would secure the rif,'ht by enjoining the proper officer to receive the vote : and if he refused or neglected, he would be liable to substantial punishmeut for "contempt of Court." 1 In certain cases, where persons enter into bonds required by a rule under the Forest Act for certain duty or work in counection with forests, and a penalty is inserted in case of breach, the whole of the penalty is made recoverable, by the "Forest Act (sect. 80). This is in excess of the exception mentioned in the text, because such contracts might not come within the (restricted) meaning given to the term, "act in which the public is interested." The provision is enacted because of the importance of the subject, and the necessity that exists for holding a strict hand over people who are entrusted with these works and duties. The penalty, moreover, can be summarily recovered, without a suit. 33 FOREST LAW. same position as the old "East India Company," which could sue and be sued in its corporate capacity. Any government suit in India is brought by or against the " Secretary of State for India;" as all Local Governments or public Departments are merely his delegates. And there may be a distinction between a suit brought by or against the Government as a whole (where the " Secretary of State for India in Council " is named as plaintiff or defendant), as on a claim for some property or pay- ment against the State or the Public Treasury : and a suit against some official for an act done in his public capacity, for which the Government is liable, and the officer, personally, is not. That is why we sometimes see suits entitled " So and so versus the Collector " (of such and such a district), or versus "the Conservator of Forests." (B) GENERAL IDEAS ABOUT " PERSONS " (REGARDED AS THE SUBJECT OF rights). As society became established and its relations grew more and more complex, it became convenient not only to take account of separate individuals as " persons," but to regard certain groups of persons, or certain institutions, as if they were persons : thus we distinguish between " natural persons " and "juristical" (or "moral" or "artificial") persons. Every man from his birth to his death is a " person " ; and we do not exclude "slaves" from the list of persons or regard them as chattels as the ancient law did. A condition of slaverv is absolutely non-existent throughout the empire. Persons, whether natural or artificial, possess rights ; but the capacity of individuals to act or exercise rights, may depend on age, sex, or mental capacity. Persons under an age fixed by law, are minors or " infants," and are under certain legal disabilities in respect to binding themselves by contract, to making a will, and so forth. And there are degrees in minority; for a person at a certain age may be competent to do some acts and not others — for example, there is an age of competence to contract marriage, or to take an oath as a witness,^ or in respect of crime. The Indian Penal 1 In the case of a child giving evidence, no oatli or affirmation is administered although he may he considered old enough to tell what he has witnessed, Intelli' gentlv and ruthfuUy, and is warned by the judge to speak only the truth. DIFFEEEXT KINDS OF " PERSON." 35 Code, e.g., provides that nothing is an offence done by a child under seven years of nge, nor by a child over seven and under tAvelve, if (as a question of fact) he has not attained " sufficient maturity of understanding to judge of the nature and con- sequence of his conduct " on the particular occasion. As to sex, there are certain disabilities attaching to married women, as to contracts and property. In India, Hindu widows have only a life interest in their husband's estate ; in some places, females other than widows, cannot inherit land, except in default of all male heirs. Persons of unsound mind are legally disabled in various ways : and provision is usually made for appointing curators or guardians of their estate. In India, provision is also made for the "Court of "Wards" (under special circumstances) taking charge of an estate of which the owner, though not of unsound mind, is yet unable to manage his affairs.^ It may be also that the nationaliti/ of a person may affect his rights and capacities : to gain privileges, and avoid inabilities resulting in this way, most nations have legal provisions for enabling " aliens," if they wish, to become " naturalized." But this brief allusion to the subject must suffice. Sometimes personal rights are affected by some sentence of laiv ; and a convict, etc., may, as such, be under certain disabilities. I will only here notice, that these (and the following) con- siderations about persons, have induced some writers to classify rights of persons (and the provisions of law relating to them) according to the question whether the i^erson is "normal," i.e., of full age and under no disability to act, or " abnormal," i.e., declines or falls off in one way or another, from the standard of full ability to act ; or else is abnormal in another way, i.e., is an artificial person.^ ' AH tliese disabilities depend on the principle stated at p. 24. 2 Holland's •'Jurisprudence,' p. 251, 2. The learned author illustrates his meaning by a diagram, thus : — Normal person, Infant, Feme covert (married woman),. / y ^^Convict, kc, ' //^,,--^^^_^_Lunatic, &c., ^i^^— — — Ar tificial person. F.L. D 34, FOEEST LAW. But we remarked that sometimes the law regards a body of persons (or some institution) as if it were a single person. And sometimes a natural person has some peculiar position which gives him the rights and duties of an artificial person. It is not every union of two or more natural persons in one undertaking, or in holding one property, that constitutes them a " corporation " or body regarded in law as if\t were one single person. Joint-owners or partners, or joint-creditors or debtors, may have certain peculiar rights and duties as such ; ^ but they are not "juristic persons." On the other hand, a single individual may sometimes possess rights (as holder of a certain special rank, office, etc. for the time being), which place him in such a position that he has the legal characteristics of a corporation, over and above those of a natural person. Then the English lawyers use the awkward term " Corporation sole : " e.g., a rector of an English parish is a Corporation sole : he exists as such, independently of the length of life of the individual A. or B. who holds the position for the time being. The Sovereign is also a " Corporation sole." Though Companies or " firms " for trade, or societies con- stituted for charitable or other objects, are not "juristical" persons, merely by virtue of their association, they may become "legal persons" by being "incorporated" by royal charter, or by the regular procedure which is usually provided for the purpose by an Act of the Legislature. In India, any seven persons may, by fulfilling certain formalities under the Indian Companies Act of 1882, get constituted a corporation or legal person.- When a number of persons, etc., are recognized as a " corpo- ration," they are capable of holding property, and executing contracts, etc., not as joint-owners or joint-contractors, but as one person, the act of the whole body being indicated by a certain form, especially by the use of a " common seal." Town corporations, municipalities,^ local boards or councils, ' For example, special rules exist with reference to joint liability, and whether each man separately, can be held liable for the v/hole debt ; or as to the right of one to demand pavineut of a debt due to the whole number. ■' See sects. 4, 6, 41, 235, Act Vi. of 1S82. Local Fund Boards in Madras are corporations (Act IV. of 1871). The corporation "dwells" or "carries on business" where its "registered office" is. ^ lu Geniiany and France there cro many kinds of corporations resembling ARTIFICIAL PERSON — CORPORATION. 35 Universities and Colleges, are familiar instances of corporations. So also in some cases there arises a kind of fictitious corporation in the case of what is called a unircrsitas honorum, e.g., a large fium of money has been left to " pious uses " and no trustee appointed ; here there are usually provisions of law as to what is to be done ; and this " estate " or mass of property is regarded as if it were in the hands of a person. The estate of •a person who dies without a will (before any one has acquired -the legal power of " administering " it) and an estate of a bankrupt, are examples of this kind of " legal person." It will be observed that artificial personality continues ; it has a ■" perpetual succession : " — can go on independently of the life of the individual members who at any given moment are concerned in it. Corporations, as such, never die ; they have no need -therefore to make uills to provide for the disposition of property belonging to them. They have, as I before remarked, a " common seal," which being afl&xed to documents, is the formal indication that such documents emanate from the whole body : and for convenience it is usually provided that the corporation may " sue and be sued " in the name of some officer — secretary, j)resident, registrar, or other. Not only however are Universities and Corporations (and some- limes " estates ") " legal persons," but the State itself is one ; imd so is the "Crown" (independently of the particular indi- vidual who wears it for the time being). The State represents ihe united personality of the nation, and holds property which represents the lands, buildings, stores, &c., appropriated to national objects.^ This includes the taxes and duties paid into the Treasury, books, works of art, and special funds {e.g., shares in the Suez Canal) held for the benefit of the public and to be devoted to its purposes. It is because the State is a corporatioQ, which never dies, , that it -tliese : village corporations, town corporations, provincial and circle corporations, ' iind various associations (Gcnosscnsehaft). In India, in some parts, there are wliai are called " Village Communities," in which a number of co-sharers— often cou- nected by a common descicnt from one ancestor — hold the village jointly, or part of it in severalty and part jointly. But such villages do not constitute ' ' legal persons. ' ' 1 There may be a distinction between (public or) State property and Crown property. The former belongs to the public, the latter to the Sovereign, not as ji" private owner, but as Sovereign, and so cannot be disposed of at will. The .subject of State property will be further alluded to iu a special lecture. D 2 30 FOREST LAW. is better fitted than most private or natural persons, to manage efficiently estates like forests, which take a very long time to develope. Such estates are likely to be mismanaged, or reduced to an inferior class of yield, by persons who have only a natural life- time, and are therefore tempted to make such a use of them, as will realize an immediate profit, but does not really derive the greatest economical advantage.^ Though corporations or legal persons do not die, some of tliem may come to an end ; e.g., a registered company, by failure of all its component members, or by their number being reduced below a certain legal limit, may cease to exist. It is also possible that a corporation may be "disfranchised" by action of the law ; or it may surrender its charter and so cease ta exist. (C) " THINGS " REGARDED AS THE OBJECT OP RIGHTS. Just as there are different kinds of persons — " natural " and "artificial," "normal" and " abnormal,"— so "things" are variously classified for legal purposes. Some " things" which form the object of rights, are tangible or corporeal things ; — land, houses, goods and chattels. Others are for practical purposes, reckoned as "things," though, incorporeal. " A right to graze tM'enty cows," is not a tangible thing, but it obviously has value, and can be granted or other- wise dealt with ; a copyright or a patent right may be sold and bought, bequeathed and otherwise dealt with, as much as if it was a tangible object. Hence for legal purposes the definition of" things " includes everything that can be the object of a right or an obligation. "Things" are not only classed into "corporeal" and "in- corporeal," but for various legal purposes in other ways. Some of these classifications are of no real import, others- • refer to differences which are practical. For example, most laws- ' A private person will be tempted to work an oak forest [e.g.) either wholly for liaik, whicli he can sell eveiy few years, or for coppice ; he cannot afford to wait while the forest is slowly gi-owing into timber which would benefit his meat jjrandson. The State is under no sxich temptation. Hence Umber forests (with ^ alualile capital yielding a smaller interest) are generally held by the State (or at Iwust by some large proprietor), while coppice forests (with an inferior capital but jiiore riipid yield) are held by small proprietors. KINDS OF ' THINGS '^ — LEGAL CLASSIFICATION. 37 make a distinction as to the mode in which we transfer different kinds of property. A book, a horse, a cheque, are transferred with less formality than land; for the latter may affect (indirectly) other persons besides the two or more immediately concerned in the transfer. In England this difference is expressed by a distinction between "real" and "personal" property; this is however almost wholly technical. In other laws more generally there is a practical distinction of "moveable" and "immoveable" things, the latter not only being land which is naturally immove- able, but property (like a house) which is permanently attached to land. So trees growing in the soil, are " immoveable; " and as theft is an offence relating to " moveable " goods and chattels, a growing tree is only the subject of theft by a special provision of law which makes the cut of severing itfivin the soil an act which, in fact, converts it into moveable property. This is expressly provided for in the Indian Penal Code. It will be observed that while all classes of things may be the subject of certain rights, all cannot be the subject of property and capable of transfer. Some things again are property and jet not capable of transfer. The air, the open sea, and flowing water, are " res communes omnium " — not regarded as the property of anyone, nor capable of any contract transaction. On the other hand, navigable rivers, the sea-coast, harbours, public and military highways, churches, and cemeteries, are " property," usually in charge of the State or some public corporation, but not always saleable or con- vertible into money. ^ 1 A brief note may be given about soiue other classifications of things, Tluis things may be "fungible" or infungible, i.e., where one (fungible) thing so resembles another, that it may be substituted as a matter of course. Coined money is an obviovis example. One sovereign is as good as another. If I lend a. sovereign, I do not expect to get back the identical coin lent ; but it is otherwise if I have lent a book oi- apicture. Things are also "principal '' and "accessory " — iis a cow and the milk it yields, or the calf it gives birth to ; or if I have an estate on a river and the water washes up soil on the margin. Things may also be " divisible " and " indivisible " in their nature. An easement or right of user is indivisible in its nature. True, if A. has a grazing right for twenty cows, and his estate is divided, the right may pass so that grazing for ten cows is had by his son X. and ten by his son Y. ; but the right itself is not divided, it cannot be separated into any constituent parts or elements. 38 FOREST LAW. LECTURE III. PRINCIPLES OF THE LAW OF PERSONS (EIGHTS ARISING OUT OF DEALINGS BETWEEN PARTY AND PARTY, AND FROM EVENTS). Having now finished our remarks on the meaning of terms, and on the general conception of " right," of " law," as well as of the nature of "persons" and "things," we proceed to the suhjects noted in the Conspectus, Part II. We pass over the class (I.), rights and ohhgations arising out of birth, status in society, and out of natural or family relations, and come at once to that large and important class (II.) which concerns the rights of persons, when those persons are brought into connec- tion with other persons, by means of some voluntary dealinrj between them, or by some (involuntary) event which affects them both. On this class our observations will be confined to broad principles and general features ; a glance at the Conspectus (II.) (page 15) shows the natural divisions of the subject and the points which must successively receive attention. The first subject is : — (A) The parties concerned. As a right on one side implies an obligation on the other, in all cases of right or obligation arising from any dealing between man and man, there must be at least one person on each side. The Roman lawyers used the term creditor to express the person who had the primary right, and debitor to express the person who had the corresponding primary obligation. AYe have adopted these terms in English, but confine their use to one class of dealings, where one party owes or has to pay, and the other is entitled to receive, money. In many, if not in most, cases where there is a dealing between two parties, it is (as I have already mentioned) a rcciproeiil right and obligation that arises. In other words the person who has the primary right has also an obligation, and the person who has the primary obligation has also a correspond- ing right. For example, A. agrees with B. to paint a picture for £100 : A. has the right to the picture and to B.'s services in THE PARTIES TO A TRANSACTION. 39 painting it ; and B. has the obligation to paint the picture and hand it over: but reciprocallj', B. has the right to the £100, and A. the obligation to pay it. But here we have the case of a dealing with one person on each side. Sometimes there may be more than one person. Several persons {not being an "artificial person" or corporation) may jointly undertake to supply 1,000 tons of coal to A., or to A. with D. and E. jointly ; and rice x-crsii, the recipient or recipients agree to pay at a certain rate per ton. Here it is a question to be settled by law (if not by terms of the agreement) how per- formance is to be had. Under the Indian Contract Act, the promisee may make any one of the joint promisors supply the whole of the coal ; and they in turn could ask any one of the joint purchasers to pay the whole of the price. If this is not intended, there must be an express condition in the contract or agreement; otherwise the parties are "jointly and severally" liable as the phrase is ; which means that the promisors may be come down on for the whole performance — either as a body or individually — at the option of the other side.^ This matter is of great practical importance, as it enters into many provisions of the law of partnership. Then, again, there may be persons only conditionally con- cerned in the dealing. A. says to B., if you (B.) lend C. ,£100, I (A.) will be answerable that O. repays j'ou by a certain date ; here A. has no obligation except in the event of C. not paying as agreed. (Law of Principal and Surety.) Here again it is a matter regulated by law (if not by the terms of the agreement) whether B. can at once proceed optionally against either A. or C, when failure to pay occurs ; or whether he must exhaust his means of getting payment from C. (the actual debtor) before calling on A. the surety. Sect. 128 (I. C. Act) agrees with the English common law that the former is the rule, not the latter. One person may become responsible for another, as in gttarantee and security, either by express or implied agreement. But there are also cases where a person, without any express contract, 1 And whenever one person (whether " severally " liable or not) has actually paid more than his share, he is allowed a claim at law against his fellows to ■'contribute," i.e., to make up to him the excess (beyond his own proper share) which he has paid on their behalf. The English law is not quite the same as thu Indian on the subject of joint or several liability under a contract. 40 FOREST LAW. becomes liable for wrong or injury caused by another; for ex- ample, the employer may be liable for injury caused by his servant in the course of his employment as such servant, and so also there is a certain responsibility of the employer for injury done to his servant in the course of his duty. Unless expressly otherwise provided, the employer (and the . Government or State as employer no less than private persons) may be liable for damage done by the servant in the course of ' his employment : (whatever remedy the employer may, in his turn, have against the servant if he has been negligent). In (,'alcutta, I remember a case where some "coolies" were employed by the Seoretaiy of State (for the Indian Department of Public Works ultimately represents the Secretary of State for India, who has control). They were carrying a hollow iron boiler on a public road, doing it so carelessly that they dropped it with a loud crash, frightening the plaintiff's horses so as to cause them to bolt, •whereby the carriage was smashed and the horses so injured that they had to be killed. The Secretary of State was held liable (Calcutta High Court on reference from the Court of Small Causes). Where a servant has a claim for injury occasioned to him in the course of his service, it must appear that there was want of skill, or neglect, on the master's part — e.g., neglect to fence dangerous machinery in a factory ; otherwise he will not be liable. Before the dealing between two persons or more is concluded, it may be that one or other party changes; this may be by the act of one of them, or by some event, as the death of one of them. By the ' act of one of the parties ' we mean the assignment of a right {cessio) . It may be voluntary, or by effect of law — e.g., A. owes B. £,1Q ; B. voluntarily assigns this debt to C, and gives A. notice to pay to C. ; B.'s right is then at an end and cannot be revived at his pleasure.^ Supposing, on the other hand, that A. is security for B., who owes C. £10, and A. has to pay up. Here C.'s right is satisfied ; but at once, and of itself, it passes over to A., so that he can compel B. to pay or re- compense him for what he paid on his behalf. ^ There are special rules about assignment, of which a brief and clear account is given by Dr. W. Stokes (A. 1. Code, \»\. I., p. 498) : no restriction exists in CONTEXT OJR SUBSTANCE OF THE RIGHT. 41 Some kinds of contracts are not terminated by the death of the parties ; the right of the one and the obhgation of the other may pass on to their heirs. This is however not the case where the contract was a " personal " one, in the sense that the thing required could only be done by the particular person — e.g., a contract with a particubn- painter to paint u portrait, or an author to write a story or a play. (B) Substance of the right and obligation. This may vary, of course, according to the nature of the dealing, the act, or the event, which puts one party to such a relation to the other that a right and a corresponding duty come into existence in consequence. If there is an agreement between the parties, the "substance" (or "content" — Inhalt, as Dr. Olshausen calls it) of the right, is what they agree about ; some- thing to be done, or submitted to, some money to be paid, something to be delivered or supplied. If it is a matter of fiome wrong act of the person, or some event, giving rise to a relation between them, it is most frequently the case that the obligation consists in the abstinence of the other party from any act infringing the right ; consequently when the right and duty are called into active existence, it is because some infringement has taken place, and an obligation to supply a remedy has arisen. In some cases, as we have seen, the law will be able to enforce a positive right, by making the party obliged do the very thing itself (specific performance, in some form or shape) ; but in many cases of unfulfilled agreements, and in all cases of wrong, or of breach of an obligation resembling an agreement or a wrong, the form taken by obligation is, that the defaulter has to make reparation. The law in fact finds a substitute for the agreed act, or a remedy for the wrong done ; in either case in the shape of money damages.^ When a money debt is due and not paid India (as in some cases it does unrler tlie English Common Law). But it should he remembered that no transfer of a claim or debt has effect on tlie debtor, unless he is a party to or is otherwise aware of the transfer. If A. owes C. money and C. wishes him to pay to X. instead of to himself, he must give A. notice in writing, and then A. will be liable to pay as directed. 1 What has to be said about damages will be found at pp. 30, 31. 1 will only add in this place, that when a right is broken or not observed, an injury arises in one of two ways : either there is a positive infufy or loss {davmum emergens) — some- thin"- is taken away, or there is a negative loss {lucrum cessans) — that is, the 42 FOEEST LAW. interest may be allowed by the Courts (when they have found out what the exact sum overdue is). This additional payment of interest on the sum overdue [i.e. not paid when it ought to have been) is in fact, a form of compensation to the creditor for the breach of the right to have payment at a certain date, or (if you like to put it so) a price paid to him for the use which the other has had of the money when he was no longer entitled to keep it. (C) How the right and obligation arise. Such being the characteristics and legal features of every right and corresponding obHgation dependent on some relation arising (by acts or events) between one man and another : how does it come to pass, that such a relation practically arises between the parties ? The two chief ways are — by voluntary agreement called (I.) Contract ; or by a wrongful act called (II.) Tort.' I. OF CONTRACT OBLIGATIONS. An agreement enforceable hy law is called a " Contract." The following elements will be found in every such contract : — 1. Two or more persons or parties capable of contracting. 2. A bilateral act, i.e., an act on either side expressing the agreement, i.e., what each undertakes. In exceptional cases there may be what is called an "unilateral" con- tract, where only one party engages to do something. 3. The subject of the promise is a matter which is (a) possible, (b) lawful {i.e., not opposed to positive law or good morals) and ((•) of a nature to produce a result legally binding and affecting the relations of the parties to each other. 4. The promise on one side constitutes a "consideration" or that which induces and compensates the promise on the other side. In general, one promise must constitute a valid consideration for the other : but in exceptional cases injured person is prevented from obtaining a prolit or benefit he ivould liave liad if no breach liad oecnrred. ' Wrongful acts or torts, as already remarked, are sometimes offences as well : c jr., it is a tort to slander a man, but (in some laws at any rate) it may also be a criminal offence. Adultery is a tort in English law (money damages only, how- over heavy) ; in India it is also a crime (chargeable against the man alone, under the I. P. Code, b>it against the woman also by some local laws). PRIXCIPLES OF CONTRACT. 43 the promise may be binding without any corresponding promise or tangible consideration.'^ 5. There mat/ be a necessity for putting the agreement into some special form. (1) There must be at least two parties : a promise to pay to one's self is not a contract." There is always a promisor and a 2>romisce. Each must be able to act : here come in those general considerations already stated, regarding " legal acts " (p. 23 ff.) about being of age, of sound mind (conscious), and not being expressly disqualified by law from contracting.' The contract is started by one party making a proposal, and the other giving his acceptance. When " accepted," the proposal becomes a "promise." In "acceptance" there must be an unqualified, definite, assent.* Of course you may say, "I agree to your proposal provided you do so and so, or allow such and such a thing;" but then that requires further correspondence, and the assent of the other party. In fact, very generally, there is a set of promises together ; but in the end there must be defi- nite unqualified assent on either side. And it may be that if, in " accepting " with a certain condition, the other side, after a reasonable time, does not object to the condition, he will be held to have agreed to it, and so the acceptance as a whole is perfected. When a person has once made a proposal, he may be bound to adhere to it, even though he has not yet heard of its formal acceptance. But if he dispatches a revocation before he has heard of its acceptance — even though an acceptance has been put in the Post Office — he is free. There are however some 1 Dr. "Whitley Stokes refers to " consiJeriition "as " some fact which affords a motive for the agi-eernent," and thus includes the cases where natural affection, Sec, is the motive; in such cases, however, a "solemn form" of agreement is requisite. 2 I.e., an agreement enforceable by law ; the student will always bear in mind this meaning. In a case where a company had two " departments," one for in- surance and one for annuities, it was held that one department could not con- tract with the other. = As where a person.of full age, but unable to manage his affairs, is put under the Court of Wards. In Calcutta a special Act was passed to make the (then) King of Oudh incapable of contracting debts, &c. ■* The proposal is most frequently special, i.e., addressed to a particular person or firm ; but sometimes there is a rjcneral proposal addressed to the public--as when a man offers (by public advertisement) a reward for finding a lost article and bringing it to a certain place ; here any one may signify acceptance by ful- filling the conditions. It is often the case that an acceptance is not unqualified, e.g., A. writes to B. offering to sell a horse for £50, B. replies that he will buy it fo'r'klO. This is not an acceptance, but in reality a counter proposal, requiring a new acceptance on A.'s part. 44 FOREST LAW". differences in law about this matter, which I do not go into.^ Besides formal notice of revocation, a proposal is revoked by the lajjse of time prescribed in the proposal for its acceptance, or (if none such is prescribed) by the lapse of a reasonable time without any answer being sent. And it comes to an end, if the person replying to the proposal has added a condition of accept- ance which the proposer refuses : and so by the death or insanity of the proposer, if this comes to the other party's knowledge before acceptance. Assent must (of course) not be the result of fraud, coercion, undue influence, or misrepresentation ; for these things go against the conscious freedom of act which is requisite. There are some special conditions and consequences in law, attaching to fraud and misrepresentation, to which I do not extend my remarks." There are also several rules in detail about the method by which either party should make known the conditions or terms of the agreement : such rules are illustrated by the case of a person taking a ticket for carriage of himself or of goods by a railway, and there being printed conditions on the ticket or receipt-form. In general he is held to accept these conditions by taking the ticket or form ; unless it appears that the condi- tions were so indicated that he could not have notice of them. The parties "proposing" and "accepting," may act them- selves or by an agent. That agent may be appointed generally to carry on the principal's business, or specially, to do a particular act or set of acts. Agency may be implied in some cases, but ordinarily it is express ; no particular form being needed (unless the law requires a particular form, as it does in some cases) . The general powers of an agent and his power to act in an emergency beyond his specified powers (as stated in the power of attorney) are matters of the special law of the particular relation (itself a contract-relation) of " Principal and Agent." So the further question of the agent delegating his duty to a auh-agent. But an agent may act where the power is implied, as where a wife buying goods for household purposes, has 1 See "Whitley Stokes' introduction to the Indian Contract Act (A. I. Codes), A'ol. I., p. 493. - As when a person discoverinjr the misrcpresentaiion m;iy insist on tlie other perforniiug his part as i/the matter had been as he (falsely) represented it to be. PRINCIPLES or CONTKACT. 45 implied authority to act for (and so bind) her husband. Where a iDroposal or acceptance is made by agent, there are matters for the other party to consider, such as whether the agency is still existing at the time. The agent (acting properly) is not personally liable, nor can he sue on the contract made for his principal, except in certain cases (three in number), for which see I. Cont. Act, sec. 230 S. (a) In India a promise to do an impossible thing {i.e., thing impossible in itself) is void. In England there are special distinctions.^ It should be remembered that the impossibility of keeping a promise may not always be in the thing itself, but may arise in consequence of some " event ; " and impossibility of performing one side {i.e., one part of the whole contract) does not always affect the other side, or make the whole contract void. Under the Indian Specific Belief Act, 1877, A. finally agrees with B. to buy a house for a lalili (100,000) of rupees ; before B. takes possession, the house is totally destroyed by a cyclone ; here it becomes impossible for A. to hand over the house, but B. may have to pay nevertheless.^ Quite recently an English case was reported in the papers, where a contractor had agreed with a town corporation to lay down a great extent of water piping : he tendered at a ridiculously low figure and omitted to examine the soil. He found that the work was impossible on his terms, and he had to give up after spending a good deal of money. The corporation thereon took over the work under the agreement, and he was held entitled to nothing : he chose to go into the contract with his eyes open. {h) The matter must also be lawful and not contrary to morality and public policy. Thus a promise to marry a woman ' In England it is held that the impossihility does not necessarily take effect on tlie obligation of the other party, unless it is such that the Court could take it that each party meant to imply the possibility, and the cessation of the transaction if the thing proved impossible. 2 Observe that it is not a matter of a completed sale, where the property has actually passed into B.'s hand, but a contract to sell, which is, however, in prac- tice very similar, because B. could specifically enforce his right if A. refused ; B. is, therefore, in a veiy strong position. The cyclone being a calamity of nature, the loss must iall on some one, and it must fall on the person who, .so to speak, is most, owner of the two, which under the agreement is B., though he has not yet handed over the money. It is not more hard than if the cyclone had fallen n. day after B. had signed the actual sale deed. The hardship of such a case would in practice, usually be mitigated by the fact that the house was insured, and B. pay- ing the price, would get the insurance money. 46 FOREST LAW. •when the promisor had already a wife and the law prohibited bigamy, would be void, i.e., no contract.^ So an agreement by A. to pay B. £5 if B. gives evidence in his case. For either the evidence is to be true — in which case (under the next following head) there is no binding matter of agreement, for every one is obliged, without any agreement, to give evidence truly, when called on ; or else the evidence is to be " favour- able," in which case it is against the law and public morality. And (c) The agreement must be such as produces a binding result on the parties : i.e., must be some matter such as Tnarriage, sale, hiring, paying money, etc., of which the law- takes cognizance. A promise to dine with a man, or accompany him on a shooting excursion, is not one creating any legal rela- tion. Nor must it be to do something that every one is bound to do without any agreement. (4) But it was further noted that the promise of either party {i.e., the lawful, possible, and legally binding promise) was the ■consideration for the contract. Thus, if A. promises to deliver goods to B., and B. promises to pay A. ^500 for them, the one 23romise is the consideration for the other ; and this forms an important element in the contract. Indeed this is the most common form of contract. In general, a contract in which there is absolutely no consideration, is void. There are, however, €ome exceptions, chiefly those in which the party promising, with nothing in return, is actuated by motives of affection, or family feeling ; and even then a special formality is required, as will be noticed in the next paragraph. It is not, however, necessary that the " consideration " should be on any defined scale of value, because that would be impracticable. Mere forbearance, for example, may be good consideration ; in itself this may appear of no value, but in fact, the granting of time may be of the utmost importance to the other party. Generally speaking, where the consideration clearly appears grossly in- ^idequate, it will be considered by the Court whether it does not afford an indication of some fraud, wrong influence, or other cir- -cumstance which may entitle it to regard the contract as invalid. Laws vary as to this. In England there are distinctions' - But if one party was not aware of the obstacle there might be a phvim for <;ompensation. ■ . ■ ■ ..i'- PRINCIPLES OF CONTRACT, 47 between agreements (or contracts) under seal and those not nnder seal ; and there used to be some distinction as to an agreement o; the kind called an indenture, but this doei not now exist.^ It is often provided by law that certain agreements and acts connected with them must be in writing, or in writing and registereil under the law for registration of assurances. And there may bo requirements about witnesses signing, and the final "delivery."" Thus in India, an agreement in which affection, &c., is the sole consideration, is only yalid if in writing and registered ; and we have noted the case of a transfer of immoveable property worth Es.,100 and more, under the I. T. Act of 1882 (p. 26). So a promise to pay a debt which is time-barred ( i.e., cannot be recovered by suit owing to the law of limitation) must be registered. But unless there is some express provision of the kind, no particular form is required for any contract, though it may be customary (and wise) to have a formal written document ; and even if the parties intend to have a formal document, that will not prevent the contract being binding, ifr otherwise the proposal, acceptance, &c., have been fully made and assented to. If we were now going to become regular students of law, we should have to go on to the rules which are applicable to each of the separate kinds of contract-relation known to the law ; and a whole book would be required for the study of the various kinds of contract, which have their' own peculiarities. I will here only give you a general idea of the scope of contract law, by showing a table of the subject matter which it contains. There are two main divisions : "principal" contracts, which stand by themselves, as it were ; and " accessory," which hang on to some other contract. (A) " Principal " contracts — -exchange. -assignment of rights. \ / Loan for consumption o T,i,^-,v,«>.oi. There is a difference as regards the possession of wild and domestic animals. I am still in possession of my house dog, though he is temporarilj' out in the Jields ; but if I have captured a deer or a fox, directly it breaks loose it ceases to be in niy possession. POSSESSION IN GENERAL. 51) besides the physical power of dealing with the property, tlie in- tention of the person to exercise the control on behalf of himself ; and this is ascertainable from the circumstances ^ of the case with which we happen to be dealing. Under the circumstances, it often happens that a person is in full possession of property — e.g., of goods in a warehouse of which he has the key, or of goods which he has a delivery warrant for ; and yet the possession is not a direct actual possession. In all these cases we speak of having " constructive possession." The person is in such a position that it is " construed," or (under- stood) as involving legal possession. A person may also be in possession of a thing through his re- presentative ; and the correct doctrine is that this is not a fictitious but a real legal possession.^ " All that is necessary to possession being the power to resume physical control, and the determina- tion to exercise that control on my own behalf, I possess the money in the pocket of my servant, or the farm in the hands of mj^ bailiff, just as much as the ring on my finger, or the furniture of the house in which I live." This assumes the representative to be in friendly relation; that is, that he is not acting against me : the moment he does so and means to assume control on his own behalf, properly speaking, my possession is gone : or it is only by special devices and provisions of law * that my possession is held not to be lost. In order, therefore, to have a valid " possession by repre- sentative," the representative must be in control by consent of the principal, and that with the intent to exercise his control on behalf of the principal.* ■ That possession (in a legal sense) consists not only in the physical control, but also in the determination to exercise it on one's own hehalf, is also apparent if we consider how possession is transferred. Dr. Markby gives the following example (sect. 368, p. 187) : Suppose that you and I are living in the same house ; that you are the owner and that I am a lodger. And suppose that you, being in want of money, sell the house to me ; you receive tlie money, and formally acknowledge me as the ownei', agreeing to pay me a weekly sum for per- mission to you to continue to reside in the house. No external change whatever need have been taken place in our relative position ; we may continue to live on precisely as before ; yet there can be no doubt that I am now in legal possession of the house and tliat you are not. - Markb)', sects. 371 — 373. '' In English law, if you have received land from me on the understanding that you are to hold it on my behalf, there is hardly anything yoa can do that is held legally to oust my possession. ^ This subject is well illustrated by the provision in the Burma Land Act 60 FOREST LAW. Some consequences which follow from this doctrine, such as the possession by a Court of Wards, or a guardian on behalf of a minor or lunatic, need not be entered upon. It may be well, however, to say a few words about the relation of landlord and tenant, which is intimately connected with this matter. We have all heard in India, of " tenants with occupancy rights" and " tenants-at-will." Under English law, and under most continental law, though there is considerable difference of opinion among experts, it is quite possible to hold that a tenant has possession as repre- sentative of the owner, and that, in spite of many express rights and remedies which might suggest that he had a legal posses- sion on his own account. For these express rights may be all considered with reference to the tenant being in possession of his oivn rights over the land as tenant, which he may have without preventing his having representative possession of the land for his landlord. On this view, the tenant is treated, in fact, as a sort of bailiff for the owner, paying him a fixed sum out of the profits of farming, and retaining the remainder as his remuneration.-^ This mention of the English law is not superfluous, as it cannot be denied that from time to time, it has largely affected the ideas which officials in India have entertained regarding the relation of the greater landlords in Bengal, Oudh, and the North West Provinces, to their tenants. The ancient law will not afford us any help, for the Eastern mind did not, either in its customs or its legal systems, look at things in this way at all. The relation of landlord and tenant has grown up to a great extent under the operation of our Western law. We recognised (Act II. of 1876), sect. 2. There, possession is held to have been equally main- tained if it was by a man's servant, agent, tenant, or mortgagee holding under him . Nor is tlie possession broken if the land is left to lie fallow in the course of husbandry, but had previously been held in the way described. So pos.session is maintained by tlie significant act of paying the Government Land revenue due on it, either personally or by agent, &c. This latter point is applicable eveiy- where in India. If it is shown that a certain person always provided for paying the revenue, even if he did not himself make tlie payment, it would go far to show that, in law, he was in possession, and that the person ostensibly iu occupation had a merely representative possession. ' See Markby, sect. 338 ff., where the whole subject is discussed. I have not taken any notice in the text, of "derivative possession," because that term does not indicate a kind of possession, but refers to the origin of the possession, viz., that it was derived from some one else. The legal possession (of whatever kind iu itself) passes by transfer to the person affected by the transaction. POSSESSION BY TENANTS. 61 a proprietary right in land ; and in some cases, the proprietor was !i person who had, in the course of events, overridden the rights of the original landholders : these latter then came into the posi- tion which, for want of a better name, we called that of tenant. The position of such a " tenant " soon became somewhat perplexing to the Indian lawyers. They solved the question (speaking roughly) by various " Tenant laws," which secured a permanent right of occupancy to such of the tenants as had either an originally higher position, or who had, at least by cus- tom and general sentiment, some special claim to consideration. Thus, our solution of the question was necessarily not one based on any philosophically consistent theory, but on a desire to make some arrangement which would secure a practically valuable and lasting interest in the land to each of the different classes concerned. Consequently, in India, we must probably conclude that "tenants-at-will," — those who have nothing par- ticular in their favour, and are only on the land by lease or contract, have possession as representatives ; and with regard to those who have rights of occupancy, and cannot be ejected, they may still be in representative possession to some extent ; because they pay rent to some one : and that person's possession continues in the act of receiving his rent, to say nothing of his paying the Government revenue. Sir W. Markby ^ observes that, on the whole, while our law shows, on the one hand, a decided inclination to treat the tenant as having only a representative possession on behalf of the owner, on the other hand, his " right of occupancy " is clearly a right which is available against all the world, and not merely as by way of consent on the part of the owner ; in which case his pos- session is that of a right of continued user, not a mere contract- ri»ht. His possession then is, as I said, to some extent repre- .'■entative, and to some extent not : we cannot help the conflict of the two positions which arises out of the circumstances. 2. Wliat " things " are capable of possession. Eeturning to the general subject of possession, it may next be remarked that as actual physical prehension is not a necessary 1 Markby, sect. 389, pp. 198, 199. 62 FOEEST LAW. element in possession as understood in law, it may be possible to be " in possession " of things not actually tangible. It is not, however, to all " incorporeal " rights that the idea of possession can be extended. We must not press the extension beyond what is fair; we can, however, speak reasonably enough of a person as in possession of a " right of way " or of a " water- course ; " and lience possession extends generally to those rights which are called "servitudes" such as the "forest rights" oH which we shall have much to learn hereafter.^ There is a^ peculiarity connected with possession in such cases which must be noticed. A person who has a right to cut firewood cannot be engaged in cutting it every moment of his life. A 2iian is not perpetually going to and fro over the land which is subject to his right of way. For months together in a dry season, no water may flow off liiy land on to my neighbours'. Such rights are spoken of by lawj-ers, owing to this circum- stance, as " discontinuous " rights. Although it is easy to admit that such a right is still in possession, though it may not have been actually exercised for several days, or weeks or even months, at the same time we feel that, if, say, for several years, the right-holder had not once crossed my field, or during more than one winter (when firewood was most needed) had not once taken a stick from the forest, there might be very considerable doubt about his having maintained actual possession of the right. It is always a question of fact, whether the right has been main- tained." But the Indian law has settled the matter as far as may be, by the rule that, if the right has been intermitted for two years next before bringing a suit to establish it, the right would be lost.^ An intermission is not the same thing as an interruption. Under the Indian Limitation Act, an interruption is the act of some person against the right ; it is, in fact, an indication that, the right is disputed; and if an interruption is suffered or acquiesced in, for a whole year, the right is > I need liarclly quote authorities for the position that a rigM can bo iu possession. It is admitted iu the French and German as well as English text- books. - The English law has a distinction between rights of common and easements, in this respect, which has not been maintained in the Indian Act. In EnfflauJ an intermission at any rate of a right of common, is no bar to a proof of a "eneval user and possession for the required period (Williams, p. 178) " 3 Act XV. of 1877, sect. 26 : see illustration h. POSSESSION OF RIGHTS — OF JOINT OWNERS. 63 lost.^ The period after wliicli an uninterrupted use gives a right, is twenty years under section 26 of the Indian Limitation Act (and so sect. 15 of the Easements Act, 1882, where this is in force). There also remains one other point which I should notice, because joint-ounersltip is so very common in India. I allude to the nature of jiossessioii iii the cuse of co-propiietors. The maxim of English lawyers is that if there be two equal co- owners " each is possessed of the whole and the half." Each owner of the undivided property has access to and control over, every part of the property ; and he exercises that control not only on behalf of himself alone, but partly in respect of his own share, and partly as representative of the co-owner. It is well known that amongst Hindus, ancestral property is virtually owned by the whole family. A Hindu dies leaving three sons; these three succeed jointly. The family is not considered as a corporation (p. 34), and no member of the family can assert that any part of the family property belongs exclusively to him- self; but while he has a certain control over the whole, he is also in legal " possession '' (as above explained) of his own right or share. The "village community" of which we hear so much in India (i.e., where there is a body of co-sharing owners), is in fact, an organised patriarchal society consisting of such co-owners. It only remains to be added, that joint possession and co- ownership must not be confounded with the possession or owner- ship of " artificial persons," that is, of a body of persons ivhom the law regards as one person. "Where property belongs to the State, to a registered " company," or a " corporation," the law regards it as held by one legal owner. The legal possession of property is then in the one artificial p>erson , not in the individual members, as it is in co-ownership. 3. Loss of iwsscssion. Then, as to being put out of possession ; every act hy which physical control is completely destroyed, puts a man out of pos- session : not so where the loss of control is incomplete. I leave my axe hidden in a wood, knowing where it is and intending to 1 The Act explains that an " iuterraption " occurs where the soil-owner or some third person obstnicts the exercise of the right, and the obstruction is submitted to (being known) for a whole year. 64 FOKEST LAW. return and work with it next day; it [is not out of my posses- sion. I drop my ring into the river ; it is completely out of my possession. 4. Legal consequence of possession. These general ideas involved in the term "possession" as used by lawyers, are, you observe, independent of any question of the possession being rightful or wrongful. Possession by itself is a fact ; and its elements have to be understood. And as we shall further explain hereafter, the law will only allow de facto posses- sion to be disturbed by its own authorized action. It will respect possession as actually existing, and will compel others to respect it, until such time as some one proves that the possession is wrongful ; and then the law will (in executing its judgment) put an end to the wrongful possession and put in a rightful possessor instead. What has been said about Possession is onlj^ a very brief outline of a subject which in all its details and bearings is a very intricate one. Indeed, starting with the history of the Roman law on the subject, more than one elaborate treatise on "Posses- sion " has been written.^ (B) OwnersMp^Property. Possession is, ultimately, always enjoyed by an oivner : but a person may be owner of property and yet be out of possession (l here mean entirely out of possession, not merely out of per- sonal possession while still retaining it constructively or through a representative) : but in the end possession always accom- panies ownership. At the same time the right of oivnership clearly involves more than a bare legal possession. And this leads us to consider what the nature of ownership or right of property over " things " is, how it is acquired, how it maybe lost, and what are its legal features. Modes of acquisition. It will be convenient to speak first of the ways in which ownership may be acquired ; and I will at once enumerate the modes of acquisition and then explain them. ■ 1 Savigny's well-kriown work on Possession has been translated by Sir Erskine Perry. A modern contribution to the literature of the subject is the elaborate essay by Pollock and Wright, published at Oxford. OWNERSHIP — MODES OF ACQUIRING. C5 I. Prescription ; II. By accession to the principal thing ah-eaclj- owned. III. By transfer in one form or another. (I.) Prescription. The most obvious starting-point is that suggested by our latest observations. The simple taking possession, or occupaHo, was probably in early times, the most usual method by which property originated. People found what they wanted — a bit of land, a tree to cut down, or whatever it might be, either un- occupied and free, or else in the hands of an enemy from which it was taken by force. "When once various objects had been taken in this way, and the land seized on by tribes (who perhaps had a customary method of regulating appropriation within their own borders), an idea of exclusive right began to develop itself As time went on, lands were cleared and houses built, and a large class of (moveable) "goods and chattels" were accumulated in different hands. The sentiment of society gradually grew up, that even though the original act of taking possession, long ago, might have been doubtful, a subsequent peaceable, open, possession as owner, ought to be respected. The Eoman lawyers, with their usual neatness of expression and clearness of thought, established the rule that after a fixed, period — shorter in the case of goods and chattels, longer in the case of lands and houses — possession, however originating, could no longer be disturbed ; a good title of ownership was acquired. Taking possession (occupatio), when followed by open and peace- able enjoyment was called tisucapio ; and when this had gone on long enough (according to the legally prescribed term), it was held to have ripened into a "just title" hj prescription. The Roman lawyers belonged to a period when the primeval stage of society had long passed by ; but still it was possible to take possession of unowned things, or (still oftener) to take (or have) possession of them under certain defects of title, which time should cure. They required accordingly, that to gain a full title by prescription, the enjoyment of the property must have been what we call adverse, i.e., with the intention of hold- ing it as your own, adversely to any other opposing interests or claims : and they expressed their meaning by saying that the sort of possession which would (in time) give a title, was to be F.L. F 66 FOREST LAW. " nec vi, nee clam, nee precario ; " it was to bo peaceable, — not maintained by force against possibly better entitled claimants ; not held secretly or by fraud (so that any possible just claimants were unaware that their claims were denied or defrauded) ; nor pre- cariously — i.e., by such uncertain means, that one might say the holder was in possession to-day and out of it to-morrow. These conditions may appear to go against what I said before — that possession, however originating, might in time become perfected. But both are correct ; for though violent seizure (I do not speak of seizure in war),^ or possession by fraud, would prevent the period necessary for prescription from beginning to run until the fraud became known, or the violent seizure manifest, still if the parties entitled to object on these grounds, stood by and made no claim, and let the period run out, the original defects were cured, and a possession that was, ever since, open, peace- able, and settled, would be sufficient. At the present day, all kinds of useful " things " — moveable and immoveable — have been so fully and so long the subject of legal property, that there is but rarely an opportunity of taking 2}Gssession for the first time of unowned goods. Even in colonies or in outlying parts of India, no one can now seize on a piece of land, however apparently waste or unowned ; because there are laws which already determine the general question of the right to " waste lands." But still, the rule of possession, peaceable and open, giving a " prescriptive " title after a period of years fixed by law, is by no means without its use.- It may apply in the case of lands or houses, not because they can be seized, as in a state of nature, but because there may have been some defect in the title, or some circumstance which compels the present holder to rely on possession only as his basis. ' The Eoman lawyers lield tliat property of an enemy was " res iiuUius '—no man's goods, and so could be seized by the suecessfid combatant. "War, they said, restored things to a state of nature (in which nothing originally had a specific owner), and so awaited " occv2xition" by the successful jiarty. - The laws prescribing how many years' possession sliall ripen a claim to move- able, or immoveable property or an (incorporeal) right, are called Acts or Statutes of Limitation (in India Act XV. of 1877). In England the lawyers were slow to acknowledge that a title was acquired by the lapse of years. They said that the lapse took away the possibility of a remedy, but theoretically left an originid title untouched. No limitation law existed before the reign of James I. In India, the fiction of the English lawyers has never been admitted. The law there expressly declares that on the period of prescription being complete, the possible right of any one not in possession, is lost, and not merely his remedy barred. OWNERSHIP MODES OP ACQUIRING. 67 I recollect a case in India which will illustrate this. There was a considerable house property owned by A., who died having made a will leaving the estate to D. A. had only one (known) relative, a remote connection, C. As it happened, D, took possession under the will, and C. allowed the legal period to elapse without attempting to claim as natural heir; C.'s right was accordingly lost. Afterwards it turned out that A.'s will in favour of D. was absolutely void, so that D. (in possession) had no title. C. hearing of this, instantly com- menced a series of dealings with a view of successfully ovisting D. and getting possession himself — if he could do so without provoking legal interference (of which we shall presently speak). Here you will observe everything depended on possession; as long as D. had open, settled, peaceable possession, no one could interfere with him ; no violent attempt of C. to turn him out would have been allowed. But if C. could have managed to get possession without violence, fraud, ifec, then his possession would be respected, till D. could prove his title, find that (as his will was void) he could not do. It is with reference to this important influence of possession, that the Civil Law (Specific Kelief Act) will always give a summary remedy against dispossession. As soon as the mere fact of actual, present, possession is shown, the Court will maintain (or restore) it, and insist on the opponent filing a ■suit to prove his rights, and not disturbing the possession other- wise. And as sometimes these questions of possession give rise to violent quarrels, the Criminal Procedure law also enables a magistrate to interfere to maintain possession and prevent any violence.^ 1 The Xllth Chapter of the Criminal Procedure Code, sec. 145 — 148, is